“不完全劳动关系”的合同性质与从业者的相对性保护——以法律适用的“二分法”及“三分法”为分析视角

The Contractual Nature of“Incomplete Labor Relationship”and the Relative Protection of Workers--From the Analytical Perspective of the“Dichotomy”and“Trichotomy”of Law Application

“不完全劳动关系”系指从业者法律身份地位模糊,不足以达到劳动关系构成基准的民事雇佣关系,其法律性质主要以承揽、委托等合同类型呈现。在传统的民法与劳动法的“二分法”模式下,“不完全劳动关系”的从业者处于民法的地位而无法以劳动者身份受到劳动法保护。国际劳工组织(ILO)从“契约劳动”到“雇佣关系的范围”的立法实践表明,在民法与劳动法之间构建第三类法律关系的“三分法”难以成立。“不完全劳动关系”不能也无法适用“三分法”调整,有必要在发展“二分法”的基础上,将这一关系作为特殊的民事承揽、委托关系,尊重当事人的意思自治,结合劳动法的宗旨、目的,重视从属性要素的综合构成,扩大劳动法适用范围,对“不完全劳动关系”从业者提供相对性的法政策保护。

With the development of new forms of employment,flexible employment has increasingly become the mainstream in the development of employment.To provide labor protection for the relevant workers,the Ministry of Human Resources and Social Security has issued the Guiding Opinions on Safeguarding the Labor and Social Security Rights and Interests of Workers in New Forms of Employment,which point out that platform work involves employment relationships,civil relationships,and relationships which“does not completely fall under the circumstances for establishing employment relations,but in which an enterprise carries out labor management of workers”.“Incomplete labor relationship”refers to the civil contract relationship in which the legal status of the worker is vague to the extent that it does not meet the criteria for constituting an employment relationship.At present,there is a great controversy over the nature of“incomplete labor relationship”in Chinese academic circles and a consensus is far from being reached.The legal nature of“incomplete labor relationships”is mainly presented in contract types such as contracting and commissioning.Under the traditional dichotomy between civil law and labor law,workers in“incomplete labor relationships”are contractors under civil law and cannot be protected by labor law as employees.On the basis of adhering to and developing the“dichotomy”of the application of law,China should draw on the legislative ideas and methods in the Employment Relationship Recommendation of International Labour Organization(ILO)and explore the possibility of applying labor law to“incomplete labor relations”with the concept of“relative protection”.Relative protection should be based on the will of parties of contracts so that a judgment can be made on whether the labor law applies to the workers and the degree of protection,and the judgment can be taken as the basis of legal policy.Relative protection is related to the purposes and objectives of labor legislation and is based on the degree of subordination of workers.China must face up to the great changes in the labor market of the digital society.In the future,with the diversified development of the employment pattern,the nature of contracts of the parties such as contracting and commissioning will become more mixed and intertwined.In view of this development,China should expand the scope of the application of the labor law,so as to realize the legal policy of the protection of workers in incomplete labor relations and also effectively prevent employers from evading their legal responsibilities by the misclassification of employment status of workers.