共享经济背景下网约车司机劳动关系认定探析

A Research on the Identification of the Labor Relationship of the Ride-hailing Service Drivers under the Background of the Sharing Economy

在大陆法系中,劳动关系认定理论基本上以人格从属性为其核心表征,并将经济从属性和组织从属性内化于其中,发展出以指挥控制权为核心内容的认定体系,在这一体系中,雇主关于工作时间、地点和内容的指示拘束性是最主要的判断标准。然而,网约车具有用工方式虚拟化,工作时间、地点、内容的弹性化,劳动关系多重化等特点,上述理论和标准很难用于认定网约车司机劳动关系。基于此,网约车司机劳动关系认定,应灵活发展人格从属性具体判断标准,即淡化人格从属性之重要程度,以经济从属性、组织从属性和社会保护必要性为考察重点,因应经济现实变化而使劳动法保有足够开放且安全的体系:全职司机与网约车平台公司之间的关系应被认定为劳动关系,而兼职司机则无须被纳入劳动法的保护范围之中。

In Civil-Law system, the identification of labor relationship usually takes the personality subordination as the core, an important criterion which contains economic subordination and organizational subordination, and develops an identification system which is centered on the rights of commands. In this system, the commands of the employers relating to the work time, workplace and work contents are the most important criterions. However,the ride-hailing service has features of virtualization of the employment mode, flexibility of the work time, workplace and work contents and multiplicity of labor relationship. Therefore, tile criterions as mentioned above are ineffective to identify the relationship between the ride-hailing service drivers and their companies. As a consequence,the identification of the Labor Relationship of the ride-hailing service drivers should develop more criterions and weaken the importance of the personality subordination, and lay great emphasis on the economic subordination. The organizational subordination and the necessity of social protection,which can make the Labor Law more open and safe with the change of economic situation. In this system ,the relationship between the full-time drivers and the ride-hailing service entrepreneurs should be regarded as labor relationship, but the relationship between the part-time drivers and the ride-hailing service entrepreneurs should not be.