小议劳务派遣中现存的问题和对策

发布时间：2018-05-19 00:21

本文选题：劳务派遣 + 一重劳动关系　；参考：《华东政法大学》2011年硕士论文

【摘要】：与传统劳动用工形式相比,劳务派遣的特殊性在于雇佣与使用分离。劳务派遣单位负责雇佣,包括被派遣劳动者的录用、派遣、档案管理、社会保险登记和缴费等非生产性事务;用工单位则负责使用,仅承担安全卫生管理、劳动纪律等生产性事务方面的责任。因此,劳务派遣单位和用工单位究竟谁来承担雇主责任,成为争议的焦点。从雇主责任承担的角度出发,学术界就劳务派遣法律关系产生两种对立的学说,一重劳动关系学说和双重劳动关系学说。一重劳动关系学说又分为两种观点,一是由劳务派遣单位承担雇主责任的一重劳动关系学说,另一种是由用工单位承担雇主责任的一重劳动关系学说,又称一重劳动关系双层运行学说。而双重劳动关系学说,即由劳务派遣单位和用工单位共同承担雇主责任。我国正在大力发展劳务派遣行业,鼓励劳务派遣单位和用工单位实现双赢的同时,也要兼顾被派遣劳动者权益的保障问题,这是规范劳务派遣市场的核心问题,并成为影响劳务派遣行业健康有序发展的瓶颈。在政府适度管制的全球大趋势背景下,我国学术界基本达成共识,强调法律规范是根本途径。因此,在立法实践中,《中华人民共和国劳动合同法》及其《实施条例》在确立劳动关系方面,采用的是一重劳动关系学说,但是在雇主责任承担方面则采用了双重劳动关系学说。两种标准的同时运用不可避免地导致立法中的自相矛盾。本文从劳务派遣法律关系架构分析出发,寻找《中华人民共和国劳动合同法》及其《实施条例》中存在的自相矛盾之处,例如在工资支付时发生责任义务重叠、同工同酬的规定得不到保障、“三性”要求被架空以及退回机制的滥用和撤回机制的缺位等问题,继而分析了产生这种立法模式的原因,包括我国劳务派遣市场的自身发展、各国立法以及我国各地的法律规范对《中华人民共和国劳动合同法》中劳务派遣章节的立法影响等。笔者从支持双重劳动关系学说的立场上,根据现有法律规定和保障被派遣劳动者利益最大化的角度,着重对共同雇主的责任和义务进行了重新分配。同时,通过剖析肯德基案和家乐福案,进一步支持双重劳动关系学说。然而,在目前法律规范尚未调整的状态下,笔者建议对现行劳动关系框架下的雇主责任承担进行明确,并从加强劳务派遣单位的责任承担能力、完善用工单位的内部管理和加强行政监管三个方面对现行法律在劳务派遣规范方面存在的问题提出相应对策和建议。
[Abstract]:Compared with the traditional labor employment form, the particularity of labor dispatch lies in the separation of employment and use. The labor dispatch unit is responsible for the employment, including the employment, dispatch, file management, social insurance registration and payment of non-productive affairs of the dispatched laborer, while the employment unit is responsible for the use and only undertakes the safety and health management, Responsibility for productive matters such as labour discipline. Therefore, who should bear the employer's responsibility in the labor dispatch unit and the employment unit has become the focus of the dispute. From the angle of employer's responsibility, there are two opposite theories on the legal relation of labor dispatch in academic circles, one is labor relation and the other is double labor relation. The theory of primary labor relations is divided into two kinds of viewpoints, one is the theory of labor relations that the labor dispatch unit bears the employer's responsibility, the other is the theory of the labor relation which is the employer's responsibility by the employing unit. Also known as the double-tier operation of labor relations theory. The theory of dual labor relations is that the labor dispatch unit and the employment unit jointly bear the employer's responsibility. China is vigorously developing the labor dispatch industry, encouraging labor dispatch units and employing units to achieve win-win results, and at the same time taking into account the protection of the rights and interests of dispatched workers, which is the core issue in standardizing the labor dispatch market. And become the bottleneck of the healthy and orderly development of labor dispatch industry. Under the background of the global trend of moderate government regulation, the academic circles of our country have basically reached a consensus that legal norms are the fundamental way. Therefore, in the legislative practice, the "Labor contract Law of the people's Republic of China" and its "implementing regulations", in the establishment of labor relations, adopt the theory of labor relations. However, the dual labor relationship theory is adopted in the responsibility of employers. The simultaneous application of the two standards inevitably leads to contradictions in legislation. Based on the analysis of the legal relationship of labor dispatch, this paper tries to find out the contradictions existing in the Labor contract Law of the people's Republic of China and its implementing regulations, such as the overlapping of responsibilities and obligations in the payment of wages. The provisions of equal pay for equal work are not guaranteed, the "three sex" requirements are set up, the abuse of the return mechanism and the absence of the withdrawal mechanism are discussed, and then the reasons for this legislative model are analyzed, including the development of the labor dispatch market in our country. The legislation of various countries and the legal norms in various parts of China have a legislative influence on the labor dispatch chapter in the Labor contract Law of the people's Republic of China. From the standpoint of supporting the theory of dual labor relations, the author redistributes the responsibilities and obligations of common employers according to the existing laws and regulations and the view of maximizing the interests of dispatched workers. At the same time, through the analysis of the KFC case and Carrefour case, further support the theory of dual labor relations. However, under the condition that the current legal norms have not been adjusted, the author suggests that the employer's liability should be clearly defined in the framework of the current labor relations, and that the capacity of the labor dispatch units should be strengthened. To improve the internal management of employment units and strengthen the administrative supervision of the three aspects of the current law in the issue of labor dispatch standards put forward the corresponding countermeasures and suggestions.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.5

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