An Analysis On Labor Dispatching Under The Vision Of Law Of Labor Contract

Labor dispatching that originated from the European and American countries entered China last century. With the background that the market competition becomes more and more force and employment concept becomes more complex, as the human resource disposition means with resilience and mobility, labor dispatching attains wide space for development and becomes the important supplementation of traditional employment mode. In its development, due to the absence of adjustment of legal regulation, there is the fact that the interest of labor is harmed in practice. There is broad argument on the system itself. This system is attacked as the means of escaping from the responsibility, reducing the labor cost, transferring the labor employment risk as well as harming the interest of the labor for the entrepreneurs and dispatching units. So it should be prohibited. Other people think that regulation is better than prohibition. The issued of Law of Labor Contract helps to stop the argument by positioning on labor dispatching, endowing the lawful identification to labor dispatching, clarifying the legal obligations and responsibility. It gives the double protection to the laborers dispatched and leads labor dispatching to the standard employment track while keeping its specific character. This thesis discusses the regulative character of Law of Labor Contract on labor dispatching according to the introduction of labor dispatching and its legislative background and it expresses the hope for the improvement of the legislation. This thesis is divided into 5 parts:Part-1 analyzes on the basic concept, characteristics of labor dispatching as well as the distinction between the definition and similar definition. Labor dispatching refers that the dispatching unit signs labor contract with the laborers dispatched, then the dispatching unit dispatches the laborers according to the labor dispatching agreement signed with the unit agreeing to accept the labors in form of labor dispatching. The laborers work under the guidance and management of the unit using the laborers. This is a special employment form in which the labor power and producing materials combine together. The characteristics of labor dispatching include possessing main body in the three parties, two contracts and the separate of employment and using in labor force, which is the most important characteristic in it. The above characteristics of labor dispatching make it different from job recommendation, processing and hiring, enterprises transfer and personnel agency.Part-2 analyzes on the legal relationships of labor dispatching. The author first illustrates the theory that the legal relationships of labor dispatching break the standard labor relationships. It shows in: (I) the main body and contract present the character of three parties and two places; (II) the main bodies of employing and using the laborers shoulder the related responsibility together for the laborers; then this part introduces kinds of theories and opinions on legal relationships of labor dispatching, emphasizing that the analysis on legal relationships of labor dispatching should based on the distribution and implementation of rights and obligations of the employers. Request right granting theory and real altruistic theory seem to equal the relationships of labor dispatching to the standard labor relationships, which is judged from appearance and formalization; double-level practice theory of single legal relationships ignores the legal relationships of the third level between the dispatching unit and unit using the laborers; the significance difference between the double labor relationships theory and single legal relationship is that after the rights and obligations of the employer are divided into two parts: the rights and obligations related with the working process and those related with the management of the labor contract, double-level practice of single labor relationships proposes that after the unit dispatching laborers and unit using the laborers should shoulder the first responsibility respectively based on their obligations, these two parties should also shoulder the guarantee responsibility of the other party; while double labor relationships theory proposes that the two parties should all shoulder the related responsibility. The author supports single labor relationships as the delimitation on rights and obligations of the two parties in double labor relationships theory. Law of Labor Contract distributes the rights and obligations of the unit dispatching laborers and unit using the laborers according to this standard. Finally, the author states his view on the orientation of legal relationships for labor dispatching: labor dispatching is a kind of non-standard labor relationship, different from the standard one and it is a complex frame. It includes the commercial relationship, in which, the responsibility shouldered by the two parties for the laborers is regulated by the basic law of labor; In addition, it includes the employment relationship between the unit dispatching the laborers and laborers as well as using relationship between the unit using the laborers and the laborers. Viewing individually from the formal employment between the unit dispatching the laborers and laborers and the practical employment between the unit using the laborers and the laborers, any side can not independently satisfy the whole structure of standard labor relationship. The three parties should have organic combination. The most important is that the unit dispatching the laborers and the unit using the laborers have the obligation to guarantee the realization of the rights of the laborers dispatched.Part-3 analyzes on the legislative background of labor dispatching and introduces legislative situation of foreign labor dispatching whose legislative gist of protecting the rights of the laborers dispatched and guaranteeing the stable employment order has been referred by China and it is embodied in Law of Labor Contract. Then the author illustrates the advantages and disadvantages of labor dispatching after analyzing the development as well as the present state of labor dispatching in China, thinking that it is the instincts choice of the enterprise to reduce the labor cost and transfer the risk, not the mistake of labor dispatching. Therefore, it is rational to lead it to the development track ruled by law.Part-4 makes the rational analysis on the regulations of Law of Labor Contract to labor dispatching. Starting from removing the shortcomings of labor dispatching, Law of Labor Contract applies the legislative thought of standardization of non-standard labor relationship to labor dispatching, regulating the current labor dispatching to make labor dispatching become employment form with more strictness than the standard labor relationship. It lies in (I) The main body qualification is more strict than the standard labor relationship: the unit dispatching laborer should be set up in form of company with more than 500,000 Yuan as the registration capital. The unit using the laborers can not set up the unit dispatching laborer that dispatches the laborers to its own unit; (II) The form of labor dispatching contract becomes standard: unit dispatching the laborers should sign a contract with the laborers dispatched and sign an agreement with the unit using the laborers; (III) The content of labor dispatching contract (agreement) becomes standard: labor contract applies for the frequent employment system, guaranteeing that the laborers have equal pay of equal work with the formal personnel, regulating the way of sending back the laborers, prohibiting the unit using the laborers to dispatch the laborers again and unit dispatching laborers and unit using laborers have the related responsibility for the laborers dispatched and restricting the positions for the laborers dispatched to the temporary, aided and replaced jobs.Part-5 is the thought on legislation of labor dispatching. The author comes up with the following advice after analyzing legal system of labor dispatching: I Clarifying the guaranteeing main body of forming an association right for the laborers dispatched; II Distributing the related responsibility of the unit dispatching laborers and unit using the laborers; III Implementing the supervision right of the labor administrative department on the unit using the laborers to guarantee the rights and interest of the laborers dispatched.