劳务外包是近年来盛行的一种新型的业务模式，也是社会分工和经济发展的产物。它打破了传统的用工方式下的两方主体关系，形成了由发包单位、接包单位和劳动者组成的三方主体。而由于我国对劳务外包缺乏专门的法律规制，许多企业为了规避用工责任、减少用人成本，通过签订劳务外包合同的方式招揽劳动者，而这些劳动者往往从事着企业的主要劳动业务，收其监督管理，与企业自身员工在实质上并无差异，造成了我国劳务外包市场的“假外包”乱象，在发包企业破产时，碍于该部分劳动者形式上的劳务外包关系，无法参与破产财产的分配，其债权也无法受到平等的保护，这显然有违公平原则和法的价值位阶的。 本文通过比较研究法、价值分析法等研究方法，通过分析劳务外包的定义及其与“假外包”模式的区分，从理论和实践两方面探讨了破产程序中，“假外包”模式下劳动者债权优先保护的问题。从理论上来说，保护“假外包”劳动债权是符合法的位阶价值理论以及实质重于形式原则的，并且通过分析该模式下劳动关系从属性指出其与发包单位存在法律关系，从法律上应受到与破产劳动债权同等的保护。从实践基础上来说，本文提出了司法实践中对不同的三方主体结构下，劳动关系实质性判定的思路，并分析了与劳务外包模式类似的建设工程承揽模式，指出了建设工程价款优先受偿的立法原理和行权方式，结合了国外对于与劳务外包类似的非典型劳动关系的保护方式，提出了“假外包”模式下，劳动者债权在破产程序中优先受偿的正当性。另外，本文借鉴了国外保护劳动债权的做法，提出除了破产法之外，还应从完善社会保障机制、明确责任人惩戒机制等方面全方位地为在破产中保障外包劳动者债权。

Labor outsourcing is a new type of business model that has prevailed in recent years in China, and it is also a product of social division of labor and economic development. Labor outsourcing create a tripartite body consisting of the contracting unit, the receiving unit and the laborer, which breaks the typical relationship between the two parties under the traditional employment mode. Due to the absence of the regulations or explanation for labor outsourcing in the current legal system, Many enterprises represented by the manufacturing industry have thus avoided the employer's responsibility while achieving the real purpose of employing people through the establishment of labor service outsourcing contracts. But these labors are often engaged in the main labor business of the enterprise, under their supervision and management, and there is no difference between them and the employees themselves. This has caused the chaos of “fake outsourcing” in labor outsourcing market. In the case that a large number of manufacturing companies are now bankrupt, there are some controversies in the settlement of the claims of the outsourced laborers, and they are usually not effectively protected. Through the research methods such as comparative research method and value analysis method, this paper discusses the protection of outsourced laborers' claims under the model from the theoretical and practical aspects by analyzing the definition of labor outsourcing and the characteristics of the existing outsourcing model in China. In theory, based on human rights attribute of outsourcing laborer's creditor's rights, this paper points out that the protection of outsourced laborers' claims is in line with the law's rank value theory and the substance is more important than the formal principle, judges the relationship among several parties and laws in this atypical labor relationship by analyzing the labor relations under the labor outsourcing model. In terms of judicial practice, this paper puts forward the jurisprudence of the factual labor relationship and its ideas, and starts from the legislative principle and the exercise mode of the construction project price priority. And combined with the foreign protection methods for atypical labor relations similar to labor outsourcing, it proposes the legitimacy of outsourcing laborer's creditor's rights priority when the contracted enterprise is bankrupt under the similar labor outsourcing mode. In addition, this paper draws on the practice of protecting labor credit rights abroad, and proposes that in addition to the bankruptcy law, it should also protect the claims of outsourced laborers in bankruptcy from the aspects of improving the social security mechanism and clarifying the disciplinary mechanism of responsible persons.