Analysis Of Labor Relations Of Re-employment Of Retirees

With the development of China’s market economy and the increasing of Chineseaging population, the re-employment of retirees as a new type of labor is widely usedin the contemporary labor life field, and presents a flourishing scene in the job market.However the current legislation has given no clear legal regulation on these specialemployment groups, especially, about how legal relationship of retirees is defined,about whether it should provide special protection to such people and if so to whatextent, there exist wide differences between the theory circle and the practice circle.The keynote as discussed in this article, is about the re-employment of theretirees who have actually reached the statutory retirement age and with whom I havefrequent contacts in my daily working practice. At present it is the primary form of there-employment of retirees, which also results in a controversial situation. At this issue,although the state has specifically established some legislative documents since thepolicies of reformation and opening up are carried out, the national attitude to lawqualitative of the labor relations keeps uncertain. The cognizance of this problem byjudicial practice of the courts is also not consistent. Until2010the Supreme People’sCourt issued On the trial of some issues concerning the application of law in the labordispute cases to explain the legal implications (3), and the employment relationship ofthose who legally enjoy the old-age insurance benefits or retirement allowance isidentified as labor service relationship. That is to say, the agreement betweenemployers and employees fully determines the bilateral rights and obligations based on the relevant standards, without reference to the labor law and regulations.From the current theoretical research and practical background, I think, it is notappropriate that linking the legal relationship of the retirees with statutory retirementage to social insurance benefits is entirely defined as labor service relationship. Thequantity of these retirees is quite big, and they get involved in quite a differentprofessional fields, this makes the employment situation more complicated. In spiteof the particularities of subject qualification and social insurance benefits, the labornature of re-employment has still kept unchanged, and its quality of subordination andbelongingness meets completely the criterion of labor relations. Nowadays, thedefinition of re-employment of retirees in "make it rigidly uniform" or "either this orthat" style is excessively fossilized, it goes against the legislative ideas, and in theprotection of the rights and interests of such laborers it means some kind of a stepbackwards. I suggest that under the existing labor law framework we should providethe special protection to such laborers, make sure that they can get the legal protectionwhich standard is lower than labor law and higher than ordinary civil law. Namely, onone hand, we should hold the bottom line with the reference to standard laborrelations, safeguard laborers’ minimum wages, working hours, labor protection andother basic rights and interests with the national compelling force; On the other hand,we should keep the appropriate space for autonomy of consciousness at the parties’will, abandon the overprotecting standards such as the dismissal protection, signinglabor contract without a fixed term, control the inclining protection in a reasonablescope, meanwhile give consideration to both social tolerance and balance of interests.