事实劳动关系认定标准的探究

On Cognizance Standard of Factual Labor Relations

通过对法律强制性规范的分析发现,我国对劳动合同的书面形式强制属于取缔规范,违反该规范并不必然导致劳动合同无效。当因各种原因未订立书面劳动合同或书面劳动合同无效时,劳资双方之间仍然可以成立事实劳动关系。但目前我国对事实劳动关系的立法较为粗糙,“用人单位”主体自身的限制、劳动合意的轻视以及从属性认定的严苛,使得互联网用工等新兴用工形式很难直接纳入事实劳动关系范畴中。因此,有必要放宽用人单位主体的限制、重视劳动合意在解决劳动纠纷中的作用、利用准从属性对事实劳动关系进行再判断,以此实现劳动法对新形态下劳动者的保护,体现劳动法对经济生活的适应性。

Through the analysis of mandatory legal norms,it is found that the compulsory written form of labor contracts in China is a banned norm,and violating this norm does not necessarily lead to the invalidity of labor contracts.When a written labor contract is not concluded or is invalid due to various reasons,a factual labor relationship can still be established between employers and employees.However,the legislation of factual labor relations in China is relatively rough at present.The limitations of the subject of“employer”,the contempt of labor agreement and the strict determination of subordination make it difficult for new forms of employment such as Internet employment to be directly included in the category of factual labor relations.Therefore,it is necessary to relax the restriction of the employer’s subject,pay attention to the role of labor agreement in solving labor disputes,and re-judge the factual labor relations by using quasi-subordination,so as to realize the protection of labor law for workers in the new form and reflect the adaptability of labor law to economic life.