| China has entered a stage of high-quality development,which is inseparable from the hard work of every worker,but the overtime work faced by workers in China is more common,workers work too long hours,the right to rest is not protected,and even the phenomenon of "death by overwork",which infringes on the right to life and health of workers.Some unscrupulous enterprises violate workers’ rights for their own interests,but due to the low cost of violation,the painless fines do not deter these enterprises,and the overtime culture is still "alive and well".In this paper,we propose some suggestions for legal regulation of overtime work in China.Firstly,by analyzing the basis of workers’ right to rest,right to life and health and right to labor remuneration in China and some realistic problems in China:excessive overtime hours of workers,low cost of violation by enterprises,poor monitoring effect of workers and invisible overtime infringing on workers’ rights and interests,it is proposed that it is necessary to legally regulate the overtime problem in China.Secondly,the concept of overtime is defined,and the impact of China’s working hours system on the legal regulation of overtime is analyzed,so as to lay the theoretical groundwork for the legal regulation of overtime.Then the author focuses on the main overtime problems in China’s judicial cases and the controversies of overtime in the theoretical circles,and concludes that the following overtime legal problems mainly exist in China: First,the boundary of working hours is unclear.Second,the problem of overtime hours: China has the problem that the upper limit of overtime hours under standard working hours is unknown and there is no upper limit of overtime hours under special working hours.Third,the problem of calculating overtime pay: the base of overtime pay is unknown and the problem of calculating overtime pay under special working hours.Fourth,the problem of the burden of proof of overtime work: China stipulates that the number of years for the employer to keep the relevant evidence is too short,and it is difficult for the workers to prove the evidence,and the regulations of the burden of proof are general and the distribution is unclear.Finally,by carefully analyzing the legal problems of overtime work in China and combining the insights of several scholars on the issue of overtime work and the legal regulation countermeasures of other countries and regions,we can put forward the suggestions on the legal regulation of overtime work in China.First,clarify the boundary of working time.To clarify the boundary of working time,we should firstly clarify the connotation of working time,and secondly,we should clarify the scope of recognition of working time.Second,regulate the issue of overtime hours.The upper limit of overtime hours under standard working hours should be clarified,and the upper limit of overtime hours under special working hours should be stipulated.Third,regulate the calculation of overtime pay.To regulate the calculation of overtime wages,we should clarify the basis of overtime wages and the calculation method of overtime wages under special working hours.Fourthly,to reasonably set the rules of proof of overtime work.The responsibility of the employer to preserve the evidence of overtime work should be appropriately extended,and the burden of proof should be reasonably allocated according to specific cases. |
