Study On Confirmed Standards Of Labor Relationship

To recognize the standards for labor relationship is the most basic issue need to be settled in the labor law area, since it determine the adjust object and scope of the labor law. However, quite rarely studies on the confirmed standard of labor relationship issue as well as lack of legislation had lead to the disordered situation in the judicial practice field. This paper aims at: through the study of domestic and foreign legislation, give some helpful legal advices to improve the recognition standards of labor relationship.The outline is as follows:The preface firstly focuses on the theoretical significance of labor relationship confirmation from two aspects: the theory aspect and the practice aspect. Then it briefly introduces the research methods the author used.The first chapter starts with introducing the definition of labor relationship and then analysis the difference between labor relationship and other similar social relationships. Following the author brings into two fundamental theories——"subordinate theory" and "control theory". Furthermore, this chapter is not limited to the explanation of the theory but also mainly focus on demonstration the two theories in the countries and areas of civil law and common law. Try to explore their legal practice, advantages and disadvantages as well as their approaches in development.The second chapter turns the focus to China, introducing the existing research achievements on the confirmed standards for labor relationship. This part investigates the legislation and judicial documents in China from three aspects: the law, judicial documents and key cases. Further pointed out the defect of the confirmed standards for labor relationship is rest on the lack of clear definition, the standard fall behind the social development, and the disorder in different places and areas.Based on the above analysis, in the third chapter, the author attempted to give some framework advice to improve the confirmed standard of labor relationship. The author firstly analysis the key elements which determine the labor relationship, then considering with the practice, pointed out the organization subordinate is the core standard for labor relationship confirmation. Meanwhile, the author demonstrates some other auxiliary standards, such as the proper subject, avoiding double labor relationship standards, labor compensation, and other exclusive effect of the legal relationship etc.Finally , in the fourth chapter, the author holds the view that the two connotations of the organization subordinate is"organization membership characteristic"and"economic subordination characteristic", following advocate the construction of proof system. The author further analysis the phenomena such as re-employment after retirement, the senior company management and re-employment of laid-off worker, in order to speculate the above theories is useful in the legislation and daily practice.