Study On The Nature Of Employment Relationship Of People Over The Legal Retirement Age

With China’s entering the aging society,the age structure of labor force in China has been greatly adjusted.In the society,the number of people who are over the legal retirement age but still working is increasing,which can not be ignored.The nature of the employment relationship between employees over the legal retirement age(hereinafter referred to as "over age personnel")and employers has always been the focus of controversy in the theoretical and judicial circles.In judicial practice,there are mainly two kinds of judgment views on the nature of the employment relationship between the over age personnel and the employing units,namely,the labor relationship theory and the labor relationship theory.The people’s court,which holds the theory of labor relations,takes Article 44(2)of the labor contract law and Article7 of the interpretation on Several Issues concerning the application of law in the trial of labor dispute cases as the basis of judgment,and holds that the employment relationship between over age personnel and employers depends on whether they enjoy basic endowment insurance benefits.If they do not enjoy the basic pension insurance,they can still constitute labor relations;The people’s court holding the theory of labor relations takes Article 21 of the regulations on the implementation of the labor contract law(hereinafter referred to as the "Implementation Regulations")as the direct judgment basis,and holds that no matter whether the over age personnel enjoy the basic endowment insurance treatment or not,they do not have the qualification of laborer,and can only form labor relations with the employer.The theorists have different views on this issue.On the focus of dispute,some courts holding the theory of labor relations hold that article 21 of the implementation regulations has amended the labor contract law,so it should not be used as a basis for adjudication.However,the court holding the theory of labor relations held that the article was authorized by the labor contract law and can be used as the basis for judgment.At the same time,on the way of termination of labor relations,the two opinions are opposite,namely,the right of termination of labor relations and the theory of automatic termination of labor relations.The current legislation of our country has different provisions on whether the legal retirement age affects the nature of the employment relationship,which is the fundamental cause of the serious phenomenon of different judgments in the same case.In addition,there is still a certain deviation in the recognition of the nature of retirement,which is also an important reason behind it.Combined with the constitution,the theory and the legislation of some foreign countries,it should be affirmed that the over age workers have the subject qualification of workers,and the recognition of the nature of the employment relationship between them and the employing units should be based on the subordination.If the over age personnel meet the criteria of subordination,whether they enjoy basic pension insurance or not,they should constitute labor relations.However,it should be noted that over age workers have their own particularity compared with ordinary workers.In order to avoid over protecting this group and resulting in the imbalance of employers’ interests,the over age labor relationship should have the following particularity: in the over age labor relationship,the parties should be given the right to terminate the labor contract when the over age workers reach the legal retirement age In order to balance the interests of both parties,we should exclude the application of non fixed term labor contract,flexibly apply industrial injury insurance,and distinguish the application of economic compensation and other social insurance except industrial injury insurance.