我国劳务派遣工伤损害救济法律问题研究

发布时间：2018-08-22 10:36

【摘要】：现代市场经济发展的一个重要特征就是交易的复杂化和主体的多元化,劳务派遣显然是这种经济发展趋势下的产物。现代劳动法应当更加深入的应对这些经济形势所产生的变化,对传统的法律概念提出修正和完善,而不应削足适履,因循守旧。正确认识劳务派遣中的多重劳动关系,将有利于明确劳务派遣中各方主体的行为准则,梳理其相关的权利和义务,从而构建一个科学合理的劳务派遣工伤救济法律制度体系。从法律关系的角度来看,劳务派遣各方主体间的法律关系都显得较为复杂,派遣单位与用工单位之间基于劳务派遣协议而形成的有关劳务的供给和使用关系,派遣单位和劳动者之间以签订劳动合同的形式确立的劳动法律关系,而有关用工单位与劳动者之间的关系,学术界则存在着诸多争议。笔者认为,将劳务派遣的劳动关系定义为特殊的双重劳动关系较为稳妥。劳务派遣各方主体法律关系的特殊性给劳务派遣工伤损害救济造成了救济对象稳定性差、救济方式多元化以及救济程序注重效率等方面的特征。正是由于这些特殊性的存在,笔者认为劳务派遣工伤损害救济的主要责任应当归于用工单位承担。我国当前在劳务派遣工伤损害救济中存在的主要问题有四个。一是跨地区劳务派遣工伤损害救济缺位,二是劳务派遣滥用时工伤损害救济不足,三是劳务派遣工伤损害救济程序规定不完善,四是劳务派遣工伤损害救济监督不到位。究其原因,主要有三点。一是现有法律对劳务派遣工伤损害救济的主体关系规制缺位,二是现有法律对于劳务派遣工伤损害的认识较为片面,三是劳务派遣工伤损害救济的专门性法规效力不足。针对我国劳务派遣中存在的问题,笔者认为,可以从以下四个方面对其进行完善。首先,在跨地区劳务派遣的工伤损害救济中,应当采取联合雇主的责任原则,明确用工单位与派遣单位之间的责任分配。其次,在预防劳务派遣滥用情形时,应当严格控制劳务派遣的适用范围,并且通过引入担保制度来完善劳务派遣工伤救济的途径。此外,还要明确用人单位的责任分担,建立科学合理的违法责任追究机制。再次,要通过重新界定当事人的举证责任和提高工会组织的诉讼地位等措施来实现对诉讼救济程序的完善。最后,应当提高工会组织在劳务派遣工伤损害救济中的监督和协助地位。
[Abstract]:One of the important characteristics of the development of modern market economy is the complexity of transaction and the diversification of the main body. The labor dispatch is obviously the product of this economic development trend. The modern labor law should deal with the changes of these economic situations more deeply, and put forward the amendment and perfection to the traditional legal concept. A correct understanding of the multiple labor relations in the dispatch of labor services will help to clarify the behavior rules of the parties involved in the dispatch of labor services, to sort out their related rights and obligations, and thus to construct a scientific and reasonable legal system for the relief of work-related injuries caused by the dispatch of labor services. From the point of view of the legal relationship, the legal relationship between the parties involved in labor dispatch is more complicated, and the supply and use of labor services between the dispatching unit and the employment unit are based on the labor dispatch agreement. The labor legal relationship between the sending unit and the laborer is established by signing the labor contract, but there are many controversies about the relationship between the employment unit and the laborer. The author believes that it is safe to define labor relations of labor dispatch as special dual labor relations. The particularity of the legal relationship between the parties involved in the labor dispatch causes the poor stability of the relief object, the diversification of relief methods and the emphasis on efficiency in the relief procedure for the injury relief caused by the labor dispatch. Because of these particularities, the author thinks that the main responsibility of labor dispatch injury relief should be attributed to the employer. At present, there are four main problems in labor dispatch injury compensation in our country. One is the absence of cross-regional labor dispatch industrial injury damage relief, the other is the lack of industrial injury damage relief when labor dispatch abuse, the third is labor dispatch industrial injury damage relief procedures are not perfect, the fourth is labor dispatch industrial injury damage relief supervision is not in place. There are three main reasons for this. The first is the absence of the existing laws to regulate the subjective relationship of the labor dispatch injury relief, the second is the one-sided understanding of the labor dispatch industrial injury damage in the existing law, and the third is the lack of the effectiveness of the special regulations on the labor dispatch injury relief. In view of the problems existing in labor dispatch in China, the author believes that it can be perfected from the following four aspects. First of all, the principle of joint employer's liability should be adopted in the compensation of industrial injury caused by labor dispatch in different regions, and the distribution of responsibility between employer and dispatch unit should be made clear. Secondly, in order to prevent the abuse of labor dispatch, we should strictly control the applicable scope of labor dispatch, and perfect the way of labor dispatch industrial injury relief by introducing the guarantee system. In addition, it is necessary to clearly share the responsibility of employers, and establish a scientific and reasonable accountability mechanism for violations of the law. Thirdly, the litigation relief procedure should be perfected by redefining the burden of proof of the parties and improving the litigation status of the trade union organization. Finally, it is necessary to improve the supervision and assistance status of trade unions in labor dispatch injury relief.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.5

【参考文献】