共享经济下的我国劳动关系认定——因应与完善

Determination of Chinas Labour Relationship under the Sharing Economy——Consequences and Improvements

共享经济带来了劳动用工形式的变化,也对我国劳动法上的劳动关系认定规则提出了挑战。我国网络平台用工具有法律关系复杂、从属性虚化以及用工形式松散灵活的特点。梳理我国劳动关系认定规则可以发现,以工厂劳动为模型的劳动关系内容判断规则既缺乏表达从属性劳动的自觉,也缺乏应对新兴劳动关系形态的远见。网络平台用工案件在我国司法实践中经历了从否认劳动关系到倾向承认劳动关系的过程,我国法院在实定法上劳动关系认定规则框架内,作出了有益的创新尝试。未来为应对网络平台用工问题,我国劳动关系认定规则的自我完善是最为现实的选择,完善的路径包括增加劳动关系判断要素、增加经济从属性的内容和理念以及运用利益衡量与衡平的司法裁判方法。

The sharing economy has brought about changes in the form of labor employment and also posed challenges to the labor relationship recognition rules in Chinas labor law.The employment in Chinas online platforms are characterized by complex legal relationships,blurred attributes,and loose and flexible employment forms.By sorting out the rules for determining labor relations in China,it can be found that the rules for determining the content of labor relations based on factory labor models lack both self⁃awareness in expressing subordinate labor and foresight in dealing with emerging forms of labor relations.The employment cases on online platforms have gone through a process from denying labor relations to tending to acknowledge labor relations in Chinas judicial practice.Chinese courts have made beneficial innovative attempts within the framework of labor relations recognition rules in substantive law.In order to address the issue of employment on online platforms in the future,self⁃improvement of Chinas labor relations recognition rules is the most practical choice.The path to improvement includes adding elements of labor relations judgment,adding content and concepts of economic subordination,and using judicial judgment methods of interest measurement and balance.