我国适用《2006年海事劳工公约》研究
发布时间：2018-07-25 06:24
【摘要】：本文通过对《2006年海事劳工公约》(MLC 2006)国内外相关文献的研究,结合我国的国情,对MCL 2006在我国适用遇到的现实困境进行分析并提出解决之道,为我国尽快地批准和更好地适用该公约提供参考借鉴。本文除引言和结论外,包括6部分。各部分主要内容如下：第1章从宏观的层面概述了MCL 2006的制定背景,准确把握以往涉及船员劳动保障公约的局限,对比新公约的突出特点及改革创新之处,并结合目前公约缔约国的批准情况,用比较的方法研究各公约批准国目前的批约和履约状况,在此基础上,重点阐述我国批准《2006年海事劳工公约》的必要性和可行性。第2章从国际公约国内适用的基本理论展开,研究我国适用MLC 2006的难点之一。自国际法诞生以来,国家在理论和实践上有“服从国际法”的倾向,国际条约也可根据其自身的制度设计对非缔约国产生强制约束力。此外,本章还分析了国际公约在国内适用的前提,讨论国际公约在国内适用的方式,国际公约在我国的法律地位。针对国际公约在我国适用的现实情况,提出我国适用MLC 2006应当整合现有的立法和司法实践,采取混合模式履行公约。第3章研究海事管理机构和其他部门履约职划分问题,即我国适用MLC 2006的难点之二。针对海事管理机构和出入境检验检疫部门分别按照国际公约和国内法规,对船员健康及体检证书问题进行管理,造成船员两次健康检查的现状,认为应统一《海船船员健康证书》和《国际旅行健康检查证明书》船员体检项目,互认国际旅行卫生保健中心和船员职业健康鉴定体检机构,真正实现船员一次体检、两本证书；此外,基于政府职能划分的“最优结构”的理论以及行政法上“权责一致”原则,提出整合船员劳动监察的实施主体,授予海事管理机构完整的监察权限,人社部门负责归口指导。最终实现减少职责交叉、提高工作效率,更好地服务船员、服务海运业。第4章解决适用公约的难点三,即协调船员就业法律关系。全面分析船员劳务派遣、劳动关系与劳务关系,船员与船员管理公司、船员与船舶所有人之间的关系,船员对外劳务派遣关系及面临的问题,并从厘清船员劳务外派法律关系、完善船员劳动关系集体协商立法等方面提出完善船员劳动关系立法的对策方案。在此基础上,分析船员招募与安置机构现状,并提出了完善船员招募与安置机构监督管理的措施。第5章解决适用公约的难点四,即完善船员社会保障制度。通过调查发现我国没有单独为船员制定社会保障的法律法规,缺乏针对船员特殊性而设立的法律制度,导致船员社会保障在社会保险、社会福利、社会救助等主要方面存在诸多问题。本文强调应按照有利于船员权益维护的原则来解决,并从加强船员社会保障立法、充分发挥工会组织维权作用、落实为自由船员缴纳社会保险单位、完善船员岸上福利设施、健全船员社会救济制度及途径等方面,落实完善船员的社会保障。第6章解决适用公约的难点五,即建立船员劳动争议解决机制。立足于我国复杂的船员就业法律关系,分析船员劳动争议处理机制存在的现实问题,结合MLC2006对船员劳动争议解决的要求,提出设立专门的劳动争议审判庭等完善我国船员劳动争议处理机制的对策。
[Abstract]:In this paper, through the study of the relevant documents at home and abroad of the <2006 Maritime Labour Convention (MLC 2006) and the national conditions of our country, this paper analyzes and puts forward the solution to the practical predicament of the application of MCL 2006 in our country, and provides reference for our country to approve and better apply the Convention as soon as possible. Besides the introduction and conclusion, this article includes 6 parts. The main contents of each part are as follows: the first chapter outlines the setting of the MCL 2006 from the macro level, accurately grasps the limitations of the previous convention involving the labor security of the crew, contrasts the outstanding features and innovation of the new convention, and studies the ratification of the ratifications of the various conventions in comparison with the ratification of the Contracting States of the present Convention. On the basis of the situation of contract and performance, the necessity and feasibility of the approval of China's Maritime Labour Convention for <2006 is emphasized. The second chapter is one of the difficulties in the study of China's application of MLC 2006 from the basic theories of international conventions. Since the birth of international law, the state has a tendency to "obey international law" in theory and practice. In addition, this chapter also analyzes the premise of the application of international conventions in China, and discusses the applicable ways of international conventions in China, the legal status of international conventions in our country, and the application of international conventions in our country, and puts forward the application of MLC 2006 in China. We should integrate the existing legislative and judicial practice and adopt a mixed mode to perform the Convention. The third chapter studies the classification of the performance of the maritime administration and other departments, that is, two of the difficulties in the application of MLC 2006 in our country. The health and physical examination of the crew in accordance with the international conventions and domestic laws and regulations of the maritime administration and the entry and exit inspection and quarantine departments, respectively. The management of the certificate issues resulted in the status of the two health inspection of the crew. It considered that the health certificate of seafarers and the health inspection certificate of the international travel health inspection certificate should be unified and the international travel health care center and the seafarer's occupational health identification physical examination institutions should be recognized, and the seaman's physical examination and two certificates were realized. The theory of "optimal structure" of the division of government functions and the principle of "power and responsibility agreement" in administrative law, put forward to integrate the main body of the crew's labor supervision, grant the complete supervisory authority of the maritime administrative organization, and the human society department is responsible for the guidance. Finally, it can reduce the crossing of the duties, improve the work efficiency, and serve the crew better and serve the sea. The fourth chapter is to solve the difficulties in the application of the Convention, namely, to coordinate the legal relationship between the crew and the crew. It is a comprehensive analysis of the crew's labor dispatch, the labor relations and labor relations, the crew and the crew management company, the relationship between the crew and the ship owners, the relationship between the crew and the crew, and the legal relations between the crew and the crew. On the basis of this, the present situation of the crew recruitment and resettlement institutions is analyzed and the measures to improve the supervision and management of the crew recruitment and resettlement institutions are put forward on this basis. The fifth chapter is to solve the difficulties in the application of the Convention, which is to improve the social security system of the crew. After the investigation, we found that there are no laws and regulations for the crew to make social security alone, and lack of legal system for the particularity of the crew. There are many problems in social security, social welfare and social assistance. This article emphasizes that the principle of protecting the rights and interests of the crew should be solved, and this article emphasizes that the principle of protecting the rights and interests of the crew should be solved. From strengthening the social security legislation of the crew, giving full play to the rights of the union organization, implementing the social insurance units for the free crew, perfecting the seafarer's shore welfare facilities, perfecting the social relief system and ways of the crew, the social security of the crew is perfected. The sixth chapter solves the difficulty of the application of the Convention, namely, to establish the dispute solution of the crew's labor dispute. Based on the complicated legal relations of the crew employment in our country, this paper analyzes the practical problems in the handling mechanism of the crew's labor dispute, and puts forward the Countermeasures of establishing a special labor dispute trial court to improve the handling mechanism of the labor dispute of our crew, combining with the requirements of the MLC2006 for the settlement of the labor dispute of the crew.
【学位授予单位】：大连海事大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D998.2
本文编号：2142919
[Abstract]:In this paper, through the study of the relevant documents at home and abroad of the <2006 Maritime Labour Convention (MLC 2006) and the national conditions of our country, this paper analyzes and puts forward the solution to the practical predicament of the application of MCL 2006 in our country, and provides reference for our country to approve and better apply the Convention as soon as possible. Besides the introduction and conclusion, this article includes 6 parts. The main contents of each part are as follows: the first chapter outlines the setting of the MCL 2006 from the macro level, accurately grasps the limitations of the previous convention involving the labor security of the crew, contrasts the outstanding features and innovation of the new convention, and studies the ratification of the ratifications of the various conventions in comparison with the ratification of the Contracting States of the present Convention. On the basis of the situation of contract and performance, the necessity and feasibility of the approval of China's Maritime Labour Convention for <2006 is emphasized. The second chapter is one of the difficulties in the study of China's application of MLC 2006 from the basic theories of international conventions. Since the birth of international law, the state has a tendency to "obey international law" in theory and practice. In addition, this chapter also analyzes the premise of the application of international conventions in China, and discusses the applicable ways of international conventions in China, the legal status of international conventions in our country, and the application of international conventions in our country, and puts forward the application of MLC 2006 in China. We should integrate the existing legislative and judicial practice and adopt a mixed mode to perform the Convention. The third chapter studies the classification of the performance of the maritime administration and other departments, that is, two of the difficulties in the application of MLC 2006 in our country. The health and physical examination of the crew in accordance with the international conventions and domestic laws and regulations of the maritime administration and the entry and exit inspection and quarantine departments, respectively. The management of the certificate issues resulted in the status of the two health inspection of the crew. It considered that the health certificate of seafarers and the health inspection certificate of the international travel health inspection certificate should be unified and the international travel health care center and the seafarer's occupational health identification physical examination institutions should be recognized, and the seaman's physical examination and two certificates were realized. The theory of "optimal structure" of the division of government functions and the principle of "power and responsibility agreement" in administrative law, put forward to integrate the main body of the crew's labor supervision, grant the complete supervisory authority of the maritime administrative organization, and the human society department is responsible for the guidance. Finally, it can reduce the crossing of the duties, improve the work efficiency, and serve the crew better and serve the sea. The fourth chapter is to solve the difficulties in the application of the Convention, namely, to coordinate the legal relationship between the crew and the crew. It is a comprehensive analysis of the crew's labor dispatch, the labor relations and labor relations, the crew and the crew management company, the relationship between the crew and the ship owners, the relationship between the crew and the crew, and the legal relations between the crew and the crew. On the basis of this, the present situation of the crew recruitment and resettlement institutions is analyzed and the measures to improve the supervision and management of the crew recruitment and resettlement institutions are put forward on this basis. The fifth chapter is to solve the difficulties in the application of the Convention, which is to improve the social security system of the crew. After the investigation, we found that there are no laws and regulations for the crew to make social security alone, and lack of legal system for the particularity of the crew. There are many problems in social security, social welfare and social assistance. This article emphasizes that the principle of protecting the rights and interests of the crew should be solved, and this article emphasizes that the principle of protecting the rights and interests of the crew should be solved. From strengthening the social security legislation of the crew, giving full play to the rights of the union organization, implementing the social insurance units for the free crew, perfecting the seafarer's shore welfare facilities, perfecting the social relief system and ways of the crew, the social security of the crew is perfected. The sixth chapter solves the difficulty of the application of the Convention, namely, to establish the dispute solution of the crew's labor dispute. Based on the complicated legal relations of the crew employment in our country, this paper analyzes the practical problems in the handling mechanism of the crew's labor dispute, and puts forward the Countermeasures of establishing a special labor dispute trial court to improve the handling mechanism of the labor dispute of our crew, combining with the requirements of the MLC2006 for the settlement of the labor dispute of the crew.
【学位授予单位】：大连海事大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D998.2
【参考文献】
相关期刊论文 前10条
1 莫于川;行政职权的行政法解析与建构[J];重庆社会科学;2004年01期
2 马炎秋;闫泰;;简析船员外派企业的法律性质[J];大连海事大学学报(社会科学版);2010年03期
3 张丽敏;;论船员权利保障——从海事机构履行《海事劳工公约》角度分析[J];广东交通职业技术学院学报;2010年03期
4 车丕照;;认真对待条约——写在中国“入世”10周年之际[J];国际经济法学刊;2011年02期
5 林燕玲;;体面劳动在中国的阐释和实践[J];北京市工会干部学院学报;2011年01期
6 肖唤元;;我国航运企业劳资关系现状及原因分析[J];法制博览(中旬刊);2013年09期
7 周秀玲;;聚焦《2006综合海事劳工公约》关注我国船员立法[J];中国海事;2006年04期
8 段尊雷;印绍周;;海员获得使用岸上福利设施的思考[J];中国海事;2011年10期
9 张坤;;鸦片战争前在华英美海员福利机构及其活动[J];暨南学报(哲学社会科学版);2011年01期
10 常凯;论个别劳动关系的法律特征——兼及劳动关系法律调整的趋向[J];中国劳动;2004年04期
相关博士学位论文 前1条
1 贾少学;全球化时代的国际法与国内法关系研究[D];吉林大学;2008年
相关硕士学位论文 前4条
1 张逖;我国企业年金基金运运作模式分析与优化对策研究[D];山东大学;2010年
2 柳强;外派船员权利保障研究[D];大连海事大学;2007年
3 王萍萍;我国船员社会保障法律问题探究[D];大连海事大学;2012年
4 姚逸林;船员外派机构法律地位研究[D];大连海事大学;2013年
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