Research On The Improvement Of The Criteria For Determining Labor Relations Of Overage Workers

Based on the fact that China’s elderly population is increasing and workers exceeding the statutory retirement age are pouring into the workplace,and considering the current situation that the labor rights and interests of overage labor groups are not adequately protected by legislation and judicial judgments,this paper puts forward the problem that the qualitative standards of the employment relationship of such labor groups are not clear in judicial practice.The root cause of this problem is that there is a contradiction between Article 44 of the Labor Contract Law of the People’s Republic of China and Article 21 of the Regulation on the Implementation of the Labor Contract Law of the People’s Republic of China on determining the termination of the labor contract of an overage worker,and in the case of determining the nature of the employment relationship of an overage worker,the judicial practice often focuses on the direct application of the current labor contract termination provisions,rather than thinking over the fact that the overage labor group has dependence on the employers in terms of personal relationship,economic resources and organizational ownership.To some extent,the application of subordination judgment criteria is ignored.On the basis of sorting out the original intention of and the relationship between the labor rights,retirement rights and social security systems of workers,this paper evaluates the unreasonableness of the practice of setting up "reaching the statutory retirement age" and "enjoying basic pension insurance benefits" as the criteria for the termination of labor contracts of overage workers.At the same time,combined with the theoretical basis of the subordinate attribute standard and its specific elements,the direction of improving the labor relationship judgment standards of overage workers is derived,namely,firstly,it is necessary to establish the dominant position of the subordinate attribute standard in the process of determining the labor relationship of overage workers,to affirm the subordinate characteristics of the employment relationship of the overage labor group,and to incorporate this group into the scope of protection of the labor law.On this basis,the two types of criteria for determining the termination of the labor relationship of overage workers also should be amended to varying degrees,and the specific amendment methods are to cancel the setting of treating the statutory retirement age as the criterion for the termination of the labor contract of the overage worker,and to only retain the situation of enjoying the pension insurance treatment of the employee as the content of the judgment standard for the termination of the pension insurance treatment,so as to limit the scope of protection of the legitimate rights and interests of the overage workers under the labor law,and without being divorced from reality and avoiding excessive protection.