A Study On The Legal Regulation Of Post-retirement Employment

Since China's 13 th five-year plan period,the working-age population has continued to decline,and the demographic structure has undergone a transitional change.The decrease of the working-age population is due to the continuous aggravation of the aging degree of the society,which is reflected in the popularization of re-employment beyond the retirement age group in the labor market.This also indirectly shows that when the technological revolution and the post-industrial era come,the standard labor relations legislation is facing the new employment form's impact and the challenge,the labor legal relations and the labor contract legislation must respond to this social objective situation's change and the demand.In China,"post-retirement employment" itself is a compound concept.Post-retirement employment labor relations is refers to under the background of current retirement system in our country,more than the legal retirement age or have already begun to enjoy treatment of primary endowment insurance of the social group,its continued or engaged in the social production of labor again,whether this kind of labor relations belong to the labor law relations,can accept the adjustment of the labor legislation and protection.The logical starting point of this problem is the "compulsory" retirement system in China.The existence of the "compulsory" retirement system results in the automatic termination of the labor legal relationship of this group of workers,or the untenable.A large number of labor relations can not be effectively confirmed and protected by China's labor legislation under the background of "compulsory" retirement system,and the legislative norms lack unified and tight internal logic and standards for the identification path of labor relations established by workers after retirement.Therefore,the way of thinking to explore the legal regulation of the employment relationship between retirement and reemployment is to start from the source of legislation logic--China's retirement legislation system,to interpret and demonstrate the law,and to strip the "mandatory" color from the academic level.On the other hand,based on the theory of the subject of labor in China,the author takes the economic subordination as the core element of the identification of labor legal relationship,and constructs the basic legal standards of the identification of the subject of labor and labor legal relationship.Under the double verification of the above two logical chains,it can be concluded that the nature of this type of employment relationship should be labor legal relationship and should accept the regulation and guarantee of labor legislation.Based on the above context,this paper first reflects on the nature of rights and obligations of retirement itself,demonstrates the nature of rights and obligations ofretirement,jumps out of the logical closed-loop of "compulsory" retirement system,and proves that there is no contradictory relationship between labor rights--retirement rights--social security rights,and lays a theoretical foundation at the academic level.Secondly,based on the economic subordination and supplemented by the personality subordination,the basic identification principle of laborers' legal identity is established.Finally,on the premise of not violating the basic legal principle and logic,the author proposes a phased plan for the legal system reform of the relationship between retirement and reemployment in China--based on the establishment of a flexible retirement system,gradually building a stepped pension insurance treatment as the corresponding incentive mechanism.In addition,social factors are taken into consideration to adjust the labor subject according to different levels and classifications,so as to realize the internal logical coordination of the labor law,labor contract law,social security law and other relevant legislation in China,and finally achieve the relative balance and stability of the law on social labor relations and the coordination of the interests of the labor subject.