被派遣劳动者社会保险权保障:必要性及法律规制

最新修订的《劳动合同法》充分回应了劳务派遣法律问题学术讨论达成的基本共识,但问题并未因此而得到一劳永逸的解决。被派遣劳动者的社会保险权利救济问题,不仅有利于解决劳务派遣被滥用的现实困境,也是劳动法与社会保障法衔接的关键,学界对此研究甚少。现有关于保护被派遣劳动者社会保险权利的法律规定,存在雇主责任制度失效、异地派遣滥用规制不足、社会保险费征缴主体责任缺失、工伤保险待遇支付责任分配不公等问题。只有跳出单一视角,通过民事规则的完善、行政救济的补足和刑事制裁的法律创新的公私法双重路径,才能实质有效地保护被派遣劳动者的社会保险权利,实现生存权保障和社会安全秩序的法益目标。

On Legal Relief for Social Insurance Rights of Labor Dispatch

The latest revision of China＇ s Labor Contract Act has reflected several viewpoints proposed by many scholars experienced in the research of legal issues on labor dispatch. However, there are some problems to be solved. For instance, the legal relief for social insurance rights of labor dispatch, the key to coordinating rules between the labor law and the social security law and the key to solving practical problems on labor dis- patch, are somehow ignored by those scholars. The current law rules have some shortcomings, including ineffi- ciency on employer liability system, the lack of entity responsibility of social insurance agencies, unfairness for liability distribution on the payment of industrial injury insurance and the lack of legal regulation on relocating the labors to other areas. To protect the social insurance rights of labor dispatch efficiently and effectively, and to achieve the legal interests on right of existence and social security order, a dual perspective on both public and private laws needs to be chosen, during improving private law rules, making up the defects of administra- tive procedure, legal innovation on criminal sanction.