home page > Selected answers > Selected answers to labor relations > Labor relations and labor relations

Labor relations and labor relations

Time: 2024.02.29 label: Labor disputes Labor relations Reading: 1035 people

Lawyer's analysis:

1. The basis for the two is different. Labor relations It is based on the combination of production factors between employers and workers; Labor relations It is based on the agreement of both parties.
2. The applicable laws are different. Labor relations are mainly composed of civil law contract law Economic law, while labor relations are regulated by labour law and Labor Contract Law Standard adjustment.
3. The subject qualification is different. The subject of labor relations can only be a legal person or organization, that is, an employer, and the other party must be an individual worker. The subject of labor relations cannot be both natural persons and legal persons or organizations at the same time; Both parties to the main body of the service relationship can be legal persons, organizations, citizens, or citizens and legal persons, organizations.
4. The nature and relationship of subjects are different. There are not only property relations, that is, economic relations, but also personal relations, that is, administrative subordination relations, between the two subjects of labor relations. In addition to providing labor, workers should also accept the management of the employer, obey its arrangements, abide by its rules and regulations (such as attendance, assessment, etc.), and become internal employees of the employer. However, there is only a property relationship, that is, an economic relationship, between the subjects of the labor service relationship. There is no subordinate relationship, no administrative subordination relationship, no rights and obligations to manage and be managed, and no rights and obligations to dominate and be dominated. Workers provide labor services, and employers pay remuneration for labor services. They are independent and equal in status. This is the most basic and obvious difference between labor relations and labor relations.
5. It is different in whose name the work is carried out and who bears the responsibility. Factual labor relations It means 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.
6. The contents of the contract are subject to different levels of state intervention. Labor contract The state often stipulates the terms and contents of. If the labor contract is terminated, unless both parties agree through consultation, the employer Termination of labor contract It must meet the conditions specified in the Labor Law. service contract The degree of state intervention is low, and the agreement on the contract content mainly depends on the autonomy of the parties, except for the violation of national laws statute In addition to the mandatory provisions of, it shall be determined by the parties through free consultation.
7. The binding force of internal rules and regulations is different. 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.
8. The dominance of labor force is different. In labor relations, the control of labor force is exercised by the employing unit that holds the means of production, and both sides form a subordinate relationship between the manager and the managed; In the labor relationship, the labor provider organizes and directs the labor process by itself.
9. The right to participate in operation and management is different. As an employee in labor relations, he has the right to participate in the democratic management of the enterprise through the trade union, the workers' congress, the workers' congress, the board of supervisors, etc wages Exercise the power to approve, propose or express opinions on matters such as systems, welfare, labor protection and insurance. However, as a service provider in the service contract relationship, it is not an internal employee of the enterprise, does not enjoy the above rights, and has no right to interfere or interfere with the production and operation of the enterprise.
10. The schedule of work and rest is different. In the labor contract, the employer must reasonably arrange the working hours, rest and vacation of workers in strict accordance with the Labor Law and relevant national regulations. If the employer requires workers to work during legal rest and vacation hours, it must pay additional Overtime pay , etc. For a service contract, unless otherwise agreed by both parties, the service provider may arrange the time for providing services by itself. As for whether legal holidays The two parties can agree on the provision of labor services and how many hours of labor services to be provided each day; If there is no agreement between the two parties, it can be handled in accordance with Article 62 of the Contract Law. The amount of remuneration for services shall be directly agreed upon by both parties in the service contract, and shall not be changed due to the specific time of service provision. Even if the time for providing labor services exceeds eight hours a day, or more than forty hours a week, or if the labor services are provided during legal holidays, the labor service provider shall not demand additional remuneration accordingly.
11. The provision of tools, equipment and other materials is different. In labor relations, the employer must have certain material conditions such as factory buildings and office space, instruments and equipment, and provide necessary safety and health guarantee and protective equipment for workers' labor. In the service relationship, the provision of tools, equipment and other material conditions, if not agreed in the contract, should generally be provided by the service provider. Because in the service relationship, the obligation of the service provider is mainly to provide the agreed service results. As for the way of providing services, the service provider will decide on its own.
12. Vocational skills training has different obligations. In labor relations, according to Article 68 of the Labor Law, employers have the obligation to provide vocational training to workers to enhance their skills; In the service relationship, when a service provider's skills are improved, the other party will only accept the services provided by the service provider and will not interfere with its vocational training.
13. The treatment of the subject is different. In addition to wages and salaries, workers in labor relations also have insurance and welfare benefits; The natural person in the labor service relationship generally receives only labor remuneration.
14. Employers have different obligations. 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 for workers social insurance The wages paid by the employer to the workers shall not be lower than the local wages stipulated by the government Minimum wage The legal obligations that must be fulfilled shall not be changed through negotiation. The employer of the labor contract generally has no such obligation. Of course, both parties can agree on the above content or not.
15. The nature and payment method of remuneration are different. The labor remuneration arising from the performance of the labor contract is distributive in nature, reflecting the principle of distribution according to work. It is incomplete and does not directly change with the market supply and demand, and its payment form is often specified as a continuous and regular wage payment (generally monthly, regular); The labor remuneration obtained from the labor contract shall be paid according to the market principle of equal value and compensation, which is completely determined by both parties through negotiation. It is a one-time payment of the commodity price (most of it is a one-time immediate settlement or payment by stages and batches, without certain rules), and the commodity price is directly related to the changes in the market.
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. 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.
16. The priority of getting remuneration varies. In labor relations, the remuneration obtained by workers is expressed as wages; In the service relationship, the remuneration obtained by the service provider is the service fee, which belongs to the general creditor's rights
17. The legal liabilities arising from breach of contract are different. The responsibilities arising from the non performance and illegal performance of the labor contract not only have civil responsibilities, but also have administrative responsibilities. If the wage paid by the employer to the worker is lower than the local minimum wage standard, the labor administrative department orders the employer to make up the wage that is lower than the standard within a time limit. The labor administrative department that refuses to pay can also give it to the employer at the same time warning And other administrative sanctions. The responsibilities arising from the labor contract are civil liability —— Liability for breach of contract and tort liability , there is no administrative responsibility.
18. The protection time is different. As a general civil case, the limitation of time for the parties to a labor dispute to apply to the people's court for protection《 Civil Code 》Provisions, that is, two years. Existing labor arbitration appeal The limitation period is 60 days.
19. Disputes are handled in different ways. dispute over a labor contract After it happens, it should first go to the labor arbitration committee of the labor organ for arbitration. Those who refuse to accept it can bring a lawsuit in the people's court within the statutory period. Labor arbitration is the pre procedure; But labor contract dispute When it appears, it can litigation , or it can be settled by both parties through negotiation.
20. The casualty accidents in the performance of the contract are handled differently. According to Enterprise Staff employment injury insurance According to the provisions of the Tentative Measures, if an employee, as a laborer, has a casualty accident in the course of working for the employer, as long as the injury is not caused by the intentional act of the laborer, even if it is caused by the negligent act of the laborer, it should be recognized as Injury on-the-Job 。 Industrial accident The principle of no fault is applicable to the compensation for damages of. That is to say, if the user unit is not at fault, it should still be liable for compensation to the workers suffering from industrial injuries.
The labor relations are not applicable to the relevant provisions on the handling of industrial accidents. Labor service providers suffer from Personal injury The party at fault can only bear the compensation liability according to the provisions of the Civil Code, that is, the fault principle.

Legal basis:

Labor Contract Law
Article 7
Establishment of labor relations
The Employer shall establish a labor relationship with the laborer from the date of employment. The employing unit shall establish a register of employees for future reference.

Copyright notice: This platform has exclusive copyright on the content mode of graphics and text, and can not be copied or reproduced in any form without permission.

Complaints/reports Disclaimer: The above content is integrated by LATU in combination with policies, regulations and Internet related knowledge, and does not represent the views and positions of the platform. If the content is incorrect or infringing, please contact us to correct or delete it through [Complaint/Report] on the right.

Lawyers' answers

ask 16 years old is child labor

Not child labor. According to the law, state organs, social organizations, enterprises and institutions, people run non enterprise units or individual businesses are not allowed to recruit minors under the age of 16. Therefore, workers aged 16 and above are not child laborers

Lawyer Ye Guofeng

ask Is it child labor at the age of 17

No, child labor refers to workers under the age of 16. Article 15 of the Labor Law of the People's Republic of China stipulates that employers are prohibited from recruiting minors under the age of 16. According to the Labor Law of the People's Republic of China, minor workers refer to those who have reached 16 weeks of age

Lawyer Ye Guofeng

ask 16 years old child labor

Not child labor. Child labor refers to those under the age of 16. According to the law, state organs, social organizations, enterprises and institutions, people run non enterprise units or individual businesses are not allowed to recruit minors under the age of 16

Lawyer Ye Guofeng

Latest high-quality answers

Selected pictures and texts Pufa video Voice Answers

Under what circumstances can the employer terminate the labor contract

Legal Advisor

According to the Labor Law, the labor contract can be terminated in advance: first, both parties reach an agreement through consultation; The second is legal dismissal, including poor performance during the probation period, serious violations, criminal offences, etc; The third is to respect personal willingness to dismiss under special circumstances, such as illness, incompetence or change of contract conditions; Fourth, economic layoffs should be approved by the trade union and the administrative department because of enterprise difficulties.

Views: one thousand four hundred and forty-six 2024-06-23
How long will it take for the company to formally leave after it proposes to leave

Legal Advisor

Chinese laws give employees the right to terminate the labor contract in writing in advance. Generally, 30 days' notice shall be given in advance (3 days during the probation period), otherwise, the Employer shall be responsible for and compensate for the economic losses of the Employer. In case of termination, the employee unilaterally terminates without compensation from the employer.

Views: one thousand four hundred and seventy-one 2024-06-23
Can enterprises sign labor contracts with retirees

Legal Advisor

The labor agreement signed between the retired person and the unit is invalid because they are no longer on the job and do not have the qualification of legal labor subject. If employed, it will form an employment relationship rather than a labor relationship, and the unit can pay fees according to the service content.

Views: one thousand four hundred and eighteen 2024-06-23

Should the employer be notified when the employee resigns

Lawyer Zhong Yulin

An employee resigns by notifying the employer rather than "applying" to the employer. Therefore, if an employee resigns, as long as he or she fulfils the obligation of advance notice, the employer shall not force the employee to continue working for any reason, unless both parties agree through consultation. At the same time, during the notice period, both parties have the obligation to continue to perform the labor contract. Neither party may terminate the labor contract in advance or delay without the consent of the other party.

Play volume: one thousand four hundred and nineteen 2022-06-07
What are the preconditions for employers to bear the liability for industrial injury compensation

Lawyer Zhong Yulin

The premise that the employer must bear the liability for industrial injury compensation: first, it occurs during the working period; Secondly, the object can only be employees. The employee refers to the employee who has a labor relationship with the employer. According to the provision of Paragraph 3, Article 10 of the Labor Contract Law that the employer and the worker conclude a labor contract before employment, and the labor relationship is established from the date of employment.

Play volume: one thousand and sixty-one 2022-06-07
How to Prove Labor Relations in Labor Arbitration

Lawyer Zhong Yulin

（1） Salary payment voucher or payroll of employees, and records of payment of various social insurance premiums; （2） The work card, service card and other certificates issued by the employer to the workers that can prove their identity; （3） Employment records such as recruitment registration form and application form of the employer filled by the laborer; （4） Attendance records; （5） Testimony of other workers, etc.

Play volume: one thousand four hundred and forty-one 2022-06-07

78″

Which benefits more, resignation or dismissal

Sheng Xinyin

Dismissal. If the employer proposes to terminate the labor contract, it shall issue economic compensation to the worker

Listening volume: three 2019-10-12
122″

Company resignation process

Liu Shuang

1. If the labor contract has not expired, it is necessary to report to the department leader one month in advance

Listening volume: nine hundred and seventy-six 2019-08-20
46″

Will the company check if the resignation certificate is forged

Liu Shuang

It will be checked, and it is recommended not to cheat. Generally, the employer is required to check whether it has been terminated or terminated

Listening volume: seven hundred and twenty-two 2019-08-20

Popular recommendation

Hot expertise:

open

Recommended by districts and counties:

open

Referral lawyer

Lawyer Ye Guofeng

Beijing Hengdu Law Firm

Lawyer Ye Guofeng is an integrated partner lawyer of Beijing Hengdu Law Firm, and a member of Beijing Lawyers Association. He once participated in the post Wenchuan earthquake relief work in 2009. He has made a third class personal merit due to his bravery and justice and outstanding performance. He began to enter the legal industry in 2011. He once worked in a well-known education and training company in Beijing to engage in legal work. Later, he passed the judicial examination and worked in a law firm. He cared about the sufferings of the people and was enthusiastic about public welfare. For many years, he has been committed to providing public legal services for the people, popularizing legal knowledge, and holding hundreds of public lectures in communities, enterprises, schools and other units, He is good at marriage and family cases, inheritance cases, family wealth management and inheritance, corporate legal counsel, economic contract disputes, and criminal defense. Since practicing, lawyer Ye Guofeng has handled a large number of dispute cases such as marriage and family, economic contracts, labor disputes, and some criminal defense cases, and served as legal counsel for many companies. He is quick in thinking, skilled in legal expertise, experienced in handling cases, and proficient in various laws and regulations; Be familiar with the writing of various official documents and legal texts; Strong ability of expression, communication, judgment and logical analysis; Its continuous improvement, highly responsible working attitude and meticulous and patient communication method have won the unanimous praise of the parties! Due to busy working hours, I often appear in court and travel to various courts, detention centers and other case handling agencies. It is impossible to answer your questions on the Internet all the time. If the problem is urgent, I suggest you call directly, and hope to give you a satisfactory answer! Some representative cases: civil case: 1. In the case of a science and technology company in Beijing suing an electric company in Zhejiang for a dispute over a sales contract, as the plaintiff's attorney, the plaintiff recovered more than 300000 yuan of goods owed by the defendant. 2. The legal inheritance dispute case between Wang Moufang and Jia Moupeng and Cui Mouying was settled peacefully through mediation after various efforts. 3. Yue Mouhong sued Chen Mouxia for motor vehicle traffic accident liability dispute, and won more than 100000 yuan of compensation for the plaintiff. 4. Xu Mouling v. Tang Moubao, as the defendant's agent, overturned the plaintiff's unreasonable disability appraisal conclusion, and finally the court rejected all the plaintiff's claims. 5. In the case of Zhao Mouhua v. Chen Moumou's private lending dispute, as the plaintiff's attorney, the defendant recovered all the money borrowed from the plaintiff's Jingdong gold bars, the money spent on the plaintiff's credit card, and the money spent on the plaintiff's Jingdong white bars. 6. Wu Mouqing sued Zhang Moumou in the civil loan dispute case. As the plaintiff's agent, the defendant recovered all the money consumed by the plaintiff's CMB credit card and other borrowings. 7. Zhang Mouqian sued Su Mou to stop the civil loan dispute case. As the attorney for the plaintiff, he guided the plaintiff to collect evidence in many ways and help the plaintiff recover the loan and interest in full in the absence of evidence for the plaintiff. 8. In the case of Zhou Mousheng suing Ping Moujie and Shen Moumou for housing sales contract dispute, as the attorney for the defendant, after many communications with the plaintiff, the two parties finally reached a settlement, avoiding the defendant's greater losses. 9. A coal company in Shanxi sued an asset management company in Beijing for the dispute over the general recall right. As the attorney for the plaintiff, he helped the plaintiff to get back the property valued at ten million yuan in Haidian District, Beijing. 10. In the case of celebrity Li suing a Beijing medical beauty clinic limited company for the right of portrait, as the defendant's attorney, the defendant's loss was reduced from more than 150000 yuan to 30000 yuan. 11. Acting as an agent in the contract dispute case between Guan Moujing and Fan Moubin and Wang Mouting, in the pre court mediation stage, he helped the plaintiff recover the investment of 150000 yuan and its interest. 12. In the case of Fumouli v. Song Mouxue for unjust enrichment, as the defendant's agent, he seized the plaintiff's evidence loopholes and reduced the defendant's loss from 1.41 million yuan to 320000 yuan. 13. Acting as an agent in the divorce dispute case between Zhang Mouxin and Zhang Moulei, helping the plaintiff to obtain custody of children and 230000 yuan of property. 14. Acting on behalf of Chen Mouzhen in suing Tan Mou to laugh at the divorce dispute and help the plaintiff divorce quickly within three months. 15. Acting as the agent of Gu Mouxue v. Wang Mouhao in the civil loan dispute case, helping the plaintiff recover the loan of more than 100000 yuan and its interest. 16. Zhang forcefully sued Li Mouzhi for the testamentary inheritance dispute. As the defendant's agent, he persuaded the plaintiff many times to win 100000 yuan of property for the defendant when the plaintiff held a valid will to obtain all property ownership. Some criminal representative cases: 1. Acting on behalf of Guo Moubin in the intentional injury case, the case procuratorate made a decision not to prosecute; 2. Acting as the agent of the insurance fraud case of Tao, he was successfully insured in the stage of review and prosecution, and the prosecutor's court decided not to prosecute according to law.

Consult the lawyer

Everyone is also asking

How long does the traffic accident injury identification need 2361 people read
How to compensate for accidental injury? 2873 people read
The letter of responsibility for identifying traffic accidents has been able to 1984 people read
What about the responsibility for injuries in traffic accidents 2756 people read
Illegal carrying of guns endangers public security 1860 people read

Relevant legal knowledge

After 4 months of employment, the company refused to become a full member because of work, right

1719 people read

Four months after joining the company, the company did not give the job confirmation due to poor performance, which needs to be reviewed. According to the agreement, the probation period is three months. If the standard is not met during the period, a written notice shall be given. If no notice is received, it shall be deemed to meet the standard and become a regular employee in a timely manner. After becoming a regular employee, the salary and welfare benefits shall be implemented according to the standard of regular employees. Therefore, the company should re evaluate the employee's performance and follow the agreed procedures for becoming a regular employee.
How to compensate for dismissal after 4 months of employment

1566 people read

If the employee is dismissed without reason by the company, he or she can ask the employer to pay twice the economic compensation according to the regulations. The economic compensation shall be paid to the workers according to the number of years they have worked in the unit and the standard of one month's salary for each full year. If it is more than six months but less than one year, it shall be counted as one year; If the period is less than six months, the employee shall be paid economic compensation of half a month's salary. If necessary, it is recommended to seek the help of professional lawyers.
Can I resign after signing a three-year contract

1189 people read

If the three-year contract has been signed but has not expired, you can resign. A written resignation application shall be submitted 30 days before resignation. In this way, you have the right to receive the full salary up to the time of resignation, and you are usually not responsible for the loss. However, if there is an additional contract, such as the public training needs to serve for 5 years, the failure to perform the obligation may require corresponding responsibilities and economic compensation.
How to define incompetence

Read by 1990 people

To define the incompetence of employees, it is necessary to clarify the standards, such as: failing to complete work on time and violating department rules; Performance not up to standard; Customers complain about their services more than three times; Errors or omissions in actual operation, resulting in economic losses or adverse social effects. In these cases, the employee shall be deemed as incompetent for his/her position.

Popular recommendation

View All

Common contracts See more

one Termination of labor relations
download
two Labor Relations Complaint
download
three Employment Agreement (Labor Relationship)
download
four Agreement on Termination of Labor Relationship
download
five Termination of labor service contract
download
six Application for arbitration of labor relations in labor dispatch
download
seven Agreement on Termination of Labor Relations
download
eight Tripartite mechanism of labor relations?
download
nine Tripartite mechanism of labor relations?
download
ten Termination of labor relationship
download