| Safeguarding the rights and interests of peasant laborers on construction sites,has been a hot problem of the whole society.At the same time,it is also a difficult problem in judicature.This problem is difficult to get effective treatment,mainly because of the serious phenomenon of subcontract on construction sites in real life,which makes the cognizance of labor relationship on construction sites complex and difficult.The protection of labor law in China,need to identify the labor relationships between employers and workers first.While peasant laborers on the construction sites has the characteristics of seasonal,short-term and mobility,coupled with the labor market is often not normal.Therefore,it is often hard to determine the existence of labor relationships,when recognize the labor relationship on construction sites.Even the labor relationship has been recognized,it often appears the lack of employment subject.In such circumstances,when the rights and interests of peasant laborers on the construction sites suffering damage,legal remedy is very difficult.So,improving cognizance of labor relationship on construction sites,is good for the protection of the rights and interests of peasant laborer on construction sites.It will maintain the development of the building industry,and it has great social significance.This paper uses the case analysis,text analysis,comparative analysis,combing the identification of labor relationships among construction companies,contractors and peasant laborers.Referring to foreign experience,this paper put forward some corresponding improvement suggestions.In order to study the cognizance of labor relationship on construction sites,this paper collects 106 cases from www.pkulaw.cn/,that the people’s court accepted from 2013.1.1 to 2013.12.31.After combing the cases,found that there are two different trial results by the people’s court about the cognizance of labor relationship on construction sites.One recognizes the labor relationships between construction companies and peasant laborers,and the construction companies take the main responsibility for employment.Another recognizes the labor relationships between peasant laborers and contractors,and contractors pay for emolument or loss.Behind these two different trial results,it is the differences between the theories of the cognizance of labor relationship on construction sites.The main reasons causing the differences are the diversity and uncertainty of trial basis,and the lack of theoretical basis.Inspecting on the present situation of China’s existing laws,found that "labor law","labor contract law",the relevant administrative regulations,judicial interpretation about cognizance of labor relationship on construction sites,are not the same,even contradictions.In addition,China’s labor law clearly defined 5 kinds of the employer,such as,enterprises,individual households,government agencies,institutions and social organizations.So,the labor law is only applicable to these 5 kinds of formal employment for the adjustment of labor relationships,and the theory of object of adjustment range,is obviously less than the adjustment range in the practice.The construction companies may not fully know about the peasant laborers the contractors hire.If it recognizes that the construction companies have the labor relationships with the peasant laborers,there are theoretical barriers.And if recognizing that the contractors are employers of the peasant laborers,then the contractors does not apply to the main grid,and it is obvious conflict with the existing labor law.After comparing the cognizance standard of labor relationships on construction sites overseas,this paper attempts to reconstruct the cognizance standard of labor relationships on construction sites to determine the identity of peasant laborers.And this paper suggests the legislation of the unified regulations with the peasant laborers and construction companies are both employers.The construction companies take the main responsibility for employment.At the same time,when the contractors in the name of construction companies,we can refer to the apparent agency to recognize the labor relationship between the construction companies and peasant laborers.Through such system design,the contractors will quit the stage of history,become managers of construction companies,or turn to the labour companies,to promote the healthy development of the construction industry. |
