Analysis Of The Boundary Between Employment Relations And Contractual Relations

Both employment contracts and contractual contracts are long-standing, ancient agreement forms. In social life, it is a lot of things can not be hands-on. There are some matters that required to apply to others, or asking some others'assist, that brings the employment, contract, commission and other various relationships. The empolyment and contractual relations exsit in economic activities widely. As early as in Roman law, there are provisions about them, at the time the employment relations and contractual relations are induction into tenancy category. They separate from the tenancy up to German Civil Law, and make a distinction between each other. Although the employment and contractual relations are the prevalence of long-standing relationship. But in actual life, it is not as easy to distinguish them as the theory, always confused. The boundaries between them blurred easily. In judicial practice, it is lack of a uniform, definite distinction standards. That makes it difficult to distinguish between them, resulting in different views between the employment relationship and the contractual relationship. The same case, but the different result. The different responsibilities, makes the administration of justice be lack of seriousness. This situation desiderate to be changed in order to promote China's legal theory and judicial practice.In this paper, will analyse the difference between the emplyment relations and contractual relations, focus on the theory of foundations, put forward a more clear and specific standards and rules of distinction, and do the analysis, the proposals for the provisions of them in China's law . TO break into the following three parts in specific ,First of all, do the analysis of their theory of foundations. From the definitions, characteristics, nature, different responsibility and other aspect, especially focus on expounding the employer's responsibility which brings on by the applicable employment, in-depth analyze their theoretical foundation. From they are classified into a particular class of Roman law to the subsequent separation and independence, analyze the reasons. Besides, discriminate the different theory of foundations between them, discuss their distinction in deeply.Secondly, put forward the standards and rules of distinction. Induct the similarities and differences between themm analyze the difficulties in cognizance,put forward the special , clear standards and rules of distinction. Combine some contrvesial samples in practice to analyze, such as"Coolie"(BANGBANG in Chongqing dialect),the family nanny. In order to determine the distinction standards, eliminate of the distinction between the standards applicable to the fuzzy state in the application of it. Furthermore, make the distinction rules,the distinction standards applied step by step, achieve distinguishing accurately.Finally, ponder over the legislative and judicial practice. Analyze the current status and issues in the legislation and practice. And explore the necessity and feasibility to perfect them, put forward relative, effective measures and the recommendations of improving the law.