Study On The Liability Of Work-Related Injury Insurance In Labor Dispatching

Labor dispatching, a kind of flexible employment, originated in western developed countries and developed earlier in Germany, Japan, the United States. This labor way lately formed in our country, but developed fast and caused the attention of the society from all walks of life, which had been an object studied by domestic scholars. Recently, the economic and social development of China is in the key period of reform and transformation. With the new employment appearing, labor relation is in a profound and dramatic transformation. In order to standardize labor dispatching market, the "labor contract law" and "labor contract law implementation regulations" firstly make the corresponding matching rules to labor dispatching. In 2013, our country mainly amended "Labor Contract Law", specializing in labor dispatching. Because of the amendment so principled, then it promulgated’Provisional Rules of Labor Dispatch’in 2014 to explicit the obligation and liability of the both employer. Legislation on the liability of work-related injury insurance has significant changes: "labor contract law" article ninety-two is modified with joint liability to the damage that only the employing company caused to the dispatched workers, similar to the joint and several liabilities under the theory of "joint employer" in America. But lacking of the basic theory of "joint employer" in our country leads to evasion between the labor dispatch company and the employing company.’Provisional Rules of Labor Dispatch’ article ten makes up for the phenomenon of mutual shuffle, and make the liability of work-related injury insurance completely to the labor dispatching company. But it is conflict with the provisions of article ninety-two, and makes a greater responsibility to the labor dispatching company. Labor dispatching is particular. The labor dispatching company recruits but does not use labors, while the employing company uses. Making the liability of work-related injury insurance generally attributed to the labor dispatching company will lead to the duties and responsibilities separation, which is not conducive to the injury accident prevention and relief of the dispatched labor. Therefore, this article discusses the rationality that the labor dispatching company and the employing company jointly undertake the liability of work-related injury insurance and improvement of legislation on it.First of all, the liability of work-related injury insurance should be based on the legal relations in labor dispatching. This article collected domestic debate about legal relationship in labor dispatching, and defined the employing company as one of labor subjects on the basis of the theory of dual labor relations, and came up with a theory of principal and subordinate labor relationship. The labor dispatching company and the dispatched worker constitute the principal labor relations, while the employing company and the dispatched worker from the subordinate labor relationship. The three parties form a complete labor relationship. Secondly, this article analyzes the laws of the liability of work-related injury insurance in Germany and Japan, the United States, and analyzes the legislative situation and defects on that in our country. Finally, this article, based on the theory of dual labor relations, and drawing lessons from foreign legislation, puts forward some suggestion focusing on the improvement of the liability of work-related injury insurance in labor dispatching:perfecting the subject status and the scope of the liability of work-related injury insurance in labor dispatching, the application of laws related and the supervision and management mechanism of work-related injury insurance in labor dispatching.