Research On The Legal Nature Of The Reemployment Of Retirees

With the aging of the population increasing, all sorts ofproblems about the old people have gradually become the focusof social attention. Among them, maintaining the sustainabledevelopment of the labor force and making up the pension fundgap are both important problems to be solved. As a result ofthe discussion, we can find that there are two main approaches.One is to postpone the legal retirement age; the other is toencourage the reemployment of retirees. Because the formerinvolves a wide range of interests, we can hardly get a resultabout that in a short term. In contrast, the latter has madesome achievements in legislation. So we should put moreattention to the reemployment of retirees which has more effecton coping with the aging of the population in the current situation.The reemployment of retirees is not a new social phenomenon.From the date of birth, this behavior has become the focus ofdiscussion. China is not only the world’s largest developingcountry, but also is the world’s most populous nation. Therapid development of economy makes the Chinese job marketflourishing, but this situation does not change the oversupplysituation of labor market. Since the2008financial crisis,Chinese import and export trades have also been affected. Atthe same time, Chinese population aging is accelerating.Therefore, those overage workers who still keep active in labormarket have attracted more and more attention. Whether weshould give special protection to this part of workers or not,and what degree of the concrete shall be given to them are thekey questions to be solved. For this problem, the key is toanswer the question that whether these people should be takenin the protection area of labor law. And the answer to thesequestions is directly related to the degree of the protection to their rights, and it also indirectly has effect on theattitude of retirees in participating in reemployment. In otherwords, the key issue is to solve the qualitative problems ofthe reemployment of retirees.In practice, there are mainly three kinds of reemploymentof retirees. The first one is reemployment of the retirees whoseearlier retirement is due to the system of the units. The secondone is reemployment of the retirees whose retirement is due tothe change of the policies or the enterprise restructuring. Thethird one is reemployment of the retirees who has reached thestatutory retirement age. There are not much controversy to thefirst situation as to the legal nature of their reemployment,and they are usually be characterized as labor relations. Thesecond kind of reemployment of retirees is rather complexbecause it is usually related to the specific policy issues,and we should make decisions according to certain situation.The third one is the major form as to this phenomenon, and itis also the most controversial form, so it is certainly the form which is the research focus of this paper. According to thedifferent answers to this question, the views of the scholarscan be roughly divided into labor relations and servicerelations. Scholars who hold on the theory of labor relationsare more advantageous to protect the retirees’ legitimaterights. And scholars who insist on the theory of servicerelations are more conductive to the legislative purpose oflabor law, and they think that retirees need not depend on thelabor law to ensure their rights of existence. On this issue,the attitudes of the legislators have experienced a gradualprocess. From the department rules to the local legislation,and then to the practices of the courts of all levels, theSupreme People’s Court gave us the answers, namely servicerelations on the Trial of the Law Applicable to a number of LaborDispute Case Interpretation issued”three” in2010.Whether the quality of service relations is reasonable ornot is still open to question. It is a process of continuousgame to protect the legitimate rights and interests of retired workers more effectively. I have read quite a lot of academicworks about this issue, and on this basis, I get thirty judicialdocuments made by all levels of courts from1999to2011bysearching the cases database offered by Peking University legalinformation network. Through the study of these judgments, Ican grasp the context of this problem more clearly. So I mayfind a more reasonable path to balance the interests of allparties from practice. In addition, I also pay attention to makeuse of various opportunities to communicate with the laborinspection personals, judicial personals and foreign friends.In this process, I have learnt more about this issue.Based on the theoretical research and judicial practice,I think that it is reasonable to make the relations ofreemployment of retirees as service relations. In practice, thesituation of this issue is quite complicated. It is alsodifficult to effectively protect the legitimate rights andinterests of the retirees in employment. Nowadays, China isjust in a critical period of reform and development, and there are many potential contradictions. If we can not take properlymeasures to solve this issue, it may exacerbate these existingsocial contradictions. In the context, we must put sufficientattention to solve this problem. Since labor law has made itservice relations, and it is a reasonable qualitative in thecurrent situation, we should consider giving specialprotection to this part of laborers under the framework of thecivil law. I hold the opinion that it should be taken as aspecial service relations. And it should be given a protectionwhose digress is higher than the ordinary civil law and lowerthan the labor law. Specifically, when it comes to thereemployment of the retirees, we can follow the principles ofcivil legislation, and we can also refer to the application oflabor law such as the labor standards law. By perfectinglegislation and standardizing judicial practice, it will behelpful to encourage retirees to participate in reemployment,and to safeguard the human rights, and to cope with variouschallenges brought by the aging of the population.