个人外包、业务委托型就业者的法政策——民事法与劳动法之间的“契约劳动者”的保护

Laws and Regulations of Individual Outsourcing and Business Delegate Employment —— Protection to "Contract Laborers" who Stand Between Civil Law and Labor Law

在日本就业形态多样化的发展中,个人外包、业务委托型就业者人数不断增加,形态呈现多样。从历史发展脉络可见,在明治以后的相当长时期内,雇佣、外包、委任等合同之间的界限十分模糊。"二战"以后,日本确立了劳动者、自营业者的两分法,并以使用从属关系为基准定义劳动者,结果,委托型就业者作为外包、委任合同的另一方当事者成为自营业者,不适用劳动法。由于自营业者与劳动者的法律地位不同,所以缺乏劳动法的保护。在劳动关系多元化的社会变革中,应该明确个人外包、业务委托型就业者的概念和判定基准,对在民事法合同与劳动法合同之间的"契约劳动者",制定特别的法律适用规定,在劳动灾害、损害赔偿、合同更新与解除等方面比照劳动法实行适当保护。

In the development of Japanese diverse forms of employment, the amount of people who engaged in personal outsourcing, business delegate employment has been increasing, and have presented in a variety of forms. Historically, the boundaries over the contract of employment, outsourcing, commission and more have become quite vague in a fairly long period of time after Meiji. Since Second World War, the dichotomy between laborers and self-employed laborers has been established in Japan, taking use dependency relationship as the benchmark to define laborers. As a result, people who engaged in business delegate employment are not applicable to Labor Law, because they are self-employed and acted as the other parties in the outsourcing contracts as well as commission contracts. The self-employed laborers, owning to the different legal status of self-employment and employment,are lack legal protection of Labor Law. As social revolution has shown a trend of diversified labor relationship, we should be clear about the concept as well as determination criteria of individual outsourcing and business delegate employment, so that special legal provisions could be applied to 'contract laborers', who stand in the middle zone between civil law contract workers and labor law contract workers. With regard to occupational accident, damage compensation, contract renewal, contract dissolution and so on, it is necessary to implement appropriate protection to 'contract laborers' with the reference of Labor Law.