On Employer's Duty And Responsibility Of Dispatched Employment

The dispatched employment covers three participants of labor relations, including the laborer, the labor dispatch service providers and the accepting entity, which changes traditional two-party labor relations and becomes a brand new type. The distinct character is the separation of employing and using, that is, the agency employs workers but dose not use them while the enterprise uses the workers but dose not employ them. The application of the dispatched employment is becoming more and more widespread thanks to its flexibility and low cost which adapts to different industries'situation and meets different labor needs. In the triangle relations of the dispatched employment, the laborer builds incomplete and individeble labor relations with both of the dispatched work agency and the user enterprise at the same time. It's hard to distribute and implement duty and responsibility of the employer between the agency and the enterprise.It's the first time for Labor Contract Law effective from Jan. 1st, 2010 to regulate the dispatched employment in order to prevent the agency evading duty and safeguard the rights of the labors so that the dispatched employment can develop healthily. However, there are still some imperfections that can be improved. In practice, the dispatched employment is often used to evade employer's duty and responsibility, which greatly infringes the rights and interests of the laborer. Besides, if employer's duty and responsibility between the agency and the enterprise is not equally allocated, it will cause imbalance of rights and interests, which is not legally fair. Therefore, the significance of the theory and the practice can be addressed by studying and analyzing the allocation system of employer's duty and responsibility.Taking the advantages of the comparative analysis and the normative analysis, the thesis studies the fair assignment of interest between the agency and the enterprise in order to protect the labor's rights and interests, meanwhile, analyzes the allocation system of employer's duty and responsibility based on the triangle relations and drawing lessons of overseas dispatched employment practice; furthermore, advises to how to improve the allocation system. There are four charters in the thesis, the abstract as following:Chapter One introduces the concept and the legal characteristics of the dispatched employment and also special meaning of the employer and its responsibility in the dispatched employment. Through the primary analysis, it is concluded that there is not only one employer, the labor has two conjoint employer of the agency and the enterprise. The employer's duty and responsibility don't only contain vicarious liability according to civil law traditionally, but also compulsory obligation violating the law or the responsibility originating from litigant's promissory duty.Chapter Two, at first makes clear the value of"Efficiency comes first to balance equity"to guide how to define the employer's duty and responsibility. Then, through the analysis on the relations of the dispatched employment by the single and dual labor relations theory, the triangle relations of three parties can be made clear, which paves the way for analyzing the allocation system of the employer's duty and responsibility.Chapter Three, based on the last chapter on the labor relations, analyzes the allocation system of the employer's duty and responsibility detailedly and comprehensively via four aspects, including employer's role, allocation, scope and undertaking of the duty and responsibility.Chapter Four introduces China's current legislative status of the dispatched employment and advises to improve the allocation system of employer's duty and responsibility based my own opinion.