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The Legal Orientation And Regulation Of Household Service Relationship

Posted on:2013-02-23Degree:MasterType:Thesis
Country:ChinaCandidate:Y LiFull Text:PDF
GTID:2246330371988045Subject:Economic Law
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The household service industry booms with the development of economy and society, and the amount of domestic workers hasn’t reached such a lager number before. There are four kinds of domestic workers in the household service market: independent domestic worker, intermediary domestic worker, domestic workers of membership and employee domestic worker. There are household service relationship between the first three kinds of domestic workers and the home they serve.The household service relationship is explicitly excluded from the labor relationship, academics and judicial practical circle consider household service relationship as employment relationship, In this case, there is no benefit to protect the labor rights and interests of domestic worker. Therefore, domestic workers have a lot of problems such as low pay, long working time, lack of social insurance and difficulties in organizing or participating in trade unions.In order to protect the labor rights and interests of domestic workers, and promote the development of household service industry furthermore, it is very necessary to adjust the legal quality of household service relationship. Compare employment relationship with labor relationship, we found that they have many commonalities. They have different legal effect because of applying different legal norms. The employment relationship has the conception of autonomy of private law, while with the conception of social law, the labor relationship has more legal regulations. Although the labor relationship separated form employment relationship in the history with the trend of public law of private law, the development in our country is different, the employment relationship disappeared once, and it is a trend of privatizing the public law. Thus the boundary between employment relationship and labor relationship is a policy choice. There are three obstacles in taking household service relationship into labor relationship. First, household service relationship has its own peculiarity, and do not conform with the standard labor relationship. Secondary, the original image of labourer was workers of state owned enterprises in our country, it is different to apply to domestic workers. Third, there are restrictions in applying labor law to household service relationship in foreign countries, and some foreign country even has an unsuccessful attempt. However, it is possible to take household service relationship into labor relationship. There are three reasons:First, the scope of China’s labor law is expanding. Secondary, the composition of domestic workers has changed, there are more migrant workers than laid-off workers of state owned enterprises, the migrant workers need more protections. Third, there is a trend of industrialization and professionalization in the household service industry.There are three models of the household service relationship regulation among academics. The first one is apply the standard labor relationship of labor law in a short time. The second one is to stipulate a special law about the protection of domestic workers’rights and interests. The third one suggests constructing an institutional framework of a standardized contract on household service. All of them have their own limitations. Under the theory of dual labor markets, as a kind of non-regular employment, household service relationship should apply the regulation of non-standard labor relationship. The regulation should be more flexible, such as minimum hourly wage, flexible working time and new social insurance.
Keywords/Search Tags:household service relationship, employment relationship, laborrelationship, mechanism of regulation
PDF Full Text Request
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