| 英文摘要 |
The dependency theory of labor relations in civil law countries has extremely precise generalization and explanatory power for the essential attributes of labor employment relations in the industrial economy era, while the control theory of labor relations in Anglo American law countries has unique judgment standards and recognition rules. Under the operation mode of ''de-identification'' and ''decentralization'' of platform employment, it is difficult to explain and prove the legal nature of the labor employment relationship between practitioners and platform enterprises based on attribute theory, especially personality attribute. The ''control'' standards and specific judgment rules for distinguishing labor employment relationships in Anglo American legal system countries can not only provide a new understanding and application perspective for attribute theory, but also provide a good legal thinking path for platform employment judgment and regulation. Although the theory of ''subordination'' implies the management, command, and ''control'' of workers by employers, its main focus is on emphasizing the identity affiliation of workers to employers. Cybernetics, on the other hand, mainly determines whether the employer has substantial control over the worker based on their control over the use and actual operation of the labor force, thus determining whether a labor employment relationship exists between the two parties. It may be more reasonable and realistic to observe and consider platform employment from the perspective of control'' standards rather than ''attributes''. The platform employment has significant differences from traditional factory employment the labor employment is not organized and managed according to the traditional ''pipeline'' and ''institutionalization'' mode of labor employment, but is according to the employment model of equal rights, openness, and looseness. The labor legal system constructed on the basis of attribute theory faces a dilemma of the application of ''theory'' and ''system''. The theoretical and practical controversies caused by platform employment are actually a questioning and reflection on the labor legal system and its internal logic in the era of industrial economy developing into network economy and intelligent economy. On the surface, compared to labor employment, platform employment has the characteristics of ''de-organization'' and ''de-identification'', which make it difficult for traditional labor laws to regulate and adjust it based on the logic of ''attribute labor''. But in terms of the actual nature of the relationship between the two parties, the fact is that platform practitioners are still in a disadvantaged position relative to platform enterprises where the labor process is controlled, supervised, and evaluated relative to platform enterprises. It is obvious that the relationship between practitioners and platform enterprises is not purely a civil contract relationship, nor is it an economic cooperation relationship between commercial entities. If practitioners want to earn income and compensation through platform order taking services, they must accept the contract conditions of the platform enterprise, obey the management of the platform enterprise, and engage in relevant work according to the instructions of the platform enterprise. There is a state of ''weak subordination and strong control'' between platform enterprises and practitioners. The current situation of ''strong capital and weak labor'' has not fundamentally changed. The actual control of the labor process of practitioners by platform enterprises indicates that ordinary employees still belong to the legal essence of labor employment. Therefore, the basic logic of traditional labor law to provide legal protection for practitioners who rely on the transfer of labor use rights as their main source of livelihood or income can still be compared and applied to this new type of employment. |
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