Let me start with a case. A construction contractor found a laborer in the labor market and gave him the task of watering the floor. The work was finished in one day, and then he checked out and left. As a result, workers fell on the winch that transported materials up and down during work, causing injuries. Whether the relationship between the contractor and the laborer is labor relationship, employment relationship or labor relationship is controversial. It is necessary to clarify this legal relationship, because different relationships may lead to different settlement procedures and consequences.

Everyone seems to understand about labor relations, but when it comes to the difference between employment relations and labor relations, everyone seems to be confused again, at least I don't quite understand.

The key point is that I don't understand what is an employment relationship and what is a labor relationship. These two relations, like labor relations, are that one party provides paid labor services to the other.

Let's look at the employment relationship first.

Employment relationship, in a broad sense, is to pay others to work. This is a broad meaning. There is nothing wrong with saying that the workers in the enterprise are the employees of the boss. This is the concept of employment in the social sense. But the employment in law should not be like this, otherwise the Supreme Court's interpretation of the applicable law in the trial of personal injury compensation cases does not need to stipulate the relevant rights and obligations under the employment relationship. From this judicial interpretation, there are probably two points to ponder the legislator's understanding of the employment relationship:

First, employment relationship should be a narrow concept in law, which is different from labor relationship, that is, employment relationship is not a labor relationship in labor law.

Second, under the employment relationship, the employee is adhering to the will of the employer, accepting the appointment of the employer and working in the name of the employer. This is somewhat similar to labor relations. Therefore, the legal consequences of employees causing damage to others or themselves at work are similar to those in labor relations.

So, what's the difference between employment relationship and labor relationship?

Article 2 of the Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law stipulates that as long as the labor relationship is formed between enterprises and individual economic organizations and workers in China, that is, workers actually become members of enterprises and individual economic organizations and provide them with paid labor, the labor law is applicable. It can be seen from this regulation that there is a remarkable feature of labor relations that employment relations do not have, that is, "workers become a member of the employer."

So generally speaking, labor relations are long-term and stable. As a member of the employing unit, workers accept the overall management of the employing unit, obey all rules and regulations, and of course enjoy the same rights as other employees. Although the employment relationship also provides services for the employer, it is generally temporary and unfixed. More importantly, employees have not become members of employers' organizations. On the one hand, the employer did not accept him and arranged him in this way. On the other hand, he thought it was a part-time job.

There was no such legal provision before, and many employment relations were regarded as factual labor relations (in order to protect employees' rights) and were regulated by the labor law. It doesn't have to be like this.

For example, Article 12 of the Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of Labor Law stipulates that students who use their spare time to work and study part-time are not regarded as employment, and they may not sign labor contracts if they have not established labor relations. So, what is the nature of these students working for the employer? What should I do if something happens that hurts others or myself? In the past, the law did not give an answer, but now it can be said that it is an employment relationship. I think the judicial interpretation of the Supreme Court on personal injury compensation can be applied.

Also, for some odd jobs, even if enterprises hire people to do them, they should not be regarded as factual labor relations, right?

Now let's analyze the labor relations.

Judging from the second paragraph of Article 9 of the Interpretation of the Supreme Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, (the provision reads: The term "engaging in employment activities" as mentioned in the preceding paragraph refers to engaging in production and business activities or other labor activities within the scope authorized or instructed by the employer. ) The employee's job is labor service, and the scope of labor relations is equal to or greater than the employment relationship. But to what extent can it be so big that it does not include labor relations? It can be seen that the concept of labor relations is of little significance, and it may be better not to create this legal concept.

As for labor contracting in construction projects, it generally means that a contractor leads a group of people to take over a labor service with little technical content in the project, just like handing over water, electricity, doors and windows to another subcontractor. So its nature should be a contractual relationship. Because there is no technical content, it is just a coolie, so it is called a labor contract. And often because these contractors are not qualified to engage in the construction industry, in order to protect the wages and industrial injury interests of these workers, the law tends to be that subcontractors or general contractors should bear the responsibilities according to the employment relationship or labor relationship. This makes labor relations more chaotic.

Therefore, the labor contract mentioned in people's life should be partly an employment contract and partly a contract, which has no separate legal nature in labor relations.

Using the above point of view to analyze the case at the beginning of this article, I think this is an employment relationship. Employees can claim their rights according to the relevant provisions of personal injury compensation, but the relevant provisions of the Industrial Injury Ordinance and labor arbitration are not applicable.

In judicial practice, employers often confuse the legal relations among "labor relations", "employment relations" and "labor relations", which leads to the wrong concept of law application and the increase of labor legal risks in enterprises.

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"Labor relations" refers to the rights and obligations arising from employing workers as members and providing labor paid by the employer under the management of the employer.

"Employment relationship" refers to the civil legal relationship in which employees provide services to employers and employers pay their employees. "Labor relations" and "employment relations" are the same legal concept.

This paper intends to analyze the legal relationship between the above three to clarify their respective scope of application.

I. "Labor relations" and "employment relations" are the same legal concept.

On June 29th, 2007, 10, the Supreme People's Court adopted the Provisions on the Cause of Action of Civil Cases, which stipulated "1 10, labor (employment) contract disputes". The court has regarded the labor contract and the employment contract as the same civil legal relationship and accepted them as the same cause of action. The cause of action refers to the category of cases accepted by the court according to the disputed civil legal relationship, and the same civil legal relationship belongs to the same category and the same cause of action.

It can be seen that in China's judicial practice, the people's courts treat "labor contract" and "employment contract" according to the same legal relationship.

Second, the historical evolution from "employment relationship" to "labor relationship"

From the perspective of legal history, labor contract relationship, as a legal adjustment of employment relationship, has undergone a historical transformation from civil law to social law.

In Roman law (Roman law originated from the Roman monarchy around the 7th century BC), the two subjects of employment relationship are treated as completely equal subjects. Of course, this employment relationship does not include the employment relationship between slave owners and slaves, but only the employment relationship between equal citizens. The French Civil Code (1804) follows the Roman law in style and content, and the employment relationship is still regarded as a kind of civil contract. The employment relationship is regarded as the property exchange relationship between two independent personalities about labor and remuneration, which is adjusted by the principle of freedom of contract, and the parties have full freedom of contract.

However, in the German Civil Code implemented in 1900, the mode of Roman law was broken. Articles 6 17 to 6 19 stipulate that employers should protect workers from life and health risks when arranging and organizing labor processes. The compulsory obligation of labor law to one party's main body began to appear. Since then, the earliest social law developed in Germany regards the labor contract relationship as a specific labor legal relationship that emphasizes the employer's protection of employees' rights and obligations.

Civil law is limited to the adjustment mode of equal subjects, which obviously cannot adapt to modern employment relations. Starting from the social reality of unbalanced labor relations, it has become a common legal phenomenon that labor contracts are independent from the contract legal system in civil law and belong to labor law. (Quoted from Chang Kai's On the Legislative Basis and Legal Orientation of the Labor Contract Law)

The "employment relationship" gradually evolved into "labor relationship", but the "employment relationship" did not die out.

Third, the difference between "employment relationship" and "labor relationship"

1, belonging to different legal fields.

"Employment relationship" belongs to the civil law (narrow sense) adjustment in the field of private law, including the general principles of civil law and the Supreme People's Court's judicial interpretation of personal injury compensation.

"Labor relations" belongs to the adjustment of labor law in the field of social law, including the Labor Law of People's Republic of China (PRC) promulgated by 1995 and the Labor Contract Law of People's Republic of China (PRC) promulgated in 2008 and its implementing regulations.

2. The subjects of legal relationship are different.

(1) The main bodies of "labor relations" are employers and workers.

"Employer" refers to government agencies, enterprises and institutions, social organizations, private non-enterprise units or individual economic organizations. "Laborer" refers to a natural person who meets the working age 16 (one year old), has civil capacity, has no pension insurance benefits or has not reached the statutory retirement age.

(2) The subjects in the "employment relationship" are employers and employees.

Employers have a wide range, including natural persons and employers. Employees are not limited to workers. Natural persons who have reached the statutory retirement age can not be regarded as "workers", but can be regarded as employees.

3, whether there are different affiliation.

In "labor relations", workers and employers are subordinate, and workers should join employers and become a part of them. Laborers shall accept the management and command of the employing unit.

In the "employment relationship", there is no subordinate relationship between employees and employers. The most typical case is that there is no subordinate relationship between the nanny and the employer (not appointed by the domestic company), and the nanny cannot become the employer's family.

4. Disputes are handled in different ways.

Disputes between employers and employees belong to labor disputes, so labor arbitration should be conducted first. Labor disputes should be brought directly to the people's court for civil action.

5. Different ways to pay remuneration.

Labor relations pay remuneration regularly in the form of wages; Employment relationships are mostly one-time instant settlement or installment payment.

Fourth, the legal risks of employers as employers

Legally, an employment (service) relationship can be established between an employer and a natural person, but the scope of existence is extremely narrow. For example, the relationship between an employer and a natural person over the statutory retirement age is a typical labor (employment) relationship.

If there is a long-term management and command relationship between the employer and the natural person (in line with the characteristics of workers), workers must abide by their rules and regulations and get paid on time, which can only be a labor relationship, not a labor relationship. Even if the two sides signed a so-called "labor contract", it can't change the fact that there is no "labor relationship". The above behavior may lead the court to conclude that there is no labor contract between the employer and the employee, and demand double indemnity.