我国对日劳务合作中的问题及法律对策
发布时间：2018-08-07 13:37
【摘要】： 根据《服务贸易总协定》(GATS)的定义，国际服务贸易包括四种方式：跨境提供；境外消费；商业存在；自然人移动。根据该定义，国际劳务合作是以自然人移动方式进行的国际经济合作及贸易活动，是国际服务贸易的重要组成部分。 如同其他形式的国际服务贸易一样，在当前全球经济环境下，国际劳务合作在其不断发展壮大过程中，遭遇的贸易壁垒也不断增多。在这一领域中的贸易壁垒，其形式要比货物贸易的壁垒隐蔽、复杂的多。因为在货物贸易中的壁垒主要来自关税壁垒，而国际劳务合作领域的壁垒往往使用浮动汇率、外汇管制、开业权限制等手段进行，而且，，劳务合作主要涉及自然人的移动，因而一国往往利用移民法、劳动法对外国劳务人员实施市场准入、国民待遇方面的限制。以我国对日本派遣劳务性研修生这种劳务合作形式为例，由于在日本现行的法律制度下，劳务市场不对外开放，其现行的移民法(《入国管理及难民识别法》)又将赴日研修生定义为学习技术及技能的外国人，不承认其“劳务人员”的资格，因此我国的赴日劳务研修人员不能享受到国际劳务合作领域的基本劳工标准，同时，我国的劳务派遣机构也不能名正言顺地获取劳务利润。为实现利润，各劳务派遣机构纷纷采取与研修生签订“双重合同”的办法，以规避各种矛盾。通过签订“双重合同”在一定程度上解决了我国劳务人员进入日本劳务市场的准入障碍，但同时它带来的负面影响也不容忽视。本文以我国对日派遣劳务活动中出现的种种问题为切入点，运用WTO基本原则，提出并分析解决问题的可行性方案。
[Abstract]:According to the General Agreement on Trade in Services (GATS), international trade in services includes four ways: cross-border provision; overseas consumption; commercial presence; and movement of natural persons. According to this definition, international labor cooperation is the international economic cooperation and trade activity carried out by the movement of natural persons, and it is an important part of international trade in services. Like other forms of international trade in services, in the current global economic environment, international labor cooperation in its continuous development and expansion process, encountered trade barriers are also increasing. Trade barriers in this field are more subtle and more complicated than barriers to trade in goods. Because barriers to trade in goods come mainly from tariff barriers, while barriers in the field of international labor cooperation are often carried out by means of floating exchange rates, foreign exchange controls, restrictions on the right to open business, etc. Moreover, labor cooperation mainly involves the movement of natural persons. Thus, a country often uses immigration laws and labor laws to impose market access and national treatment restrictions on foreign labor workers. Take the form of labor cooperation between China and Japan as an example. Under the current Japanese legal system, the labor market is not open to the outside world. Its current immigration law (the Immigration Administration and Refugee Identification Act) also defines a student going to Japan as a foreigner who studies skills and does not recognize his qualifications as a "worker". Therefore, our labor training personnel in Japan can not enjoy the basic labor standards in the field of international labor cooperation, at the same time, our labor dispatch organizations can not get the profit of labor services in good name. In order to realize profit, labor dispatch agencies adopt the method of signing "double contract" with graduate students one after another in order to avoid all kinds of contradictions. To a certain extent, the "double contract" has solved the barriers to entry of Chinese labor workers into the Japanese labor market, but at the same time, its negative impact should not be ignored. Based on the problems in the dispatch of labor services to Japan, this paper puts forward and analyzes the feasible scheme of solving the problem by applying the basic principles of WTO.
【学位授予单位】：外交学院
【学位级别】：硕士
【学位授予年份】：2002
【分类号】：D996
[Abstract]:According to the General Agreement on Trade in Services (GATS), international trade in services includes four ways: cross-border provision; overseas consumption; commercial presence; and movement of natural persons. According to this definition, international labor cooperation is the international economic cooperation and trade activity carried out by the movement of natural persons, and it is an important part of international trade in services. Like other forms of international trade in services, in the current global economic environment, international labor cooperation in its continuous development and expansion process, encountered trade barriers are also increasing. Trade barriers in this field are more subtle and more complicated than barriers to trade in goods. Because barriers to trade in goods come mainly from tariff barriers, while barriers in the field of international labor cooperation are often carried out by means of floating exchange rates, foreign exchange controls, restrictions on the right to open business, etc. Moreover, labor cooperation mainly involves the movement of natural persons. Thus, a country often uses immigration laws and labor laws to impose market access and national treatment restrictions on foreign labor workers. Take the form of labor cooperation between China and Japan as an example. Under the current Japanese legal system, the labor market is not open to the outside world. Its current immigration law (the Immigration Administration and Refugee Identification Act) also defines a student going to Japan as a foreigner who studies skills and does not recognize his qualifications as a "worker". Therefore, our labor training personnel in Japan can not enjoy the basic labor standards in the field of international labor cooperation, at the same time, our labor dispatch organizations can not get the profit of labor services in good name. In order to realize profit, labor dispatch agencies adopt the method of signing "double contract" with graduate students one after another in order to avoid all kinds of contradictions. To a certain extent, the "double contract" has solved the barriers to entry of Chinese labor workers into the Japanese labor market, but at the same time, its negative impact should not be ignored. Based on the problems in the dispatch of labor services to Japan, this paper puts forward and analyzes the feasible scheme of solving the problem by applying the basic principles of WTO.
【学位授予单位】：外交学院
【学位级别】：硕士
【学位授予年份】：2002
【分类号】：D996
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