On The Identification Of Labor Relations Of Atypical Laborers

The development of atypical employment is very rapid.The type of employment of laborers is no longer limited to fixed factories and working hours,and the scope of laborers has also expanded.These laborers do not dominate the labor market,but they play an important role in social and economic development.This article refers to them as atypical laborers,that is,atypical laborers are atypical workers who have certain subordination to employers.In theory,it should be recognized as a laborer and be protected by the labor law.This article investigates related cases of judicial practice and finds that the identification of labor relations of atypical laborers has certain practical difficulties.It is expressed in the judiciary's judgment of personality attributes,the definition of special laborers,the judgment of contract nature,and non-repetitive labor relations.The recognition.Atypical laborers are more special than typical laborers,but in essence they should be recognized as laborers and protected.However,in the determination of the judicial department,there are some confusions.The origin of the atypical laborers is precisely due to the labor laws of our country.The insufficiency of elasticity is reflected in the legal provisions on which the determination is based and the standards and methods adopted in the determination.Due to the inadequacy of the flexibility of labor law,the subjective extension of labor relations in the basis of recognition appears to be very narrow,and in the application of recognized standards,the application of property standards is very rigid,and finally the attitude of labor law to labor contracts,labor contracts Has become the most important form factor in the determination of labor relations.In practice,it has replaced the status of labor facts,making the identification of labor relations to a certain degree of formalization.The academic research on atypical laborers in China's academic circles is insufficient,and the judiciary's empirical experience is also obviously insufficient.Therefore,we should learn from foreign experience,adjust measures to local conditions,and improve the system that recognizes labor relations in China.This paper mainly studies the definition of laborer identity of atypical laborers in the recognition system of labor relations in developed countries and the identification standards and methods used in the determination,including the identification in Germany,Japan,the United States,and the United Kingdom.These developed countries have adopted two methods to determine the labor relations of atypical laborers.This paper,based on the actual situation in China and the recognized experience in foreign countries,proposes that the recognition system for labor relations should be perfected.In order to protect the rights and interests of SAR workers,Attempt to broaden the extension of laborers,add intermediate types of subjects,and explicitly include some special labor subjects in the scope of laborers.In terms of certification standards,multiple criteria should be used to identify typical laborers from the property standards.Special sub-attribute standards should be applied to identify atypical workers.In addition,reference should be made to improve the reference of attributes and make reference more detailed.And for some atypical workers in special occupations,they should be listed from the reference of attribute determination to better guide judicial determination.In the way of recognition,it should also change the formalization of the recognition method,and use the presumption-based and fact-based methods of recognition.