At present, the determination of labor relations adopts the dichotomy of "all or nothing", and the employment relationship between the employing entity and the employee is divided into labor relations and ordinary civil legal relations based on whether the labor provided by the employee is attribute labor or independent labor. In addition to the subordinate requirements, there are also various provisions that set other requirements for the establishment of labor relations, so that some employment relationships that do not fully meet all the requirements may be excluded from the labor relationship, and once they are excluded from the labor relationship, it also means that such employment relations will be classified as ordinary civil legal relations. There are deficiencies in this classification criterion, and it is necessary to analyse and improve it.
Problems with dichotomous criteria
The dichotomy standard has shown obvious drawbacks in practice, and it is difficult to adapt to the booming form of employment. As a result of this standard, some employment relationships in reality are often in a vague middle ground, and there are two main types of such ambiguous middle grounds. One type is typical of the labor provided by some workers in the new business form to platform operators, and the other type is typical of workers who are still working beyond the statutory retirement age (hereinafter referred to as "overage workers"). This standard also results in the employment relationship being either classified into an employment relationship or a civil legal relationship, and the workers in the middle zone will be recognized as labor relations or civil legal relations because of different adjudication criteria, resulting in a huge contrast in labor protection;
Improve the basic idea of the dichotomy of labor relations
We believe that it is possible to draw a middle ground or buffer zone between the labor relationship that fully meets the prescribed requirements and the ordinary civil legal relationship, and place the employment relationship that does not fully meet the prescribed requirements but is closer to the labor relationship in it, so as to distinguish it from the ordinary civil legal relationship, and then apply the relevant provisions of the labor law by analogy or by reference to the relevant provisions of the labor law, so as to impose the basic protection of the labor law on the corresponding workers in terms of basic labor protection, minimum wage protection, occupational injury protection, etc.
First of all, there is a sufficient legal basis for such processing. The first paragraph of Article 467 of the Civil Code stipulates that the provisions of the General Provisions of this Part shall apply to contracts that are not expressly provided for in this Law or other laws, and the provisions of the most similar contracts in this Part or other laws may be applied by reference. The employment contract should also follow the general rules and value orientation of the contract. Therefore, under the premise that civil employment contracts and labor contracts have common attributes, according to this paragraph, there are no theoretical and rule obstacles to the application of law across labor contracts and civil contracts. Of course, the "provisions of other laws that are most similar to contracts" include not only the provisions of the Labor Contract Law, but also the rules of the Labor Law and other separate laws that deal with labor standards. Secondly, it can effectively protect the basic rights and interests of workers in the middle ground, which is conducive to building a harmonious employment relationship. Thirdly, it can effectively avoid the loss of funds such as social security and taxes. In addition, it will not cause some emerging Internet platform operators to increase their costs excessively.
In order to draw such a middle ground, it is necessary to accurately define the employment relationship that fully meets the prescribed requirements, and such an employment relationship can be called a "full employment relationship". On this basis, the typological sorting of employment relationships that do not fully meet the prescribed requirements but are closer to the nature of employment relations is closer to that of labor relations, and distinguish them from ordinary civil legal relationships, for which such employment relationships can be called "incomplete labor relations".
Definition of incomplete labor relationship under the new thinking
Since incomplete labor relations involve the interests of workers, social insurance, taxation and other national and public interests, it is necessary to intervene in them. One of the main ways to intervene is to apply the labor law to adjust it to suit the nature of employment, so as to achieve the purpose of protecting the basic labor rights and interests of workers. According to the causes of the formation of incomplete labor relations, they can be simply classified.
1. A de facto labor relationship that is contrary to the true intentions. The de facto contract theory proposed by the German scholar Professor Gunter Haupt is usually cited as the theoretical basis for the concept of de facto labor relations. Professor Haupt advocates that a de facto employment relationship refers to a de facto employment relationship formed by the performance of an employment contract by both parties to an employment relationship that violates the substantive and valid conditions. The mainland intends to use the concept of de facto employment relationship to define employment relations without a written employment contract, but after the implementation of the Labor Contract Law, this definition is no longer of practical significance. We believe that today's de facto employment relationship should return to its original meaning, specifically referring to the employment relationship formed by the employee or the employer by fraud, coercion or taking advantage of the danger of the other party to conclude the labor contract contrary to the true intention. Obviously, the de facto employment relationship does not fully meet the expectations of the legislation and is an incomplete employment relationship, which may result in the rights of both parties not being fully protected by the labor law.
For example, if an employee joins the employer with a false resume, the employment contract will be invalid. In this case, even if the employer has not concluded a written employment contract with the employer, its claim for double wages without a written employment contract should not be supported. However, based on the fact that subordinate labor already exists, there is a need for the worker or employer to be protected by the labor law in some aspects. In such a case, the de facto labor relationship established as a result of employment will not cease to exist from the beginning because of the invalidity of the labor contract, but the employer has the right to terminate the labor relationship in accordance with the law and may choose to continue; if the employee has already paid for the work, the employer shall pay the labor remuneration to the employee, and the amount of labor remuneration shall be determined with reference to the labor remuneration of the employee in the same or similar position in the employer.
2. Employment relationship of unqualified workers. Taking overage workers as an example, the first paragraph of Article 32 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases stipulates that the employment relationship between the employee and the employing entity shall be treated as an employment relationship. This not only protects the employment rate of the young and middle-aged employed population, but also does not have an undue adverse impact on the survival and life of workers who have already begun to enjoy basic pension insurance benefits.
For over-age workers who do not enjoy basic pension insurance benefits, first of all, their labor qualifications are not automatically lost due to reaching retirement age, and they still enjoy the right to employment. Secondly, with the substantial increase in life expectancy, the current retirement age, especially for women, is becoming too low, and with the advent of the Internet age, many jobs require less physical strength. Thirdly, among the over-age workers, a considerable number of them are migrant workers whose pension problems have not been properly resolved, and continuing to work is necessary for them to maintain their personal and family lives. Therefore, the employment relationship of this part of the employee can be included in the incomplete labor relationship for protection. Of course, since the labor contract entered into between the employee and the employer violates the mandatory provisions of Article 21 of the Implementing Regulations of the Labor Contract Law and is invalid, their rights cannot be fully protected by the Labor Law, for example, they cannot request the employer to conclude an indefinite labor contract with them, and the employer may not be able to pay basic pension insurance and other social insurance for them. However, as long as the employing entity has carried out dominant labor management, the basic labor rights and labor protection corresponding to the acceptance of such dominant management are reasonably enjoyed by over-age workers in the same way as workers in full labor relations, and cannot be deprived. Therefore, overage workers should be supported if they claim to enjoy basic labor rights and interests such as minimum wage, overtime wages, rest and vacation, occupational hazard protection, and work-related injury insurance benefits by referring to the application of the Labor Law.
3. The employment relationship of the unqualified employing entity. In accordance with the relevant laws and regulations, if the employer fails to apply for a business license, or if the business license is revoked, ordered to close or revoked, or the employer decides to dissolve ahead of schedule, it is not qualified to establish an employment relationship with the employee. However, the fault that leads to the lack of entity qualification of the employing entity is often on the side of the employing entity, and the employee is not at fault. In the case that the employing entity is not qualified, in order to provide the necessary labor law protection for the employee, the employment relationship may be included in the incomplete labor relationship. In addition, the relevant provisions of the labor law should be applied to the greatest extent to protect the legitimate rights and interests of the employee who is not at fault, and can also play a role in increasing the cost, punishment and guidance of illegal employment. Of course, employees cannot claim the right to conclude an indefinite-term employment contract or double wages without a written employment contract.
4. Flexible employment with weak subordination. In July 2021, the Ministry of Human Resources and Social Security and eight other departments jointly promulgated the Guiding Opinions on Safeguarding the Labor Protection Rights and Interests of Workers in New Employment Forms (hereinafter referred to as the "Opinions"), which proposes that if the conditions for establishing an employment relationship are met, enterprises shall enter into labor contracts with employees in accordance with the law. Where the circumstances for establishing an employment relationship are not fully met, but the enterprise conducts labor management of the employee, the enterprise shall be guided to enter into a written agreement with the employee to reasonably determine the rights and obligations of the enterprise and the employee. Individuals rely on the platform to independently carry out business activities, engage in freelance professions, etc., and adjust the rights and obligations of both parties in accordance with civil laws. Among them, for the legal relationship of "employment that does not fully comply with the situation of establishing labor relations but the enterprise manages the labor of the employee, the operable way is to further subdivide the original division model of "subordinate labor - independent labor" into the model of "strong subordinate labor - weak subordinate labor - independent labor" when examining the labor provided by workers in the new business format. Among them, strong subordinate labor corresponds to a complete labor relationship, and weak subordinate labor corresponds to the type of "labor management of employees that does not fully comply with the circumstances of establishing an employment relationship" proposed in the Opinions, and this type can also be included in the incomplete labor relationship, while independent labor corresponds to an ordinary civil legal relationship formed by workers who rely on the platform and use their own physical strength and professional skills to independently engage in business activities such as labor services, consulting, and design.
In our view, a certain degree of labor management for workers in the new business does not necessarily mean that such labor has strong subordination in the sense of the labor law, and if the platform operator only provides necessary supervision and instructions on the quality of services provided by the workers to customers, it should be allowed to exist. This is because even in the contract, the contractor should accept the necessary supervision and inspection of the contractor during the work period, and Article 1193 of the Civil Code recognizes that the contractor has the right to instruct the contractor. Therefore, in an incomplete employment relationship, it is the right of the platform operator to supervise and instruct the services provided by the workers in the new business to the customers and to carry out the necessary management of their labor based on the need to fully and properly perform the civil contract between them and the customer. In this case, the labor provided by the worker only has a weak personality subordination, and it can be considered that this kind of employment relationship is not a complete labor relationship.
Since the labor provided by the employee only has a weak personality subordination in an incomplete employment relationship, it can be treated in the same way as a more similar part-time employment in the application of the labor law. As a traditional flexible employment, part-time employment is still at a weak level of personality subordination because the working hours are significantly shorter than those of full-time employment, so the general provisions of the Labor Law do not apply to the conclusion of written labor contracts, termination of contracts, economic compensation, etc., which reflect strong subordination, but the general provisions of the Labor Law still apply to the minimum wage standards, overtime wages, work-related injuries, etc., which reflect the basic guarantees.
In addition, it should be particularly emphasized that if the purpose for which the employment relationship is established violates the mandatory provisions of laws and administrative regulations or violates public order and good customs, even if the relevant personnel have paid for their services, they cannot be treated as an incomplete employment relationship, because in such an employment relationship, there is no legal interest that should be protected by the labor law.
This article was published in the People's Court Daily on April 25, 2024, page 7
Contributed by: Beijing No. 1 Intermediate People's Court
Group members: Ma Layman, Li Jun, Wu Bowen, Yi Yingying
Gao Tianqi, Wang Fei, Wang Yayi
Editor: He Wanshan Guo Jin
Review: Wang Fang