建筑行业农民工劳动关系确认的理论瓶颈与突破--以非标准劳动关系理论为出路

The Theoretical Bottleneck and Breakthrough in the Confirmation of Construction Industry Migrant Workers Labor Relations——On the Basis of Non-standard Labor Relation Theory

司法实践对于建筑行业农民工劳动关系确认的理论瓶颈在于我国当前的标准劳动关系模式与建筑行业农民工的用工实际不符。以非标准劳动关系理论为突破口多元化劳动关系认定模式是解决上述瓶颈的出路。在非标准劳动关系理论下,建筑行业农民工劳动关系确认的标准简化为业务从属标准,在具体判断上需要确立三项基本原则:中间自然人不阻碍劳动关系原则;劳动关系不突破民事合同关系原则;基于法律技术考量的连带责任原则;同时,建筑行业农民工劳动关系体系应着重确立三种特殊规则:口头劳动合同+不实否认劳动关系的双倍工资支付规则;灵活工时制+法定、行业工资基准规则;劳动者自由离职+用人单位结清待遇无因解除规则。

There is theoretical bottleneck of judicial practice for confirmation of construction industry migrant workers labor relations, which is the current standard labor relations model and the construction industry in our country is not consistent with the actual employment of migrant workers. To solve the bottleneck of the way, non-standard labor relation theory and diversified labor relationship identification model should be took into account. Under the non-standard labor relations theory, the standard of of construction industry migrant workers labor relations＇ confirmation is simplified as business dependent standard, which needs three basic principles in the concrete judgment： the principle of the natural person in the middle not hindering labor relations; the principle of labor relations not breaking through the civil contract relationship; the principle of joint and several liability based on legal technical consideration. Meanwhile, the system of construction industry migrant workers labor relations should focus on the establishment of three special rules： double wage payment principle of oral labor contract and false denial of labor relations; the principle of flexible working hours system and legal industry wage benchmarks; the free from contract principle of workers free to leave and employing units to settle the treatment.