勞務派遣中工傷保險責任研究
發(fā)布時間：2018-08-14 19:15
【摘要】：勞務派遣起源于西方發(fā)達國家,作為一種靈活的就業(yè)方式,在德、日、美等國家發(fā)展的比較早。我國引進勞務派遣用工方式比較晚,但是發(fā)展速度非�？�,引起了社會各界的重視,國內學者們紛紛將其作為研究的對象。近來,中國的市場經濟正處于改革與轉型階段。隨著勞務派遣新型用工的引進,我國的勞動關系亦產生了重大變革。《勞動合同法》和《勞動合同法實施條例》首次規(guī)定了勞務派遣相關內容,規(guī)范了該新型用工模式。法律隨著經濟的變化而變化。2013年我國主要修正了《勞動合同法》關于勞務派遣的規(guī)定,其中包括法律責任的修改。但修改后的勞務派遣規(guī)定在司法適用中過于籠統(tǒng),2014年我國出臺了《勞務派遣暫行規(guī)定》,進一步明確了雙方單位的義務和責任。從立法發(fā)展看,關于工傷保險責任的承擔主體發(fā)生了重大變化：《勞動合同法》第92條修改了用工單位承擔連帶責任的情形,類似于美國“共同雇主理論”下的連帶責任,但是我國缺少“共同雇主理論”的基礎,導致了勞務派遣單位和用工單位對工傷保險責任的推脫�！秳趧张汕矔盒幸�(guī)定》第十條彌補了上述現象,將工傷保險責任完全歸于勞務派遣單位,但是這一規(guī)定與九十二條連帶責任的規(guī)定存在適用沖突,并且增加了派遣單位的責任負擔。勞務派遣用工具有特殊性,派遣單位招工但不用工,用工單位實際用工,將工傷保險責任籠統(tǒng)地歸于派遣單位,使得義務和責任相分離,不利于被派遣勞動者(派遣工)的工傷事故的預防和工傷救濟。因此,本文探討了工傷保險責任由雙方單位共同承擔的合理性以及針對此問題相關立法完善。首先,工傷保險責任的承擔應當以勞務派遣中的法律關系為基礎。本文整理了國內關于勞務派遣法律關系的爭論,并在雙重勞動關系理論的基礎上明確用工單位的勞動主體地位,提出了主從勞動關系。派遣工和勞務派遣單位構成主勞動關系,和用工單位構成從勞動關系,三方形成了完整的勞動關系結構。其次,本文評析了德、日、美國家關于勞務派遣工傷保險責任的規(guī)定,并分析了我國關于勞務派遣工傷保險責任劃分的立法現狀及缺陷。最后,基于雙重勞動關系理論,同時汲取國外先進的立法規(guī)定,對完善我國勞務派遣中工傷保險責任提出了幾點建議：完善勞務派遣中工傷保險責任的主體地位,工傷保險責任的范圍,相關法律的適用以及工傷保險的監(jiān)督管理機制。
[Abstract]:Labor dispatch originated from the western developed countries, as a flexible way of employment, in Germany, Japan, the United States and other countries developed earlier. The introduction of labor dispatch in our country is late, but the speed of development is very fast, which has aroused the attention of all walks of life, and domestic scholars have taken it as the object of study one after another. Recently, China's market economy is in the reform and transformation stage. With the introduction of a new type of labor dispatch, the labor relations in our country have also undergone great changes. The Labor contract Law and the regulations on the implementation of the Labor contract Law have for the first time stipulated the relevant contents of the labor dispatch and standardized the new employment mode. The law changes with the change of economy. In 2013, China mainly amended the provisions of Labor contract Law on labor dispatch, including the revision of legal liability. However, the revised labor dispatch regulations are too general in the judicial application. In 2014, China issued the "temporary provisions on Labor dispatch", which further clarifies the obligations and responsibilities of the units of both sides. From the perspective of legislative development, major changes have taken place in the subject of liability for industrial injury insurance: article 92 of the Labor contract Law modifies the situation of joint and several liability of employment units, which is similar to the joint liability under the "common employer theory" in the United States. However, the lack of the foundation of the "common employer theory" in our country has led to the abrogation of the liability of industrial injury insurance by labor dispatch units and employment units. Article 10 of the interim provisions on Labor dispatch makes up for the above phenomenon. The liability of industrial injury insurance is completely attributed to the labor dispatch unit, but this provision is in conflict with the provisions of 92 joint and several liabilities, and increases the responsibility burden of the dispatch unit. The labor dispatch tool has its particularity, the dispatch unit recruits but does not employ, the employment unit actually employs, the responsibility for industrial injury insurance is generally attributed to the dispatch unit, which separates the obligation from the responsibility. Prevention and compensation of industrial accidents against dispatched workers (dispatch workers). Therefore, this paper discusses the rationality of the joint responsibility of the two parties and the perfection of the relevant legislation. First of all, the liability of industrial injury insurance should be based on the legal relationship in labor dispatch. This paper collates the domestic disputes about the legal relationship of labor dispatch, and on the basis of the theory of dual labor relations, clarifies the position of the labor subject of the employing units, and puts forward the principal and subordinate labor relations. Dispatch and labor dispatch units constitute main labor relations and employment units constitute slave labor relations, and the three parties form a complete structure of labor relations. Secondly, this paper analyzes the provisions of labor dispatch industrial injury insurance liability in Germany, Japan and the United States, and analyzes the legislative status and defects of the division of labor dispatch industrial injury insurance liability in China. Finally, based on the theory of dual labor relations and drawing on foreign advanced legislation, some suggestions are put forward to improve the liability of industrial injury insurance in labor dispatch in our country: to perfect the main position of the liability of industrial injury insurance in labor dispatch. The scope of industrial injury insurance liability, the application of relevant laws and the supervision and management mechanism of industrial injury insurance.
【學位授予單位】：遼寧大學
【學位級別】：碩士
【學位授予年份】：2016
【分類號】：D922.5
本文編號：2183853
[Abstract]:Labor dispatch originated from the western developed countries, as a flexible way of employment, in Germany, Japan, the United States and other countries developed earlier. The introduction of labor dispatch in our country is late, but the speed of development is very fast, which has aroused the attention of all walks of life, and domestic scholars have taken it as the object of study one after another. Recently, China's market economy is in the reform and transformation stage. With the introduction of a new type of labor dispatch, the labor relations in our country have also undergone great changes. The Labor contract Law and the regulations on the implementation of the Labor contract Law have for the first time stipulated the relevant contents of the labor dispatch and standardized the new employment mode. The law changes with the change of economy. In 2013, China mainly amended the provisions of Labor contract Law on labor dispatch, including the revision of legal liability. However, the revised labor dispatch regulations are too general in the judicial application. In 2014, China issued the "temporary provisions on Labor dispatch", which further clarifies the obligations and responsibilities of the units of both sides. From the perspective of legislative development, major changes have taken place in the subject of liability for industrial injury insurance: article 92 of the Labor contract Law modifies the situation of joint and several liability of employment units, which is similar to the joint liability under the "common employer theory" in the United States. However, the lack of the foundation of the "common employer theory" in our country has led to the abrogation of the liability of industrial injury insurance by labor dispatch units and employment units. Article 10 of the interim provisions on Labor dispatch makes up for the above phenomenon. The liability of industrial injury insurance is completely attributed to the labor dispatch unit, but this provision is in conflict with the provisions of 92 joint and several liabilities, and increases the responsibility burden of the dispatch unit. The labor dispatch tool has its particularity, the dispatch unit recruits but does not employ, the employment unit actually employs, the responsibility for industrial injury insurance is generally attributed to the dispatch unit, which separates the obligation from the responsibility. Prevention and compensation of industrial accidents against dispatched workers (dispatch workers). Therefore, this paper discusses the rationality of the joint responsibility of the two parties and the perfection of the relevant legislation. First of all, the liability of industrial injury insurance should be based on the legal relationship in labor dispatch. This paper collates the domestic disputes about the legal relationship of labor dispatch, and on the basis of the theory of dual labor relations, clarifies the position of the labor subject of the employing units, and puts forward the principal and subordinate labor relations. Dispatch and labor dispatch units constitute main labor relations and employment units constitute slave labor relations, and the three parties form a complete structure of labor relations. Secondly, this paper analyzes the provisions of labor dispatch industrial injury insurance liability in Germany, Japan and the United States, and analyzes the legislative status and defects of the division of labor dispatch industrial injury insurance liability in China. Finally, based on the theory of dual labor relations and drawing on foreign advanced legislation, some suggestions are put forward to improve the liability of industrial injury insurance in labor dispatch in our country: to perfect the main position of the liability of industrial injury insurance in labor dispatch. The scope of industrial injury insurance liability, the application of relevant laws and the supervision and management mechanism of industrial injury insurance.
【學位授予單位】：遼寧大學
【學位級別】：碩士
【學位授予年份】：2016
【分類號】：D922.5
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