[introduction to the lawyer of this case] LV Yong, senior partner of Liaoning Tongfang law firm. Since practicing, he has served as the legal adviser of many enterprises and institutions and universities. Acting for a large number of litigation and non litigation legal affairs involving banks, real estate, companies, investment, insurance, contracts, etc.
[key points of judgment] whether there is a labor relationship between the laborer and the subject of employment, according to the provisions of Article 1 of the notice on matters related to the establishment of labor relations [issue No.] LSBF (2005) No. 12 document, the labor relationship is established if the employer does not sign a written labor contract when recruiting the laborer, but at the same time the following circumstances are met:. （1） The employer and the employee meet the subject qualification specified by laws and regulations; （2） The labor rules and regulations formulated by the employer in accordance with the law are applicable to the workers, who are under the labor management of the employer and engaged in remunerated labor arranged by the employer; （3） The labor provided by the laborer is an integral part of the business of the employer.
[basic case] after the people's court accepted the case of labor dispute dispute between the plaintiff Wang and the defendant XX Co., Ltd. according to law, the people's court applied summary procedures according to law and held a public hearing. The plaintiff Wang and the defendant XX Co., Ltd. entrusted agents to participate in the proceedings. The trial of this case has now been concluded.
The plaintiff Wang filed a lawsuit with the court, requesting the court to order the defendant to pay 1. Double compensation for not signing a labor contract × Yuan（ × Yuan / month × 11 months, 201 × January - 201 × December 2012); 2. Economic compensation × Yuan（ × Yuan / month × 12 months); 3. Economic loss due to failure to pay national compulsory insurance premium × Yuan（ × Yuan / month × 12 months × 12 years). Facts and reasons: 200 × In, the plaintiff worked at the defendant's office, and the plaintiff worked at the defendant's office for a total of 1 × In, no labor contract was signed and no social insurance was paid. two hundred and one × year × In December, the defendant unilaterally terminated the labor contract. two hundred and one × year × month × On, the defendant provided the plaintiff with a description of the plaintiff's work at the defendant's office. The plaintiff failed to negotiate with the defendant on this case for many times, so it filed a lawsuit to the court.
The defendant XX Co., Ltd. argued that there was no labor relationship between the plaintiff and the defendant. The two parties took a percentage of the plaintiff's sales of the defendant XX's products, that is, the two parties had the same principal-agent sales relationship. Therefore, there was no labor matter claimed by the plaintiff based on the labor and employment relationship.
[judgment result] the plaintiff Wang's claim was rejected.
[reason for judgment] whether there is a labor relationship between the laborer and the subject of employment, according to the provisions of Article 1 of the notice on matters related to the establishment of labor relations [issue No.] (2005) No. 12 document of the Ministry of labor and social security, the labor relationship is established if the employer does not sign a written labor contract when recruiting the laborer, but at the same time the following circumstances are met:. （1） The employer and the employee meet the subject qualification specified by laws and regulations; （2） The labor rules and regulations formulated by the employer in accordance with the law are applicable to the workers, who are under the labor management of the employer and engaged in remunerated labor arranged by the employer; （3） The labor provided by the laborer is an integral part of the business of the employer. Since January 2005, the plaintiff of this case has been engaged in the sales of certain products in the workplace provided by the defendant. The working hours are not limited by the defendant. The labor rules and regulations formulated by the defendant are not applicable to the plaintiff, and the defendant does not conduct attendance management for the plaintiff. The labor remuneration obtained by the plaintiff is only the Commission obtained from the sale of products, and there is no relationship between the two parties. According to the above provisions, the plaintiff and the defendant do not meet the characteristics of labor relations. Other claims of the plaintiff are based on the existence of labor relations between the plaintiff and the defendant. Since the labor relations are not established, the plaintiff's claims are not supported.
According to Article 1 of the notice on matters related to the establishment of labor relations [issue No.] LSBF (2005) No. 12 document, the labor relations shall be established if the employer fails to sign a written labor contract when recruiting workers, but the following conditions are met:. （1） The employer and the employee meet the subject qualification specified by laws and regulations; （2） The labor rules and regulations formulated by the employer in accordance with the law are applicable to the workers, who are under the labor management of the employer and engaged in remunerated labor arranged by the employer; （3） The labor provided by the laborer is an integral part of the business of the employer.
[lawyer's opinion] 1. In the process of filing labor dispute cases, workers should reasonably distinguish between labor relations and entrusted agent sales relations. To distinguish whether labor relations exist or not, we should focus on whether there is a subordinate relationship on identity. Where the employer pays labor remuneration to the employee and allows the employee to work in the name of the employee of the employer, and the labor paid by the employee is an integral part of the business of the employer or the legal relationship formed by the actual acceptance of the supervision and management of the employer shall be recognized as labor relationship. For those who do not accept the management, restriction and control of the employer, assume business risks with their own skills, facilities and knowledge, and have no identity affiliation with the employer, the legal relationship between the two parties can be determined according to the actual situation. The labor contract is an agreement between the employee and the employer to establish the labor relationship and clarify the rights and obligations of both parties. The employment agreement is a form of labor contract. The entrustment contract is a contract with the entrusted handling of affairs as the subject matter. The core content of the entrustment contract is that the trustor and the trustee shall discuss and agree in advance, and the trustee shall handle the affairs on behalf of the trustor with compensation or without compensation. The trustor and the agent need not have any affiliation in identity.
2. Workers should establish a sense of safeguarding their rights.
Workers shall fully understand their legal rights and interests during their employment and work. In China, workers enjoy a wide range of rights, such as the right to employment, the right to sign labor contracts, the right to labor remuneration, the right to rest and vacation, the right to labor safety and health protection, the right to vocational training, the right to obtain social insurance and welfare, and the right to submit labor disputes.
(1) Before entering the employment, the laborer shall fully understand the relevant conditions of the employer and sign a labor contract with the employer according to law. (2) Improve their own quality, learn and understand the law. After a labor dispute occurs, the employee shall first try to negotiate with the employer. May apply to the enterprise labor dispute mediation committee for mediation. You can also directly apply to the labor dispute arbitration committee for arbitration. If you are not satisfied with the arbitration award, you can bring a lawsuit to the people's court within 15 days from the date of receiving the arbitration award. (3) Join trade union organizations and rely on trade unions to safeguard their rights. (4) Pay attention to collecting evidence. Such as labor contract, telephone book, payroll, salary card, attendance card, attendance sheet, work brand, company system, workload sheet, etc.
3. The employer shall employ workers legally and prevent employment risks.
The employer shall strictly and fully fulfill its obligations as stipulated by law, such as signing a written labor contract with the employee, paying social insurance premiums for the employee according to law, paying wages to the employee on time, guaranteeing the right of the employee to rest and vacation, and providing labor protection for the employee. So as to avoid arbitration or litigation disputes caused by labor employment problems and ensure the legality of labor employment of enterprises. If the employer employs illegally, it may face the risk of paying compensation. The compensation payable by the enterprise mainly includes: 1. Payment of legal compensation: (1) failure to sign a written labor contract with the employee in time; (2) Illegally agreed probation period; (3) Is ordered to pay within a time limit but fails to pay labor remuneration, overtime pay or economic compensation; (4) Illegally rescind or terminate the labor contract. 2. Assume the liability for compensation according to the damage caused: (1) the rules and regulations of the employer are illegal; (2) The labor contract lacks necessary provisions or fails to deliver the labor contract text to the employee; (3) Detain certificates or require employees to provide guarantees and collect employees' property during recruitment; (4) Illegally detaining the employee's files or other articles after the labor contract is dissolved or terminated; (5) The labor contract is invalid due to the employer's reasons; (6) Serious illegal employment by the employer; (7) Failing to provide the certificate of dissolution or termination of the labor contract in time; (8) The employer does not have the legal business qualification. 3. Bear joint and several liability for compensation: (1) recruit workers who have labor relations with other units; (2) Illegal labor dispatch; (3) Illegal employment in individual contract operation.
4. A harmonious labor relationship shall be established between the employer and the laborer.
（1） Strengthen legal publicity and cultivate modern employment management mode of enterprises. The employer should change the employment awareness, create an enterprise culture with humanistic care and a good and orderly environment for employees' career development; Standardize the employment behavior, establish an advanced management system that matches the current laws and regulations, and avoid the occurrence of violations of workers' rights and interests. Workers should further improve their awareness of protecting labor rights and interests and safeguarding their rights, and safeguard their rights legally and rationally.
（2） Pay attention to mediation and negotiation to create a standardized and harmonious employment atmosphere. At the beginning of a dispute between the employer and the employee, the employer shall pay attention to consultation and communication in advance to ensure and improve the channels and mechanisms of communication and dialogue between the two parties and prevent the intensification of the conflict. When the contradiction cannot be resolved through negotiation and reconciliation, the legal channel should be sought as soon as possible. Both the employer and the employee should rationally safeguard their rights under the legal framework.
（3） Adhere to "double protection" and guarantee the legitimate rights and interests of workers and the autonomy of enterprises in employment. Strive to find the best balance and combination of the interests of both parties, and combine the protection of the immediate interests of workers with the long-term interests, and the local interests with the fundamental interests. We should not only ensure the stability of labor relations, but also pay attention to the flexibility of labor employment, promote the "win-win" between employers and workers, and realize the benign and sustainable development of labor relations.
（4） We will strengthen multi-party cooperation and establish and improve a dispute resolution mechanism. We will actively give play to the diversified dispute resolution mechanism and long-term linkage mechanism jointly participated by administrative departments, enterprise trade unions, arbitration institutions, judicial organs, social organizations and other departments, and actively promote the simultaneous resolution of disputes through mediation and enforcement.