退休再就业法律规制研究
发布时间：2018-11-06 07:11
【摘要】：随着人口老龄化的加速,维护劳动力资源的可持续发展和弥补养老基金缺口是亟待解决的问题,不论是推迟法定退休年龄,还是鼓励退休再就业,短期内很难有结果。退休再就业并非一种新社会现象,是否应当对这部分群体进行特别保护,保护到何程度,是亟待正视的问题。退休再就业人员是否受劳动法的调整才是解决退休再就业问题的关键。本文从退休再就业劳动资格的法律分析和退休再就业用工关系的法律性质两方面进行研究。首先,从退休再就业劳动资格的法律分析,通过退休再就业劳动者资格的法理分析、司法困境,从对我国劳动者界定的评价、明确劳动者概念、退休再就业人员劳动者身份确定的标准三个方面对退休再就业劳动者资格认定进行了反思。其次,从退休再就业用工关系的法律性质进行分析,通过学理分析和司法解释两个角度,对退休再就业用工关系中的劳动关系相对说、劳动关系绝对说、社会保险标准说进行了阐释,从而提出将退休再就业用工关系确定为特殊劳动关系的构想,从而将劳动关系调整“柔性化”。再次,从退休再就业人员公平就业权的内涵、同工同酬权的必要性、职业安全健康权、养老保险权四个方面提出对我国退休再就业人员的权益保护。最后,从通过修改劳动法,赋予退休再就业人员部分劳动者的资格,特别是在公平就业权、同工同酬权、职业安全健康权以及养老保险权,提出完善我国退休再就业劳动者权益保护的法律建议。
[Abstract]:With the acceleration of population aging, it is urgent to solve the problem of maintaining the sustainable development of labor resources and making up the gap of pension fund. Whether it is to delay the legal retirement age or to encourage the retirement and re-employment, it is difficult to achieve results in the short term. Retirement and re-employment is not a new social phenomenon. It is the key to solve the problem of retirement and re-employment whether the retired re-employed is subject to the adjustment of labor law. In this paper, the legal analysis of retirement reemployment qualification and the legal nature of the relationship between retirement and reemployment are studied. First of all, from the legal analysis of the retirement re-employment labor qualification, through the legal analysis of the retirement re-employment worker qualification, the judicial dilemma, from the evaluation of the definition of the laborer in our country, the concept of the laborer is clarified. This paper reflects on the qualification of retired re-employed workers from three aspects: the criteria of determining the status of retired re-employed workers. Secondly, from the perspective of the legal nature of the relationship between retired and re-employed workers, through the theoretical analysis and judicial interpretation, the author makes a comparative analysis of the labor relations in the relation of retired re-employment and employment, and the absolute theory of the labor relations. The theory of social insurance standard is explained, and the conception of determining retirement re-employment and employment relationship as special labor relationship is put forward, and the adjustment of labor relationship is "flexible". Thirdly, from the aspects of the connotation of the right to fair employment, the necessity of the right to equal pay for equal work, the right to occupational safety and health, and the right to old-age insurance, this paper puts forward the protection of the rights and interests of retired re-employed persons in China. Finally, by amending the labor law, some of the workers who are retired and re-employed will be qualified, especially in terms of the right to fair employment, the right to equal pay for equal work, the right to occupational safety and health, and the right to old-age insurance. This paper puts forward some legal suggestions on how to improve the protection of the rights and interests of retired and reemployed workers in China.
【学位授予单位】：西南科技大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.5
[Abstract]:With the acceleration of population aging, it is urgent to solve the problem of maintaining the sustainable development of labor resources and making up the gap of pension fund. Whether it is to delay the legal retirement age or to encourage the retirement and re-employment, it is difficult to achieve results in the short term. Retirement and re-employment is not a new social phenomenon. It is the key to solve the problem of retirement and re-employment whether the retired re-employed is subject to the adjustment of labor law. In this paper, the legal analysis of retirement reemployment qualification and the legal nature of the relationship between retirement and reemployment are studied. First of all, from the legal analysis of the retirement re-employment labor qualification, through the legal analysis of the retirement re-employment worker qualification, the judicial dilemma, from the evaluation of the definition of the laborer in our country, the concept of the laborer is clarified. This paper reflects on the qualification of retired re-employed workers from three aspects: the criteria of determining the status of retired re-employed workers. Secondly, from the perspective of the legal nature of the relationship between retired and re-employed workers, through the theoretical analysis and judicial interpretation, the author makes a comparative analysis of the labor relations in the relation of retired re-employment and employment, and the absolute theory of the labor relations. The theory of social insurance standard is explained, and the conception of determining retirement re-employment and employment relationship as special labor relationship is put forward, and the adjustment of labor relationship is "flexible". Thirdly, from the aspects of the connotation of the right to fair employment, the necessity of the right to equal pay for equal work, the right to occupational safety and health, and the right to old-age insurance, this paper puts forward the protection of the rights and interests of retired re-employed persons in China. Finally, by amending the labor law, some of the workers who are retired and re-employed will be qualified, especially in terms of the right to fair employment, the right to equal pay for equal work, the right to occupational safety and health, and the right to old-age insurance. This paper puts forward some legal suggestions on how to improve the protection of the rights and interests of retired and reemployed workers in China.
【学位授予单位】：西南科技大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.5
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