The Legal Dilemma And The Way Out Of The Labor Relationship Identification Of Online Delivery Workers

Under the "Internet +" mode,the rapid development of platform employment makes the form of labor more flexible and diversified,which has a certain impact on traditional labor relations.There is not only the connotation of labor relations,the epitome of service relations,but also the appearance of civil legal relations.Then,whether it is the expansion of traditional labor relations or the emergence of new labor relations,the theoretical circle and judicial practice have not reached an agreement.China's current laws have a single recognition standard for labor relations,and only adhere to the inclined protection of "labor relations".There is no intermediate buffer zone under the theoretical framework of this "absolute dichotomy",so the rights and interests' protection of the new type of labor groups such as online delivery clerks are almost blank.In practice,in dealing with the dispute of labor relationship identification,the judgment results and argumentation of the courts and arbitration institutions in various regions of the country are quite different.In judicial decisions,the rule of "all or nothing" is often applied to individual cases,which excessively relies on the rigid elements of traditional labor relations and often ignores the substantive consideration of the problem.We should make a comparative study and learn the relevant legislative and judicial experience of the diversified recognition standards of labor relations and the layered protection system in developed countries.In two aspects of short-term judicial practice and long-term legislative design,explores the recognition standards of labor relations and the ways of rights and interests' protection that are in line with the characteristics of China's labor field development,so that the necessary labor rights and interests of distributors can be properly protected,and the value pursuit of decent work can be realized.In this paper,a large number of cases of judicial judgment on labor disputes of online delivery clerks are searched for analogy analysis.Because two cases “labor disputes between Li Xiangguo and Beijing tongchengbiying Technology Co.,Ltd”(hereinafter referred to as “flash delivery”case)and “labor relations disputes confirmed between Ningbo Jieshun Food Distribution Co.,Ltd.and Qin Yajing,Qin Yuxuan,etc.”(hereinafter referred to as " meituan " case)are rare cases that admit that both sides of labor and capital of platform employees have labor relations,and also the “Ten of Social law impact cases”.It has the typicality of research,so selected as the focus of research.Therefore,it can provide research materials for the perfection of " identification standards of labor relations" in legislation,the protection of workers' rights and interests,and provide some reference for the formation of a more unified judicial ruling path.This article starts from four parts,the first part is to raise questions.Starting from the current situation of the labor relationship dispute cases of online delivery clerks,the paper combs the main facts,the focus of the dispute,and the court's judgment,and then discusses with the data of the author's on-site survey questionnaire to reveal the characteristics of this kind of groups and the legal dilemma of labor dispute.The second part is to analyze the problem.This paper expounds the causes of the legal dilemma of labor relationship identification under the mode of labor relationship elements change brought by network platform employment.First of all,the new characteristics of the network platform employment model bring great challenges to the traditional labor relations identification standards.For example,the transformation of new characteristics of "platform + individual",the fuzziness of economic subordination,the weakening of personality subordination and the main appearance of civil agreement.Secondly,the legal concept lags behind,the "one size fits all" recognition mode and the professional unsustainability of the delivery staff.Thirdly,the legal basis of labor relationship identification is insufficient: at the central level,the original Ministry of labor and social security's 2005 No.12 notice on matters related to the establishment of labor relations is too abstract for the recognition standard of labor relations;at the local level,there are different recognition standards.At the same time,labor relations and all kinds of civil legal relations are lack of recognition basis.Finally,the binding of labor relations and social insurance system has become the fundamental reason for the cautious determination of labor relations in the current judicial practice.The third part is to solve the problem at the legislative level.First of all,in the implementation of the concept of social law,establish the concept of non-standard labor relations and ensure the reasonable development and benign development of this group's human resources;secondly,through the comparative analysis of the labor relations identification theories of four developed foreign countries,explore and draw on the new standards and protection paths of labor relations identification developed in their respective new environment.Based on this,in the legislative level,we should perfect the standard of determining the subordination of labor relations,set up the "intermediate" labor subject and construct its focus of rights protection,explore the deregulation mechanism of labor relationship and social insurance and the supplement of commercial insurance.The fourth part is to solve the problem at the level of interpretation.Under the current legislative system,judicial first is a more effective solution.First of all,by combing the existing judicial decisions,this paper makes a systematic statistics and analysis from three aspects: the identification of the nature of the legal relationship between the delivery clerks and the network platform,the analysis of the subordinate attribute and the application of the labor laws and regulations of the online delivery clerks.Based on the judicial adjudication experience of the U.S.and the U.K.in the Uber case,this paper concludes the solutions at the interpretive level: strictly distinguish the legal relationship between delivery clerks and the network platform,analyze the subordinate attribute between the delivery clerks and the network platform in multiple ways,moderately lenient identify the labor relationship and partially apply the labor laws and regulations.