共享经济用工中的劳动关系认定理论研究综述

A Review of Theoretical Research on the Identification of Labor Relations in the Sharing Economy Employment

共享经济发展迅猛,不仅吸纳了规模巨大的从业人员,而且其就业形态体现出与传统就业截然不同的特征。通过对中国知网上以共享经济用工为主题的30篇法学论文进行分析总结,可知当前的研究重点为网约工劳动关系的认定及其规制路径。对于众包型网约工与共享企业之间是否存在劳动关系,目前有否定说、肯定说、难以定性说三种观点。三种观点相应的规制路径分别为在劳动法外利用公私法的多种制度工具调整、纳入劳动法调整、在劳动者和自雇者之间设置中间类型特别调整。学界相关讨论已经达成了若干初步共识,但是对于更进一步的问题仍然存在着激烈的争论。

The rapid development of the sharing economy not only attracts large-scale employees, but also demonstrates characteristics of employment forms completely different from the traditional employment. Based on the analysis and summary of 30 legal papers on the subject of sharing economy employment in CNKI, this review shows that the current research focus of sharing economy employment falls into the identification and regulation of labor relations of the network contract workers. Regarding the existence of labor relations between crowd-sourced net contract workers and shared enterprises, there are currently three kinds of views: the negative, the affirmative, and the one that is difficult to characterize. The corresponding regulatory paths, thus, are respectively the adjustment of using multiple institutional tools outside the labor law, the adjustment of involving workers in the labor law, and special adjustments of intermediate types between workers and the self-employed. Several preliminary consensuses have already been reached in relevant academic discussions, but fierce on-going debates focus on further issues.