difference | Labor relations | Labor relations | explain |
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The basis for the two is different | Labor relations are based on the combination of production factors between employers and workers. | The labor relationship is based on the agreement of both parties. | If there is no expression of intention to negotiate and conclude a contract, no written agreement, or oral agreement between the two parties, but a kind of rights and obligations relationship with the nature of integration, division and integration between employers and workers according to the provisions of the Articles of Association, it should generally be considered as a labor relationship rather than a labor relationship. |
Different laws apply | | | - |
The name in which the work is carried out and the responsibility is different | The factual labor relationship is that the laborer works in the name of the employer. The laborer belongs to the employee of the employer. The act of providing labor belongs to the duty act, which forms part of the overall act of the employer. The employer bears the legal responsibility, and has nothing to do with the laborer himself. | Labor service relationship refers to that the party providing labor services engages in labor service activities in its own name and independently assumes legal responsibility. If damage is caused to the person or property of a third person purely due to his own fault in the process of providing labor services, the damage has nothing to do with the employer. | Article 43 of the General Principles of the Civil Law of the People's Republic of China: "An enterprise legal person shall bear civil liability for the business activities of its legal representative and other staff members." The Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China Article 58 also stipulates: "If the legal representative and other staff of an enterprise legal person conduct business activities in the name of a legal person and cause economic losses to others, the enterprise legal person shall bear civil liability." The subjects of civil liability under the law are obviously different. |
The contract content is subject to different levels of state intervention | The terms and contents of labor contracts are often stipulated by mandatory legal norms. For example, if the labor contract is dissolved, the employer must meet the conditions specified in the Labor Law, unless both parties agree through consultation. | The labor contract is subject to a low degree of state intervention, and the agreement on the contract content mainly depends on the autonomy of the parties. Except for violating the mandatory provisions of national laws and regulations, the parties can freely negotiate to determine, and national laws will not intervene too much. | - |
Different binding force of internal rules and regulations | Labor contract is a special employment contract or subordinate employment contract. The enterprise has the unilateral right to reward and punish employees for their compliance with internal rules and regulations. | In case of disputes between the parties to a labor contract, only the labor contract itself can be used as the basis for resolving disputes, and the internal rules and regulations of either party cannot be the basis for the rights and obligations of both parties. | - |
Different treatment of subjects | In addition to wages and salaries, workers in labor relations also have insurance and welfare benefits. | A natural person in a labor service relationship generally receives only labor remuneration. | - |
Employers have different obligations and different nature and payment methods of remuneration | The performance of labor contracts runs through the intervention of the state. In order to protect workers, the Labor Law imposes many obligations on employers, such as having to pay social insurance for workers, and the wages paid by employers to workers must not be lower than the local minimum wage standards stipulated by the government. In the labor contract relationship, wages shall be paid in legal currency, and shall not be paid in kind or securities instead of currency. The payment of remuneration is characterized by monetary form and monthly payment. | The employer of the labor contract generally has no such obligation. Of course, both parties can agree on the above content or not. In the service contract relationship, the remuneration can be paid in currency, in kind or in securities. It can be paid in installments or in a lump sum. | - |
Different legal liabilities arising from breach of contract | The responsibilities arising from the non performance and illegal performance of the labor contract include not only civil responsibilities, but also administrative responsibilities. For example, the wages paid by the employer to the workers are lower than the local minimum wage standard, Labor administrative department The labor administrative department that orders the employing unit to make up the wage below the standard within a time limit and refuses to pay may also give the employing unit administrative sanctions such as a warning. | The liability arising from the service contract is only civil liability - liability for breach of contract and liability for tort, and the administrative department will not intervene too much. | - |
Different protection effectiveness | Article 82 of the 1995 Labor Law stipulates that "the party who requests arbitration shall submit a written application to the labor dispute arbitration committee within 60 days from the date of the occurrence of the labor dispute." The time limit for appeal of the current labor arbitration is 60 days. | As a general civil case, the limitation of time for the parties to a labor dispute to request the people's court to protect applies to Article 135 of the General Principles of the Civil Law, that is, two years. | - |
Disputes are handled in different ways | After a labor contract dispute occurs, it should first be arbitrated by the labor arbitration committee of the labor organ. Those who refuse to accept it can sue in the people's court within the statutory period. Labor arbitration is the pre procedure. | However, disputes over labor contracts may be litigated or settled through consultation between the two parties. | The labor relations are not applicable to the relevant provisions on the handling of industrial accidents. If a service provider suffers personal injury in the process of providing services, it can only be compensated by the party at fault in accordance with the provisions of the General Principles of the Civil Law, that is, the fault principle. In other words, if the occurrence of the damage accident is all due to the fault of the service provider (including intent and negligence), the service provider shall bear the responsibility; If both parties to the labor service relationship are at fault for the occurrence of the accident, both parties shall be liable for compensation according to their respective degrees of fault; If there is no fault in the occurrence of the accident, it shall not be liable for compensation. |
Source: On the Difference between Labor Relations and Labor Relations, Nanchong Intermediate People's Court, Sichuan Province [6] |
