劳务派遣适用范围的再思考——兼评《劳动合同法修正案》

Research on the Scope of Labor Dispatching —Analysis on Amendment of Employment Contract Law

劳务派遣的超常发展是一个突出的社会问题,适用范围规定的不合理是重要原因之一。对劳务派遣是否应加以适用范围的限制存在争议,对此应坚持管制立场。《劳动合同法修正案》明确了劳务派遣适用范围的指导原则,对"三性"进行了重新界定,并施以比例限制。但劳务派遣适用范围仍有待继续完善,"三性"间的关系需重新定位,应以"临时性"为核心,"替代性"和"辅助性"为补充。

Over development in labor dispatching is a prominent social problem. One of the most important reason is that provision about the scope labor dispatching is unreasonable. There are disputes all along on whether this special form of em- ployment should be restricted in certain scope. In my opinion legal regulation is necessary. Amendment of Labor Contract Law sets up the guideline for the application of labor dispatching, defines the three pre-requisite conditions again and exerts the proportion restriction. However, current legislation is far from perfect. The relations among the three conditions should be reconsidered. Temporary requirement should be followed as the primary pre-requisite, meanwhile replaceable and supple- mentary requirements act as the supplement.