Guarantee Of The Remuneration Right About Re-employment Of Retirees

With rapid and large scale of aging of population in China,retired people are not allowed to be neglected and it has great significance to study on reemployment and guarantee of their rights.However,debates on related issues on reemployed people after retirement mainly focus on identification of qualification about retired people and legal relationship established between the employers and retirees.Before “Interpretations of Several Issues on Application of Law on Trails of Labor Dispute Cases 3” published by the Supreme People's Court,great disputes are existing in various local legislation.After that,the relationship established between employers and reemployed people having pension insurance or retirement pay are recognized as labor relation,while nature of relationship between other types of reemployed people and employers is not specified.Thus,the realization of other retired reemployment workers' labor remuneration rights in practical world is also urgent to be solved.On the concept of labor compensation right,there are two ways to deal with the work of labor law in China: one is to give a certain description of labor remuneration right without definition;the other one is to make a clear definition of it.In this paper,the author holds that the labor remuneration right refers to labors having worked during the process of employment should enjoy the right to obtain remuneration from the employing units.The labor remuneration right owns survival value,order value and justice value.Meanwhile,it has reflected survival value through working process of civilizations.The same as other labors,the reemployed people after retirement also face survival problems in society,it is vital to protect their labor remuneration right so as to guard their survival right.The number of disputes arising from the problem of remuneration for retired reemployment is increasing,which affects the realization of the order value of the labor remuneration right.As labors after retirement,guarantee about their labor remuneration is reflection of social justice.The labor remuneration right has private law nature and protection from public laws.The same as working-aged people,they are struggling in a weak position relative to the employing units in social and economic aspects.The identification of the labor remuneration right of reemployed people after retirement will have a great impact on them.There are two main difficulties in the realization of the remuneration rights of retired reemployed workers: the qualification of employed people after retirement is difficult to be recognized.There is no concrete concept on labors in “Labor Law” and “Labor Contract Law”.The vague law concept makes legal identity of reemployed people after retirement is unclear,and their labor right is impossible to be protected;judgment on legal relationship between retired reemployed personnel and employment units is deeply controversial due to a lack of clear definition on labor relation in China.In the absolutism theory,it is divided into service relation and labor relation,while it is divided into three categories in labor relation including standard labor relation,special labor relation and illegal employment relation.In those theories,employed people after retirement have right to establish labor relation with employing units;in the relativity theory,the labor relation is distinguished according to the standard whether those reemployed people enjoy pension insurance.The theory is specified in social insurance standard as well as standard relation and non-standard relation.It can be seen from different doctrines that there are great debates about service relation and labor relation for reemployed people after retirement.It has great guiding significance in reality that the legal attribute of relation between reemployed people after retirement and employing units.In order to promote the realization of reemployed people after retirement,their qualification should be recognized as special labors combined with our actual situation and legislative experience from foreign countries.And their labor right is required to be protected by “Labor Law”,while relation with employing units is possible to be established.Realization of remuneration right should be guaranteed by labor legislation which means to protect rights and interests of retirees and reemployment workers in equal pay for equal work.The labor remuneration paid by the employing units should not be lower than the minimum wage standard,and the right of collective bargaining should be provided according to law.The discussion on the related problems of retired reemployment people is also aiming at realization of their labor remuneration right.Based on reviewing and reflection on “Interpretation”,we can promote the protection of labor rights and interests of retired reemployed people,so their remuneration right can be reasonably realized and guaranteed.