A Research On China’s Overseas Labor Dispatching Legislation

In recent years, China’s overseas labor dispatching scale is bigger and bigger, and the number of dispatched employees to overseas has multiply increased. There is a positive effect of overseas labor dispatch for alleviating employment pressure and promoting economic development. In order to standardize overseas labor dispatching, our country issued the "Regulation on overseas labor cooperation" in2012, it provides a legal basis on clearing the responsibility of the overseas labor dispatching company and protecting the rights and interests of dispatched employees.Although the new regulation brings more legal protection to the overseas dispatched workers, but it still do not change the traditional mode of the operation and management of overseas labor dispatch, which caused that the labor law do not cover the overseas dispatched workers. The news about cheating and infringing the rights of overseas dispatched workers, and ineffectively resolving the disputes are endless.The paper firstly analyses the basic legal issues about overseas labor dispatch in China, including the model of overseas labor dispatch, the rights of overseas dispatched workers, the legal application of the legal relationships of the overseas labor dispatch. Then it compares the legislation about overseas labor dispatch with other countries. At last, it proposes some advices to improve the system of overseas labor dispatch in China and protect the legal rights of overseas dispatched workers.Firstly, it clears the definition and characteristics about overseas labor dispatch. The model of the overseas labor dispatch is neither the agency model, nor the employment relationship model, but the model in between. The ambiguous legislation and character are the radical reasons that lead to weak protection of overseas dispatched workers. By comparably analyzing foreign scholars’ views on the nature of the overseas labor dispatch, and combining with its characters, the employment relationship should be the right model of overseas labor dispatch in China, and the overseas dispatched workers should be incorporated in the protective scope of labor law.Secondly, it analyzes the administrative model of labor overseas dispatch. As the administrative department is Commerce department, which means the labor is commodity, and ignores the personality of worker. The uncertain responsibilities of the government, and the unreasonable mechanism of supervision also aggravate the phenomenon of increasingly illegal agencies and the illegal conducts of employers. By analyzing the basic reason of these problems, the paper recommends that Minister of Labor and Social Security should the administrative department of overseas labor dispatch, and the legislation should identify the responsibility of government and improve the monitoring mechanism to protect the overseas dispatched workers.Thirdly, the paper analyzes the issue about protecting the rights of overseas dispatched workers. The basic rights of oversea dispatched workers are lack of protections, the phenomenon about illegal overtime work and arrears of pay is serious. The main reasons for this situation are that the lack of protection of employment law and self-protective awareness of overseas dispatched workers. For changing the quo status of the rights, the following measures should be enforced, including incorporating the overseas dispatched workers to the scope of employment law, reforming the charge system and enhancing the investment to the overseas dispatched workers.At last, the paper analyzes the disputes during the overseas labor dispatch. As involving the foreign factors, the settlement of disputes refers to the international private law, but the current legislations are lack of the relevant specific regulations. According to the basic principles of legal application in international private law, the legal application should esteem the consciousness of autonomy without precluding the mandatory regulation...