The Law Standard Of Affirming Labor Relationship

It is very important to the employer and the employee, especially to the latter, that whether an actual labor activity can be affirmed into the labor relationship. But there are many difficulties in distinguishing the labor relations and the other law relations. It is caused by the following elements: the mixture of the labor relationship and other civil relationships, the special historian background of China, the various and elastic trend in the developing labor relations, the mistakes in the parties' legal recognition, and the deficiency of our legislation and research work. So such a significant problem, which has not been attached necessary importance to, is just what my thesis focuses on.In the first chapter, the article discusses the concept of labor relationship. For clarifying the confusing mixture of the labor relationship and the others, all the differences among the labor relation, the working relation, the salary relation, the employment relation, and the file-deposition relation have been discussed.For stressing the importance of the affirmed standard of the labor relationship, the results of the affirmation have also been discussed. The results of regard the labor relations are mainly concentrated into these aspects: In the substantive law, the differences between the basic and the supplementary rights and obligations do exist, while in the procedural law, it includes the usual legal proceedings, the limitation of legal time, and whether the parties have the priorities, etc. If to disapprove a worthy truly labor relationship, it will put both the parties and the third party into disadvantages.The second chapter is a generation of present laws. From the analysis, we cansee that the legislators are confused on labor relationship and they even have a misunderstanding about the basic question that labor relationship must come into being and exsit in the working process. And in the other hand, the present law of labor relationship is also limited.In the third chapter, the article has proposed the affirmed standards of the labor relationship, which are beyond the present laws. The writer believes that to affirm the labor relationship such respects should be taken into consideration: Foremost, considering the legal statuses of the both parties respectively, to the employer's qualification, though according to the regulation of the labor law, individual does not have the qualification of the employer's, while by analyses, we think it is more practical to acknowledge the individual employer's status. When considered the qualification of the labor through the age and identity, the retired can be regarded as the party in the relationship too. In identity, we think to simply deny the labor's identity of students ignores the reality, which does harm to the protection of the students' labor rights. Secondly, my thesis has discussed the cognition of obligations of the both parties. In this section, several main respects in affirmation have been proposed, such as the working purpose of labors, the limit of appointed or real working time, the method of cooperation, etc. Finally, we also put forward other referential factors in the affirmation. These factors can be embodied in the aspects of whether the labor join the working course directed by the employer, and whether the labor observes the inner working disciplines regulated by the employer and the working time, etc.The last chaper is about improvement, which includes the integrated intension of labor relationship and the enlarging of applying scope of labor law. Specifically speaking, the formal conditions of establishing labor relationship should be reformed. The writer gives an idea that the employer qualification of an individual or a family should be acknowledged, and in the other hand, the employee identity of a baby-sitter or a student or a retired worker should also be recognized.