| With the development of China’s market economy and the aging of the population,diversified forms of employment are gradually emerging,and more and more people reach the statutory retirement age,but workers are reluctant to withdraw too early due to various reasons.In the workplace,the over-aged people who continue to work in the original job or in the new position are more and more common.The employment relationship formed between the employer and the employer often makes it disadvantageous in the contradiction between labor and enterprise because of its weak position.Reaching the statutory retirement age and continuing the employment relationship identification is not only the confirmation of the identification of the employee but also the allocation of the rights and obligations of the employer.Continued employment is included in the original job to reach the statutory retirement age,including the first time in a new position.However,the protection of such personnel in the existing labor laws and regulations appears to be weak.Due to the uncertainty of the identification of labor relations,it is difficult to guarantee their labor rights.In the judicial practice,the identification of the employment relationship between the employer and the person who reaches the legal retirement age is quite controversial.There are many different judgments in the same case.The theoretical circles have theories of labor relations,labor relations,and special labor relations.The qualitative nature of the employment relationship determines whether it can be applied to the adjustment of labor laws,and whether it can be protected by the labor law.This paper sorts out the status quo of the recognition of the employment relationship of the legal retirement age in China,and analyzes the reasons for the existence of such employment relationship identification.Based on the theory of labor stratification and the theory of labor rights security,it will definitely The employment relationship is recognized as the importance of special labor relations.Finally,under the premise of realizing the identification of laborers,starting from the principle that the labor law is inclined to protect laborers,the employer should be treated reasonably and differentiateably,and put forward targeted suggestions on the problems existing in the current practice,so as to achieve this.The labor rights of special groups can be effectively guaranteed.The paper is structured as follows:At the beginning of the article,through the introduction of the topic selection background,the issue of the research,the status quo,significance and purpose,research ideas and methods show the confusion of the current employment relationship between the legal retirement age and the legislative practice.The theoretical and practical significance of identifying the relationship between the “worker” status and employment of such personnel.By clearly defining the continuing employment relationship for those who reach the statutory retirement age,it is ensured that the labor rights of the laborers are guaranteed,and the conflicts between the viewpoints arising in the theory and the judiciary are resolved.The first part,based on China’s current retirement policy and system,determines the concept and legal attributes of the person reaching the statutory retirement age,and clarifies that the research object of this paper is the reemployed person who reaches the legal retirement age in the general sense,as well as the theoretical and judicial practice circles.The focus of the dispute on the employment relationship of such personnel.The second part is mainly to analyze the reasons for the confusion of the current employment relationship of the legal retirement age in China.It mainly includes: the legislative level and the judicial level are not clear;the qualification of workers who reach the legal retirement age is not clear;the current retirement system in China is too backward and cannot match the economic and social development.The third part mainly analyzes the legal attributes of the current legal status of the legal retirement age in China,and concludes that the labor relationship theory and the labor relationship theory use the absolute judgment standard of one or the other,and do not fully consider the legal The particularity of the form of reemployment for retired people.In order to comply with the rapidly developing economic situation and the complexity of the applicable labor market,it is proposed that the employment relationship between the person who reaches the statutory retirement age and the employer should be recognized as a special labor relationship.The fourth part is the theoretical premise for the recognition of the continuing employment relationship of the legal retirement age.As a typical representative of the stratification of laborers in the new era,the protection of their labor rights is an inevitable choice to face the diversified development of China’s labor market.It is demonstrated that the legal retirement age will be reached through the use of labor stratification theory and labor rights protection theory.The employment relationship of personnel is recognized as thenecessity and importance of labor relations,thus affirming that the establishment of special labor relations is in line with the theoretical and practical needs of labor law.The fifth part proposes targeted improvement suggestions based on the special legal characteristics of the people who reach the legal retirement age and the problems in the current theory and judicial practice regarding the identification of employment relations.It mainly includes: from the uniform definition of the qualification of the laborer to the flexible application of the labor law to clearly reach the statutory retirement age to continue the employment relationship;to adhere to the existing "sub-attribute" certification standards adhere to the standards of fact recognition to optimize and improve the identification criteria of workers;Applicable to the retirement system and social insurance system for those who reach the statutory retirement age;affirming the differential treatment of laborer’s rights protection in the context of special labor relations,but also recognizing the rights and obligations of employers in the actual employment process due to their different scales The same is true,and reasonable treatment can be made to promote the healthy development of labor-enterprise relations and the establishment of harmonious labor relations. |
