Legal Application And Comparison Between Employment Contract And Labor Contract

In this paper, the contract of employment and the contract of labor are discussed, using the method of comparison .There are lots of employment phenomenon in our life. Disputes are arising from employment contracts and problems are emerging, because our country does not expressly provide contract of employment and contract of labor in the law. So confusion arises in academic areas, legislative and judicial practice. This paper not only discusses the distinction of the two concepts, characteristics, scope of adjustment, history, but also the legislation model between them. The author runs out several cases of the two contracts, discusses the application of the law problem.Specifically, this paper is divided into five parts.The main content of the first part is the basic contents of employment contract and labor contract. Code and Works in a number of foreign countries give the definition of them, but our use of these definitions and concepts are different from theirs'. They include not only contract of labor, but also contract of employment. In our country, some scholars have their own definition, but the definition has not been made clear in our laws. There are four main features in the contract of employment: mutual obligation and paid contract, promised banding and informal contract, continued contract. The definition of contract of labor is expressly provided in our laws, this paper made a note of its nature and adjustment scope of it.The main content of the second part is the history of the contract of employment and the contract of labor. There are two major changes: the shift from freedom of contract to socialization of contract and the shift from traditional private law to social law. Employment and labor relation have a long history in the development of all countries. This paper has done a brief explanation about them in common law and civil law countries. Employment relations have existed nearly 2000 years in China .As an ancient and an important legal relation in modern society, it should play a tremendous role in the existing civil laws.The main content of the third part is the connections and differences between contract of employment and contract of labor. There are three views: parallel theory, coincidence theory and inclusive theory. I agree with the third one. The employment relation includes labor relation, labor relation develops from employment relation, it is a result of socialization. The two parties in the contract are affiliated with each other both in employment contract and labor contract, but different in degrees .The connections between them is employment relation is the basis of labor relation, and labor relation is the development and evolution of employment relation.The main content of the fourth part is the legislation of contract of employment and contract of labor. This paper discusses the problems that are not adjusted in both employment and labor law. There are political and economy reasons on it. Employment and labor relation need to be re-defined, and the employment contract system should be provided in Civil Code. China is currently drafting combined with the "The PRC Labor Contract Law". On the question of the form of labor contract, the author argues that labor contracts should absolutely take the written form.The main content of the fifth part is the law application of contract of employment and contract of labor. There are many problems in current judicial practice. How to judge the two different contracts? Mainly on three points: nature of the employer, whether employers and employees are strong affiliated with each other and whether the workers engaged in steady work. The issues of part-time work, laid-off workers, migrant workers and the family nannies are hot and controversial issues. The different features of contract of employment and contract of labor determine the different right Relief mechanisms. Traditional tort law is applicable to the contract of employment, but work injury insurance is applicable to the contract of labor.