A Study On The Return Of Labor Dispatch To Legal Issues

With the continuous development of the economy, a large increase in demand for employment, labor costs and risks also increase. In order to adapt to reduce labor costs, solve the unemployed labor force and rural surplus labor demand for cheap labor, labor dispatch system as a product of the market economy came into being. The dispatch of labor involves the legal relationship between the three parties, and there is only a labor relationship between the labor unit and the laborer, the labor unit want to directly terminate the labor relationship with the dispatched laborers. The return of the dispatch has become an inevitable choice.Because the rules and regulations of the labor units are not perfect, the theoretical community have also disputed the validity of the return, in practice, the specific behavior of laborers is diversified, which leads to the practice of labor units returned to the case of laborers often appear different cases.The current legislation on the return of labor dispatch have many ways of improvement,but there are still many shortcomings,specific performance is as follows: legislation is not clear whether the unit can be returned to the situation of laborers to be sent must be strictly statutory or free agreement; in practice, the prevalence of labor units to laborers in serious violation of the rules and regulations on the grounds of its return, but the judiciary have a different understand for the effectiveness of the rules and regulations and what is the "serious"violation, this also leads to frequent disputes; "Labor Contract Law" Article 40, paragraph 2 is imperfect, for the labor unit is too heavy. The main point of this paper is that the legislation is imperfect, leading to controversy in practice,the legislation should allow the strict conditions to be returned; Because the law in unreasonable, legislation should modify the unreasonable part of law, judiciary should consider the legitimacy and rationality of the rules and regulations of the labor unit, when determines what is "serious", it can be considered from the nature of the laborer's behavior, the specific circumstances and the serious consequences.In addition to the introduction and the end of this article, the article is divided into five parts.The first part is the question put forward. The question of what is the problem lies in the labor unit autonomy and the maintenance of the labor flexibility value and the labor law on the purpose of the workers to protect the contradiction between the laborers.The second part is mainly on the labor dispatch return in the legal level analysis,explained the legislative purpose of return: not only to protect the employment unit of labor autonomy, but also to protect the legitimate rights and interests of laborers. It includes two doctrines about the nature of the return: the return of the statutory doctrine and the return of the agreement.The third part mainly analyzes the actual situation of labor dispatch return by 74 typical referee cases. Including whether the agreed return is valid; How to interpret the rules and regulations of the employer,the validity of the rules and regulations and what is a serious violation; "Labor Contract Law" Article 40, paragraph 2 shows the employer must first train or transfer,to those who still can't adapt to work can be returned. Which gives the employer the same responsibility as the employer in the standard labor relationship, the responsibility of the labor unit is obviously too heavy.The fourth part is to analyze the reasons for the return of the problems. Mainly analyze the problem from three aspects, including the legislation, judicial including arbitration and law enforcement.The fifth part is put forward some suggestions on how to solve the problem in the third part. From the legislative level, the judicial level and the practical level, a relatively perfect system is designed to solve those specific problems.