2005 Fiscal Year Final Research Report Summary
Research of the labor protective system in the context of the diversification of the labor force
| Project/Area Number |
15530042
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Social law
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| Research Institution | Kobe University |
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Principal Investigator |
OUCHI Shinya Kobe University, Graduate School of Law, Professor, 法学研究科, 教授 (10283855)
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| Project Period (FY) |
2003 – 2005
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| Keywords | worker / independent worker / subordination / labor law / deviation / economic dependence |
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| Research Abstract |
As the diversification of the labor force grows, the number of the workers who are not clearly classified as "employee" subject to the labor law or not has been increasing. The actual labor protection law (in particular Labor Standards Law) defines an "employee", but its concept is determined by taking various factors into consideration and which factors take precedent over others is not clear. From such legal situation it occurs a lack of legal stability. On the other hand, any type of legal protection is not given to a worker who is not qualified for an employee. Such an "all or nothing" treatment has brought about unsuitable effects on the workers who are excluded from labor law, but need some legal protection. What matters is that the government adopts necessary and sufficient measures to the workers who need legal protection. To do this it is necessary that the criterion "personal subordination" adopted by the academic opinion and case law should be revised. From a comparative viewpoint, many European continental countries have a legal system in which a notion of "employee" is based upon a personal subordination. However workers who are not in a personal subordination, but in an economic dependency can receive some kind of legal protection.
To resolve the problem of legal instability concerning the notion of employee, I think that in principle some types of legal provisions can be enjoyed by any person who provides its labor force to others, but a person who provides its labor force to others and a person who receive it should be able to conclude a specific agreement on derogation from some mandatory legal provisions.
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