Research On The Construction Of The Legal System Of Parental Leave In China

Infant and child care has become a hot issue that is generally concerned by society.In modern society,a large number of female workers enter the labor market,the family structure is becoming smaller and smaller,and social education institutions are seriously inadequate.China is facing difficulties in caring for infants and young children.The General Office of the State Council issued the “Guiding Opinions on Promoting the Development of Infant and Child Care Services Under 3 Years of Age” on April 17,2019,and explicitly proposed that local governments should be encouraged to explore trials of childcare leave that are compatible with infant and child care services.On October 11,2019,the Ningxia Hui Autonomous Region took the lead in stipulating the "common parental leave" clause in the "Ningxia Hui Autonomous Region Women's Protection Regulations".Infant leave has aroused social concern,but the academic community has not yet conducted a systematic study on the parental leave system,and the existing research results are not enough to respond to actual concerns.In view of this,this article has studied and considered the legal basis,legislative model and cost burden model,legal relationship and specific system construction of the parental leave system.The first part is a jurisprudence analysis of the parental leave system,including the legislative purpose of the parental leave system,the constitutional basis of establishing the parental leave system in China,and the necessity analysis of establishing the parental leave system in China.This article believes that the main legislative purpose of the parental leave system is not to protect the realization of workers' right to rest,but to set up the purpose of solving the labor reproduction crisis,promoting gender equality in the work field,and family-friendly.The constitutional basis for the establishment of the parental leave system in China is based on the constitutional protection of women's equal rights and marriage and family.Social childcare institutions alone cannot meet the huge demand for childcare.To solve the problem of insufficient resources for infant and child care in China,we must comprehensively use the money policy,service policy and time policy.As a kind of time policy,the parental leave system plays an irreplaceable role.The second chapter is the legislation model and cost burden model of parental leave.The parental leave legislation model can be divided into four categories: stand-alone legislation model,family vacation legislation model,labor benchmark legislation model,and gender equality legislation model in the employment field.In the short term,China should adopt a model of separate legislation on parental leave.When the time is ripe,we can consider integrating maternity leave,paternity leave,parental leave and other vacations that have the function of promoting gender equality,and introduce a law to promote gender equality.The cost burden model of parental leave can be divided into laborer's burden model,employer's burden model and social security burden model.China should choose a social security burden model in which the state,the employer,and the worker share the obligations.The third chapter analyzes the legal relationship of parental leave under the social security burden model.This chapter analyzes the legal relationship of China's current vacation system starting from the legal relationship structure diagram.Most of the current vacation systems in China are for the legitimate purpose of protecting the workers 'right to rest.They provide protection to workers in an oblique manner through rigid labor standards,grant workers the right to rest on specific holidays,and give employers Corresponding obligations.This chapter summarizes the characteristics of the legal relationship of parental leave under the social security burden model,and discusses the legal effect of parental leaveunder the social security burden model from the effects of private law and public law.The fourth chapter is the design of specific rules for China's childcare leave system.China's parental leave system should include the subject of the application,the application process,the length of time,the suspension of employment and reinstatement during the parental leave period,and legal liability.Regarding the subject of the application,China should make a limitation on the size of the employer in the short term.Workers can directly apply for parental leave if they meet certain conditions.Generally,the employer does not need to agree to it,but they should notify the employer in advance in writing.The length of parental leave is more suitable for about one year.After the end of the parental leave,the employer should return to work for the workers,and those who cannot return to their original positions should ensure that the workers' original wages are not reduced.If the employer refuses to provide childcare leave for workers,the labor administration department can take measures such as fines and order corrections,and workers can also obtain relief by applying for labor arbitration or filing a lawsuit.