| A seaman is a special seafarer occupation that needs to sail outside or out of the country.The difficulty in labor disputes involving foreign seamen lies in the assignment of seamen.At present,there are two models for the assignment of seamen in China.One is that seamen are sent out of the country after signing labor contracts with domestic enterprise and the other is that seamen sign service contracts with overseas shipowners after leaving the country through outbound service agencies.The latter one is more controversial.Both the “Crew Regulations” and the “Administrative Regulations for the Distribution of Seafarers” all require the dispatched service agencies to urge seamen to sign labor contracts with overseas shipowners after they leave the country.However,the overseas shipowners do not meet the main requirements of my Labor Contract Law.In practice,the judge usually recognizes the contract signed directly between the seafarer and the overseas shipowner as a service contract,which makes the seamen lose the protection of Chinese labor laws.The labor relation is an unequal legal relation,legal relation of the laborer's personal dependence on the employer,and the original intention of the labor law in China is to protect the rights and interests of the laborer in the weaker party in this legal relation.The particularity of the seamen's occupation leads to a serious personal attachment relationship between the seaman and the ship and the captain,and it is necessary to accept the captain's administration.This is very similar to the general labor relation,and even more obvious.However,the requirements of the labor laws in China for the subject restrict the application of this kind of law to foreign-related seamen's service contracts,resulting in the absence of seamen's rights protection at the legal level.This is the most serious practical problem at present.The best way to solve these problems is to formulate a special law for seafarers to regulate the legal issues of all the seamen's industries.This is also the current practice in all countries in the world.However,unfortunately,there are no signs of legislation in this area at present in China.The purpose of this article is to analyze the legal composition of foreign-related seamen's labor relations,to distinguish between various seaman assignment models that have emerged in practice,and to clarify under the current legal system,the judiciary will make various types of foreign-related seamen's labor or service contracts.Apply the choices and explore how to resolve this contradiction.The clear concept of the assignment of seamen is of great significance to the settlement of foreign-born seamen' labor contracts.At present,China has the “Crew Regulations” and other administrative regulations for seafarers.However,seamen are special seafarers.They often work on overseas ships and sign contracts with overseas shipowners.This type of foreign-related characteristics leads to the requirements of the Crew Regulations.The regulations of the problem cannot be directly applied to the seamen,but also directly affect whether the contracts related to the seamen can be handled as labor contracts.Therefore,there must be relevant regulations applicable to the applicable seamen.There are two kinds of seamen: free seamen have no employers in the territory,so they need to leave the country to sign service contracts with overseas owners.Own seamen are employees of domestic employers and have no direct contractual relationship with overseas shipowners.The above distinction is also the core of foreign-related seamen's contracts that are either labor contracts or labor contracts.Seamen's nationality is also an important reason for restricting the application of labor laws in China,as only foreign seamen who have obtained employment permits can establish labor relations with domestic employers.The models mentioned in the above article represents the existing two types of seamen assignments: that is,after the domestic and overseas employers and seamenestablish labor contracts,they will have their own seamen according to the manning agreement with foreign shipowners.Sending out of the country;as an intermediary,the dispatch service agency will send free seamen out of the country and the seamen will sign service contracts with overseas shipowners.The dispatched employing unit may be an outbound service agency itself or it may be another outbound company(such as a shipping company,etc.),but it does not affect the legal application of the labor contract.When seamen sign a “labor contract” with an overseas shipowner,the contract can only be recognized as a service contract in China and is handled in accordance with a general civil contract.The application of the law in such contracts is based on the autonomy of will of the parties.When the choose of partiesis invalid or they have not been selected,the seamen's work place(usually the flag state law)or other law of the most closely related areas applies.The mandatory regulations in the Labor Contract Law and the Labor Law cannot be applied to such contracts,but the terms of the two laws that exclude the specific rights and interests of the procedural provisions may be used as the terms of the contract clauses for the parties to apply.The labor service contract is also an expedient measure for the application of labor laws in China to foreign-related seamen's service contracts.However,the assignment model for the signing of labor contracts between seamen and domestic and overseas agencies is relatively simple,since both seamen and expatriates are domestic entities,and both parties can establish labor relations.The disputed contract is preferentially applied to the law chosen by the parties,which is generally the law of our country.Labor Law and Labor Contract Law.Through the analysis of the application of the existing laws of foreign-related seamen's labor contracts,it can be seen that China's "Labor Contract Law" is lacking in the applicable provisions of foreign-related laws.The territorial application limitation stipulated in Article 2 of the Labor Contract Law excludes the possibility of establishing a labor relationship between a legal person institution established in China and a subject other than a citizen of Chinese nationality,and this geographical application restriction is extremely unreasonable.The purpose of this law is to protect the rights and interests of workers.However,this strict and rigid application ofgeographical restrictions has led to a large number of expatriates who cannot enjoy the protection of the Labor Contract Law and hinder the development of judicial justice and the assignment of labor services.Although the labor contract is part of its public law nature,it is essentially a civil contract that the parties agree to reach.The application of foreign-related laws that restrict the "Labor Contract Law" is not only different from the open legislation trend that is commonly used abroad,but also different from the domestic legislative principles that apply to civil-law-related foreign-related civil law.A comprehensive analysis of the "Labor Contract Law," Article 2,paragraph 1,the restrictions on the geographical application of the article is an immature legislative results,in fact,there should be a corresponding application of foreign law provisions.The legislature should make corrections by amending legislation or enacting new crew laws,or provisional judicial interpretation by the Supreme People's Court temporarily to make up for such omissions. |
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