“从契约到身份”——以船员劳务合同的特殊性及司法应对为视角

“From contract to status”——from the perspective of specificity in seafarer service contract and judicial response

针对《中华人民共和国劳动合同法》《中华人民共和国船员条例》颁布后船员劳务合同纠纷案件中出现的新情况和面临的新问题,在分析当前相关立法、船员劳务关系现状以及一字之差的"劳务"与"劳动"合同对保护船员权益存在本质不同的基础上,认为船员不仅应当得到"契约"的保护,还应当基于劳动者"身份"得到劳动法的特殊保护。进而,针对船员劳务合同相比一般劳动合同的特殊性,从合同关系、主体、内容、责任和纠纷解决机制等方面提出司法如何予以应对的相应观点。

As witnessed by the judicial practice, new issues and problems in regards to disputes of seafarer service contract a- rise since the promulgation of Labor Contract Law and Seafarer Rule. It is opinioned that a seafarer shall not only be protected by the ＂contract＂ as one contracting party, he may also be entitled to rights to the fullest extent in his capacity as seafarer under labor law. The aforesaid conclusion is reached by analyzing current legislation and seafarer service relationship, also clarification is made on distinction in nature in protecting seafarers＇ rights under labor contract and service contract, as the change of one word would make a great deal of difference. Furthermore, in consideration of the specific characteristics of sea- farer service contract other than general labor contract, some proposals are made on how to cope with the aforesaid problems in view of contractual relationship, entity, contents, liabilities and disputes resolutions of seafarer service contract.