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초록

영어

Since China opened itself to the world and decided to reform the country, it has gone through procedures of moving to the market economy system. In order to handle the change flawlessly, China has come up with a new form of employment, the worker dispatch, hoping that the this method would work on worker supplying to companies in China, re-employment of the labor force in state-own enterprises, employment of rural work force to cities and convenient supplying of other labor forces. Employment by such worker dispatch developed on various backgrounds appeared to satisfy Chinese central government. As watching the government conducting other employment policies to promote the worker dispatch even more, local governments started to accept the new employment as aggressively supporting it. However, since the worker dispatch was developed more rapidly than expected, problems on the matter were provoked due to the absence of related laws. Juridical relations on the worker dispatch fell into confusion, and disputes over the workers' rights and interests were mounting. As a result, China finally established special provisions over the worker dispatch in the labor contract law. The labor contract laws regulates the worker dispatch as a three side relation of a dispatching employer, an using employer and a dispatched worker. The main ideas of the worker dispatch regulations are as follows. ① Restriction on capital for the worker dispatch business, ② Standardization of the dispatched labor contract and the worker dispatch contract, ③ Enforcement of the regular employment for the dispatched worker, ④ Enforcement of the dispatching employer-using employer joint responsibility, ⑤ Limit of a range of the worker dispatch, ⑥ Cancelation of the worker dispatch contract Even after the labor contract law was enforced, the labor-related field in China did not see any decrease in the worker dispatch but rather kept suffering from the abnormal overheated phenomenon. As to the worker dispatch relation, if the mandatory control fails to do its job, it is likely for the worker dispatch business to create a lot of profits with a low cost and low risk because the entry condition is not strict. This has become a reality in China. In other words, even though China tries to conduct the mandatory control over the worker dispatch by enforcing the labor contract law, it is evaluated that the country has been failed to protect the rights and interests of the dispatching employer since it did not care how to manage the dispatch business before and after the business establishment. The other reasons for such result occurred are first, because the labor contract law applies the less vicarious liability of master in the dispatching labor relation than it does in the regular labor relation. Second, Chinese government has left the principle of the equal pay for equal work unsolved with the dispatched workers. Third, the right to organize of the dispatched workers has been ruined and lastly, in case of illegal dispatch, the using employer avoids to perform the direct employment right. As all of these backgrounds together have brought about the poor evaluation on China's worker dispatch policy. The dispatching labor relation appears to have more complicated connections compared to the regular labor relation. Because of this, regulating the dispatch labor relation by 10 provisions only is limited. As a result, in order to make up for the legislative vacuum in the dispatch labor relation and to instantly respond to the legislative demands according to the dispatching labor relation, it would be more valid if the dispatching labor relation is legalized as a professional separate law than it is included in the labor contract law with defects compensated afterwards.

목차

중국에 있어서 근로자 파견
  Ⅰ. 머리말
  Ⅱ. 중국에서 근로자 파견규제의 배경
  Ⅲ. 노동계약법상 근로자 파견규제의 내용
  Ⅳ. 중국에 있어서 근로자 파견제의 현황과 과제
  Ⅴ. 맺는말
  참고문헌
  Abstract

키워드

중국 노동계약법 파견사업주 사용사업주 파견근로자 파견근로관계 Chinese labor contract law dispatching employer using employer dispatched worker dispatching labor relation employers responsibility

저자

• 노병호 [ Roh, Byoung-ho | 충북대학교 법학전문대학원 교수 ]

참고문헌

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