Legal Regulation Of "Dual Labor Relations"

With the development of economic and social, especially the rapid develop ofscience and technology, traditional patterns employment have been gradually changed,increasing showing the characteristics of diversified and non-standardized, a varietyof new forms of employment appear. Some of them have more flexible working hoursand workplace, sometimes a laborer have more than one labor relation, this papercalls it “dual labor relations”. There isn’t fully and clearly rules of “dual laborrelations” in china now, and academic circles have different views on many issuesassociated with this. Clear the connotation of “dual labor relations”, regulate suchsocial relations, which will have great significance to improve our labor law system,enrich the labor law theory, and safeguard the legitimate and interests of the parties.The dialectical materialist method is used as basic, and the paper studies theemergence and development of “dual labor relations” from a historical perspective,which keeps close contact with the social practice. The social surveys and positiveanalysis method is used to analysis the value and significance of “dual laborrelations”; the logical analysis method is used to clarify the true meaning of legalprovisions; the value analysis method is used to explain that the labor law shouldapplies equally to all employers; the horizontal comparison method is used tocompare with the mature foreign legislation, and attain some reference. In addition,the paper comprehensively uses knowledge of the labor law、economics and sociology,in order to get a multi-angle and in-depth study.The paper starts from the definition of “dual labor relations”, it refers to in thesame period one employee has more than one labor relation that conform to theconstitutive elements of the labor relation. And summarizes it as three manifestations,reform of state-owned enterprises “dual labor relations”、part-time employment “duallabor relations” and new technology industry “dual labor relations”.Know what, know why. Why reform of state-owned enterprises “dual laborrelations” exists, the reason is that the employment system and operational mechanisms in the planned economy period led to a lot of surplus staff, reformingreleased lots of redundant staff, who entered private enterprises, re-employedpersonnel won’t give up vested interests, they still maintain relations with the originalunit. As to part-time employment “dual labor relations” and new technology industry“dual labor relations”, the reason for the existence is development of scientific andtechnological、the emergence of new forms of commercial operation and supportingand encouragement of government.“Dual labor relations” have both positive andnegative meaning, reform of state-owned enterprises “dual labor relations” is atransitional phenomenon, it will eventually exit the stage of history; part-timeemployment “dual labor relations” and new technology industry “dual laborrelations” conducive to full utilization of labor resources, comply with the Paretoimprovement principle, and it should get rational utilization.On the legal regulation, reform of state-owned enterprises “dual labor relations”apply the labor law, which is clarified by judicial interpretation; part-timeemployment “dual labor relations” apply the labor law, which is clarified by the laborlaw; new technology industry “dual labor relations”, should apply the labor law also,considering the legal value concept of equality and justice, and the tilt protection ideaof the labor law.In addition, there are some issues to clarify. Firstly, based on the limitation ofemployees’ loyalty duty, the establishment of “dual labor relations” rule outcompetition trade、exclusive employment and situation that not suitable. Secondly, anoverall limit on working hours should be provided. Thirdly, wages paid by eachemployer should meet the minimum wage. Fourthly, social insurance contributionscould be solved by establishing a unified social account for each employee and eachemployer pay social insurance by the proportion of wages. Fifthly, in the twice thewage compensation、economic compensation and other labor treatment,“dual laborrelations” should be equally applicable.