Study On The Legal Risk And Responsibility Allocation Of Contractors In Outsourcing

In the 1980 s and 1990 s,the labor outsourcing system was introduced into our country from the west,originally for the benefit of the contracting party,but in practice,the contracting unit often faced the corresponding legal risk of employment.For example,the contracting party is easy to be recognized as the labor dispatch of the employment unit,bear the legal liability for employment;the contracting party is easy to be recognized as the contractor to establish a factual labor relationship with the workers employed by the contractor,bear the responsibility for employment;the contracting party itself easy to bear the corresponding legal liability with the contractor.The main reason is that the contractor's legal consciousness is weak,the selected contractor does not meet the requirements,the legislation recognizes the individual as the contracting unit but does not recognize its employment subject status,the legislation does not specifically restrict the labor outsourcing in the form of special chapters or sections,resulting in the concept of labor outsourcing,scope of application,access qualifications and so on is not clear,coupled with the judicial practice of substantive management,unclear definition of subordination often also leads to vague definition of labor outsourcing.In order to clarify the labor outsourcing system under the contractor's legal risks and responsibilities of how to allocate the author from the following three parts:the first part of the article is the case brief and dispute focus.The author selects three typical cases with the key words “ labor outsourcing ”“labor outsourcing legal risk” and “labor outsourcing responsibility allocation ” through search tools such as china referee documents network,peking university magic weapon,non-litigation case and handle case.The second part is legalanalysis.Since the introduction of labor outsourcing system into our country,the academic practice field of labor outsourcing system research is still shallow,the author through the concept and identification of labor outsourcing,labor outsourcing contract attributes and the current legislative status of labor outsourcing analysis,the concept of labor outsourcing has not been unified definition,labor outsourcing contract attributes should be generalized labor contract rather than equivalent to contract,China's labor outsourcing legislation is scattered,chaotic,miscellaneous,lack of special uniform legislative norms.In addition,combined with the dispute focus summarized in the case,the author believes that the labor outsourcing party in the existence of the above legal risks may face different legal liability.For example,to bear the legal liability of the labor dispatch and employment unit;the employer's double wages,the liability for compensation for industrial injury damage and other liability for compensation;the joint and several liability stipulated by the law,the supplementary liability for the third party and the main liability for the employment.The third part is the conclusion and enlightenment.In view of the above legal risks of employment,the author draws the following conclusions:first,the distinction between labor dispatch and labor outsourcing should be based on the substantive management and the subject matter of the contract;second,it is easy to be considered that the contracting party and the laborer are not clearly defined to establish a de facto labor relationship;third,the contracting party is jointly liable for compensation due to its own fault.How to avoid the legal risks of labor outsourcing,the author believes that the first step should be to standardize the operation of labor outsourcing.The legislation makes clear the essence connotation,the scope of application,the responsibility attribution of labor outsourcing;the judicial practice makes clear the standard and the subordinate determination of labor outsourcing and labor dispatch,establishes the case guidance system about labor outsourcing;secondly,brings the natural person employment into the labor law adjustment scope.At the same time,it limits the scope of the natural person as the contracting unit,and finally strengthens the relevant legal consciousness of the contracting party.Strengthen the supervision of contracting units,prohibit excessive participation in contracting affairs or excessiveintervention in the management of workers,organize relevant legal awareness training,etc.