Improvement Of Labor Dispatch System From The Perspective Of Rule Of Law

Labor dispatch as a new form of labor and employment in China has developed rapidly in recent years. Its features that differ from the traditional labor relations make it play an important role in improving the quality of flexible employment, promoting the development of the human industry, reducing the cost of human resources and providing flexible employment mechanism for accepting units, and increasing employment opportunities for laborers and so on. But there is a special triangular relationship in labor-sending agency, accepting unit and dispatched laborer, which makes the labor relations more unstable between the laborer and the employer. When the interests of labors suffered damage, it is easy for labor-sending agencies and accepting units to shuffle responsibilities. It is not clear that who is the man should respond for it, which enhances more difficulty of laborers to safeguard their rights. In order to solve problems in practice better and protect the legitimate rights and interests of dispatched laborers, so it is necessary to clarify the legal relationship between the three parties in theory and distinguish their respective legal responsibility.Because the legislation of labor dispatch is laggard, labor dispatch in practice generated a lot of problems, such as labor-sending agencies vary greatly in qualification, and accepting units abuse labor dispatch in order to evade employer obligations and responsibilities, and it is difficult for dispatched laborers to protect their rights. For example, unequal payment of dispatched laborers in comparison with employees of the accepting unit, unguaranteed social security, difficulty to join trade unions, and also express interest demands, which seriously damaged the legitimate rights and interests of dispatched laborers and also seriously hampered the regular and progressive development of labor dispatch, in addition, did great harm to building a harmonious and stable labor relations. When the "Labor Contract Law" and the "Labor Contract Law Implementation Regulations" (hereinafter referred to as'Regulations') went into force, they regulate the relation of dispatched laborers and accepting unit, labor dispatch contract's essential terms, the rights of dispatched labors, the qualification of labor-sending agencies, the scope of labor dispatch and labor-sending agencies and accepting agencies assume joint compensation liability and so on, which play a positive role in regulation of the labor dispatch development and safeguard of the legitimate rights and interests of workers dispatched. Due to restrictions on legislative means, lag of theoretical research on labor dispatch, lack of practical experience, and other reasons. The current legislation of labor dispatch still need to improve on regulations of labor-sending agencies, the scope of labor dispatch, standards of inter-region payment, return of dispatched workers by accepting unit, joint liability and labor unit obligation and so on, based on systematic analysis.In order to provide a theoretical basis for regulation of labor dispatch institution, through comparison of Japan, South Korea, the United States, Germany, the Netherlands and Taiwan on labor dispatch institution, and borrowing their experiences, this paper puts forward some proposals from six aspects on the legal system of labor dispatch:At first, to complete the provision of labor-sending agency from the establishment of capital, the establishment of sound principles and baseness scope. Secondly, define clearly what temporary, auxiliary and alternative means, and make a clear scope of labor dispatch by taking'allowed in principle and prohibitions in negative'. And thirdly, restrict the time limit of labor dispatch, prohibit accepting units use dispatched labors for a long-term. Fourthly, to improve the standards of inter-regional labor remuneration and other performance. Fifthly, to clarify that the joint and several liability will cover material damage compensation and moral damage compensation, the type of liability is limited to civil liability, and does not include administrative responsibilities and criminal liability, and the civil liability was limited to economic compensation; and expressly provides for recovery of the right, if there is agreement on the division of responsibility, respective party should bear the responsibility according to the agreement, after the non-responsibility bear the compensation liability, it enjoys the right to request recovery to the other party. If there is no agreement, after the innocent party bear the compensation liable, it enjoys the right to request recovery to the responsibility party. Sixthly, to improve provisions on accepting unit's legal responsibility, and clarify it should bear a certain degree of administrative responsibilityFinally, under the guidance of current legal regulations of labor dispatch, to explore countermeasures to regulate development of labor dispatch from the perspective of dispatched labor, accepting unit, labor-sending agency and government agent.