中日勞務(wù)派遣制度比較研究
發(fā)布時間：2019-04-19 06:56
【摘要】：勞務(wù)派遣是現(xiàn)代勞動力市場中的一種靈活用工形式。其以涉及主體的三方性、雇工與用工相分離性為主要特點,服務(wù)于我國企業(yè)的臨時性、輔助性、替代性工作崗位。但近年來,我國勞務(wù)派遣陷入了超常發(fā)展的狀態(tài)。為此國家加大力度,先后出臺了《勞動合同法》、《勞務(wù)派遣行政許可實施辦法》、《勞務(wù)派遣暫行規(guī)定》等一系列法律法規(guī)對行業(yè)進行治理。鄰邦日本的勞務(wù)派遣制度發(fā)展較為完善,相關(guān)法律從勞動權(quán)利義務(wù)關(guān)系和市場運行規(guī)律雙視角對勞務(wù)派遣進行調(diào)整,在適用領(lǐng)域、行業(yè)監(jiān)管以及勞動者職業(yè)保障等方面均有成熟規(guī)定。我國應(yīng)將勞務(wù)派遣相關(guān)制度同日本進行比較研究,取長補短,根據(jù)我國國情將可行性制度借鑒并引入,從而提高我國勞務(wù)派遣立法水平、解決社會實際問題。在具體制度改進上,筆者認(rèn)為應(yīng)從三個角度著手進行制度完善:從派遣適用角度,應(yīng)在行業(yè)準(zhǔn)入條件中加入人格評判標(biāo)準(zhǔn),以此凈化勞務(wù)派遣行業(yè)環(huán)境。應(yīng)以反向列舉的方式建立禁止性行業(yè)目錄,并通過科學(xué)調(diào)整“10%”的派遣崗位比例限制真正起到適應(yīng)市場、活化市場的作用。同時應(yīng)引入登錄型派遣制度,將更多社會零散用工納入到勞務(wù)派遣法律的保護范圍中來;從行業(yè)監(jiān)管角度,應(yīng)對派遣用工的續(xù)簽次數(shù)及累計持續(xù)時間進行限制,區(qū)分其與正式雇工的界限。同時應(yīng)重視對非法勞務(wù)派遣行為的法律規(guī)制并嚴(yán)肅其懲處力度;從勞動者職業(yè)保障角度,我國應(yīng)通過立法建立勞動者身份轉(zhuǎn)正制度、明確企業(yè)的職業(yè)培養(yǎng)義務(wù),將尊重和保障派遣勞動者的職業(yè)穩(wěn)定權(quán)及發(fā)展權(quán)定義為發(fā)展勞務(wù)派遣的重中之重。更應(yīng)在各地區(qū)建立勞務(wù)派遣行業(yè)工會,充分發(fā)揮其監(jiān)督與協(xié)調(diào)作用,保障派遣勞動者合法權(quán)益。由于企業(yè)的彈性需求與勞動者穩(wěn)定欲求的天然沖突,勞務(wù)派遣制度設(shè)計十分困難。其立法方式絕不是源于書齋中的空想與假設(shè),而應(yīng)是一個時刻貼合實際、應(yīng)對矛盾的隨時查缺補漏、添磚加瓦的過程。筆者認(rèn)為,我國應(yīng)時刻關(guān)切勞務(wù)派遣相關(guān)社會問題,恒久保持治理熱情與調(diào)整力度,在借鑒日本等市場經(jīng)濟發(fā)達國家立法經(jīng)驗的基礎(chǔ)上,以隨時發(fā)現(xiàn)問題解決問題的方式逐漸形成最為契合我國國情的勞務(wù)派遣法律制度。
[Abstract]:Labor dispatch is a flexible form of employment in the modern labor market. It is mainly characterized by the tripartite nature of the subject and the separation of employment and employment, and serves the temporary, auxiliary and alternative jobs of enterprises in our country. However, in recent years, China's labor dispatch has fallen into a state of extraordinary development. To this end, the state has stepped up efforts to introduce a series of laws and regulations, such as the Labor contract Law, the measures for the implementation of Administrative license for Labor dispatching, and the interim provisions for Labor dispatching, etc., to govern the industry. The development of labor dispatch system in neighboring Japan is relatively perfect. The relevant laws adjust labor dispatch from the perspective of labor rights and obligations and the law of market operation, which is applicable in the field of application. Industry supervision and labor career security and other aspects of mature provisions. In order to improve the legislation level of labor dispatch and solve the practical social problems, we should compare and study the relative system of labor dispatch with Japan in order to learn from and introduce the feasible system according to the national conditions of our country. In the aspect of improving the specific system, the author thinks that the system should be perfected from three angles: from the angle of application of dispatch, the personality evaluation standard should be added to the conditions of admission to the industry, so as to purify the environment of labor dispatch industry. A list of prohibited industries should be set up in the form of reverse enumeration, and the ratio limit of "10%" should be scientifically adjusted to adapt to the market and activate the market. At the same time, the registration dispatch system should be introduced to bring more scattered workers into the protection scope of labor dispatch law. From the angle of industry supervision, the renewal times and cumulative duration of dispatched workers should be limited, and the boundary between them and regular employees should be distinguished. At the same time, we should pay attention to the legal regulation of illegal labor dispatch and seriously punish it. From the perspective of workers' occupational security, our country should establish the system of workers' status as a regular worker through legislation, and make clear the duty of enterprises to cultivate their jobs. The right to professional stability and the right to development of the dispatched workers are defined as the most important part of the development of labor dispatch. Moreover, we should establish labor dispatch trade unions in various regions, give full play to their supervision and coordination role, and protect the legitimate rights and interests of dispatched workers. The labor dispatch system is difficult to design because of the natural conflict between the elastic demand of the enterprise and the stable desire of the labourers. The way of its legislation is not derived from the fantasy and hypothesis in the study, but it should be a process of fitting in with the reality at all times, and dealing with the contradiction at any time to check the gaps and fill the gaps and add some bricks to the bricks. The author believes that China should always pay attention to the social issues related to labor dispatch, keep governance enthusiasm and adjustment for a long time, and draw lessons from the legislative experience of developed countries such as Japan and other market economies. The legal system of labor dispatch is gradually formed in the way of finding problems and solving problems at any time, which accords with the national conditions of our country.
【學(xué)位授予單位】：遼寧大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D922.5;D931.3
本文編號：2460706
[Abstract]:Labor dispatch is a flexible form of employment in the modern labor market. It is mainly characterized by the tripartite nature of the subject and the separation of employment and employment, and serves the temporary, auxiliary and alternative jobs of enterprises in our country. However, in recent years, China's labor dispatch has fallen into a state of extraordinary development. To this end, the state has stepped up efforts to introduce a series of laws and regulations, such as the Labor contract Law, the measures for the implementation of Administrative license for Labor dispatching, and the interim provisions for Labor dispatching, etc., to govern the industry. The development of labor dispatch system in neighboring Japan is relatively perfect. The relevant laws adjust labor dispatch from the perspective of labor rights and obligations and the law of market operation, which is applicable in the field of application. Industry supervision and labor career security and other aspects of mature provisions. In order to improve the legislation level of labor dispatch and solve the practical social problems, we should compare and study the relative system of labor dispatch with Japan in order to learn from and introduce the feasible system according to the national conditions of our country. In the aspect of improving the specific system, the author thinks that the system should be perfected from three angles: from the angle of application of dispatch, the personality evaluation standard should be added to the conditions of admission to the industry, so as to purify the environment of labor dispatch industry. A list of prohibited industries should be set up in the form of reverse enumeration, and the ratio limit of "10%" should be scientifically adjusted to adapt to the market and activate the market. At the same time, the registration dispatch system should be introduced to bring more scattered workers into the protection scope of labor dispatch law. From the angle of industry supervision, the renewal times and cumulative duration of dispatched workers should be limited, and the boundary between them and regular employees should be distinguished. At the same time, we should pay attention to the legal regulation of illegal labor dispatch and seriously punish it. From the perspective of workers' occupational security, our country should establish the system of workers' status as a regular worker through legislation, and make clear the duty of enterprises to cultivate their jobs. The right to professional stability and the right to development of the dispatched workers are defined as the most important part of the development of labor dispatch. Moreover, we should establish labor dispatch trade unions in various regions, give full play to their supervision and coordination role, and protect the legitimate rights and interests of dispatched workers. The labor dispatch system is difficult to design because of the natural conflict between the elastic demand of the enterprise and the stable desire of the labourers. The way of its legislation is not derived from the fantasy and hypothesis in the study, but it should be a process of fitting in with the reality at all times, and dealing with the contradiction at any time to check the gaps and fill the gaps and add some bricks to the bricks. The author believes that China should always pay attention to the social issues related to labor dispatch, keep governance enthusiasm and adjustment for a long time, and draw lessons from the legislative experience of developed countries such as Japan and other market economies. The legal system of labor dispatch is gradually formed in the way of finding problems and solving problems at any time, which accords with the national conditions of our country.
【學(xué)位授予單位】：遼寧大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D922.5;D931.3
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