浅析劳动合同和劳务合同的区别

An Analysis of Differences between Labor Contract and Work Contract

正确区分劳动合同和劳务合同是保护用人单位和劳动者合法权益的前提。理论上二者的区别主要表现在签订合同的主体、双方当事人关系、承担劳动风险责任的主体、工资和报酬、适用法律和争议解决方式、合同的自由度、对合同履行的监督等几方面。实践中区分两者的标准是主体是否合法,主体之间是否具有从属性。

Correct distinction between labor contract and work contract is a prerequisite to protect the legitimate rights of both employers and employees. Theoretically, the major differences between them lie in the contractual parties, relationships between the two parties, parties responsible for the labor risks, wages and payments, relevant laws and ways to resolve the disputes, flexibilities of the contracts, and the supervision of the contractual implemen- tation, etc. Practically, the criteria for the distinction are determined by whether the parties are legal, and whether there are subordinations between the parties.