Study On The Confirmation Of Non-standard Labor Relationship

The labor relationship identification is the primary issue in the labor substantivelaw and procedural law, for it not only decides the adjusting objects and applying scopeof labor law, but also is the basis of all labor dispute cases. However, the confirmationof non-standard labor relationship is an important and difficult issue in laborrelationship identification.At present, economic species diversification is an inevitable trend in presentsocial and economic development. In this trend, many new forms of non-standardlabor relationship constantly emerge. Due to the non-standard labor relationship hasmany different characteristics and forms, compared to standard labor relationship, soit causes great difficulties to identify the labor relationship. Furthermore, at thepresent legal system, the legislations on non-standard labor relationship are notperfect, and the identifications of non-standard labor relationship in the judicialpractice are not uniform. In this paper, through the analysis of the non-standard laborrelationship’s various forms and characteristics, the author discusses the theoreticalbasis to identify it, then put forward some proposals about lawmaking in nativeconcerned fields.This article discusses as the following structure:The introduction emphasizes the significance studying on the confirmation ofnon-standard labor relationship from theoretical research and judicial practice, and defines the status, the criterion and labor standards of non-standard labor relationshipin an area of research.Chapter1firstly puts forward three typical issues occurred in the practices oflabor relationship confirmation in order to introduce the subordination doctrine andthe control doctrine, two general doctrines of labor relationship confirmation in theinternational labor law, then expounds the difficulties that was found in course oflabor relationship confirmation according to current standard, and the limitations oftwo general doctrines, lastly points out that common theory of labor relationshipidentification is not applicable to non-standard labor relationship, and explains thatthe theory of three separations and three coincidences of labor relationship is thecriterion of non-standard labor relationship identification.Chapter2continually studies the characteristics of the non-standard laborrelationship, the theory of three separations and three coincidences of laborrelationship, mentioned in chapter1, then argues the specific cases and legal basis ofit from the judicial practice angle, finally respectively discusses the standards ofconfirming labor relationship coinciding, labor relationship and service relationshipscoinciding, and labor relationship and management relationship coinciding.Non-standard labor relationship should be valued from the legal angle byanalyzing the actual cases. Chapter3analyses the status, the criterion and laborstandards of non-standard labor relationship in the present legal system, then arguesthe inadequacies of the present legal system on regulating non-standard laborrelationship, finally gives some relevant law making proposals.In sum, this paper carries on a research on the problems and relevantmeasurements in the confirmation of non-standard labor relationship, not only fromthe theory angles but also practical case angles. By writing this paper, the authoranticipates it could guide the labor arbitration practice somehow.