The Judicial Dilemma Of The Rights Protection Of "online Contract Workers" And Its Solution

The rapid development of the on-demand economy has given birth to the group of “on-demand workers” and also brought a shock to the theory of labor law.In recent years,the number of cases of "on-demand workers" in China's judicial practice has gradually increased,covering many areas,such as online hailing drivers,online home service staff,online cook chefs,and food delivery staff.Compared with traditional employees who are protected by labor law,“on-demand workers” are difficult to obtain the protection of labor law because their legal status is unclear and legislation does not correspond to this new challenge.Therefore,at the current stage,the “on-demand workers” can only place high hopes on the judiciary,but judicial practice has fallen into a difficult position.The main argument of this article is to reveal the judicial dilemma of the protection of the rights and interests of "on-demand workers" from the judicial practice and to solve this dilemma,a "two-pronged approach" is required.It is necessary to broadly recognize “on-demand workers” as employees and selectively choose protection methods.In regard to the judicial dilemma of “on demand workers”,it is concluded from the judgments that the current judicial practice adopts strict determination of the labor relations of "on-demand workers".Strict identification is mainly reflected in two aspects.First,the court strictly takes the "organization subordinate attribute" as the standard,focusing on the inspection of working hours,work places,and work arrangements.Second,some courts will also examine whether the two sides manifest a willingness to establish a labor relationship.There are two main reasons for rigorously determining the employment relationship of "on-demand workers".The first is that the current legislation has a “one-size-fits-all” relationship with employees.The second is the current bundle of social insurance and labor relationships.To solve the strict determination of labor relationship,this article argue that the court should broadly recognize "on-demand workers" as employees.This article examined the theories of labor relationship identification both in the common law and civil law.The civil law system mainly adopts the attribute theory,which is specifically divided into “personality dependence”,“organization dependence” and “economic dependence”.The common law system mainly adopts a “control test” and a series of tests derived from it.In combination with the new trend in China's judicial practice,it is proposed that “on-demand workers” should be recognized as employees according to “economic dependence”,continuity and altruism.To solve the problem of “one-size-fits-all” relationship with employees,it is necessary to selectively choose protection means.“Good Chef” case enlighten that to protect the labor rights of "on-demand workers",we must also take into account the development of new economy,and break through the thinking of comprehensive protection of labor relations.Besides,the feasibility of selective protection methods has the legal basis.According to the “three elements” in the principles of jurisprudence,that is,the assumptions,behavior patterns,and legal consequences,the interpretation of relevant labor laws and regulations can be expanded or limited.This requires the judge to exert judicial initiative in the trial and take the initiative to apply the legal basis to the practice of judicial trial,so as to fill the void in the law.Based on the above,in regard to the different article in different laws,it is suggested to specially determine their scope of application case by case so that the court can selectively choose protection means.For example,in the labor contract law,there are provisions of the form of contract and the termination of contract.In the labor standards law,there are provisions of working hours and rest and leave and labor safety and health.In the social insurance law,there are provisions of work injury insurance and medical insurance and endowment insurance.