Judicial Identification Of New Types Of Labor Relation In The Internet Era

With the advent of the "Internet plus" era,some new formats flourish along with the Internet platform,such as private car drivers from online taxi-hailing service company,deliveryman from online takeaway platform,live entertainers from online internet broadcast platform,etc.This new type of employment model not only meets company’s needs of controlling labor costs and achieving flexible employment,but also meets workers’ longing of independent and free work.However,there are many differences in the mode of employment between the new industry and the traditional industries.The flexible labor service payment method,loose management mode and the diversified salary scheme have brought challenges to the traditional labor relations concept.How to define the nature of this new mode of employment on the basis of Internet platform has become a hot topic in the labor law circles and the difficult problems to be solved urgently by the practical departments.This paper takes the new industry of webcast anchor as an example,and summarizes the difficulties of judging the judicial relationship of labor relations under the new format by combing the characteristics of the new employment form.And then the content shall introduce both the domestic and the foreign theoretical standards and judicial review standards on labor relations,and provide a comparative analysis.On this basis,the paper shall further elaborate the judicial value concept and the mainpoints of the judicial judgment that judiciary should uphold during the trial of the new type of employment in the labor law area.This paper is structured as follows:First of all,the author introduces the starting point,theoretical value and practical significance of author’s study on the judicial identification of the new types of labor relation in the Internet era,and then the author summarizes the references during the research process.The recital also introduces the research methods and the main innovations of this paper.Chapter 1: Judicial differences and issues raised.This part brings the differences in judging new type of employment(such as webcast anchor)through two different judicial cases in the current judicial practice,and then analyzes the causes of such differences in the judicial practice,and finally puts forward the problems faced when determining the labor relations.Chapter 2: Challenges in Judicial Determination of new Labor Relations.This part takes the network anchor as an example and sort out some industrial characteristics including recruitment methods,management models,payment settlement in Internet New Type of Employment,and then summed up the difference through comparison with the traditional industry.The new types of employment comparatively have features and differences including vague agreement,lack of organizational subordination,loose management model,distribute earning as fruits of labour,etc.On the basis of such comparison,the author summarizes the difficulties when identifying the new types of employment in the Internet era which mainly includes the absence and lag of laws and regulations,the difficulty of identifying the fuzziness of the subordination characteristics and the effect of the "no labor relationship" agreement.Chapter 3: Theoretical standards and judicial review standards of identification of labor relations.This part first sums up the common rules of identifying labor relations in various countries by means of the introduction of the two major theoretical theories of labor relations,which are the subordinate theory of continental law system and the control theory of Anglo-American law system.That is,theindependent or self-determination labor is excluded from the labor relations,and only the subordinate,affiliated or determined labor shall be included in the scope of the adjustment of the labor law.Thus reveals the essential nature of labor relations.And then the author introduces the current standards of judicial review of labor relations in our country,analyzes the limitations of the existing standards of "complete requirements" in identifying the relevant labor cases in the Internet era,and finally proposes the "factor inspection" method for identifying the labor relations under the new situation through the introduction of the judicial experience of other countries in the labor law area.Chapter 4: Exploration of Judicial Recognition of New Type of Labor Relations.This chapter is divided into two parts.The first part mainly elaborates the judicial value should be upheld when identifying labor relations under the current economic form.First of all,it is suggested that the protection of labor law can only be applied to the laborers who are subject to restraint through the analysis of the gambling of freedom and protection.And then the author puts forward that judiciary authorities shall not only protect the basic rights and interests of workers,but also apply a moderately wide value concept to certain new industries when identifying labor relations from the perspective of the policy-oriented new employment pattern supported by central government.Finally,the author suggests that the identification of labor relations be based on the essential characteristics of labor relations,and the scope of application of labor law shall not be expanded at will.The second part mainly takes the new industry of webcast anchor as an example to elaborate the main points of the judicial decision when identifying new types of labor relations.The key point to identify labor relations lies in examining the content of labor relations from both external and internal aspects.In the outside,it is necessary to measure whether the specific characteristics presented in the process of establishing a relationship are in line with the essential nature of the subordination of labor relations.On the other hand,it should be examined whether the two sides have a genuine agreement on the establishment of labor relations.The measurement of subordination characteristics should be based on a high degree of rigorous standard review of certain personalityand economic subordination elements like "command management","work for the purpose of others",etc.When reviewing the intention,it is necessary to not only respect the autonomy of the parties,but also shall not be completely laissez-faire.It is suggested that the substantive review be carried out on the agreement of the parties in order to prevent certain enterprises from using the surface agreement to avoid the legal liability and damage workers’ legitimate rights and interests.