Legal Consideration Of Employment Without Business License

The precise definition of the legal nature of social relations accurately is the preconditionof legal application. At present, China’s labor legislation not only has not made a cleardefinition on labor relationship and labors, but also has not elaborated legal relationship ofemployment without business license, which resulted in confusion about legal nature of theemployment without the business license in judicial practice. This article analyzes thedifference between employment relation and labor relation, and studies different standards oflabor relations in domestic and foreign, pointing out our weakness in the standard ofcognizing labor relations from three cases. Through this article, we do some superficialthinking on the nature of legal relation of labor under no business license, in order to benefitour theory and practice.This paper expounds as the following structure：Introduction: From the current practice of judgment on cases without business license inreality, this article points out that it has important meaning accurately define the nature oflegal relationship under employment. Therefore, it is necessary to do some research andthinking on its legal nature. And it is also the value of this paper.The first part introduces the cases and raises the question. It starting with three cases,points out the chaos on determination the employment nature without business license in thetrial practice, and sums up the focus of controversy in three case——What is the legal natureof the social relationship without business license? This problem goes throughout andbecomes the core of this paper. The rest of this article focuses on this issue.The second part is the analysis of legal relationship. It analyzes the legal relationshipinvolved in the case, including illegal employment relationship, employment and laborrelations. The key of this part is to distinguish the employment relation and labor relation. Byexamining the historical evolution of employment relation and labor relation, we canconclude that they have the essence of existence, and point out that employment under thesocial relationship without business license is not the employment relationship but is moreclosely related to labor relationship.The third part is about employment without business license and the standard of laborrelationship in China. It points out that there is no substantial difference between the employment with business license or without business license. The reason why employmentwithout business license is out of labor legislation is closely related to the standard of laborrelations in China。The current labor legislation established the standard of the labor party’squalification when it identifies the labor relationship. But this requirement does not have itsrationality, because it does not meet the needs of the main expansion of current labor relations,and it is indifferent to the nature of labor relation--subordination.The fourth part of the paper studies the standards of foreign labor relations and thecomparison between China and foreign countries. We get the conclusion: In the determinationof labor relationship, the mainstream today is from the nature of labor relations–subordination or control. We should learn from the mainstream practice abroad. On thisbasis, it points out that employment without business license fits the nature of laborrelationship, and it should be recognized as labor relations.The fifth part is the conclusion of the cases and suggestions on legislation. On the basisof theoretical analysis, the fifth part redefines the nature of the legal relationship of the casehaving cited, and puts forward some suggestions from two respects of microcosmic andmacroscopic to perfect the labor legislation in China.