Identification Of Employment Relationship Between Online Contract And Platform In China

The development of Internet economy has given birth to a new form of employment,which can be called "online contract work".It has involved all walks of life,such as online car booking,delivery riders,cooks,homemakers,surrogate drivers and so on.It not only brings convenience to People’s Daily life,but also provides a multi-channel employment form for workers.There are many types of online contract workers,among which crowd-sourced online contract workers have the most labor disputes,including two types: first,the platform voluntarily outsources online contract workers to non-specific natural persons,who register APP on the mobile terminal and get the approval of the online contract workers;Second,platform enterprises cooperate with third-party outsourcing enterprises to outsource the business of a certain region to the third-party enterprises,and then the third-party enterprises distribute the orders to online contractors in the way of crowd sourcing.They differ only in the business model,but in the substance of labor are the same.Online contract workers obtain demand information from platforms or enterprises and sign agreements with platforms or enterprises to provide services.Of course,platform enterprises often avoid the establishment of labor relations on the grounds that both sides sign cooperation agreements or intermediary agreements.This new form of labor has a certain impact on the traditional labor,labor form from the traditional "company + employee" mode gradually changed to the new "platform + individual" or "platform → company + individual" mode.About net work closely with platform between enterprises fell,the working hours,working place,labor remuneration payment has more flexibility and diversity,at the same time,labor legislation for the emergence of new forms of employment is difficult to apply,has certain hysteresis,lead to network about work and the labor relationship between platform enterprises difficult to define.This thesis will study whether there is a labor relationship between online contract workers and online platforms.It is divided into four parts through case analysis,comparative research and literature research.The first part mainly summarizes the relationship between online contract labor and platform employment,elaborates the connotation of online contract labor,points out the object to be studied in this thesis,and discriminates the three concepts of labor relationship,labor relationship and employment relationship.At the same time,it classifies platform labor and introduces the particularity of network labor compared with traditional labor.The second part puts forward the dilemma of identification,focusing on the theoretical disputes and differences in judicial judgment in the identification of network employment relations.From two aspects: first,from the theoretical level of Our country,it introduces the different viewpoints of the academic circle on the identification standard of labor relations and the definition of labor relations between platform and network contract.Second,by sorting out representative cases in judicial practice,the differences in judicial judgment are divided into three points of view,and the focus of disputes and judgment reasons of each court are summarized and analyzed.The third part analyzes the causes of the dilemma of network employment relationship identification.The thesis is mainly discussed from three angles: first,the theory of labor relations is impacted,and the concept of labor relations and labor contract is challenged;Second,the current legal system is not perfect: labor legislation has lag,labor department rules of the legal rank is too low;Third,the application of judicial judgment is too strict in the application of the attribute standard of labor relations,and mainly in the application of civil relations.The fourth part is based on the previous three parts put forward suggestions for improvement.Enrich and perfect the dependent attribute standard,clarify the applicable method and development direction of the dependent attribute standard;At the legislative level,it sorted out the key points of current legislation,compared overseas experience and combined with the development of Labor legislation in China,and chose to protect the rights and interests of some workers granted by online contract workers.At the judicial level,suggestions are put forward from three aspects: respecting the principle of employment facts,giving appropriate protection based on the principle of balance of interests,and specific judgment rules in practice.