A Research On Legal Attributes Of O2O Internet Platform Employment

O2O network platform is a new e-commerce model based on online and offline cooperation,It is the product of sharing economy under the background of "Internet+".Driven by technological changes such as cloud computing,communication technology,big data and online payment,the enterprise operation model,business model,production model and service model have undergone a subversive transformation.With the deep integration of Internet technology and traditional industries,a series of information technology innovations and industrial structure upgrades have taken place.Traditional industries have transformed their business modes and business structures by virtue of Internet platforms,which has greatly stimulated the potential vitality of China's Internet industry.Flexible employment mode has provided a large number of jobs,effectively relieved the increasingly tense employment pressure,eased social conflicts,and increased labor income.On the contrary,the following problems are caused by the inherent lag and limitation of the law itself and the legislative policy of labor law in favor of stable employment,which makes it unable to fully adapt and adjust such a large-scale innovative industry.The absence of legislation directly leads to the employment form in the legal gray zone.There are still endless debates on the Identification of employment form on the network platform.There are mainly three viewpoints,the traditional labor relation theory,the intermediate labor relation theory and the service relation theory.Accordingly,the judicial judgment on the platform employment also presents three trends,intermediary service relationship,labor relationship and service relationship.The reason why it is difficult to reach a unified consensus in the theoretical and the judicial practice circles is as follows:firstly,the theory of labor relations identification is rigid,and the identification standard of constitutive elements is difficult to adapt to the form of network employment.Second,O2O platforms use electronic technology to guide employees of internet platforms,which blurred command and control.Third,the platform increases the difficulty of identification by means of electronic cooperation agreement,labor outsourcing and mixed use of various employment methods,burying labor relations under disordered legal relations,in order to get rid of employing units' liability.The combination of multiple adverse factors not only causes confusion in judicial practice,but also makes the rights of platform practitioners fall into a dangerous situation that cannot be guaranteed.In the long run,this will inevitably react on the platform itself and affect the healthy and stable development of the platform.Therefore,must break through the traditional path of identification,adhere to the basis of subordination standard,to extend and enrich the connotation of subordinate attributes by the way of "summarize and enumerate".The controversial focus of the theory and judgment mainly centers on the following three aspects:firstly,the cooperation agreement should not be used as the basis for denying the factual labor relationship,and should be analyzed in the specific case rather than in the name of the agreement.Second,the main business of the platform is not only to provide trading information,but also to provide special trading services and gain profits from them.Third,although employees have a certain degree of autonomy on the one hand,they can freely decide their working hours,location and working methods,and provide production materials,which are externally manifested as independent employees.However,they are subject to the supervision and control of the platform,and abide by the behavioral rules and rewards and punishments formulated by the platform formulate alone,so it have greater economic dependence on the platform.Therefore,practitioners are subordinate to the platform in the sense of labor law.Obviously,it is obviously different from the traditional labor relationship and service relationship.It has the dual characteristics of both,and it is not the best choice to simply attribute to labor relationship or labor relationship regardless of the nature of the attributes.In order to ensure that platform employees are in a weak position,the traditional"dualism" can be abandoned,and intermediate labor relations can be introduced for legal regulation by referring to western experience,and the transition zone between labor relations and service relations can be set up to ensure that platform employees can get appropriate preferential protection.The identification standard of intermediate labor relations is still based on the theory of subordination,which is flexible to the traditional identification method and endows it with new connotation to clarify the boundaries between the employment relations.Specific from the personality from the attribute,economic from the attribute as the starting point,the identification indicator factor analysis in detail,specific case facts should be under the guidance of the attribute theory to a comprehensive evaluation of the types and proportion of the influencing factors,rather than a fixed index to measure all network employment.The referable indexes include:personal subordination is weaker than traditional labor relations,economic dependence,continuous coordination,and platform benefits from labor,etc.At the legislative level,the judgment path should be chosen carefully with an inclusive and prudent attitude,and corresponding institutional measures should be constructed to guarantee the rights and interests of workers.Perfect our country's social insurance mechanism,especially the industrial injury insurance should expand the coverage as far as possible;The establishment of pre-arbitration procedures to protect the platform practitioners' procedural rights;Using network technology to create "online labor union"and enhance collective bargaining ability;We will improve laws and regulations,clarify the rights and obligations of all parties,and strengthen platforms' social responsibilities.Still the rapid development in the long run,the Internet platform,cannot predict the future network platform with the union of any form and characteristics,the current legal system design can't be solved in advance of the future employment problems,which requires the legal order must follow the pace of the Internet in a timely manner to adjust,appeal,coordinating the interests of all parties to platform and network economy interactive collaborative labor,achieve win-win situation.