| The arrival of industrial "4.0" era has spawned many new employment modes different from the traditional industries,including the network broadcast industry.The network broadcast industry has become the driving force for the rapid development of the Internet economy with its growing size,but also exposed new problems at the same time.In judicial adjudication,some courts tend to believe that there is no labor relationship between network broadcast platform companies and anchors,and some courts confirm the labor relationship,which leads to the awkward situation of different judgments in the same case.As the law stipulates that only laborers are protected by the labor law and enjoy various rights and interests of laborers such as social insurance,rest and vacation,in the face of the social status of "strong capital,weak labor",the identification of labor relations is particularly important for anchors in a vulnerable position.Regarding the nature of the legal relationship between them,there is no clear legal basis or guiding cases in our country.Therefore,it is urgent to discuss the identification of labor relations between network broadcast platforms and anchors.136 judgments from 2020 to 2022 were obtained by searching keywords on the website of China Judgment Documents.Three typical cases were selected,and two focal points of disputes were summarized through combing and analysis: first,how to define the nature of "cooperation agreement";Second,whether there is labor relationship between network platform and anchor.Then,it analyzes the issues and issues around the focus of the dispute,and expounds the theories of autonomy of will and contract of fact,so as to lay the legal basis for the analysis of the problem.Among them,the most important is to identify the subordinate theory of labor relations,which is divided into personality subordinate,economic subordinate and organizational subordinate,followed by the identification of de facto labor relations.When the platform employment mode presents new characteristics of flexibility and change,higher requirements are put forward for judicial practice,and the court needs to conduct substantive review and consider the existence of labor relations at the factual level.Through the analysis of the above problems,the author puts forward targeted suggestions to improve the identification of labor relations between anchors and platform companies.To determine whether the two parties have reached an agreement to establish labor relations,the author comprehensively determines the nature of "cooperation agreement" based on the facts of the case,establishes the principle of free form of labor contracts,and includes partial employment contracts that meet the characteristics of labor relations into the protection of labor law.At the same time,by enriching the relevant legal basis for the identification of labor relations,flexibly applying the dependent standard,and reviewing the actual performance of both parties,we hope to improve the identification standards of labor relations between the platform and anchors. |
