劳务派遣制度规制失灵及其匡正（英文）

The Failure of Labor Dispatch Regulation and Its Remedy

在《劳动合同法》起草、制定和修改的进程中,劳务派遣的法律规制逐渐收紧。然而,在实践中,劳务派遣却呈现出"逆市繁荣"的景象。究其根本,大量的劳务派遣借用人事外包的名义混淆视听,规避法律,在事实上架空了法律条文的规定,造成劳务派遣越管越多、越管越乱的局面。本文立足比较法的研究方法,考察德、美等国的劳务派遣法律制度,论证和肯定劳务派遣的制度价值,归纳劳务派遣的类型。针对借人事外包之名、行劳务派遣之实的现象,劳务派遣实质审查的缺失是导致这一现象的根本原因,建议通过确立和完善劳务派遣实质审查,根治劳务派遣泛滥的顽疾。

In the course of the drafting, enactment and amendment of the Labor Contract Law of the People＇s Republic of China, the legal provisions regulating labor dispatch have been tightened up. In practice, however, the labor dispatch system is flourishing in a way that defies market trends. The ultimate reason for this is that much of the system goes under the name of human resource outsourcing to bamboozle the public and evade the law, in effect making the legal provisions a dead letter. The result is that the more the industry is regulated, the more it multiplies and the more chaotic it becomes. Based on comparative law research methodology, this article reviews the legal systems relating to labor dispatch in Germany, the US and other countries. It demonstrates and affirms the institutional value of the labor dispatch system, and categorizes its different types. The fundamental cause of the phenomenon of labor dispatch＇s assumption of the guise of human resource outsourcing is the absence of substantive review. We suggest introducing and perfecting such investigation to stem the industry＇s deep-seated abuses.