중국의 근로자파견에 관한 법적연구

This paper aims at studying the legal aspects of the labor dispatch in China. The labor dispatch in China was ruled by the Labor Contract Law which was enacted by China’s National People’s Congress on June 29,2007, and took effect on January 1, 2008, and ruled by Implementing Regulations for the Labor Contract Law which were adopted by China’s State Council on September 3, 2008 and took effect on September 18,2008. Under the Labor Contract Law, the dispatched workers shall enjoy the right to obtain the same pay as that received by workers of the accepting entity for the equal work. And during periods when there is no work for the workers, relevant remunerations shall be paid to such workers by the labor dispatch service provider on a monthly basis at the minimum salary as prescribed by the people’s government of the region where the labor dispatch service provider is situated. Some obligations shall be performed by an accepting entity, for example the obligations such as carrying out labor standards of the state and providing relevant working conditions and labor protection; informing the dispatched workers of job requirements and labor remuneration; paying overtime remunerations and performance bonuses and providing benefits relevant to the post; providing the dispatched workers who assume the posts with corresponding training as required; and adopting a normal salary adjustment system in the case of continuous placement. In case any labor dispatch service provider is in violation of this Law, the labor administrative department and other relevant competent authorities shall order it to make a correction. In the case of any severe circumstances,it shall be imposed a fine and its business license shall be revoked. If any damage occurs to the dispatched workers, the labor dispatch service provider and the accepting entity shall be jointly liable for compensation. The enactment of the Labor Contract Law made a big improvement in the Chinese the labor dispatch system, but there are still some problems in the labor dispatch law and practices in China. First Though labor dispatch service providers shall be established as prescribed by the Company Law and have registered capital of no less than 500,000 yuan, there is still the lack of review and permit system for other requirement such as personal quality in labor dispatch service providers. Second Although the Labor Contract Law provide that the dispatched workers shall assume the temporary, assistant or substitute posts in general,there is no clear guideline of the scope of business field and post where the dispatched workers can work, for the labor dispatch service provider and the accepting entity. Third There is no maximum limits of labor contract period. The labor contract between the labor dispatch service provider and the dispatched workers shall be a labor contract with a fixed term of more than two years. This kind long-term labor contract will result in permanent dispatched workers, and deprive the dispatched workers of the chance for them to be a regular worker. Fourth The dispatched workers are entitled to join the labor union or to organize such unions in the labor dispatch service provider or in the accepting entity according to law, in order to safeguard their lawful rights and interests. But the scope of collective bargaining is still not clear.