Research of the labor protective system in the context of the diversification of the labor force

随着劳动力多元化程度的提高，不受劳动法约束或不受劳动法约束的劳动者数量一直在增加。现行的劳动保护法(特别是《劳动基准法》)明确了员工的概念，但其概念是综合考虑各种因素而确定的，哪些因素优先于其他因素并不明确。从这样的法律状况来看，就出现了法律稳定性的缺失。另一方面，任何类型的法律保护都不会给予不符合雇员资格的工人。这种要么全有要么全无的待遇给被排除在劳动法之外、但需要一些法律保护的工人带来了不适当的影响。重要的是，政府对需要法律保护的工人采取了必要和充分的措施。为此，有必要对学界意见和判例法所采用的“个人从属”标准进行修订。从比较的角度来看，许多欧洲大陆国家的法律制度中，“雇员”的概念是建立在个人从属的基础上的。为了解决雇员概念在法律上不稳定的问题，我认为，原则上，任何向他人提供劳动力的人都可以享受某些类型的法律条款，但向他人提供劳动力的人和接受劳动力的人应该能够达成具体的协议，减损一些强制性的法律条款。

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.