我国劳务派遣法律问题探讨

发布时间：2018-02-13 09:40

本文关键词： 劳务派遣雇佣关系雇主责任　出处：《四川大学》2004年硕士论文　论文类型：学位论文

【摘要】：劳务派遣在世界范围已经普遍存在，我国自20世纪90年代兴起，已遍及全国。国外许多国家专门制订法律加以规范，而我国尚无统一法律、法规。虽有少数省、市、区颁布实施相关地方法规和规章，但其存在诸多缺陷，无助于解决劳务派遣在现有法律制度下面临的问题。因此，着力研究劳务派遣法律问题，可以充实人们对劳务派遣的认识，同时，为建立规范劳务派遣的法律制度提供参考。本文共分为五章。第一章从研究背景和动机中，归纳出研究目的。第二章对劳务派遣的概念、涵义和特征；劳务派遣法律关系结构；劳务派遣和承揽的区别以及劳务派遣型态及其特征四个基本问题进行了研究。归纳出，劳务派遣是与传统劳动雇佣关系不同的一种复杂的“三角”雇佣关系。劳务派遣由派遣机构、派遣劳工和要派机构三方当事人协力完成。派遣机构与派遣劳工签订劳动契约，约定派遣劳工为劳动契约外第三方当事人——要派机构提供劳务，并接受其指示和监督；派遣机构与要派机构签订劳务派遣契约，约定由派遣劳工向要派机构提供劳务，要派机构向派遣机构支付劳务费(包括派遣劳工的工资、社会保险和派遣机构服务费等)作为使用派遣劳工的对价。这种雇佣型态已不同于传统民法和劳动法界定的雇员在雇主的直接指示命令和监督下向雇主提供劳务的雇佣型态。并且，劳务派遣与承揽截然不同。劳务派遣机构雇佣劳工是供他人——要派机构使用，劳工接受要派机构的指示和监督，承揽人雇佣劳工是为自己使用并接受自己的指示和监督。换言之，派遣劳工提供劳务的对象不是与其有法律上雇佣关系的雇主，而承揽中劳工提供劳务的对象是与其存在法律上雇佣关系的雇主。劳务派遣的复杂性还表现在劳务派遣存在两种型态，既“常雇型”和“登录型”。前者是指派遣机构将其长期雇佣的劳工派至要派机构提供劳务。派遣劳工与派遣机构之间的雇佣关系不受劳工是否被派遣影响，即使没有派遣任务，其雇佣关系仍然可以续存;后者是指在劳工接受派遣前，派遣机构与派遣劳工之间并未签订劳动契约，派遣劳工仅是在派遣机构进行求职登记，直到要派机构向派遣机构提出人力需求时，派遣机构方与派遣劳工签订劳动契约，派遣工作结束，雇佣关系也随之终止。因此“登录型” 派遣就业较之“常雇型”派遣就业更加不安定。第三章结合我国《劳动法》、《刑法》、《工会法》、《工伤保险条例》等相关法律法规的规定，着重分析了我国劳务派遣中应当给予重视的主要法律问题，并提出了解决问题的建议。 1，谁是派遣劳工的雇主。仅仅从签订劳动契约来看，自然会认为派遣机构就是派遣劳工的雇主。但从劳务派遣实际运作来看，要派机构不仅享有“劳务请求权”和“指示命令权”，而且，大部分传统意义上属于雇主的职能都由其行使，很难辨别谁是雇主。确定谁是雇主与划分雇主责任密切相关，如果简单地认为某一方是派遣劳工的雇主，都可能导致义务和责任承担上的不公平。所以，，笔者建议，借鉴美国关于“共同雇主”(joint emPloyers)的概念，根据权利义务对等原则，将要派机构与派遣机构视为共同雇主，以适应有效规范劳务派遣之需。 2，谁来承担雇主义务和责任。首先，虽然派遣机构与要派机构可以在劳务派遣契约中约定涉及派遣劳工的权益的义务和责任。但约定不明或没有约定时，责任由谁承担?其次，由于我国《刑法》规定的“强迫职工劳动罪”的主体是与职工存在法律上劳动关系的用人单位，这就使得在劳务派遣中的实际用人单位—要派机构由于不是《刑法》规定的主体，即使存在强迫派遣劳工劳动的现象，也可能逍遥法外。因此，如果借鉴“共同雇主”概念，就可以通过立法，为要派机构分派劳工现场作业之必要义务和责任，劳务派遣中雇主责任问题也就迎刃而解。 3，派遣劳工在要派机构之现场工作，自然应当遵守要派机构的劳动规则，但按照《劳动法》及相关规范性文件的规定，对职工违反用人单位规章制度时享有惩戒权的主体是与职工建立合法劳动关系的雇主。而要派机构并非派遣劳工法律之雇主，行使惩戒权的依据何在?如果要派机构不能行使惩戒权，其“指示命令权”又由何以得到保障? 4，集体谈判权体现于工会代表职工与用人单位签订的集体合同。在劳务派遣中，派遣劳工，特别是“登录型”派遣劳工与派遣机构自己雇佣的员工几乎没有共同利益，而与要派机构常雇劳工在工资、福利、安全卫生等方面存在共同利益。因此，派遣劳工加入派遣机构工会，对通过集体协商改善劳动待遇和条件无实质意义。而只有加入要派机构的工会，派遣劳工才能有机会获得与其它要派机构劳工平等的工作待遇和条件。第四章通过对日本、美国、台湾地区有关劳务派遣法律制度以及国际劳工组织公约的探讨，鉴于目前我国一些地方有关劳务派遣法律制度存在的对当事人权利义务和责任规定不明、规定不全或规定不和理、缺乏操作性、适用性以及立法层级太低、不利于我国法制统一的问题，提出了建立劳务派遣法律制度，应当树立市场经济与经济全球化、法制统一与社会公平、意思自治与国家强制的观念;应当采用单独立法模式，以利于节约
[Abstract]:Labor dispatch has been widespread in the world, China's rise since 1990s, has been all over the country. Many foreign countries devoted to the development of legal norms, and our country has no unified laws and regulations. Although some province, city, District, the promulgation and implementation of relevant local laws and regulations, but there are many defects, helpless to solve the labor dispatch in the face of the existing legal system problems. Therefore, to study the labor dispatch legal problems, can enrich the understanding of people on the labor dispatch at the same time, to provide the reference for the establishment of a legal system to regulate labor dispatch.
This article is divided into five chapters.
In the first chapter, the purpose of the study is summed up from the background and motivation of the study.
The second chapter is the concept of labor dispatch, connotation and characteristics of labor dispatch structure; legal relation; labor dispatch and contract and the difference of labor dispatch patterns and characteristics of four basic problems are studied. Summed up, the labor dispatch is a complex "triangle" is different from the traditional labor relations of the labor dispatch by the employment relationship. The dispatch organization, the dispatched workers and to send three party collaborative. The dispatch organization signed a labor contract with the dispatched workers, dispatched workers labor contract agreed to third parties to send agencies to provide services, and receive their instructions and supervision; the dispatch organization and the dispatching agencies signing labor contract, agreed to by the dispatched workers to send the agencies to provide services, to pay the service fee to the agency sent dispatch agencies (including the dispatch of labor wages, social insurance and service fees as the dispatch organization) The use of dispatched workers on price. This pattern has different types of employment employment direct instructions in the traditional civil law and labor law defines the employer and employees in order to provide services under the supervision of employers. In addition, the labor dispatch and dispatch mechanism. Different contract labour is for others to send instructions to accept labor mechanism to use. School and supervision institutions, the contractor hired labor is for personal use and accept the instruction and supervision of their own. In other words, dispatched workers service object is not legal and employment relationship between the employer and the contractor, in the labor service object is
The complexity of labor dispatch is also shown in labor dispatch two.
Type, both "regular employment" and "logon type". The former refers to the labor faction that the dispatched institutions employ for a long time.
The employment relationship between dispatched workers and dispatched institutions is not subject to labor dispatch.
The employment relationship can still be continued even if the task is not sent; the latter refers to the labor acceptance.
Before the dispatch, there is no labor contract between the dispatched organization and the dispatched workers, and the dispatched labor is only the dispatch machine.
A job registration is carried out until the organization is required to send human needs to the dispatch agency.
The labor contract is signed by the labourers, the termination of the dispatch work and the termination of the employment relationship.
The dispatch of employment is more unstable than the "regular employment".
The third chapter is related to China's labor law, the criminal law, the trade union law, the industrial injury insurance regulations and so on
The provisions of laws and regulations, focusing on the analysis of the main legal issues that should be paid attention to in our labor dispatch.
And put forward some suggestions to solve the problem.
1, who is the employer who dispatched labor. Only from the sign of the labor contract, it will naturally consider the dispatch agency
It is the employer who dispatches labor. But from the actual operation of labor dispatch, the organization should not only enjoy the "labor service".
The right of request and the "command of instructions", and most of the functions of the employer in the traditional sense
It makes it difficult to identify who is the employer. It is closely related to determining who is the employer and the division of the employer's responsibility, if it is simple.
The employer who thinks that one party is a laborer may lead to the unfairness of the obligations and responsibilities.
The author suggests that the concept of "joint emPloyers" in the United States should be used for reference, according to the rights and obligations
The principle of reciprocity is to send organizations and agencies as common employers to adapt to the effective regulation of labor dispatch.
Required.
2, who will undertake the employer's obligations and responsibilities. First, although the dispatch agency and the organization can work in the labor service
The obligations and responsibilities concerning the rights and interests of the dispatched workers are agreed in the dispatch contract.
Who is responsible for the responsibility? Secondly, the subject of "the crime of forcing workers to work" is the subject of the criminal law of China.
The employer has legal labor relations with the staff and workers, which makes the actual use of people in the labor dispatch.
Even if there is a forced labor force to send labour, it is not the subject of the penal code.
The phenomenon may also be at large. Therefore, if the concept of "common employer" is used for reference, it can be passed through legislation.
In order to assign the necessary duties and responsibilities of the organization to assign the labor field work, the problem of the employer's responsibility in the labor dispatch
It is easy to solve it.
3, to send workers to work on the site of an institution, they should naturally abide by the rules of labor to be sent to institutions.
However, in accordance with the provisions of the labor law and the relevant normative documents, the workers' violation of the rules and regulations of the employer's unit
The subject of the right to punish is the employer who establishes legal labor relations with the staff and workers.
What is the basis for the employer to exercise the right of punishment? If the organization is not allowed to exercise the right of punishment, it "means"
What is the guarantee of the right to show the order?
4, the collective bargaining power is embodied in the collective contract signed by the trade union representatives and the employers.
To send workers, especially the "logon type" dispatched workers and employees to hire almost all of their own employees.
There is no common interest, and there is a common employment of workers in the areas of wages, welfare, safety and health.
As a result, dispatched labour to join the trade unions of the dispatched institutions to improve the treatment of labor through collective bargaining and
Conditions are not substantial, but only by joining a trade union that is to be sent to the organization, it will be possible for the workers to have the opportunity to obtain it.
It has to send the equal treatment and conditions of the organization's labor.
The fourth chapter through the legal system of labor dispatch in Japan, the United States, Taiwan and the international labor
The discussion of the Organization Convention, in view of the present situation of some local labor dispatch legal systems in our country
The provisions of the rights and duties and responsibilities of the person are unknown, and the provisions are not complete or prescribed, the lack of operability and the applicability of the provisions.
And the legislative level is too low, which is not conducive to the unification of China's legal system, and puts forward the establishment of a labor dispatch legal system.
We should set up market economy and economic globalization, legal unity and social equity, autonomy of the meaning and state coercion
We should adopt a separate legislative model in order to save economy.

【学位授予单位】：四川大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D920.4

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