Discussion About The Judicial Recognition Of The Factual Labor Relations

The earliest study about the factual labor relations in China is from thebook Labor Contract and Labor Disputes, and the study at that time iscomparatively rough. Theorists began to pay more attention and do moreresearch about the factual labor relations after the "Labor Law" was carriedout. However, there is still no legislation on the definition of the factual laborrelations, the concept is confusing, and scholars’ opinion also greatly differsfrom each other. In reality, a lot of factual labor relations go with the existenceof the labor-law relations, which triggered disputes of complex anddiversified features. Clarifying its concept and analyzing the regulationconcerned meets not only the needs of the theoretical study, but also of thejudicial practice.Based on the discussion of the definition, the analysis of the elementsand situations, we can basically clarifying the concept of the factual laborrelations. Then comparing the employment relations, service relations withthe factual labor relations, we can make the concept more clear. On the basisabove, this article summarizes the judicial recognition of the factual laborrelations in all kinds of cases and analyzes the allocation of the burden ofproof in such cases, which is expected to provide some reference for thejudicial practice.