劳务派遣中工伤保险责任研究
发布时间：2018-08-14 19:15
【摘要】：劳务派遣起源于西方发达国家,作为一种灵活的就业方式,在德、日、美等国家发展的比较早。我国引进劳务派遣用工方式比较晚,但是发展速度非常快,引起了社会各界的重视,国内学者们纷纷将其作为研究的对象。近来,中国的市场经济正处于改革与转型阶段。随着劳务派遣新型用工的引进,我国的劳动关系亦产生了重大变革。《劳动合同法》和《劳动合同法实施条例》首次规定了劳务派遣相关内容,规范了该新型用工模式。法律随着经济的变化而变化。2013年我国主要修正了《劳动合同法》关于劳务派遣的规定,其中包括法律责任的修改。但修改后的劳务派遣规定在司法适用中过于笼统,2014年我国出台了《劳务派遣暂行规定》,进一步明确了双方单位的义务和责任。从立法发展看,关于工伤保险责任的承担主体发生了重大变化：《劳动合同法》第92条修改了用工单位承担连带责任的情形,类似于美国“共同雇主理论”下的连带责任,但是我国缺少“共同雇主理论”的基础,导致了劳务派遣单位和用工单位对工伤保险责任的推脱。《劳务派遣暂行规定》第十条弥补了上述现象,将工伤保险责任完全归于劳务派遣单位,但是这一规定与九十二条连带责任的规定存在适用冲突,并且增加了派遣单位的责任负担。劳务派遣用工具有特殊性,派遣单位招工但不用工,用工单位实际用工,将工伤保险责任笼统地归于派遣单位,使得义务和责任相分离,不利于被派遣劳动者(派遣工)的工伤事故的预防和工伤救济。因此,本文探讨了工伤保险责任由双方单位共同承担的合理性以及针对此问题相关立法完善。首先,工伤保险责任的承担应当以劳务派遣中的法律关系为基础。本文整理了国内关于劳务派遣法律关系的争论,并在双重劳动关系理论的基础上明确用工单位的劳动主体地位,提出了主从劳动关系。派遣工和劳务派遣单位构成主劳动关系,和用工单位构成从劳动关系,三方形成了完整的劳动关系结构。其次,本文评析了德、日、美国家关于劳务派遣工伤保险责任的规定,并分析了我国关于劳务派遣工伤保险责任划分的立法现状及缺陷。最后,基于双重劳动关系理论,同时汲取国外先进的立法规定,对完善我国劳务派遣中工伤保险责任提出了几点建议：完善劳务派遣中工伤保险责任的主体地位,工伤保险责任的范围,相关法律的适用以及工伤保险的监督管理机制。
[Abstract]:Labor dispatch originated from the western developed countries, as a flexible way of employment, in Germany, Japan, the United States and other countries developed earlier. The introduction of labor dispatch in our country is late, but the speed of development is very fast, which has aroused the attention of all walks of life, and domestic scholars have taken it as the object of study one after another. Recently, China's market economy is in the reform and transformation stage. With the introduction of a new type of labor dispatch, the labor relations in our country have also undergone great changes. The Labor contract Law and the regulations on the implementation of the Labor contract Law have for the first time stipulated the relevant contents of the labor dispatch and standardized the new employment mode. The law changes with the change of economy. In 2013, China mainly amended the provisions of Labor contract Law on labor dispatch, including the revision of legal liability. However, the revised labor dispatch regulations are too general in the judicial application. In 2014, China issued the "temporary provisions on Labor dispatch", which further clarifies the obligations and responsibilities of the units of both sides. From the perspective of legislative development, major changes have taken place in the subject of liability for industrial injury insurance: article 92 of the Labor contract Law modifies the situation of joint and several liability of employment units, which is similar to the joint liability under the "common employer theory" in the United States. However, the lack of the foundation of the "common employer theory" in our country has led to the abrogation of the liability of industrial injury insurance by labor dispatch units and employment units. Article 10 of the interim provisions on Labor dispatch makes up for the above phenomenon. The liability of industrial injury insurance is completely attributed to the labor dispatch unit, but this provision is in conflict with the provisions of 92 joint and several liabilities, and increases the responsibility burden of the dispatch unit. The labor dispatch tool has its particularity, the dispatch unit recruits but does not employ, the employment unit actually employs, the responsibility for industrial injury insurance is generally attributed to the dispatch unit, which separates the obligation from the responsibility. Prevention and compensation of industrial accidents against dispatched workers (dispatch workers). Therefore, this paper discusses the rationality of the joint responsibility of the two parties and the perfection of the relevant legislation. First of all, the liability of industrial injury insurance should be based on the legal relationship in labor dispatch. This paper collates the domestic disputes about the legal relationship of labor dispatch, and on the basis of the theory of dual labor relations, clarifies the position of the labor subject of the employing units, and puts forward the principal and subordinate labor relations. Dispatch and labor dispatch units constitute main labor relations and employment units constitute slave labor relations, and the three parties form a complete structure of labor relations. Secondly, this paper analyzes the provisions of labor dispatch industrial injury insurance liability in Germany, Japan and the United States, and analyzes the legislative status and defects of the division of labor dispatch industrial injury insurance liability in China. Finally, based on the theory of dual labor relations and drawing on foreign advanced legislation, some suggestions are put forward to improve the liability of industrial injury insurance in labor dispatch in our country: to perfect the main position of the liability of industrial injury insurance in labor dispatch. The scope of industrial injury insurance liability, the application of relevant laws and the supervision and management mechanism of industrial injury insurance.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.5
本文编号：2183853
[Abstract]:Labor dispatch originated from the western developed countries, as a flexible way of employment, in Germany, Japan, the United States and other countries developed earlier. The introduction of labor dispatch in our country is late, but the speed of development is very fast, which has aroused the attention of all walks of life, and domestic scholars have taken it as the object of study one after another. Recently, China's market economy is in the reform and transformation stage. With the introduction of a new type of labor dispatch, the labor relations in our country have also undergone great changes. The Labor contract Law and the regulations on the implementation of the Labor contract Law have for the first time stipulated the relevant contents of the labor dispatch and standardized the new employment mode. The law changes with the change of economy. In 2013, China mainly amended the provisions of Labor contract Law on labor dispatch, including the revision of legal liability. However, the revised labor dispatch regulations are too general in the judicial application. In 2014, China issued the "temporary provisions on Labor dispatch", which further clarifies the obligations and responsibilities of the units of both sides. From the perspective of legislative development, major changes have taken place in the subject of liability for industrial injury insurance: article 92 of the Labor contract Law modifies the situation of joint and several liability of employment units, which is similar to the joint liability under the "common employer theory" in the United States. However, the lack of the foundation of the "common employer theory" in our country has led to the abrogation of the liability of industrial injury insurance by labor dispatch units and employment units. Article 10 of the interim provisions on Labor dispatch makes up for the above phenomenon. The liability of industrial injury insurance is completely attributed to the labor dispatch unit, but this provision is in conflict with the provisions of 92 joint and several liabilities, and increases the responsibility burden of the dispatch unit. The labor dispatch tool has its particularity, the dispatch unit recruits but does not employ, the employment unit actually employs, the responsibility for industrial injury insurance is generally attributed to the dispatch unit, which separates the obligation from the responsibility. Prevention and compensation of industrial accidents against dispatched workers (dispatch workers). Therefore, this paper discusses the rationality of the joint responsibility of the two parties and the perfection of the relevant legislation. First of all, the liability of industrial injury insurance should be based on the legal relationship in labor dispatch. This paper collates the domestic disputes about the legal relationship of labor dispatch, and on the basis of the theory of dual labor relations, clarifies the position of the labor subject of the employing units, and puts forward the principal and subordinate labor relations. Dispatch and labor dispatch units constitute main labor relations and employment units constitute slave labor relations, and the three parties form a complete structure of labor relations. Secondly, this paper analyzes the provisions of labor dispatch industrial injury insurance liability in Germany, Japan and the United States, and analyzes the legislative status and defects of the division of labor dispatch industrial injury insurance liability in China. Finally, based on the theory of dual labor relations and drawing on foreign advanced legislation, some suggestions are put forward to improve the liability of industrial injury insurance in labor dispatch in our country: to perfect the main position of the liability of industrial injury insurance in labor dispatch. The scope of industrial injury insurance liability, the application of relevant laws and the supervision and management mechanism of industrial injury insurance.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.5
【参考文献】
相关期刊论文 前10条
1 杨永琦;;劳务派遣单位与劳务派遣用工单位的责任承担[J];人事天地;2015年05期
2 涂永前;;论用工单位介入派遣劳动合同[J];现代法学;2015年02期
3 陈晶兰;;劳务派遣用工关系中用工单位承担连带赔偿责任之问题分析[J];人力资源管理;2015年03期
4 谢增毅;;劳务派遣规制失灵的原因与出路[J];环球法律评论;2015年01期
5 江毅;;论工伤侵权的归责原则[J];赤峰学院学报(汉文哲学社会科学版);2014年11期
6 徐增鹏;;劳务派遣连带责任制度研究[J];中国劳动;2014年11期
7 杨兴坤;;劳务派遣中工伤保险责任的设立[J];中国社会保障;2014年10期
8 陈小玉;;劳务派遣单位与用工单位的赔偿金责任分配的探究[J];科技展望;2014年16期
9 董保华;;劳务派遣的题中应有之义——论劳务派遣超常发展的“堵”与“疏”[J];探索与争鸣;2012年08期
10 曹艳春;张扬;;劳务派遣中工伤损害赔偿责任的研究[J];中国劳动;2012年07期
，本文编号：2183853
本文链接：https://www.wllwen.com/falvlunwen/hetongqiyue/2183853.html
