Thinking For The Legislation Trend Of China’s Labor Dispatching

Labor dispatching is a new employment model involving three parties,with the most significant feature of separation of "employment" and "use"of labor, which has become a hotspot of academic research in labor law.Since the implementation of the Labor Contract Law, the total volume oflabor dispatching in China had experienced reverse growth in the past4years, which is contrary to legislators’ expectations and was the majorreason for China to further strengthen the legislative supervision onlabor dispatching. In June2012, the draft amendment of Labor ContractLaw was disclosed to the public for social comments. It received more than550,000proposals within one month, which became a new record in China’shistory regarding draft amendment for public comments and made the debateabout allowing or repealing labor dispatching a hot topic again in China.The writer hereby uses the amendment as the key point to find a differentway of thinking for the legislation on labor dispatching by discussingthe amendment debate, doctrine, history of domestic development,international experience and legislative proposals. In this paper, thefirst chapter is about the motivation, focus and debate of amendment,which is to introduce the discussion and thinking about legislativequestions on labor dispatching; The second chapter introduces legal characteristics, employment relationship and social function doctrine onof labor dispatching, which provides theoretical basis for furtherdiscussion; The third chapter focuses on the change of related literaturesand research subjects since1995to date, to reveal the development oflabor dispatching in China. It introduces three most important roles (thegovernment, labor unions, and state-owned enterprises) during thedevelopment process of labor dispatching in China, and thereforeanalyzing the legislative competition between such three roles. At thesame time, the writer tries to find a different way of thinking tointroduce the destination of labor dispatching’s social function; Thefourth chapter introduces the development trends, scale and regulationof labor dispatching in major countries. We can find that, by comparingthe development trend, scale and regulation in different countries, thetrend of labor dispatching is "growing" rather than "demise", whichtherefore could be used as the international background for China tocontinue to develop labor dispatching. In the fifth chapter, the writerput forward his legislative proposals such as "Soften the one hand andstrengthen on the other hand" on the basis of the analysis anddemonstration mentioned before."Soften" means to restrain the growthtrend of labor dispatching by relaxing the standard labor relationshipsthrough adjusting the “unlimited labor contract” and “statutorydissolution system” provided in the Labor Contract Law;"strengthen"means giving up the “way of limitation” theory adopted by current labordispatching legislation and improving the employment norms by reasonableallocation of the employer’s liability according to two-dimension laborrelationship theory.