Research On The Determination Of Standby Time In Labor Law

The "stand-by time" has not been clearly stated in the legal level of our country,but it has been repeatedly discussed in many judicial cases,especially in the controversy of the determination of standby time.On the one hand,workers hope to increase their compensation by classifying the standby time as working time,and on the other hand,the employers try to negate the factors that may determine the working time.The legislation of our country simply makes the dichotomy: working time and rest time,but this traditional model can no longer adapt to the development of today's employment form.Standby time in the vague zone between working time and rest time is in urgent need of legislative regulation.At the same time,there is still no consensus on some basic issues of standby time in theory,and there are many ambiguities in practice.Therefore,this paper takes this as the research topic.The first part is the "judicial practice investigation of the identification of standby time".Based on the judicial practice of standby time in our country,this paper investigates it in the way of statistics and sorting out the judicial documents.Through the induction and analysis of 100 samples,this paper reveals the problems in the practice of the determination of standby time from four aspects: the distribution area of cases,the position of workers,the focus of disputes and the considerations in the court's determination: the big difference in the court's determination of the standby time,the shift becoming the haven of the standby time's determination and the special working hours system to complicate the identification.The second part is "extraterritorial experience of standby time determination".This paper chooses representative Germany,Japan,the United States and Taiwan of China to analyze and classify the theoretical understanding and treatment of standby time determination in these countries or regions from the perspective of legislation and judicial precedents.The United States and Japan attach more importance to whether workers can freely control their time and degree,while Germany attaches more importance to the influence of standby places,while Taiwan considers more diversification when identifying,so as to provide reference for theoretical research,legislation and judicial work in China.The third part is "the considerations and classification of the determination of standby time".Since the labor law circle in China has not reached a unified understanding of the basic concept of standby time,this paper tries to find out the common ground on the basis of summarizing the views of relevant scholars and seeks for the "greatest common divisor" of the basic connotation of standby time.On the basis of the cognition of standby time,this paper analyzes from the perspective of local documents and scholars,and clarifies which factors will be considered in the process of identification,and strengthens the details of the treatment of life time.This paper summarizes and evaluates the classification in theory,reviews the types of standby time in judicial practice,and puts forward the classification based on whether laborers have selectivity of standby place.The fourth part is "specific identification of different types of standby time".Combining with the judicial practice and drawing lessons from the experience of judging the time of service in other countries,this paper carries out a typological study on the basis of classification and identification,and makes specific judgments from the characteristics of different types of time of service,avoiding generalization,and additionally discusses the issue of remuneration.