The Research Of Legislation And Application Of Return System In Labor Dispatching

Refund system in labor dispatching essentially is one of the legal systems to regulate the way of employment. It is mainly contained in the "Law of Employment Contracts " and "Interims Provisions Regulations on Labor dispatching ", but it is much forced in legislative principles and contents, and is a violation of the flexibility and voluntary characteristics of the non‐traditional, market‐oriented labor dispatching behavior, so that the labor dispatching behavior is rigid in the process of market operation. Correspondingly, the judicature or arbitration caused by these disputes is also caught in contradiction and confusion, and the reasons and results of judgment can not achieve the original intention of the legislation. For this reason, in legislative principles, I suggest re‐adjusting the legislation of return system, relaxing state control and strengthening the meaning autonomy, distinguishing between enterprise and social responsibility, in order to make flexible employing relations and stable labor relations.In the aspect of system adjustment, the return system in labor dispatching should be rebuilt, that means when setting the return situations, to expand the statutory return situation, to affirm the agreed return situation, and to modify the forbidden return situation. In the aspect of the consequences of legal return, it should increase some regulations to workers on maintaining not dispatching, maintaining dispatching again, and dismiss. In the aspect of the responsibilities of illegal return, it should reasonably distinguish dismissal or not, and to take a more market‐oriented means to allocate legal liability, while furthering detail the joint and several liability between the dispatching firms and accepting units.Additionally injudicial practice, the judicial organ should also pay attention to prevent the legal rights of workers from being violated by enterprises’abusing the rights of return, and should strive to further balance the interests of enterprises and workers in practice.