【作者】 孟凡昊；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 经济法学， 2008， 硕士

【摘要】 家内劳动是灵活就业的一种方式。随着经济的发展、社会政策的调整和人们就业观念的转变,家内劳动在世界范围内展现出了可观的发展前景。丰富我国的劳动力市场也要重视家内劳动等灵活就业方式的作用,对包括家内劳动在内的非典型劳动关系的探讨,是劳动实践领域与劳动法理论研究共同发展的重要课题。本文试图通过对家内劳动的产生背景与各国发展状况的研究,预见家内劳动在信息技术时代的发展趋势,阐明其理论研究的重要性和必要性。任何一种劳动关系的认定都以劳动给付中从属关系的存在为前提,本文从从属劳动理论的演变历程上着手,论证了从属劳动理论的核心内涵应当是对劳动过程的控制,并据此分析了从属性家内劳动关系的性质。文章在比较了各国关于家内劳动者权益保护规范的基础上,提出了完善我国家内劳动者权益保护的若干建议。同时,针对用人单位监督管理上的困难及商业秘密保护上面临的风险,本文也做了简要的分析与评述,建议用人单位采用灵活的方式实现对家内劳动者的管理,以平衡用人单位与劳动者双方不同的利益需求。更多还原

【Abstract】 Atypical employment is one of the strategies that enterprises take to deal with global competition, and also a piece of choice that individuals take while facing the oversupply of the labor market. Varies kinds of atypical employment appear in the historical period of opening-up in China, such as part-time work, dispatched-work, homework, etc. Studying on these kinds of employment is quite important in our country, not only because China needs to take the challenge of the global competition as well as other countries, but also because the oversupply of the labor market is more prominent as a result of the transformation of our economic system. Like other counties, the labor law in China was built upon the theories on typical employment. Therefore, adjustment has to be made in regulations in order to protect atypical workers. This paper focuses on the legal adjustment of homework employment. The paper includes three chapters.In chapter one, this paper first identify the definition of homework, and then analyzes the background of its development and the following influences. Homework, whose appearance could date back to the early days of the industrialization period, is characterized with the fact that laborers work at home with flexible hours. Most of the homeworkers were women and used to work in manufacturing, since that they could not find a steady work as a result of the limitation of skills and family responsibilities. Homework was not accepted by most of the laborers because people found it against women’s social responsibilities. The union was unwilling to protect homeworkers, either. Global competition and the information technology have brought homework to a further stage. Homework becomes attractive to both entrepreneurs and laborers, because it may reduce the productive costs, and also satisfy the needs of laborers’family responsibilities. The development of homework influences employment relationship in several ways, such as the distinction between employment and hire of work, the protection of female workers, the function of the union, etc. The background of homework’s development in China was similar to the other countries. In recent years, most of the homeworkers live in developed cities of China. Their appearances made authors take a new look on China’s employment relationship.Chapter two demonstrated the subordinate nature of homework employment. By analyzing varies theories on dependency in labor relationship of different countries, we would be able to find out that the power to control is the key point which causes dependency or subordination. It is because the employers’control--both in process and product--that the laborers are unable to carry out work at their will, thus lead to their subordination to the employer. As the labor market changes with the development of the society, this power to control tends to be indirect. As far as homework is concerned, the dependency of homeworker is concealed by the following facts: First, the more professional skills the work requires, the more freedom should be given to the worker; Second, the more freedom the worker has, the less the employer’s power turns; In addition, some employer actually evade the regulations of dependency. These facts have made homework invisible in the traditional labor theories, but its subordination status can be seen if we focus on the employer’s power to control. The characteristic of homework relationship has brought some barriers while applying the current labor regulations, which mainly include the difficulties in protecting the laborers’safety, right to rest, right of social security, right of occupation training, and right of association. Employers will have to face the changes of management as well.In chapter three, the legal adjustment model of homework relationship is firstly discussed, and followed with several facts that may have influences on the choice of the model, which include the cultural background of the country, legal system of labor law, the development of labor market and the efficiency of the union. Based upon the research on the regulations of homework employment in several countries, chapter three introduces a certain pieces of suggestion, trying to fulfill the blanks in the regulations in China. First of all, labor standards should play an important role in the adjustment of homework employment. Because as other laborers, homeworkers are subordinate to employers, and generally, the union does not gain much benefit for homeworkers as a result of their different requirement from regular workers. Second of all, this paper brought up some practical advice according to those barriers discussed in chapter two, including the distinction of homework, the protection of laborer’s safety, the cognition of injury on job, the standard of overtime working and the regulations about business secret and prohibition of business strife as well.Homework employment is embodied with the modern working style and the change of ideas in employment. With a social background of promoting employment, atypical employment such as homework would be a trend in the labor market. Researches upon atypical employment would be of great importance in the labor law history of China.更多还原