Research On The Joint And Several Liability Of Labor Dispatch Between Service Provider And Accepting Entity

Labor dispatch and legal system,which originated from western countries,were first introduced by foreign-funded enterprises in China in 1990 s.As a complicated labor mode,it is becoming more prevalent ever since.Although laws and regulations for common labor disputes have already become sophisticated,those for labor dispatch were far from being consummate for the lack of researches.The Labor Contract Law(Amendment)(hereinafter referred to as the Amendment)is an important legislation,which has modified Article 92(joint and several liability system).Before the Amendment,the service provider and the accepting entity both bear joint and several liability to workers,which were later confined to situations where the accepting entity infringes workers' rights in the aforementioned amendment.The Provisional Regulations on Labor Dispatch of Article 20 only reaffirmed Article 92 of the Amendment without further refinements.Although the Amendment refined the joint and several liability of labor dispatch between the service provider and the accepting entity,both legal status of the accepting entity in the labor dispatch system and the specific type of joint and several liability were not clarified as well as the right of indemnity.This dissertation focuses on the joint and several liability of labor dispatch between the service provider and the accepting entity,especially the theoretical basis,scope and institutional adjustment methods etc.Methods of case analysis,comparative analysis and normative analysis etc.were applied.This dissertation mainly comprises of five Parts.Part I: The background and the value of this research,basic situation of the research on joint and several liability of labor dispatch between the service provider and the accepting entity both at home and abroad,innovation and shortcomings of research methods.Part II: Putting forward problems of labor dispatch disputes in judicial practice by introducing cases of legal adjudication and judgment.Part III: Setting forth theoretical basis of joint and several liability between the service provider and the accepting entity on basis of the particularity of the structure of dispatch system,protecting rights and interests of workers in order to achieve substantial justice and the pursuit of efficiency value.The relationship between workers and the accepting entity is controversial(Whether the accepting entity should be regarded as the employer of workers).Various employers' theories would be compared and analyzed and finally the author's point of view on this issue would then be drawn.Part IV: Pointing out problems of current system of the service provider and the accepting entity,such as,the scope of the obligation and the distribution of responsibility,both of which are not clearly clarified.Enlightenment were yielded when relevant regulations and laws on the issue of developed countries and International Labor Organization(hereinafter referred to as ILO)were referred to.Part V: Constructing the new system of joint and several liability of labor dispatch,which includes the determination of legal status,obligation,the type of joint and several liability between the accepting entity and the service provider.Meanwhile analyzed some of those common disputes of labor dispatch.By thorough research,we concluded as below: First,both the service provider and the accepting entity should be considered as workers' employer.The logic is on the basis of the particularity of legal relationship of labor dispatch,which assist to enhance both the sense of responsibility and the mutual supervisions to protect legitimate rights and interests of workers.Second,the scope of the obligation and the distribution of responsibility are not clearly clarified.There is a conflict between substantive law and procedural law which has been better solved by developed countries with more mature mode and methods.Third,ILO suggested that member countries shall determine and assign their respective responsibilities between the service provider and the accepting entity on this issue,such as the equality protection of workers,collective bargaining and other rights,which well deserve our reference.Therefore,we provided suggestions as follows: First,clarifying the legal relationship between the accepting entity and workers.The accepting entity is strongly recommended to be regarded as the employer.Second,clarifying obligations between the service provider and the accepting entity.Common obligations include the protection of workers' personal safety,the prohibition of discrimination and equal pay for equal work etc.Last but not least,refining the type of joint and several liability.Amid different situations,different and suitable solutions should be adopted and in some specific cases,and one side should be endowed with the right of indemnity.Balance interests between the service provider and the accepting entity.Protect legitimate rights and interests of workers.