The Definition Of The Factual Labor Relationship And Its Legal Regulation

Since the concept of factual labour relationship appears, the existence of it has caused large impact to labour law researching field of China. In the progress of chinese reform factual labour relationship found all over our country has expanded the scope of employment and released the pressure on employment to some extent. However, the disputes about factual labor relationship still exist and the scope is still intense It is an important task for how to solve disputes and protect labourer' benefits and rights in factual labour relationship. Although The law on the contact of labour has confirmed to protect labourer' benefits and rights infactual labor relationship and provided some legal methods, but the Law avoided the concept of factual labor relationship and makes it ambiguously. Although there are many achivements about the explanation in the acadamical and judicial field, then nothing is the unified conclusion. As a quasi-legal definition, the factual labor relationship has been a difficult point and hot topic of labour law field for a long time. The main issues discussed by this paper are how to definite factual labor relationship and improve the legal rules about factual labour relationship.In Chapter one the author discusses how to define the factual labor relationship though discussing the foundational problems on it. This provison consists six sections. In the first section is the introduction about the arising process of factual labor relationship and related background through analysing the history of factual labor relationship in Germany and the mainland of China. In Germany, with the appearance of factual agreement, the factual labor relationship firstly arised in the period of NAZI regime. In China, the factual labor relationship was born with the reform of state-owned enterprise and rapid development of the private-business. In the second section the author introduces the definition, constructive elements and characteristics factual labour relationship. It is a controversial issue of the definition of factual labor relationship. The author analyses the definition, constructive elements and characteristics fully. The third section is ahout the contrast with other relevant concepts. The factual labor relationship is different from the labor relationship, labor legal relationship and labor contract relationship. In the forth section the author classifies the factual labor relationship into three different types. Number one is from the contract without the written contract term according to legal requirements. The second is from exercising the illegal labour contact. The last is from the double labor relationship. In the fifth section the author figures out the causation of origination of factual labour relationship, which including the direct and indirect causation. So the author completely analyses the causation of factual labor relationship in different aspects, such as society, economy, legality and consciousness. In the last section the author testifies the identifying standards of the definition of factual labor relationship through analysing a typical case.In the chapter consists of sections two the author analyses the current legal regulatuions of factual labor relationship and gets conclusions from three aspects in the section one. First one is about how to eliminate the fact in the provisions of the state of factual labor relationship; Second one is about the settlement mechanism of disputing in factual labor relationship; third one is about the legal responsibility for factual labor relations. In the section two the author mainly analyses the current state of labor legislation and finds some defects, which are mainly expressed as follows: Firstly, the confusion on the combining power among different rules. Secondly, the incomplete regulating scope, Thirdly, the defects on the legislation, Fourthly, conflicts among some provisions, for example the conflicts between regulations by Ministry of Labour and relavant judicial interpretations.Chapter three, which is divided into three sections, consists of some methods of improvement of legal regulation on typical factual labor. The first section consists of some methods of improvement of legal regulation for factual labor relationship from invalid labor contract. The author reviews the definition of invalid labor contract in details, at the same time the methods of improvement are separated into three aspects. First one is to clearly confirm the value orientation of system of invalid labor contract, the second is to increase the cost of infringing laws of the party in faults of invalid labor contract and the third is to establishe the voidable system of labor contract comparing with the theory of invalid civil contract, the author also discusses the theory of illegal employment, the author excludes the situations which are similar to invalid labor contract and suggests not to apply factual labor relationship in this kind of situation. The illegal employment includes two aspects from the unqualified subject of employment according to the Labor Law to illegal content of agreement of employment. In the second section the author introduces some methods of improvement of legal regulation for factual labor relationship from double labor relationship.The author gives advice on relevant legal regulation of factual labor relationship caused by double labor relationship in two aspects. One is the disputation of double labor relationship caused by the part-time job. The other is disputation of double labor relationship caused by flexible time job. The flexible time job expands employment channels, increases employment opportunities and releases social pressure. However, the flexible time job also brings some disadvantages for the laborers. The author considers and analyses legal regulation for flexible time job in some aspects, including preventing it as the method of evading laws by employers, and standing out value orientation of law protection in the rights of laborer in flexible time job and paying social insurance for labors in flexible time job. The third section consists of some methods of improvement of legal regulation for factual labor relationship for those who haven't signed contract in writing terms. The author discusses the establishment of system in public laws. It consists of three aspects form establishing perfect registration system of employment, establishing detailed paying system of social insurance to establishing report and file system of labors list.