The Construction of the Extraterritorial Application of Labor Law——Take U.S.Law as the Mirror
The presumption against extraterritoriality is the basic principle of extraterritorial application of the United States law.Under the influence of this principle,the Fair Labor Standard Law introduced the foreign exemption criteria,and the anti-discrimination legislation established the rules for extraterritorial application.However,the legislation has been criticized for the insufficient protection for overseas workers.In practice,the court should determine whether the dispute is an extraterritorial or interterritorial application issue.If it comes to the first question,the court should judge whether the dispute falls into the scope of the legislation and consider whether there are defense circumstances,including violating foreign laws and the law at the choice of both parties.Taking the US law as the mirror,China should refine the"extraterritorial"judgment criteria for foreign-related labor cases to accurately judge whether they involve the issue of extraterritorial application of labor law.Basing on personality principles,China's labor law should improve the expression of the scope of application of labor law,and establish a defense system for violation of foreign law.The mandatory norms should be carefully applied,and the extraterritorial application of labor law should be taken as the closest connection.In favor of the workers,the parties can choose the applicable law under agreement.
United Stateslabor lawextraterritorial applicationcriteria of gravitydefense
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