Research On The Identification Of Labor Relations Under The Background Of Sharing Economy

The identification of labor relations is the core issue that labor law must face.Under the system background that some social insurance items are bound with labor relations,on the one hand,the identification of labor relations is related to whether the labor providers can enjoy the all-around protection from the labor law,on the other hand,it deeply affects the social security rights and interests of the labor providers.Therefore,it is very important to accurately identify the labor relations.However,the rapid development of sharing economy has not only changed the traditional types of employment,but also the specific forms of employment,increasing the difficulty of identifying labor relations.From the perspective of employment types,there are C2 C sharing mode,B2 C sharing mode and C2 C + B2 C sharing mode in the sharing economy.The role of network platform in each sharing mode is different,and the degree of subordination of labor providers to the network platform is also different.From the perspective of employment form,the phenomenon of non full-time and non fixed part-time employment,full-time and fixed employment and full-time and fixed part-time employment coexist in the sharing economy.All kinds of employment forms are also different in terms of working hours,workplace,work content and payment mode of labor remuneration.The complexity of employment types and employment patterns has caused changes in the subordination of labor relations under the sharing economy,and at the same time has challenged the traditional labor relation identification theory with subordination as the core.At present,the main basis for the identification of labor relations in our country is the three-standard identification method established by the “Notice on Matters Concerning the Establishment of Labor Relations”,which is issued by the former Ministry of Labor and Social Affairs.Although the three-standard identification method is essentially constructed on the basis of the theory of subordination,it adopts a constitutive-element legislative model.When identifying labor relations,it requires personality,economic,and organizational subordination at the same time.There are abstractness and limitations in the enumeration of the elements of attribute investigation,which has led to the emergence of differentiated judgments on similar employment facts in judicial practice.By comparing the identification methods of labor relations under the German personality subordination standard and the multi system identification methods in the United States,we find that the overseas national factor inspection mode can be used for reference.At the same time,combined with the construction of intermediate labor relations or labor subject may cause gray area transfer in actual operation,as well as the special national conditions of China’s labor law binary structure is not clear,the current time to build intermediate labor relations or labor subject in China is not ripe.It is still the best choice for China to deal with the challenge of sharing economy to improve the traditional identification method of labor relations with the core of subordination.To be specific,China can adopt the thinking of type identification,construct the mode of multi factor comprehensive investigation in the way of generalization and enumeration,and carry out the substantive identification of labor relations in the sharing economy on the basis of adhering to the “fact first principle”.