Research On Legal Issues Of Employment By Name

In China’s labor dispute cases,it is not uncommon for workers to sign labor contracts with employers in the name of others,or for workers to work directly in the name of others.The definition of the relationship between the substitute laborer and the employer,the corresponding disputes about social insurance and housing accumulation fund,and the compulsory contracting of the non fixed term labor contract are all different in judicial practice because the current labor laws and regulations in China are not clear or perfect.This paper selects three representative cases in judicial practice to study the labor dispute cases caused by substituting employment,summarizes the characteristics of such cases,combines with the existing legal provisions of our country,analyzes the views of legal scholars,and puts forward some suggestions for solving such labor disputes in judicial practice.The structure and main contents of this paper are as follows:The first part introduces three cases,and further puts forward the focus.In the three cases,the laborer went to the employer in the name of the third person,and did not sign a labor contract with the employer in his own name,and the labor time was more than ten years.The employer paid the laborer wages during the actual labor period,but handled and paid social insurance and housing provident fund in the name and identity of the third person.As for the disputes between the substitute workers and the employing units,different judicial bodies have made different judgments.Therefore,the following three focus issues are summarized: 1.Whether the substitute employment relationship belongs to the de facto labor relationship;2.Whether the dispute of social insurance and housing provident fund in the substitute employment belongs to the scope of labor dispute;3.Whether the substitute workers enjoy the compulsory contracting right of non fixed term labor contract.In the second part,the author makes a jurisprudential analysis of the three focus issues.As for the first focus,this paper analyzes the definition dispute,the identification requirements,the concept and classification of the factual labor relationship,and the rules for the termination of the factual labor relationship.For the second focus,this paper analyzes the concept and handling mechanism of labor dispute,the particularity of social insurance dispute and housing provident fund dispute.As for the third focus,this paper analyzes it from two aspects: the overview of non fixed term labor contract and the compulsory contracting right of workers.The third part summarizes the labor disputes of the employment of the name,and concludes the following three conclusions: 1.The employment relationship belongs to the factual labor relationship;2.the social insurance and housing provident fund disputes in the employment of the replacement are not the scope of the labor dispute;3.the substitute workers do not enjoy the compulsory contracting right of the labor contract without fixed period.The following suggestions are put forward: 1.clarify the legal status of the factual labor relations;2.Improve the civil judicial relief mechanism of social insurance disputes;3.Establish the civil judicial relief mechanism for housing provident fund disputes;4.perfect the labor contract system without fixed period.