Research On The Employment Relationship Between The Online Drivers And Network Platforms

In recent years,the ride-hailing business relying on the sharing economy platform has developed rapidly.Due to the flexible and diverse employment modes of ride-hailing cars,and the lack of clear and detailed legal provisions,the core issue of employment relationship is difficult to be clarified,which has been the focus of controversy in the theoretical and practical circles.Based on the analysis of current legal norms and academic arguments,as well as the study of practical cases and the status quo of judicial practice,this paper proposes that on the basis of not changing the paradigm of labor law,the standards for identifying the labor relationship of online ride-hailing should be added,so as to accurately identify the employment relationship between the driver and the platform.Specifically,this paper is divided into the following three parts to demonstrate the thesis:The first part sorts out and studies the current laws and regulations on the identification of employment relationship of online car-hailing,and explores the deep-seated reasons for the difficulty in the identification of employment relationship of online car-hailing from the legislative level.The reasons include that the current law does not make clear provisions on the connotation and extension of labor relations,and it is difficult to directly nest the subordination standards of current labor relations into flexible and diversified online car hiring.The second part summarizes and analyzes the adjudication cases of online hire car employment,studies the judicial status quo,reasons for adjudication and standards of the identification standards of online hire car employment relationship in China from an empirical perspective,and analyzes the causes of difficulties in the identification of online hire car employment relationship with empirical data.In practice,some courts excessively rely on the three standards of labor relationship identification established by written labor agreement and The Notice on Matters Related to the Establishment of Labor Relationship（Ministry of Labor and Social Security Of China（2005）No.12,hereinafter referred to as the Notice）,but ignore the actual labor relationship.And in individual cases will be involved in the interests of the third party and make different judgments.After a comparative study of similar cases outside the region,it is found that Britain and the United States adopt the principle of identification standard index in such cases,which can provide reference for China.This paper holds that the deep reasons for the "same case and different judgment" in practice include unclear existing legal provisions,hidden employment situation in the agreement signed by the platform and the driver,and insufficient flexibility of the labor security system that restricts the judiciary.The third part explores the development path of the employment relationship of online car hailing,proposes that labor relationship identification factors such as "passive management" and "continuous work" should be added in a summary and enumerative way,and on this basis,flexible application of attribute standards,so as to establish a multi-level labor relationship identification standard system.In order to deal with the hidden employment of drivers by platforms,the principle of factual labor relationship first should be followed to restore the nature of employment between online car hailing and platforms.In addition,starting from the current situation of the judicial practice of the employment relationship of online car hailing,in order to deal with the current situation of "same case and different judgment",judicial interpretation and guidance cases should be issued in time to unify the judgment scale,so that the trial results can be unified to the greatest extent.