Legal Study Of The Factual Labor Relationship

Labor Law of the People’s Republic of China and the People’s Republic of China Labor Contract Law have been promulgated and implemented successively, that makes the adjustment of labor relations in China into a legal track, showing a harmonious and stable state of labor relations in general. However, with new labor forms appear constantly, labor relations also appear diversified and complicated development trend, the labor conflicts and disputes caused by factual labor relationship is rising year by year, and the factual labor relationship have gradually become a hot issue of the theory and practice. So far, however, in view of the problems caused by factual labor relationship, although related departments and local introduced a number of law for corresponding regulation, but because of the labor standards law evaded the concept of factual labor relationship, that results in the legal status of the factual labor relationship is vague, connotation and denotation is not clear, controversy between the theory and practice is considerable, the legitimate rights and interests of disadvantaged workers in factual labor relationship disputes are difficult to be effectively protected. So what is factual labor relationship, how to defined and make corresponding legal regulation is the main problem of this paper.This article is divided into four parts:First, the author analyses the basic theory of factual labor relationship, elaborates its concept, characteristics, elements, type and value, and makes a comparative analysis with labor legal relations and labor relations, points out the actual labor relationship is a under concept of labor relations, as labor legal relations it belongs to the same regulations and adjustment range of the labor laws. Second, the author introduces the labor relations legislation of the typical foreign countries and Taiwan respectively from the form of labor contract and labor contract rules, points out that the so-called factual labor relationship in the above mentioned places are included in the regulation and adjustment of labor law. Third, the author introduces and evaluates the current regulations of labor law, pointed out the problems, the legal status of factual labor relationship is not clear, the relevant law based on the written contract exist contradiction and conflict, the legal regulation to factual labor relationship caused from the performance of the invalid labor contract and dual labor relationship is imperfect. Fourth, after the above systemic, comprehensive exposition and the contrast with extraterritorial legislation, the author gives his legal thinking to perfect the legal regulation of the factual labor relationship that we should be clearly define legal status and broaden the labor contract form, perfect and complete the legal regulation because of fulfill invalid labor contract and dual Labor relationship, which include the value orientation of laborer tilt.