Research On The Identification Standard Of Takeaway Riders’ Labor Relations Under The Agency Model

With the continuous development of the takeaway industry,the employment form of the takeaway platform is constantly changing,and the company-owned model is gradually eliminated,replaced by the rise of the agency model and the crowdsourcing model.Among the three models,the legal relationship between the company-owned model and the crowdsourcing model,which only involves the platform and the individual,is clear and less controversial in practice,while the legal relationship of the agency model is more complicated because of the existence of the platform,the agency and the individual,so there are more disputes in practice and the phenomenon of different judgments in the same case is more prominent.The reason is that the judicial practice has not yet formed a unified identification standard on the labor relations of takeaway riders under the agency model,and there are also differences on the selection and identification of specific factors under each requirement in the identification standard.Therefore,this thesis sorts out and classifies the relevant judgments of the takeaway rider’s confirmation of labor relations cases under the agency model,sums up three main identification standards in current judicial practice,and then extracts five requirements that are mainly examined in current judicial practice: subject qualification,consent of the parties,personality subordination,economic subordination and organizational subordination.The latter part mainly finds out the problems from the current situation of judicial identification of the above five requirements and puts forward corresponding optimization suggestions.In view of the subject qualification,this chapter first discusses the role orientation of the takeaway platform under the agency model,the nature of the multi-layer outsourcing behavior of the agency and the nature of the self-employed rider,and puts forward that the employer of takeaway riders and the self-employed rider should be confirmed according to the actual labor management situation and business autonomy.In view of the consent of the parties,this chapter mainly demonstrates the rationality of the implied agreement priority view,and puts forward that the principle of actual performance should be established and the employment facts should be judged from multiple angles,so as to truly play the role of the consent of the parties in the determination of labor relations;In view of the personality subordination,this chapter first demonstrates the personality subordination between the agency and the takeaway rider from the perspective of traditional employers,and adjusts and enriches the specific factors of the personality subordination from the perspective of employers’ three rights,and then puts forward the demonstration path from the perspective of workers;In view of the economic subordination,this chapter first demonstrates the economic subordination between the agency and the takeaway rider based on the dependence of economic resources,the undertaker of business risks and the dependence of economic sources,and then combines the characteristics of the agency model to adjust and enrich the specific factors of the economic subordination under the above three definitions;In view of the organizational subordination,this chapter first demonstrates the rationality and necessity of the independence of organizational subordination from two aspects:the various understandings of the connotation of organizational subordination and the role of organizational subordination in the determination of non-standard labor relations,and then clarifies the wrong understanding of organizational subordination in judicial practice,and enriches the specific investigation factors of organizational subordination.