Study On The Subject Qualification Of Labor Relations Of Overage Workers

With the continuous development of social productivity and the gradual improvement of medical and health facilities,the average life expectancy is continuously extended.China has entered the age of aging population,which also brings a series of social and legal problems.The number of workers over the retirement age is increasing day by day.However,at present,there are problems such as the lack of legislation and the confusion of judicial application on whether the workers over the retirement age can establish the labor relationship with the employer,so there are a large number of cases with different sentences.Labor law of the People's Republic of China(hereinafter referred to as labor law)does not have a clear stipulation on the concept of "laborer",which has also caused a heated discussion on whether overage workers have the subject qualification of establishing labor relations in the theoretical circle and judicial practice.Some people think that overage workers have the subject qualification,the reason is that the retirement age is not the factor that affects them to become a laborer,and the labor ability and the personality and economic subordination of the labor relationship established with the employer are the key factors that determine them to become a laborer.Another point of view based on the law of the People's Republic of China labor contract law implementation regulations "(hereinafter referred to as" the implementation regulations ")article 21 for retirement age and termination of the provisions of the labor contract,workers think past retirement age naturally do not have to establish the subject qualification of labor relations,it is also one of the most divisive law in practice;Still have viewpoint to stand in the Angle of social insurance to put forward whether to enjoy endowment insurance pay or get pension as the condition that judges laborer main body qualification.It is because of the imperfection of overage workers' labor relationship legislation in China that it is difficult to form a unified judgment in judicial practice,and some workers who should be regulated by the labor law do not get due protection.The essence of the problem about the identification of the subject qualification of labor relations of the over-age migrant workers is that the definition of the concept of laborers is unclear and the nature of the establishment of labor relations is different.Aiming at the existing legislation absence legislative concept of workers and labor relations problem such as defining the standard is not clear,in judicial practice,thejudge should be according to the dependency relationship between migrant workers and unit of choose and employ persons and their jobs,property,income level,the ability of freelancers for migrant workers to applicable law,subject qualification for workers over legal and emeritus age to be engaged in labor and its work as the main source of the life,it shall be deemed as to establish the subject qualification of labor relations;In terms of legislation,it is necessary to perfect the current legislation from the aspects of laborer concept and labor relation definition.Based on China's national conditions and drawing on the experience of extraterritorial legislation and judicature to establish a reasonable identification mechanism of labor subject qualification,constantly improve the labor law,labor contract law and other relevant laws,so as to better realize the protection of labor rights and interests.