Determination Of The Legal Nature Of The Employment Relationship Under The Gig Economy

Although the COVID-19 outbreak in 2020 brought a heavy blow to the economic development,it also stimulated the development of the Internet platform,and the odd-job economy relying on the Internet platform rose under this background.However,although the employment relationship under this new economic model has achieved a win-win situation for both employers and employees to a certain extent,it has also brought many doubts and difficulties to the practical trial.How to define the legal nature of this new employment relationship so as to protect the legitimate labor rights and interests of flexible employees has become a common problem faced by academia and judicial practice.By collecting and sorting out relevant labor dispute cases and survey data in2020 and 2021,it is found that the following problems exist in practice: First,the court’s definition of labor relationship,labor relationship and employment relationship is vague,and there are cases in which the employment relationship is borrowed in the judgment.This controversial concept is suspected of vaguely defining the legal nature of this new type of employment relationship;Secondly,the distribution of the burden of proof by different judges and the standard of proof required to be met are inconsistent;Thirdly,flexible practitioners inflict damage to others during work In tort cases involving damages,the court also has different views on whether the platform should bear the employer’s vicarious liability;Finally,the status quo of the adjudication of “difficulty in identifying labor relations” makes it impossible to stably protect the labor rights and interests of flexible practitioners.To properly solve these problems,it is necessary to explore the deep reasons behind the phenomenon of "difficulty in determining labor relations" by the court.From a legislative perspective,first,the labor "dichotomy" that originated in the industrial age has been unable to adapt to the flexible employment forms in the Internet age.Second,the standards for determining labor subordination in my country are abstract,rigid and vague.Judges have greater discretion,and the results of judgments are therefore uncertain.To this end,in addition to learning from the advanced experience of developed countries and starting a gradual transition to the "law of thirds" of labor,it is also necessary to refine and unify the criteria for identifying labor subordination.From a practical point of view,first,the education level of flexible practitioners is generally not high,and the legal awareness is weak.The use of format contracts that exclude labor relations has become the main way for the platform party to avoid the risk of employment;second,the continuous innovation of the employment model is distorted,the platform and practitioners are isolated layer by layer,which eventually leads to the transfer of market risks to practitioners who are registered as individual industrial and commercial households.To this end,at the judicial level,it is necessary to introduce the transference of the burden of proof,so that the dominant enterprise bears the main burden of proof;at the law enforcement level,it is necessary to establish and improve a multi-party collaborative governance system,innovate the occupational injury protection system,and effectively guarantee the safety of flexible practitioners.labor rights.