防范业务外包合同风险的几点思考

Some Suggestion to Prevent the Risk of Outsourcing Contract

简要介绍了业务外包合同的定义及其与其它服务类合同的区别,指出了业务外包合同签订环节存在的合同文本不规范、不统一,合同要素不全或条款约定不严谨,缺少授权文件,与劳务派遣合同混淆;履行环节存在的真劳务、假外包,以包代管以及管理界限划分不清造成法律风险等问题,提出了相应对策:一是制定业务外包合同标准文本;二是合同文本条款应足够完善;三是与劳务派遣合同要有明显区别;四是要求承包商提供完整的授权文件和人员名单;五是严格合同履行过程监管;六是认真组织合同期满评价。

The definition of outsourcing contract and its differences with other service contracts is briefly introduced.Some problems in the signing process of outsourcing contract,such as nonstandard and inconsistent contract text,incomplete contract elements or un-precise terms,lack of authorization documents,confusion with labor dispatch contract,etc.,and some problems in contract implementation,such as real labor covered by fake outsourcing,replacing management by outsourcing,and the legal risks due to unclear management boundary,are pointed out.The corresponding countermeasures are put forward as follows:the first is to formulate the standard text of outsourcing contract;the second is to sufficiently perfect the terms of the contract text;the third is to distinguish the difference from labor dispatch contract;the fourth is require the contractor to provide a complete authorization document and personnel list;the fifth is to strictly supervise the contract performance process;the sixth is to seriously organize the contract expiration evaluation.