On The Dispute Of Contract Of Service Between Company A And Mister Du

The contract of service is a widespread phenomenon in today’s economic andsocial life. However, the legislation doesn’t make a clear stipulation. In practicedivergence and many disputes appear. The case happened between company A andMister Du, its main argument is about service contract. Company A contracts itsfactory renovation project to Mister Yang. And Yang hired Du as a carpenter. Duringthe project, Du were injured. He then requests the Labor Arbitration Committee toconfirm the existence of a labor contract relationship with company A. The arbitrationaward confirmed the existence of a labor relationship. Based on the facts confirmedby the court and the understanding of law, company A does not meet the subjectqualification for the Notice of the Human Resources and Social Security and thereforecan not be recognized in accordance with the Notice as the existence of labor relation.In the case, there are three issues.The first is whether the Notice can be applied. Thesecond is whether there is any labor relation between the two parties. The third iswhether there is the possibility to identify the relationship between the two parties asan actual labor relationship. We believe that the restriction of the main qualificationsfor Notice requires companies like the construction or mining enterprises. Theoperation range of Company A is kitchen equipment. It does not have the mainqualifications of provisions of “Notice”. Therefore, the provisions are not applicable.And the court can not define the existence of labor relation. According to the nature ofDu’s work and the fact of his offer of services, combined with the short-term,temporary characteristics of service contract it shall be determined the existence ofservice relation between two parties. According to the nature of labor relation, i.e. thesubstance of labor relation, the defect in form lacking of signed labor contract, we cannot recognized an actual labor relation between two parties.