The Standard Of Labor Relations

With the continuous development of economy,new form of employment appears in the labor market which is more complicated than traditional form of employment.Although identification of labor relations has specific standards in China's legislation, the standards are difficult to continue in the background of flexible staffing because the standards are too stuffy or too limited. So the difficult of identifying labor relations is still a problem, In my opinion, it is necessary to improve the standard of identification of labor relations.This paper is divided into 3 parts. The first part elaborates 3 cases, in which the employers and the employees had not signed labor contracts. The focus of the dispute lies in whether the two parties formed a labor relation. In these cases, the employers did not provide the workers with necessary labor protection and the employment was rather unlawful. When employees' legitimate rights and interests are infringed, the confirmation of labor relation is the premise and the key to clarify the rights and obligations of employers and employees and protect the legitimate rights and interests of employees.The second part mainly sets forth the plight of legislation and practice on confirming labor relation. At present, the legislations in our country deals with labor dispute, mainly including ‘Labor Law', ‘Labor Contract Law', ‘Regulation on the Implementation of the Employment Contract Law', ‘Notice of Relevant Issues Regarding Confirmation of Labor Relation' as well as judicial interpretation with regard of dealing with labor dispute published by Supreme People's Court and various judicial documents published by local courts. There seems to a lot of laws and regulations that deal with labor dispute, but there is little legislation that confirm labor dispute. The main problems are that the concept of labor relation is not clear, the main body of labor relation is unclear, the confirming condition of labor relation can not be applied in the refelxible employment environment and etc. As the legislation is insufficient, in judicial practice, the confirming content of labor relation is expanding, the confirming criterion is arbitrary in order to maintain the harmony and stability of the society. All these problems make us feel urgent to improve the confirming criterion of labor relation.The third part mainly elaborates how to improve the confirming criterion of labor relation. Firstly, it needs to clarify the value guidance of labor relation, emphasis the inclined protection for laborers, fully cover all the employment form at present as well as being beneficial to maintain a harmonious labor relation. Based on above mentioned value guidance, the perfection of confirming criterion of labor relation must firstly define the main bodies of labor relation, namely labors and employers.To define laborers, it must improve the regulation on laborers' age in legislation. To define employers, it must think from the perspective of organization. There are two factors that need to be considered about when it comes to improve the confirming criterion of labor relation. Firstly, it is the reasonable development request of subordination and employers, but it must have a good control of the degree of subordination, which means whether employees and employers have personality subordination, organization subordination, economy subordination and management subordination. At the same time, it needs to consider the reasonable development request of employers. Secondly, it needs to consider about the consensus of employees and employers. Employment is that employees provide labor and employers accept labor, including the consensus of establishing labor relation. However, confirming labor relation is just the first step to solve labor rights protection. The allocation of rights and obligations is the core. Therefore, it must allocate different rights and obligations based on different employment form in legislation to maintain harmonious labor relation.