Legal Issues. Offshore Outsourcing Of Services Under The Gats Framework Study

Offshore outsourcing of service is a company own execution nonnucleus will be convinced the service production function originally, may control the offshire center or the overseas subsidiary company through the establishment, through the contract way contract award, the subpackage or the subcontract for this enterprise's outside service tenderer, will raise own resources deployment efficiency. The service offshore outsourcing is the kind arising at the historic moment the brand-new business model, is to the global scale in the resources conformity. Its goal is through has the service outsourcing for some domain in the economies of scale effect operator, or the outsourcing for the operator who can use the other national cheap labor obviously reduces the cost. Because the service offshore outsourcing in China is a sunrise industry, the domestic scholar few to serves the disembark outsourcing from the legal angle to conduct specially the careful thorough research specially. Some scholars theoretically mainly based on service disembark outsourcing, in the service provides in the way as well as the outsourcing main body has made certain analysis and the research to the GATS suitable question. Overseas has the scholar to the offshore service outsourcing intellectual property protection and its transaction process information security, has caused the complex concern. In order to speed up our country to continue the service disembark outsourcing the service, enhances our country to serve the outsourcing enterprise international competitiveness. Therefore under the deep research GATS frame's service offshore outsourcing legal regime and other related legal matter have the urgent reality and the theory significance.In the thesis synthesized has utilized the comparison analytic method and the dialectical analytic method, has discussed the service disembark outsourcing classification and the legal characteristic, under the GATS frame serves provides the pattern classification, in the service origin rule as well as the GATS concrete pledge table serves the restrictive measure the relations, the union reality trade in services negotiations pattern, summarized the promotion service disembark outsourcing liberalization development open pattern pledge table. And pays attention to the intellectual property protection risk which and the information security risk control produces in the service disembark outsourcing transaction process, thus proposed that controls these risks the legal countermeasure. To promotes under the international environment to serve the offshore outsourcing the broad development, as well as our country further attracts the offshore outsourcing service, these question's thorough analysis to serves the offshore outsourcing the development upsurge to have the reality significance very value now.This article altogether divides into six parts.The first part to serves the offshore outsourcing to make an overall the outline,offshore outsourcing of services and the outsourcing and the offshore outsourcing relations, the offshore outsourcing of service definition, thus analyzes its legal characteristic, asks the full text question. Carries on the classification from the service disembark outsourcing's development present situation to it, namely divides into the information technology outsourcing (ITO) and operation flow outsourcing (BPO), the main domain which the service disembark outsourcing involves including the software development, the computer information, the human resources, the media public relations, the finance, the insurance, the retail sales, the customer service, the market marketing and so on. The service disembark outsourcing own transaction's particularity, proposed that the service disembark outsourcing existence's risk, this article is mainly aims at affects its liberalized development the legal matter, proposed from two stratification planes, in the international stratification plane is under the GATS frame related system, from the domestic legislative stratification plane will be the intellectual property protection and the information risk control, behind will center on these questions to launch the discussion.Second is analyzes the service disembark outsourcing and GATS the service provides the pattern the classification. Because to serves the disembark outsourcing service industry the concrete pledge is according to its different provides the pattern to make the different pledge duty, has the direct relations with the service outsourcing's liberalized degree, and different provides the pattern discrimination also to have the important meaning to the transaction judicial jurisdiction confirmation. Under the GATS frame provides the pattern to the trade in services the classification, divides into four kinds to provide the pattern respectively is interstate provides, the foreign expense, the commercial existence and the natural person moves, then the analysis to serves the disembark outsourcing institute the service pattern to carry on the classification, the service disembark outsourcing and the pattern one and the pattern two relations are closest. One and a pattern discrimination is mainly concentrates to the pattern in involves the electronic transmission the profession, this part has made a concrete pledge table improvement connection for the behind fourth part of content.The third part is aims at GATS to serve the origin rule the stipulation, rests on its related stipulation to serve the offshore outsourcing source area the confirmation discussion. The service disembark outsourcing's source area question is a very direct practical difficulty which GATS faces. GATS is consistent to the service source area confirmation with the service provider nationality, but in the service outsourcing contract stipulated the service provider possibly by no means actual service provider, that how should the latter determine, whether GATS is suitable for the latter, as well as how did the service provider nationality confirm. The rule serves the negotiations group by no means the main attention spot, this causes GATS to serve the origin rule consideration insufficiency. The appropriate procedure must be already considered that GATS the trade in services definition, simultaneously must unify service's characteristic as well as the trade in services development actual situation, determines the suitable service origin rule.The fourth part the market access and the national treatment two principles carries on the thorough analysis regarding the concrete pledge table. Analyzes this question the goal to lie in is clear about the present member's under GATS frame related pledge condition, thus has the pointed promotion service outsourcing the development. First elaborated separately to two principle's meanings and the GATS related provision's stipulation. Then to serves the concrete pledge level which interstate provides to carry on the analysis, because in fact disembark outsourcing's contract business (i.e. pattern one) sent the contractor through the interstate way to the outsourcing to export the service. The service disembark outsourcing mainly provides a pattern contacting with the service to be closest, therefore, in the WTO new round trade in services negotiations, the service outsourcing is covering in pattern negotiations. The service provides a pattern pledge level, can mainly reflect that GATS to serves the interstate pledge level, draws out the GATS system existence the problem analysis to cause the service disembark outsourcing latent question.The fifth part is aims at the service pledge table existence sorting table to be obsolete, cannot reflect can the bulk service trade type which carries on contain completely presently. Next, in view of the fact that Service sector's static classification system has the very big limitation, then take this system as the foundation pattern pledged that in the table is unable inevitably the new service transaction type which will contain will appear in the future possibly, this manifested the GATS stipulation always to fall behind again the economic reality characteristic.The sixth part is also the paper finally partial, develops the offshore outsourcing of service present situation and the tendency analysis after our country, in view of the paper first several partial questions, proposed the perfect legal advice. Takes the intellectual property protection and the information security safeguard, will further expand from now on the investment, the perfect system, strengthens the service outsourcing unceasingly the intellectual property protection and the information security safeguard work, builds the development service outsourcing industry positively the good environment, impels our country to serve the disembark outsourcing industry to be also good quickly develops.