On The Practical Distinction Between Employment Relationship And Contract Relationship

In practice,the distinction between the employment legal relationship and the contract legal relationship lacks operational standards,so that this distinction has always been a difficult point in China's judicial practice.The distinction standards are extremely messy,and there seems to be no set rules.We must comb,extract and re systematize from the theoretical perspective.In addition to the introduction and conclusion,this paper is divided into three partsThe first part,based on the legal system of our country,defines the employment relationship and the contract relationship,expounds the dilemma of distinguishing the two from the perspective of theory and practice,and preliminarily extracts the standard of distinguishing the two.On the definition of employment relationship,because there is no relevant rules of employment contract in our country,this paper mainly takes articles 1191 and 1192 of the civil code as the basis of substantive law to deduce the connotation of employment relationship,which is the relationship between employees providing paid services under the command and supervision of employers,On this basis,it analyzes the characteristics of contract law and tort law of employment relationship.Then it analyzes the concept and characteristics of employment relationship according to the contract of contract in civil code.The dilemma of distinguishing between the two is mainly to analyze the similarity between employment relationship and contract relationship,the non-standard agreement of the parties,the complexity of real transaction and the generality of academic theory.The second part analyzes the current situation of judicial practice of employment and contract disputes.In this chapter,through the "magic weapon of Peking University",this paper searches out the judges of employment and contract disputes in Yunnan,selects 200 cases for research integration,analyzes the application and trend of differentiation standard in practice,describes its current situation,and points out the problems existing in the current situation.The third part puts forward the theoretical construction of concrete practice distinction between employment relationship and contract relationship.In this part,in order to overcome the complexity and confusion of the standards in the judicial practice,promote the standardization of the judge's judgment behavior,and enhance the stability and predictability of the law,this paper makes a systematic reconstruction of the existing distinguishing standards.That is to say,the current standard system is divided into formal standard and substantive standard based on the distinction between form and substance.The standard of form is divided into three sub standards: "agreement of the parties","whether there are labor achievements" and "trading habits";In this framework,this paper further proposes and demonstrates the idea that the formal standard takes precedence over the substantive standard.