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Your kind is labour relation, not labor relations.

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How to distinguish between labor relations and labour relation

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Release date: 2111-12-14 16: 13: 56

----------------. In terms of procedures, if disputes arise between the parties due to labor relations, pre-arbitration procedures are needed, which can only be accepted by the people's court after arbitration, and labour relation can directly file a lawsuit in the people's court. In terms of law application, labor relations should be dealt with according to the relevant legal basis such as the Labor Law, and labour relation should be dealt with according to the contract law and other legal provisions. Especially in cases involving personal injury, the industrial injury insurance regulations apply to labor relations, and the judicial interpretation of personal injury compensation applies to labour relation. There is a huge difference between the two after calculation, and whether the fault principle should be applied is also different. Therefore, whether a specific case belongs to labor relations or labour relation has become an unavoidable problem before the judge. Through the analysis of several confusing forms of employment in judicial practice, this paper tries to put forward personal shallow views and suggestions on how to distinguish labor relations with labour relation in specific cases, hoping to be beneficial to judicial practice.

I. Several confusing forms of employment in judicial practice

The following confusing forms of employment are common in judicial practice:

1. The construction project is subcontracted at different levels, and finally the natural person organizes the construction. Is the employment a labor relationship or a labour relation?

2. When a natural person buys a vehicle, he is affiliated with a transportation company. Is the driver employed by the natural person a labor relation or a labour relation? In other affiliated situations, the employees employed are labor relations or labour relation.

3. laid-off, retired due to illness, and employees who actually left the original unit without signing the corresponding agreement have formed a long-term and stable employment relationship with other units. Is it a labor relationship or a labour relation between the employee and the new unit?

4. Does the temporary employment of the employer belong to labor relations or labour relation?

5. Although there is no business license or the business license has been cancelled, but the business activities are carried out in the name of the unit, the labor relationship with the employees is still labour relation.

6. Is the labor relationship between individual industrial and commercial households and employees labour relation?

7. Is the relationship between lawyers and law firms, insurance companies and insurance salesmen labor or other relationships?

II. Sorting out various regulations and related explanations

Courts in various places have also made some explorations on labor relations and labour relation. For example, Article 5 of the Notice of Zhejiang Higher People's Court on Printing and Distributing the Summary of Difficult Issues in Labor Dispute Cases (Zhejiang Gaofa [2111] No.241) stipulates: How to distinguish labor relations from labour relation? A: Labor relations refer to the labor rights and obligations between workers and employers, with the purpose of labor payment. Labour relation refers to the legal relationship that arises when a worker provides a specific labor service for the serviced party and the serviced party pays the remuneration according to the agreement. The differences between the two are as follows: First, besides the elements of debt between the parties, labor relations also contain the elements of identity and society, while labour relation is a simple debt relationship. Second, the relationship between the parties in labor relations is generally stable, while the relationship between the parties in labour relation often has the characteristics of "temporary, short-term and one-off". Third, in labor relations, there are social relations between the parties, such as management and being managed, domination and being dominated, while there is no such relationship between the parties in labour relation, but a contractual relationship between equal subjects. Hubei High Court, Fujian High Court, Jiangsu High Court and other courts have also issued regulations to treat some special forms of employment as labor relations or labour relation, such as the opinions on several issues concerning the trial of labor dispute cases issued by Hubei Higher People's Court (for Trial Implementation); Opinions issued by the Higher People's Court of Fujian Province on several issues concerning the trial of labor dispute cases; Some guiding opinions on the trial of labor dispute cases issued by Qinghai Higher People's Court and Qinghai Labor Dispute Arbitration Commission; As far as the minutes of Zhejiang Higher People's Court are concerned, the first and third points of personal feeling difference seem to be the difference (screening) between labor or labour relation and contract relationship, not the difference (screening) between labor relationship and labour relation, and the basic principles or even basic ideas of screening labour relation and labor relationship are not given. The provisions of other high courts are scattered, only regulating individual situations, and it is impossible to clarify the issue of how to define labor relations and labour relation.

in the book Understanding and Application of the Provisions on the Cause of Action of Civil Cases in the Supreme People's Court (P142), the interpretation of labor service (employment) contract is that the labor service provider and the labor service recipient sign an agreement according to the law, and the labor service provider provides labor services to the recipient, and the recipient pays labor remuneration to the provider, including wages and insurance benefits. At the same time, the book summarizes the differences between labor contract and labor contract (P143): 1. Different subject qualifications; 2. The nature of the subject and its relationship are different; 3. The obligations of employers are different; 4. The laws of adjustment are different; 5. Different legal liabilities for non-performance of the contract; 6. Disputes are handled in different ways. From the viewpoint of the book Understanding and Application, we can see that: 1. Labor contract and employment contract are regarded as the same concept by the Supreme People's Court (so this paper only uses the concept of labor contract); 2. The concepts of wages and insurance benefits are used in the definition of labor contract, which is actually the exclusive treatment of labor relations; 3. In the summary of the differences between labor contract and labor contract, in fact, there are only two items, namely, 1 and 2, and the rest are different treatment principles after screening. The book distinguishes labor relations from labour relation's viewpoints as follows: 1. One party of the labor contract is the employer, and both parties of the labor contract can be legal persons, organizations and citizens at the same time; 2. In addition to economic relations, labor relations also have personal relations, that is, administrative subordination relations; In labour relation, however, there is no administrative subordination, and both sides have equal status.

Let's further look at a passage in Understanding and Application of Judicial Interpretation of Personal Injury Compensation in the Supreme People's Court (P169): If there is a relationship of control, domination and subordination between the parties, if one party designates the workplace, provides labor tools or equipment, limits working hours, and pays labor remuneration regularly, the labor provided is an integral part of the production and business activities of the party receiving the labor service, it can be regarded as employment. Comparing the characteristics of the above-mentioned employment relationship (the viewpoint of understanding and applying according to the provisions of the cause of action of civil cases in the Supreme People's Court is the same concept as that of labour relation) with the viewpoint of labor relations defined in the above-mentioned book Understanding and applying the provisions of the cause of action of civil cases in the Supreme People's Court, we can see that the subordinate and dominant relationship between employment relationship and labor relationship is not the essential difference between them. That is, "Understanding and Application of Judicial Interpretation of Personal Injury Compensation in the Supreme People's Court" and "Understanding and Application of Provisions on the Cause of Action of Civil Cases in the Supreme People's Court" contradict each other on the principle of screening labor relations and labour relation, which makes people feel at a loss. To sum up, the existing normative opinions and related understandings are not enough to identify whether the complicated employment relations in practice are labor relations or labour relation.

Third, personal analysis of this and the basic idea of distinguishing the relationship between the two

The author believes that to distinguish labor relations from labour relation, we must examine the gradual changes of employment forms in China from the perspective of historical analysis. Before the introduction of the labor law, the concept of planned economy still had a large market in people's minds, and the individual and private economy did not occupy the main aspect of the market. Therefore, it is generally believed that workers provide labor for state-owned or collective enterprises (countries) as the owners of enterprises (countries), while providing services for individuals, private enterprises or individuals actually belongs to the relationship between capitalist exploitation and exploitation, so there is no room for labour relation concept in the early days of reform and opening up. However, with the gradual deepening of the national economic system reform, individuals, private enterprises and individuals employ others to work, and the surplus value of others' labor has been gradually accepted by the society and the system (of course, there is no room for the theory of surplus value to use others' labor for personal convenience, such as hiring others to clean up the housework, but this situation is obviously labour relation, so there is no need to discuss it), and there is no essential difference between labor relations and labour relation in terms of economics. The emergence of the concept of labour relation is actually a legal reflection of the development and reform of the economic system and a response of the legal system to social phenomena. Moreover, it was only in the 2111 Provisions on the Cause of Action of Civil Cases in the Supreme People's Court (Trial) that the concept of labour relation appeared in the legal sense. That is, the development of economic forms led to the emergence of labour relation's concept.

From the above, the author thinks that from the legal point of view, there is no obvious essential difference between labor relations and labour relation except for the main body (one party of labor relations is the employer, and labour relation is mostly the other subject except the employer as stipulated by law). Both parties occupy the labor of the other party, and there are many theories of surplus value, and most of them also have the relationship of management, domination and identity dependence. It is only because of the specific historical period and various factors, especially the social insurance collection system that they have to use different legal norms, and at the same time, some special cases need special analysis because of the special provisions of relevant laws and regulations. This point can also be inferred from the provisions of Tort Liability Law: Article 34 of this law stipulates that the staff of the employing unit shall bear the responsibility for causing damage to others due to the execution of work tasks, while Article 35 stipulates that the party providing labor services shall bear the liability for compensation when the labour relation is formed between individuals, and it can also be speculated that the discrimination between labor relations and labour relation is mainly reflected in the subject.

However, we should also see that labor relations are constantly expanding its territory, encroaching on the newly emerging territory of labour relation. This point can be deduced from the development of the connotation and extension of the concept of employer.

The concept of the employer has changed in three stages in law: 1. Before the promulgation of the Labor Law, the concept of the employer did not exist in the legal sense, and the concept of the employer did not appear until the promulgation of the Labor Law, that is, enterprises and individual economic organizations as stipulated in Article 2 of the Law. At the same time, the law stipulates that workers in state organs, institutions and social organizations who have established labor contract relations with them are 2. The judicial interpretation of personal injury compensation was issued. According to the provisions of Article 12 of the interpretation, the scope of the concept of employer was determined as the unit that should participate in the overall planning of work-related injury insurance according to law. At the same time, according to the provisions of Article 2 of the Regulations on Industrial Injury Insurance, it can be concluded that the concept of employing unit in the judicial interpretation of personal injury compensation refers to all kinds of enterprises and individual industrial and commercial households with employees in China (each province stipulates according to the situation of this province). 3. With the promulgation of the Labor Contract Law, the concept of employing unit stipulated in Article 2 covers the following: Chinese people, domestic enterprises, individual economic organizations, private non-enterprise units and other organizations, state organs, institutions, social organizations and laborers who have established labor relations with them, and the conclusion, performance, alteration, dissolution or termination of labor contracts shall be implemented in accordance with this Law. As can be seen from the above, the change of the concept of employer directly leads to the continuous expansion of the subject of applicable labor relations, that is, the continuous expansion of the scope of labor relations. It can be seen that with the deepening of economic reform and development, the form of employment originally belonging to labour relation has been determined as labor relations. That is to say, the difference between labor relations and labour relation is not clear-cut, but there is the possibility of transformation (only labour relation is transformed into labor relations).

From the above, it can be seen that there are many ambiguities and even contradictions in the current system and related regulations. The reasons are as follows: 1. The update speed of some laws and regulations lags behind the reform and development speed of the economic system, especially the social insurance collection system; The thinking of some laws and regulations is beyond the current economic situation. 2. There are many different policies, which leads to confusion. 3, only talk about law, lack of communication and exchanges with other disciplines.

What is more noteworthy is that the confusion and contradiction of the current system are gradually leading to the tendency of duality in judicial practice. That is to say, there is a difference in the standard of defining the relationship between the injured labor provider (let's just call it that) and other labor (service) disputes (mostly in terms of labor remuneration), that is, the same person may be identified as a labor relationship when the people's court handles this dispute because of different types of disputes involved, and labour relation when handling other disputes. In the case that the labor provider is injured, the current system design mainly considers whether the employer belongs to the unit that should participate in the overall planning of industrial injury insurance according to law (mainly according to Article 12 of the Judicial Interpretation of Personal Injury Compensation). If the answer is in the affirmative, it is a labor relationship, and the provisions of the industrial injury insurance regulations shall apply. If the answer is negative, it will be labour relation, and the judicial interpretation of personal injury compensation will be applied to deal with it, that is, the subject of such disputes will be strictly limited to all kinds of enterprises and individual industrial and commercial households with employees within the territory of the People's Republic of China (except for provinces that have not included individual industrial and commercial households in industrial injury insurance). Disputes other than injuries to labor providers are mainly investigated as to whether they belong to the employing unit stipulated in the Labor Contract Law. If they belong to the employing unit stipulated in the Labor Contract Law (enterprises, individual economic organizations, private non-enterprise units and other organizations in China, state organs, institutions, social organizations and laborers who have established labor relations with them), they are labor relations, and vice versa, they are labour relation.

To sum up the above aspects, the individual should follow the following ideas in identifying labour relation and labor relations:

1. Identification of the subject. If the subject of employment belongs to the category of the employer stipulated in the labor law, it is basically judged as labor relations, and vice versa, it is labour relation.

2. After considering the main factors, we should also consider the specific situation of social insurance collection, that is, even if it conforms to the characteristics of labor relations, but the current social insurance collection system is not standardized, it should be treated as labour relation.

3. Special provisions on labor relations in judicial interpretations, regulations and normative opinions issued by relevant departments must be considered.

4. "Temporary, short-term and one-off" is also one of the factors to consider when defining the relationship between them.

5. Cases of injury to labor providers are treated differently from other types of cases (recovery of remuneration).

6. Whether the state regulates the relevant employment forms mainly through the labor department? If the answer is affirmative, it is basically judged as labor relations.

fourth, the confusing employment relationship mentioned above