Research On The Identification Of Labor Relations In The Internet Platform

In the absence of legislation,labor relations,as a key legal term,has not been defined at the level of laws and State Ordinance for a long time.The definition criteria proposed by the low-level norms and scholars’ doctrines are vague and poor in operation.The general doctrine of "dependency property" principle cannot explain the actual scope of protection offered by China’s labor law.These facts make the determination of labor relations a difficult issue in judicial practice.In recent years,the existing labor relations legislation and theories have become even less capable of facing the challenges brought by the new labor employment models arising from the booming sharing economy facilitated by community-based internet platforms(also called as Internet Platform Economy in China).The purpose of this paper is to repair the defects of the existing labor relations identification system based on the principle of "dependency property",reconstruct a theoretical system of labor relations identification with explanatory power for both the existing situation and future challenges in China,and use it as a criterion to analyze whether workers in the Internet sharing economy constitute labor relations with the platform enterprises,and finally suggest the state should establish a quasi-labor relations protection system featuring "low protection and high coverage" to provide protection for workers who do not constitute labor relations.The research methodology of this paper includes:-to study and analyze the legislation and academic views on the identification of labor relations in China and abroad,-to review labor dispute lawsuits related to enterprises,widely read analysis reports on Internet industry and hot spot news about this industry,-to download “Meituan Rider” App to get a first-hand typical contract model in sharing economy,-to compare the modes of protection of workers’ rights and interests during the planned economy and the market economy in China,-to analyze the types of workers who meet the criterion of Dependency Property but are excluded from the protection of labor law,-to sort out the comprehensive rights and interests enjoyed by workers in labor relations,ranging from economic benefits to labor conditions,from privileges in arbitration and litigation to risk sharing,-to compare and analyze the relationship between the comprehensive rights and interests contained in "labor relations" and the range of workers covered by "labor relations" in various types of societies.-to study and research the decision of the Central Committee of the CCP and the relevant guidance of the State Council to make sure the study conducted in correct political direction in the context of unclear provisions of laws and State Ordinance,-to use concepts and methods such as least-cost risk averters,the "law of large numbers," moral hazard,The Hand Formula,social welfare maximization,and imperfectly competitive markets in law and economics as The Hand Formula,social welfare maximization,imperfectly competitive markets,as analytical tools.The research results of this paper include criticizing and developing theory of "Dependency Property" based on summarizing the essence of protection provided by labor law of China and reconstructing the theoretical system of labor relations identification.The new theoretical system is composed of two principles,namely "need for protection" and "social affordability",and three judgment criteria.The three criteria are: the most incapability of workers to defend themselves against risks from the employer,the most incapability of workers to defend their rights through civil lawsuit,and the positive impact on the overall welfare of society if a kind of relation is recognized as labor relations.Only when all three criteria are satisfied at the same time can a labor relations be recognized,and the state shall provide a set of favorable protection according to the current regulations,including minimum wage,equal pay for equal work,social insurance treatment,right to leave and labor protection,working hours system,dismissal treatment,administrative and judicial priority protection,etc.When only Criteria One and Criteria Three or Criteria Two and Criteria Three are met,it constitutes a "quasi-employment relationship",which is protected with different relative advantages depending on the situation.For workers who meet Criterion Two and Criteria Three but not Criterion One,the law should complement their ability to self-remedy by granting them "labor relations treatment" in terms of allocation of burden of proof,cost and procedure of arbitration and litigation,but not extending to other favorable rights and benefits.For workers who meet Criterion One and Three but not Criterion Two,they are handled in two steps:Step1,the workers’ claims are divided into two catalogs,namely risk distribution claims or benefit distribution claims.Step2,the risks are reasonably allocated according to the theory of law and economics,and the benefits are reasonably allocated according to the development stage of the internet sharing industry and the interested enterprise,as well as the general economic environment of the whole society.The theoretical innovations of this paper include:Firstly,it innovatively points out that the essence of protection embodied in labor relations in China is to provide a series of extensive and significant favorable rights and benefits for a small portion of workers.Secondly,it innovatively criticizes the theory of "dependency" from the perspective of "subjective fitness" rules in labor relations identification,pointing out that in addition to considering "dependency",it is also necessary to consider the scope of protection that the state and the employer are willing and able to afford.Thirdly,the author inherits and develops the theory of "dependency” and propose a stronger theory of "need for protection",which is broken down into two subdivisions: "vulnerability to risks from the employer" and "inability of self-remedy".Fourth,the author innovatively divides the benefits embodied in the labor relations into two categories: risk distribution benefits and income distribution benefits.Fifth,the author innovatively suggests a less inclusive set of favorable rights and interests should be embodied in the "quasi-Labor relations” and proposes specific method to recognize quasi-Labor relations.Sixth,the law of negative correlation between rights and interests and the scope of protection in the field of labor law is revealed for the first time based on comparison study on “formal workers” in the era of planned economy and“migrant workers” in the era of market economy.