Discussion On Judicial Regulation Of Labor Dispatch

‘The Labor Contract Law of the People’s Republic of China’ entered into forceas of January1,2008.The Chapter V Section2had11special provisions of labordispatch, which was the first time our country specified legislative affirmation oflabor dispatch system. However, they were principled regulations such as equal payfor equal work and etc, which was difficult to perform in judicial practice.‘Regulationon the Implementation of the Labor Contract Law of the People’s Republic of China’came into force on September18,2008,which specified further regulations of labordispatch system. But they were principled and unclear stipulations. In judicial practice,there are often no determined legal provisions as the basis. So principled regulationsare used to deal with cases, which does not appear ‘treat the same case equally’ indifferent courts, even in a same court. In addition, due to the special provision of labordispute arbitration first, the Arbitration Commission and the court have differentunderstanding for the same legal provision, resulting in quite different arbitration andjudgment, and making dispatched worker, accepting entity and labor dispatch serviceprovider do not know how to apply the law when labor disputes appear.Based on the various problems generated in the process of the implementation ofthe Labor Contract Law, especially frequent disputes of labor dispatch, the27thSession of Standing Committee of the11th National People’s Congress of thePeople’s Republic of China first considered ‘the Amendment of the Labor ContractLaw of the People’s Republic of China (Draft)’ on June29,2012.And this Amendment (Draft) was online announced on July6,2012, in order to solicit publicviews.’ The Labor Contract Law of the People’s Republic of China’ is implementedand amended in only four years, and the first amendment is in labor dispatch system.The author take this opportunity, write this article, give personal advices for labordispatch system from judicial practice, and hope the article can be useful to theAmendment.In this article, the author firstly from the dispatched workers and labor dispatchentity types analysis of dispatch of labor dispute cases judicial status. Secondly,from the employer can exercise no fault back right, labor units and the dispatch ofunits of the joint and several liability, of how to share the dispatched workers canapply to the dispatch of units of the special working hours, labor units can bedispatched workers stipulate non-competition,"equal pay for equal work" difficult toidentify the perspective of applicable law judicial dilemma. Again from "onearbitration" case of employment units can apply for revocation of labor dispatch, threeparties lawsuit status has not been unified in terms of analysis of dispute on judicialdilemma. Finally, the author through to the dispatch of three parties on the relationbetween the Judicial Dilemma, the author puts forward the way to solve.