[author]Xie Zengyi

[content]

Reflection and improvement on the regulation path of employment on my country's platforms

*Author: Xie Zengyi, 

Researcher at the Institute of Law, Chinese Academy of Social Sciences

Abstract: At present, the main path of legal regulation of platform employment in my country is administrative guidance, that is, the relevant departments issue "guidance opinions", which leads to problems such as abstract content of relevant rules, inconsistent rules, lack of judgment rules, and difficulty in remedy of rights. The "guidance opinions" introduce the concept of "not fully meeting the situation of establishing a labor relationship", which has brought many theoretical disputes and practical difficulties. The judicial organs also issue relevant judicial documents and typical case reports, but their guiding role in judicial practice is limited. Therefore, my country should adjust and optimize the path of platform employment regulation, and through special legislation and judicial interpretation, build rules with comprehensive content, unified rules, complete rights content and relief channels, and both behavioral norms and judgment norms. At the same time, focusing on the new characteristics of platform employment, in addition to improving the rules for the identification of labor relations and basic labor standards, we should also improve the rules on algorithm management, data protection and artificial intelligence regulation. At present, my country does not need to introduce the "third category of subjects" in the labor law, nor does it need to introduce the concept of "not fully meeting the situation of establishing a labor relationship" in legislation. Instead, it should provide basic labor rights protection for most platform workers through the exclusion method. On this basis, platform workers who meet the definition of "employees" should be included in the scope of protection of the labor law.
Keywords: platform employment, regulation, algorithm, third-category subject

1 Problem Statement

In recent years, with the rapid development of my country's platform economy, the protection of the rights and interests of workers in new employment forms such as platform employment has attracted widespread attention. According to incomplete statistics, in 2021, the number of workers provided by my country's Internet platforms to provide shared services reached 90 million. According to the data disclosed by some large employment platforms, there are as many as millions of employees on multiple platforms (hereinafter referred to as "platform workers"). For example, in 2022, more than 6.24 million riders earned income from Meituan Takeaway, with an average of more than 1 million active riders per day. In 2023, the "Ele.me" platform will have 11,000 delivery stations and more than 3 million "blue riders" across the country. According to the person in charge of Didi, the number of active drivers of Didi online car-hailing reached 5.86 million in 2023, an increase of 1.42 million year-on-year. At the same time, my country's platform employment has also exposed many problems: the legal status of platform workers is unclear, the working hours are too long, the remuneration income is unstable, the labor safety and health protection is insufficient, the social insurance is missing, the platform algorithm is opaque and unreasonable, and the collective rights are difficult to exercise, etc. Strengthening the protection of workers in new employment forms has become an important task for my country. The report of the 20th National Congress of the Communist Party of China clearly pointed out that "it is necessary to improve the system of protecting the rights and interests of workers in flexible employment and new employment forms, and strengthen the protection of the rights and interests of workers in new employment forms". The importance of protecting the rights and interests of workers in new employment forms is very prominent.

In order to solve the above problems, relevant competent departments, trade union organizations and judicial organs have taken active actions. In recent years, in order to cope with the challenges brought by platform employment, strengthen the protection of the rights and interests of workers in new employment forms and regulate platform enterprises and related enterprises, relevant departments in my country have issued a number of documents. Important documents include: "Guiding Opinions on Maintaining the Labor Security Rights and Interests of Workers in New Employment Forms" issued by the Ministry of Human Resources and Social Security and other eight departments in 2021 (Ministry of Human Resources and Social Security [2021] No. 56, hereinafter referred to as "the "Guiding Opinions" of the Ministry of Human Resources and Social Security, etc."), "Guiding Opinions on Implementing the Responsibilities of Online Catering Platforms to Effectively Protect the Rights and Interests of Takeaway Deliverymen" issued by the State Administration for Market Regulation and other seven departments in 2021 (State Market Supervision Network Supervision [2021] No. 38), "Opinions on Strengthening the Protection of the Rights and Interests of Employees in New Transportation Business Forms" issued by the Ministry of Transport and other eight departments in 2021 (Transportation [2021] No. 122). Since digital labor platforms generally use algorithms to manage platform business and employment, documents on algorithm regulation issued by relevant national departments are also important norms for platform employment regulation. For example, in 2021, the "Guiding Opinions on Strengthening the Comprehensive Governance of Internet Information Service Algorithms" (Guo Xin Ban Fa Wen [2021] No. 7) formulated by the Cyberspace Administration of China and other nine departments put forward the guiding ideology, basic principles and main goals of comprehensive algorithm governance. The "Internet Information Service Algorithm Recommendation Management Regulations" issued by the Cyberspace Administration of China and other four departments in 2021 also involve the regulation of platform employment algorithms. In addition, judicial organs have issued judicial documents related to disputes over the rights and interests of workers in new employment forms. For example, in 2022, the Supreme People's Court issued the "Opinions on Providing Judicial Services and Guarantees for Stable Employment" (Fa Fa [2022] No. 36), which involves "regulating the employment of new employment forms in accordance with the law and promoting the sustainable development of the platform economy." In April 2023, the Ministry of Human Resources and Social Security and the Supreme People's Court jointly issued 6 typical cases of protecting the rights and interests of workers in new employment forms. These documents have initially established a normative framework for the protection of the rights and interests of workers in new employment forms in my country, and the content of relevant documents and typical cases are also noteworthy. Although relevant departments have made efforts to strengthen the supervision of platform enterprises and the protection of the rights and interests of workers in new employment forms, the problems arising from the above-mentioned platform employment have not been effectively resolved. To this end, it is necessary to reflect on the overall thinking of platform employment regulation and rights protection in my country, and find effective ways to regulate platform employment and strengthen the protection of workers' rights and interests, so as to promote the effective implementation of "strengthening the protection of the rights and interests of workers in flexible employment and new employment forms" proposed in the report of the 20th National Congress. At present, academic research on the protection of the labor rights and interests of platform workers mainly focuses on three aspects. The first is about the nature of the legal relationship between the platform and platform workers, including how to identify the labor relationship, the theory and standards for determining the labor relationship, and the adherence or abandonment of the theory of subordination. The second is how to provide specific protection for platform workers. Many scholars agree to introduce a "third type" of subject, that is, to treat platform workers as a third type of subject between traditional "employees" and "independent contractors" and provide them with corresponding protection. For example, some scholars have proposed that "under the framework of the three-part labor law, there are both labor laws that regulate organized labor relations and employee-like laws that regulate platform-based flexible employment, aiming to achieve division of labor and cooperation among different legal departments"; some scholars have advocated the introduction of the concept of "employee-like". Of course, there are also views against the introduction of a third category of workers. Some scholars have advocated improving the protection of platform workers' rights and interests by issuing special legislation to protect the rights and interests of platform workers. Third, some scholars have studied the protection of new rights of platform workers from the perspective of personal information protection law or algorithm regulation. Overall, the current research on the protection of the rights and interests of platform workers lacks a systematic evaluation and reflection on my country's regulatory or protection paths. To this end, this article intends to reflect on and examine the overall ideas and main paths of my country's current platform employment regulation and protection, analyze its existing defects, and future improvement directions and measures.

2 Pros and Cons of the “Administrative Guidance” Approach

In general, in order to cope with the challenges brought by platform employment, the newly issued documents in my country are mainly "guiding opinions" of administrative departments. For example, the document with the greatest impact in the field of platform employment is the "Guiding Opinions" of the Ministry of Human Resources and Social Security in 2021. In the early stage of the development of platform employment, its operating mode is still in the process of continuous change and development. It is more reasonable to adopt a normative expression based on the "guiding opinions" of relevant departments. First, adopting a relatively flexible normative form is conducive to the rapid introduction of rules and the accumulation of valuable experience for legislation. Platform employment is an emerging thing and has not yet been fully finalized. With the development of technology and innovation of business models, the operating model and employment methods of platform enterprises are constantly changing. Taking the form of administrative guidance, on the one hand, it can quickly introduce policies and avoid the difficulties faced by legislation. At the same time, it can also observe its practical effects as the practice of platform employment changes, and constantly adjust and optimize the policy content to accumulate experience for future legislation. Second, the form of "guiding opinions" is flexible and easy to obtain the recognition of relevant subjects. Usually, the content of "guiding opinions" is relatively flexible and has little impact on the rights and obligations of platform companies and workers, and the relevant policy content is easy to be accepted by enterprises and workers. At the same time, due to the flexibility of the content, it is possible to better balance the obligations of platform companies and the rights and interests of workers, and strive to achieve the policy goal of giving equal importance to standardization and development. For example, the overall consideration of the "Guiding Opinions" of the Ministry of Human Resources and Social Security and others includes "giving equal importance to development and standardization, and coordinating the promotion of platform economic development and the protection of the rights and interests of workers in new employment forms". Third, the "Guiding Opinions" provide a corresponding basis for administrative actions such as government supervision and guidance, which is conducive to administrative law enforcement. For example, after the "Guiding Opinions" of the Ministry of Human Resources and Social Security and others were issued, the Ministry of Human Resources and Social Security and other departments guided and urged platform companies to improve their internal management systems, optimize platform algorithms, improve consultation mechanisms, smooth the channels for workers in new employment forms to express their demands, and strengthen the management and supervision of employment cooperation enterprises through administrative guidance meetings and interviews. Fourth, the "Guiding Opinions" can provide behavioral guidance for enterprises and promote the protection of the rights and interests of workers in new employment forms. Although the content of the "Guiding Opinions" is mostly principled, the spirit and orientation embodied in the document still have great guiding significance for enterprises and workers, which is conducive to enterprises fulfilling their social responsibilities and taking specific measures to improve the rights and interests of workers. However, while the "Guidance Opinions" and "Administrative Guidance" play their advantages and positive roles, they also have obvious drawbacks and shortcomings.

First, the content of the "Guidance Opinions" is mostly principled and lacks operability. Taking the "Guidance Opinions" of the Ministry of Human Resources and Social Security as an example, although its content is rich, many contents lack operability. For example, the "Guidance Opinions" pointed out that "improve the rest system, promote the industry to clarify the labor quota standards, and scientifically determine the workload and labor intensity of workers. Urge enterprises to reasonably determine the rest method according to regulations and pay reasonable remuneration on statutory holidays that is higher than the normal working hours labor remuneration." This provision involves labor standards such as labor quotas, working hours and rest systems, and statutory holidays, but this provision can hardly provide specific rules for operation.

Second, the rights of workers are not clear. The "Guidance Opinions" mainly clarify the government's supervisory responsibilities and corporate obligations, and many protection measures have not been fully transformed into workers' rights. For example, the Guiding Opinions of the Ministry of Human Resources and Social Security stipulate that "enterprises should be urged to formulate and revise institutional rules and platform algorithms directly related to the rights and interests of workers, such as platform entry and exit, order allocation, piece-rate unit price, commission ratio, remuneration structure and payment, working hours, rewards and punishments, etc., and fully listen to the opinions and suggestions of trade unions or worker representatives, and publicize the results and inform workers." This content stipulates the negotiation obligations and notification obligations of enterprises on relevant matters, but there are no provisions on the scope and procedures of negotiation and notification, as well as the relief and liability for violation of the provisions. This content has obviously not been clearly transformed into workers' rights.

Third, the "Guidance Opinions" have led to the localization and fragmentation of rules. The "Guidance Opinions" of the Ministry of Human Resources and Social Security and other departments stipulate that "all regions and relevant departments should conscientiously implement the requirements of this opinion and issue specific implementation measures" to ensure that all labor security rights and interests are implemented. The original intention of this regulation is good, but the specific implementation measures issued by various regions will lead to the localization and fragmentation of rules, resulting in inconsistent rules. Unlike traditional employment methods, platform business and operating models are highly centralized and uniformly managed through the platform. The business of large-scale head platform companies basically covers the whole country. For example, the business of express delivery, takeout delivery, and transportation platforms often covers the whole country and crosses different regions. The refinement of the content of the "Guidance Opinions" by various regions will lead to inconsistent rules in various regions, hinder the cross-regional development of business, and cause difficulties in the application of rules. For example, according to the requirements of the "Guidance Opinions", as of now, the governments of almost all provinces, autonomous regions, and municipalities have formulated and issued documents on safeguarding the labor security rights and interests of workers in new employment forms within their administrative regions. The documents issued by various regions are quite different in both content and form. Due to the importance of unified platform employment supervision rules, this article will be discussed in detail. The content of the Guiding Opinions of the Ministry of Human Resources and Social Security and others is divided into four parts, each of which contains corresponding different measures. In form, it belongs to the "listing measures" document. In terms of document form, the implementation opinions of most provincial regions adopt the same model and structure as the Guiding Opinions. In contrast, some places adopt the "normative (chapter + article)" normative document model, that is, a format similar to local government regulations, with clauses listed in different articles. This model is adopted by Jilin Province, Ningxia Hui Autonomous Region, Hainan Province, Hebei Province and Zhejiang Province. In terms of content, there are great differences in the provisions of various places on the concept of new employment forms, the obligations of platforms and other enterprises, and the rights and interests of workers. The provisions of various places even include the summary or definition of complex concepts such as "new employment form workers" and "situations that do not fully meet the establishment of labor relations". For example, the Beijing document stipulates that "new employment form workers" mainly include "platform online workers", "platform individual flexible employment personnel" and "platform unit employees". The provisions of the Guangdong Provincial document are similar to those of Beijing, which stipulate that new employment forms of workers include "employees who meet the conditions for establishing a labor relationship", "flexible employment personnel in a new type of employment relationship" ("new operators"), and employees who have formed an equal civil relationship with new business enterprises. Some places have not classified new employment forms of workers, mainly highlighting their characteristics of "relying on Internet platforms to achieve employment", such as Jiangsu Province and Henan Province. Some places have interpreted the new expression of "not fully meeting the conditions for establishing a labor relationship". For example, Shanghai summarizes "not fully meeting the conditions for establishing a labor relationship" as "not fully meeting the conditions for establishing a labor relationship, but the enterprise manages the labor of the laborer, and the labor process of the laborer must comply with the algorithm and other rules determined by the platform enterprise", highlighting the status of labor process management and algorithms; while the Guangdong Provincial document simply refers to "not fully meeting the conditions for establishing a labor relationship" as "new employment relationship" and clarifies three specific judgment criteria: "First, the work performed by the laborer depends on the information provided by the platform enterprise, and the labor or service is provided in the name of the platform enterprise; second, the new business enterprise manages the labor of the laborer, but the laborer has a greater degree of freedom to decide whether or when to provide labor or services; third, the laborer receives remuneration from one or more new business enterprises, and the remuneration algorithm and payment cycle depend on the platform transaction rules." This standard contains rich content and multiple specific indicators. The concept and scope of new employment workers in various places, as well as the definition of "not fully meeting the conditions for establishing a labor relationship", are obviously not conducive to the unification of national rules. It is puzzling that these basic and important concepts are directly defined by the guidance opinions of local administrative agencies and other departments.

Fourth, the "Guidance Opinions" cannot accommodate the necessary adjudication norms. Based on the complex multi-party subjects in platform employment, the documents of various places implementing the "Guidance Opinions" of the Ministry of Human Resources and Social Security and others attempt to stipulate the civil liabilities of platform enterprises and related cooperative enterprises. These liabilities include platform enterprises and "outsourcing" enterprises assuming joint and several liabilities, platform enterprises assuming supplementary liabilities or partial supplementary liabilities, determining the allocation of employment responsibilities according to specific legal relationships, and platform enterprises and outsourcing enterprises assuming liabilities according to agreements. For such adjudication norms involving the allocation of civil liabilities of enterprises, in theory, they should be stipulated by legislation or judicial interpretation, and should not be stipulated by administrative agencies, let alone by local normative documents. This also fully exposes the major defects of regulating the platform employment path through administrative guidance opinions and their local detailed regulations.

It can be seen from this that the "Guidance Opinions" themselves have many inherent defects and deficiencies. Due to the characteristics of the "Guiding Opinions" themselves, it is difficult to provide national unified rules with detailed content, clear rights, and including behavioral rules and adjudication rules. It is difficult to achieve the basic requirements of the rule of law, such as clear content, unified rules, and actionable rights. Therefore, the goal of regulating platform employment and protecting the rights and interests of platform workers through the "Guiding Opinions" of relevant departments is difficult to achieve.

3 Dilemma and controversy in introducing the concept of “three-part rule” and “circumstances that do not fully meet the labor relationship requirements”

The Guiding Opinions of the Ministry of Human Resources and Social Security and other organizations attempted to divide the legal relationship of workers in new employment forms into three parts and introduced new concepts. The Guiding Opinions stipulate that "if the situation meets the conditions for establishing a labor relationship, the enterprise shall enter into a labor contract with the worker in accordance with the law. If the situation does not fully meet the conditions for establishing a labor relationship but the enterprise conducts labor management over the worker (hereinafter referred to as "the situation does not fully meet the conditions for establishing a labor relationship"), the enterprise shall be guided to enter into a written agreement with the worker to reasonably determine the rights and obligations of the enterprise and the worker. Individuals who independently carry out business activities and engage in freelance work based on the platform shall adjust the rights and obligations of both parties in accordance with civil law." This has caused many problems and disputes.

3.1 The dilemma of standardizing the expression of “not fully meeting the conditions for establishing a labor relationship”

“Not fully in line with the situation of establishing a labor relationship” literally means a description of the employment facts or status, not a formal concept. However, judging from the content of the Guiding Opinions, it imposes corresponding obligations on platform companies that meet this situation, such as “improving the minimum wage and payment guarantee system, and promoting the inclusion of new employment workers who do not fully meet the situation of establishing a labor relationship into the scope of system protection” and “urging enterprises to pay labor remuneration not lower than the local minimum wage standard to workers who provide normal labor”. This requires a definition of what “not fully in line with the situation of establishing a labor relationship” means, otherwise the rights and obligations of the relevant subjects cannot be implemented. At the same time, the expression “not fully in line with the situation of establishing a labor relationship but the enterprise conducts labor management on the workers” emphasizes “labor management on the workers”, which is a description of the basic characteristics of “not fully in line with the situation of establishing a labor relationship”, indicating that the Guiding Opinions attempts to define this “situation”. Moreover, the expression “new employment workers who do not fully meet the situation of establishing a labor relationship” in the document seems to indicate that it is a description of the legal nature or legal status of a certain type of new employment workers. Therefore, the expression "not fully meeting the conditions for establishing a labor relationship" actually proposes a new concept, and the concept is also facing difficulties.

From the perspective of legislative authority, the Guiding Opinions may face a legal dilemma when proposing a new concept. As we all know, labor relations are basic social relations, and the subjects who meet this legal relationship enjoy or bear important rights and obligations. Labor relations or general contractual relations are basic concepts established by labor law or civil law. As a concept that is parallel or related to labor relations and may have an important impact on the rights and obligations of relevant subjects, "not fully meeting the conditions for establishing a labor relationship" may face obstacles in the Legislative Law when it appears in the Guiding Opinions. Labor relations and related concepts should belong to the "basic civil system" stipulated in the Legislative Law. Accordingly, these concepts should be stipulated by law, rather than by the department's guiding opinions.

From the perspective of comparative law, the United Kingdom and Germany are countries where there are "third-category" or "intermediate-type" subjects in addition to the typical "employees" or "self-employed persons". The concept of "worker" exists in British law. According to the UK Employment Rights Act 1996, "workers" include two categories, namely "employees" with employment contracts and non-employee workers [limb (b) workers]. Non-employee workers refer to those who do not have an employment contract with their employers and enjoy greater autonomy in providing services, but are economically dependent on their employers and have the obligation to provide services in person. The concept of "worker" was introduced into legislation to adapt to the flexibility of employment methods, overcome the drawbacks of the narrow coverage of traditional labor relations, and provide corresponding protection for groups that are similar to employees but lack employment contracts. Non-employee workers are still self-employed in nature and are a type of self-employed. Non-employee workers can enjoy a certain degree of labor law protection, such as minimum wage, working hours, wage guarantees, protection of whistleblowing, and rights related to trade unions, collective bargaining and industrial action. In German law, there is the concept of "employee-like person". In Germany, the self-employed are excluded from labor law, while employees are fully protected by labor law. This dichotomy has always been considered an unsatisfactory solution. Therefore, the concept of a third category of subjects, namely, those who are self-employed but whose economic situation is more similar to that of employees than self-employed, has been introduced. The difference between this group and other self-employed people is economic dependence, and they are called "quasi-employees". This concept was created by the court and was not clearly defined at first. This situation has been improved by the 1974 Act on Collective Agreements, which provided a legal definition for it. Compared with employees, if an individual meets the following two conditions: ① he must personally perform his contractual obligations and has no substantial help from employees, ② the main part of his work is only for one person, or more than half of his average income comes from only one person, he is economically dependent and needs social protection, that is, he is a "quasi-employee". "Quasi-employees" can also enjoy a certain degree of protection, including the acceptance of disputes between them and the contract counterparty by the labor court, the enjoyment of annual leave and public holidays, the protection of working conditions by collective agreements, and the protection against employment discrimination. As can be seen from the above, the common point of the "third category subjects" in the UK and Germany is that they have economic subordination but lack personal subordination, and are essentially self-employed. From the UK and Germany, the definitions of "workers" and "quasi-employees" and the basic standards for identification are all stipulated by law. In contrast, the similar concepts in my country are reflected in the "guidance" issued by the department, which seems obviously inappropriate.

3.2 The concept of "not fully meeting the conditions for establishing a labor relationship" itself is paradoxical

It is generally believed that personal subordination is a basic element for identifying labor relations. According to this general view, the concept of "not fully meeting the conditions for establishing a labor relationship but the enterprise conducts labor management over the employee" is paradoxical: on the one hand, this condition requires "not fully meeting the conditions for establishing a labor relationship", that is, it does not have or does not fully have personal subordination; on the other hand, it requires "the enterprise conducts labor management over the employee", that is, it emphasizes that it has certain personal subordination. Therefore, there is a certain internal contradiction in the concept itself. In addition, the determination of labor relations is usually not based on clear requirements, but "comprehensively considers the existence and strength of personal subordination, economic subordination and organizational subordination" from different aspects. "Labor relations" itself is extremely flexible, which makes "not fully meeting the conditions for establishing a labor relationship" itself extremely flexible and difficult to distinguish from "fully meeting" the conditions for establishing a labor relationship. It is almost impossible to accurately define "not fully meeting the conditions for establishing a labor relationship". Compared with the concepts of non-employee "workers" in the UK and "quasi-employees" in Germany, their main characteristics are that they lack personal subordination but have economic subordination. As long as they are determined to have economic subordination, the connotation and extension of the concept are relatively certain and relatively easy to determine in practice. Some scholars in my country have also tried to define "situations that do not fully meet the requirements for establishing a labor relationship". For example, when analyzing a case, a scholar pointed out that "the court believes that the situation in this case is different from the traditional labor relationship and has the characteristics of flexibility, but at the same time it has the essential characteristics of a labor relationship and is necessary to protect it, so it is identified as a new type of labor relationship", that is, "incomplete labor relationship". Such a definition does not actually clearly reveal the essential characteristics of "situations that do not fully meet the requirements for establishing a labor relationship" and the specific standards that can be operated. Therefore, this concept has great flexibility and uncertainty, and is difficult to operate in practice. Moreover, some scholars have questioned the actual effect of introducing "incomplete labor relations", saying that "incomplete labor relations have not completely solved the three problems it intends to solve: the differences in the identification of the nature of platform employment have not been narrowed; the distinction between different types of labor service payment relationships is more complicated; and the protection of the rights and interests of platform workers may be more unfair". In other words, the introduction of this concept may not solve existing problems and bring new problems.

In practice, due to the weak normative basis of "incomplete labor relations" and the difficulty in defining them, it is difficult to play a role in judicial practice. In 2022, the Shanghai Second Intermediate People's Court issued the "White Paper on the Trial of Employment Dispute Cases in New Business Forms in the First Half of 2017-2022", pointing out that as of the end of August 2022, the court had not yet accepted a case requesting confirmation of an incomplete labor relationship. The reason may be that, on the one hand, although the "Guiding Opinions" have established an incomplete labor relationship, it is only a normative document with a low level of effectiveness, and practitioners lack clear legal guidance for requesting confirmation of incomplete labor relations; on the other hand, practitioners can enjoy the preferential protection of the labor law under the labor relationship, and often first request confirmation of the labor relationship in litigation strategy. Therefore, "incomplete labor relations" not only have difficulties in theory, but also have difficulty in playing their due role in practice.

3.3 "Not fully meeting the conditions for establishing a labor relationship" sparks theoretical controversy

With the introduction of this concept, the academic community has launched a debate on whether and how to introduce a "third category" of subjects and their legal nature in addition to employees and self-employed persons. There are currently two main views on the debate on this issue. One view holds that "most platform workers have the personality and economic attributes of wage workers, and are a group that should be directly protected by labor laws." At the same time, it advocates that wage-like workers with only economic attributes should be included in the labor law as a new type for partial protection. This view also believes that "for a certain specific behavior, there is no intermediate type for civil law protection or labor law protection. However, the objects of protection of labor law can be divided into types and levels, and different degrees and scopes of protection can be given." This type of view generally still adheres to the traditional dichotomy. Another view advocates the "three-part labor law", as mentioned above, and believes that under the framework of the three-part labor law, there are both labor laws that regulate organized labor relations and employee-like laws that regulate platform-based flexible employment. "When the legislative conditions are ripe, labor law and employee-like law can be incorporated into the Labor Code to build a unified regulatory system covering all types of labor behaviors in the whole society." A similar view is that "'incomplete labor relations' are a legal creation for regulating platform employment, and from a logical classification, they have formed a 'three-legged tripod' situation with labor relations and civil labor relations." Both of the above views have some truth, but there are also debatable points.

The first view is that most of the workers currently employed by platforms are workers under the labor law. This conclusion does not seem to take into account the different types of platform employees. It is true that some employees are difficult to include in labor relations. Therefore, it seems not to be comprehensive to directly conclude that "most" platform workers are workers under the labor law. However, the author agrees with the view that "employee-like" or the third type of workers should be included in the scope of labor law. In fact, although this group is essentially self-employed, it is more similar to employees than employees and general self-employed people, and it is partially protected by the labor law. The adjustment concept and adjustment mechanism of the labor law should be fully utilized to include it in the labor law system and the research field of labor law. The typical approach is that the concept of "worker" in the UK mentioned above includes employees and "non-employee workers", and the two are placed under a unified concept. The second view mentioned above puts labor law and quasi-employee law on a par, because quasi-employees are essentially self-employed rather than employees. This view pays attention to the essential difference between employees and quasi-employees and has certain rationality, but there are also many debatable points in this view. First, putting quasi-employee law and labor law on a par obviously overemphasizes the particularity of quasi-employees and ignores the dependence of the quasi-employee law protection mechanism on labor law. Quasi-employee law cannot be separated from the system and theory of labor law, and "set up a set" of rules and theories. The protection of quasi-employees must rely on the concepts and rules of labor law, which is just its existence. Secondly, this view also believes that labor law and quasi-employee law can be included in the future labor code, which also shows that the two cannot be completely separated. Finally, even if the concept of quasi-employees should be introduced, quasi-employees cannot be limited to the group of "platform-based flexible employment", but should include other flexible employment personnel who do not adopt platform employment, and "quasi-employees" should not only include platform workers. In general, the main difference between the above-mentioned "dichotomy" and "trichotomy" is that the former regards "quasi-employees" as a special type of employees and includes them in the labor law, while the "trichotomy" emphasizes the parallel relationship between employees, "quasi-employees" and self-employed persons. Of course, a closer look shows that the above-mentioned dichotomy and trichotomy are not mutually exclusive. The former advocates that quasi-employees or the third type of subjects be regarded as a special type of objects regulated by the labor law, and the second view also includes the labor law and the quasi-employee law in the labor code in the future. The main difference between the two lies in the different views on the scope of traditional labor law, but according to the second view, if the "quasi-employee law" can also be included in the labor code, then there seems to be no difference between the two on the scope of labor law regulation. Therefore, whether it is a "dichotomy" or a "trichotomy", the key is to clarify the standard and function of "division". Only in this way can we avoid unnecessary disputes about the concept or method of "dichotomy" or "trichotomy". The solution to this problem will be further explained below.

4 The Supply and Insufficiency of Judicial Rules

Regarding the protection of the rights and interests of platform workers, due to the lag in legislation and the constant development and change of platform employment, the courts' judgments on such cases, especially on the identification of platform workers, play an important role in protecting the rights and interests of platform workers and guiding the behavior of platform companies.

Many countries have also made many important judgments. For example, in Europe, although the claims on the identification of platform workers seemed strange a few years ago, the number of cases has expanded rapidly in recent times. As of June 2022, courts and administrative agencies in various European countries have made more than 220 decisions on disputes over the identity of platform workers. Courts and administrative agencies in 15 countries have made decisions on the identity of platform workers. In France, Germany, Italy, Spain, Switzerland and the United Kingdom, individual cases have even been submitted to the final court. Surprisingly, there are inconsistencies in the results of the identification of platform workers in almost all countries, and this is the case for the identification of workers of different platform types. However, at least for the two types of platforms that have accounted for the majority of all decisions so far, namely transportation platforms and food delivery platforms, a trend can be seen: for these two types of platforms, the most recent and highest-level decisions in most countries classify platform workers as employees (or similar identities). It can be seen that the courts have played an important role in protecting the rights and interests of platform workers. Of course, the ruling of the UK Supreme Court at the end of 2023 shows that there are still differences and uncertainties in the identification of workers on similar platforms in European countries. On November 21, 2023, the UK Supreme Court ruled that there was no labor relationship between Deliveroo riders and the platform, mainly because the platform used a "substitute clause". The ruling also showed that riders could not conduct collective bargaining. "Substitute clause" means that riders can have other people deliver orders on their behalf through their accounts; other factors in making this ruling include that riders may work for multiple platforms at the same time. This ruling of the UK Supreme Court is different from the rulings of the courts in similar European cases that identified Deliveroo riders as employees, such as the ruling of the Supreme Court of the Netherlands.

In recent years, my country's judicial organs have also actively accepted disputes involving platform employment and issued relevant judicial opinions and typical cases, but the judicial organs still have many deficiencies in providing judicial experience and judgment rules.

First, the adjudication organs are extremely cautious in identifying the labor relationship between platform enterprises and platform workers.

At present, the courts have only recognized the existence of labor relations between platform companies and platform workers in a very small number of cases. A typical case is the widely influential "Li Xiangguo v. Beijing Tongcheng Bing Technology Co., Ltd. ("Shanfeng" platform) case" accepted by the Haidian District People's Court of Beijing in 2018, which recognized the existence of labor relations between Shanfeng delivery workers and platform companies. From the typical cases of labor disputes in new employment forms released by the Ministry of Human Resources and Social Security and the Supreme People's Court in April 2023, some cases recognized that employees and platform companies or platform partners established labor relations. Among the six typical cases released this time, although the proportion of recognized labor relations seems to be high, two cases recognized that platform workers and platform partner companies (non-platform companies) have labor relations; the other two cases recognized that truck drivers and domestic workers platform companies and employees have labor relations, but both types of platforms have certain special features. In the most influential crowdsourcing rider case (Case 2), the court denied the labor relationship between the rider and the platform company. Therefore, it is still difficult for employees and large food delivery or travel platform companies to establish a labor relationship. Judging from recent cases, although some cases have determined that a labor relationship is established between platform workers and the platform companies' partner companies, very few cases have determined that a labor relationship is established between large-scale transportation or food delivery platform companies and platform workers.

Second, the adjudication organs have summarized useful adjudication experience, but the form of expression needs to be improved.

From the typical cases released by the Ministry of Human Resources and Social Security and the Supreme People's Court and the judicial documents of the Supreme People's Court, the adjudication organs have put forward many important adjudication ideas. For example, the typical case report "Case 1" released by the Ministry of Human Resources and Social Security and the Supreme People's Court pointed out that "at present, to determine whether there is a labor relationship between new employment workers and platform enterprises, the relevant elements of labor management should be compared and the existence and strength of personality subordination, economic subordination, and organizational subordination should be comprehensively considered." This statement emphasizes the three aspects of subordination: personality, economy, and organizational subordination. In addition, this statement not only emphasizes the "existence" of subordination, but also emphasizes the "strength". In other words, subordination is quite flexible and should reach a certain degree before a labor relationship can be determined. For example, the report pointed out in "Case 2" that "although a certain technology company conducted certain labor management on Xu through the platform, its degree was not enough to determine a labor relationship." In addition, the typical case (Case 1) also explained the specific determination factors of personality subordination, economic subordination, and organizational subordination. These judicial experiences point out the standards and methods for identifying labor relations in light of the new characteristics of platform employment. The content is quite scientific and undoubtedly has important reference value. In addition, in 2022, the Supreme People's Court issued the "Opinions on Providing Judicial Services and Guarantees for Stable Employment", which also involves "reasonable identification of labor relations in new employment forms in accordance with the law". The opinion points out that "the people's courts should consider the degree of autonomy of workers in determining working hours and workload, the degree of management and control of the labor process, whether workers need to abide by relevant work rules, labor discipline and reward and punishment measures, the continuity of workers' work, whether workers can decide or change transaction prices, and other factors based on the facts of employment and the degree of labor management, and make prudent determinations in accordance with the law". The content has many highlights: first, it puts forward the principle of fact priority and comprehensive judgment method for the first time; second, it emphasizes that the "degree of management and control of the labor process" should be considered, highlighting the important position of the labor process in labor management, reflecting the new characteristics of platform employment; third, it puts forward several specific factors for the identification of labor relations that are not mentioned in the existing rules. Compared with the "Notice on Matters Related to the Establishment of Labor Relations" issued by the former Ministry of Labor and Social Security in 2005, the content has great reference value. Unfortunately, as a judicial document, the Opinions on Providing Judicial Services and Guarantees for Stable Employment is not a formal judicial interpretation, and the guiding opinions on "regulating the employment of new employment forms in accordance with the law" are reflected in the judicial document with the grand theme of "stable employment". The relevant content is easily submerged by other content and does not receive due attention. In addition, although the Ministry of Human Resources and Social Security and the Supreme People's Court have proposed many adjudication ideas and methods for new employment forms through typical case reports, as a country of codified law, my country's typical cases only have a "reference" role, and the court cannot cite them as a basis for adjudication. Moreover, typical cases often only disclose the main facts, lack the specific details of the case and detailed content of the reasoning ideas, and have limited guiding role. Therefore, both judicial documents and typical cases lack the necessary coercive force and influence, and it is difficult to become a unified adjudication standard.

Third, the opinions provided by the adjudicating authorities are not comprehensive enough.

In addition to the basic issue of platform workers' identity identification, the most prominent problem in the judicial practice of labor disputes in new employment forms is the unclear rules for platform workers' liability for personal injury or personal injury to third parties in the process of providing labor services. Because this issue involves the personal safety protection and legal liability of platform workers, it involves their huge economic interests. The "Research Report on the Judicial Protection of People's Livelihood Rights and Interests under the Background of Digital Economy" published by the First Civil Division of the Supreme People's Court in August 2023 pointed out five major problems found in the survey, the second of which is: "Difficulties in judicial protection of the rights and interests of workers in new employment forms. First, the considerations for determining the labor relationship between platform enterprises and employment cooperation enterprises and workers are unclear and inconsistent. Second, when workers cause damage to others during the performance of their work tasks, there are disputes over the sharing of responsibilities between platform enterprises and employment cooperation enterprises. Third, when workers are damaged, legal, reasonable and scientific rules for liability have not yet been established." It can be seen that the liability mechanism for personal injury to workers or third parties in platform employment is not perfect and the importance of this issue in judicial practice.

Regarding the personal injury compensation liability in platform employment, the current judicial practice cases are different and there are huge disputes. For example, there are at least 6 practices and main views on the subject and form of liability when new employment workers cause damage to third parties, and there are at least 5 practices and views on the subject and form of liability when new employment workers suffer damage. Due to insufficient theoretical support, in judicial practice, the courts often deliberately avoid the legal relationship between the parties when allocating responsibilities, and the characterization of the legal relationship in some cases also lacks basis and reasons. For example, in the 2022 "Zhou Meirong and Chen Feifei and other non-motor vehicle traffic accident liability dispute" case, the court determined that the platform deliveryman defendant Chen was a laborer recruited by the defendant Ningbo Company (platform cooperative enterprise), and the defendant Chen and the defendant Ningbo Company constituted an "employment relationship", and based on this, the defendant Chen, as a staff member of the defendant Ningbo Company, was on the way to deliver the order at the time of the incident, which was an act of performing his duties, and the defendant Ningbo Company should bear the compensation liability for the damage caused to the third party by Chen. In this case, the court held that the platform workers and the cooperative enterprises established an "employment relationship" and accordingly held the cooperative enterprises liable for compensation for damages caused to third parties. Since the concept of "employment relationship" has not been included in my country's formal legislation, the basis and reasoning of the judgment in this case are still questionable.

At present, the judicial documents of the Supreme People's Court clearly lack the supply of rules on liability for injuries suffered by workers in new employment forms or damages caused to third parties. The "Opinions on Providing Judicial Services and Guarantees for Stable Employment" only mentions: "Promote the improvement of the responsibility sharing mechanism for workers who suffer damage due to the performance of work tasks" and "Properly hear cases such as motor vehicle traffic accident liability disputes and non-motor vehicle traffic accident liability disputes, and reasonably determine the responsibilities of all parties in accordance with the law." The opinion does not provide specific rules. One of the reasons for this phenomenon is that the opinion is a comprehensive opinion and cannot provide specific rules for workers in new employment forms. Moreover, it is not a judicial interpretation and it is difficult to stipulate specific rules for the civil liability of multiple parties. The Supreme People's Court's supply of rules on compensation for personal injury caused by platform employment is in sharp contrast with the practical needs.

5 Adjustment and optimization of the employment regulation path of my country's platforms

In view of the above-mentioned difficulties and problems in the regulation of platform employment in my country, based on my country's platform employment governance practices and overseas experience, my country should adjust and improve the regulation of platform employment from the following aspects.

5.1 Special legislation on the protection of platform employment rights and interests

The above analysis has shown that there are obvious drawbacks in my country's current regulation of platform employment mainly through the guidance opinions and administrative guidance of relevant departments. Therefore, platform employment should be regulated through legislation.

In recent years, legislation on platform employment has been a practice and trend in many countries and regions to regulate platform employment. For example, many places in the United States have passed legislation on the protection of platform workers. California passed the state's AB5 (Assembly Bill 5) in 2019 and it came into effect in 2020. According to the AB5 bill, gig workers working in "gig economy companies" will be recognized as employees. However, the passage of Proposition 22 in November 2020 exempted transportation platform companies such as Uber and Lyft from complying with the AB5 bill. Such companies do not need to classify gig workers as employees, but redefine them as independent contractors, but the proposal provides gig workers with protection against employment discrimination, minimum wage, medical insurance, etc. In September 2021, the New York City Council passed six bills on platforms. These bills avoid the issue of gig worker identity and focus directly on health and safety issues in gig work. One bill focuses on the minimum wage standard and how to calculate working hours, and the bill also touches on the issue of "tips". The six bills passed by the New York City Council attempt to stipulate some rights to protect gig workers, but avoid the more controversial issue of worker employee status. Washington State passed House Bill 2076, which avoids the issue of gig worker identity, but will provide minimum wage and paid sick leave protection for online ride-hailing drivers, and help establish a driver-worker center to correct the power imbalance between workers and online ride-hailing companies. The bill will take effect on January 1, 2023. Judging from the legislation of some states and cities in the United States, these legislations often avoid the identity of platform workers and focus on protecting the rights of platform workers, especially in terms of minimum wage, working hours, safety and health. These protections are undoubtedly of great significance in addressing the basic demands of platform workers.

Many European countries have also legislated on platform employment. In 2016, a clause called the "social responsibility package" was introduced into the French labor law with the aim of providing specific protection for platform workers. Article 60 of the French Labor Code grants platform workers three protections: accident protection at work, the right to vocational training, and the right to strike, join a union and collectively bargain. These provisions apply to platforms that have the power to determine the characteristics of the services provided or the goods sold and to determine the prices of the services, such as transportation platforms (such as Uber, Lyft and other platforms) and commodity delivery platforms (such as Deliveroo, Foodora and other platforms), but not to other platforms. In December 2019, France passed Law No. 2019-1428, which borrowed the concept of social responsibility and required transportation and delivery platforms to formulate charters for workers, stipulating the conditions and procedures for the platform to fulfill its "social responsibility" and the rights and obligations of the platform and workers. This rule is reflected in Articles L7342-8 and L7342-9 of the French Labor Code. Regarding French legislation, some scholars pointed out that the purpose of the Labor Code is not to give platform workers employee status, or to grant them most social rights despite their independent status; on the contrary, its purpose is to prevent platform workers from obtaining employee status, give them very few rights, and clearly affirm their self-employed status. Starting from the 2016 legislation, due to the continuous strikes, French law turned to treating platform workers as a third category of subjects (a third status): as a subject with subordinate attributes, more or less similar to formal employees, while lacking the full autonomy and decision-making ability of self-employed people.

Spain has also passed a "Riders' Law" specifically applicable to food delivery riders. In May 2021, Spain passed a new decree (No. 9/2021) recognizing that food delivery riders working for digital platforms are employees rather than independent contractors. In this regard, the new law adds two main provisions for riders to be considered "employees" in certain circumstances. The first provision concerns the presumption of "employment status". The rule applies to "the activities of distribution of any type of product or goods, that is, when the employer exercises his ability to organize, direct and control (organisation, direction and control) directly, indirectly or implicitly through a digital platform, through the algorithmic management of services or working conditions". The second provision requires all relevant platforms to disclose relevant information to their riders, including how algorithms and artificial intelligence affect working conditions, hiring decisions and layoffs. The new regulations require that worker representatives must be informed of the "parameters, rules and instructions" that determine the work of the algorithm. This provision applies to all companies that use algorithmic management, not just platform companies in the food delivery industry. The decree requires the establishment of an expert committee to study and evaluate the "good application of artificial intelligence and algorithms in labor relations." The Ministry of Labor said that although the law only applies to food delivery riders, it can serve as a reference for regulating other platforms that use algorithms to manage work tasks. The law came into effect on August 12, 2021.

The EU has long been concerned about platform employment and its labor protection issues. In December 2021, the European Commission (European Commission) published the "Directive Proposal of the European Parliament and the European Council on Improving Working Conditions for Platform Employment" (hereinafter referred to as the "Directive Proposal"). The goal of the directive proposal is to improve the working conditions of platform work while supporting the opportunities, innovation and flexibility provided by the platform economy. The challenges that the directive proposal hopes to address include: the misclassification of platform workers, the lack of transparency and predictability of platform workers' contractual arrangements, health and safety risks, and insufficient access to social protection. In December 2023, the directive proposal made significant progress. On December 13, negotiators from the European Parliament and the Council reached a provisional agreement on the directive bill to improve the working conditions of platform workers. The directive proposal aims to ensure the correct classification of the employment status of platform workers and introduce the first-ever EU rules on the management of workplace algorithms and the use of artificial intelligence. The main contents of the draft directive include: introducing employee presumption rules and improving the identification methods of platform workers; increasing the transparency of information on the operation of platform algorithms and how their behavior affects the decisions of automatic systems, and the platform must provide relevant information to workers and their representatives; requiring more manual supervision of automatic decision-making and supervision systems; strengthening restrictions on the use and processing of personal data, prohibiting the processing of certain specific types of personal data, and strengthening data protection; regulating the use of intermediaries by platform companies, that is, member states should ensure that platform workers who enter into agreements with third parties rather than platforms enjoy the same protection as platform workers who enter into agreements directly with the platform.

As can be seen from the above, more and more countries and regions have introduced special legislation or added special clauses for platform employment. There are a large number of platform workers in my country, and the issue of rights protection is more prominent. It is necessary to learn from the legislative experience of the above countries and regions and provide comprehensive and systematic protection of the rights and interests of platform workers through legislation.

5.2 my country’s platform employment legislation should adopt a comprehensive and systematic regulatory approach

As can be seen from the above, there seem to be two main models of legislation on platform employment: one is to avoid the identity issue of platform workers and focus mainly on the protection of their rights, such as the legislation in California, the United States, France, Italy, etc. The second is comprehensive legislation. This legislative model focuses on and stipulates the identification method of platform workers on the one hand, and focuses on the new problems faced by digital labor platforms on the other hand, especially algorithm governance and artificial intelligence regulation. The focus is on algorithm transparency, data protection, and the regulation of artificial intelligence such as automatic decision-making, such as Spanish legislation and EU platform employment directive recommendations. In other words, the governance of platform employment seems to be shifting from focusing on basic labor standards, including wages, working hours, safety and health, to gradually shifting the focus of regulation to the regulation of algorithms and the use of artificial intelligence. In this regard, some scholars in my country have also pointed out that the focus of platform employment regulation should shift from "labor relations" to "labor rights", and the protection of labor rights should be continuously improved with progressive labor standards to form a comprehensive governance pattern of public-private collaborative governance.

As far as my country is concerned, platform workers still face prominent problems such as long working hours, high work intensity, and insufficient safety and health protection. At the same time, my country's large-scale digital labor platforms, including transportation platforms and food delivery platforms, also generally use algorithms in depth for business operations and employment management. Therefore, the future legislation focus of my country's platform employment should include two aspects: on the one hand, with the help of traditional labor law concepts and adjustment mechanisms, improve the rules for determining labor relations in platform employment, clarify the basic labor standards of platform workers, and protect their basic rights to wages, working hours, and safety and health; on the other hand, we should focus on the new trends and new problems faced by digital labor platforms in using algorithms and artificial intelligence, and comprehensively use concepts and means such as platform governance, algorithm regulation, data protection, and artificial intelligence regulation to comprehensively regulate platform employment. In platform employment, there are complex legal relationships, and some employees are difficult to be identified as workers, which limits the scope of labor law. New legal tools such as data protection law, algorithm regulation, and artificial intelligence regulation can provide more adequate protection for platform employment. For example, "online workers" cannot all be identified as workers due to their multiple identity attributes. The existing labor law mechanism cannot completely solve the new problems brought about by algorithm management and data processing in platform employment, and it is necessary to explore the protection of their labor rights and interests through data law.

In fact, my country's protection of the rights and interests of platform employees also adopts multiple dimensions such as platform governance and labor law protection. The "Guiding Opinions" of the Ministry of Human Resources and Social Security and others involve the requirements of platform transparency and algorithm regulation. The "Guiding Opinions" stipulates the consultation and notification obligations of platform companies on "institutional rules and platform algorithms that directly involve the rights and interests of workers." The "Guiding Opinions on Implementing the Responsibilities of Online Catering Platforms to Effectively Protect the Rights and Interests of Takeaway Delivery Workers" proposed "optimizing algorithm rules, not using the "strictest algorithm" as an assessment requirement, and reasonably determining assessment factors such as order quantity and online rate through "algorithm selection" and other methods, and appropriately relaxing delivery time limits." my country's existing policies have also established the obligations and responsibilities of algorithm management of digital employment platforms from the perspective of algorithm regulation. The Regulations on the Administration of Algorithm Recommendation of Internet Information Services strengthens algorithm management. Article 20 of the Regulations stipulates that "if algorithm recommendation service providers provide work scheduling services to workers, they shall protect the workers' legitimate rights and interests in obtaining labor remuneration, rest and vacation, and establish and improve algorithms related to platform order allocation, remuneration structure and payment, working hours, rewards and punishments, etc." This stipulates the platform's protection measures for workers from the perspective of the platform's algorithm management obligations.

The main problem with the protection of new rights and interests of platform employment in my country is that the general rules of platform governance such as algorithm regulation and data protection are difficult to directly apply to the field of platform employment. In other words, the scenario-based research and rule supply of general rules on algorithm regulation, data protection and artificial intelligence regulation are insufficient. For example, the general provisions of Article 24 of my country's "Personal Information Protection Law" on data protection and general requirements for automatic decision-making, manual intervention measures, algorithm description, etc., how to implement them in the specific scenarios of platform employment need to be refined. Including the specific standards for platform decision transparency requirements, the content and procedures of the platform's obligation to inform; how the behavior of platform enterprises constitutes "manual intervention", what is a "decision with a significant impact" on platform workers, the content and procedures of the obligation of personal information processors to explain, etc. need to be refined. For example, Article 55 on the impact assessment of personal information protection, how to specifically apply it to workplace fields such as platform employment, especially how to balance the legitimacy of enterprises processing information due to business management needs and the protection of workers' personal information rights and interests, there is still a lack of specific rules. In addition, there are also no specific rules on how to implement the series of principles and regulations of the "Guiding Opinions on Strengthening the Comprehensive Governance of Internet Information Service Algorithms" and the "Internet Information Service Algorithm Recommendation Management Regulations" on algorithm transparency, algorithm review, algorithm evaluation and other rules (including Articles 7, 8, 16, 17, 20, etc.) in the field of platform employment. In general, my country's current research on algorithm regulation and data protection in workplace scenarios is still quite weak.

Therefore, in terms of platform employment legislation, my country should comprehensively regulate platform employment through special legislation. In addition to further clarifying the methods of platform worker identity identification and basic labor standards, the focus should be placed on platform governance rules such as platform worker data protection, algorithm management and artificial intelligence regulation. The relevant provisions of my country's "Personal Information Protection Law" and the regulations and guidelines of the above-mentioned relevant departments should be refined in the specific scenarios of platform employment, and detailed rules should be stipulated by drawing on overseas experience such as the latest EU platform employment directive recommendations.

5.3 Not introducing the concept of “situations that do not fully meet the labor relationship requirements” and adopting a new “dichotomy”

In view of the many difficulties faced by the concept of "not fully meeting the conditions for establishing a labor relationship", my country does not need to rush to introduce the "three-part labor law" or the third category of subjects in the labor law for the purpose of platform employment governance, and there is no need to introduce the concept of "not fully meeting the conditions for establishing a labor relationship" in legislation at present. The "three-part labor law" on platform employment in the "Guiding Opinions" of the Ministry of Human Resources and Social Security and others must also change its thinking, and should not focus on the definition of "not fully meeting the conditions for establishing a labor relationship". Judging from the legislative content and trends of the above-mentioned countries and regions on platform employment, the protection of platform workers is mainly the protection of basic rights, including safety and health, working hours, work-related injury insurance and medical insurance, minimum wage, rest and vacation, as well as data protection and algorithm regulation. Therefore, the basic idea of protecting platform workers should be to determine the scope of platform workers who are given the above-mentioned basic rights protection in a certain way. In terms of legislative technology, the exclusion method can be adopted, that is, some platform workers who are completely civil in nature are excluded through certain standards, and other platform workers are all objects protected by legislation and given basic rights protection. On this basis, according to the traditional definition of labor relations or employees, or through special provisions on the determination of labor relations in platform employment, such as the provisions recommended by the EU directive, platform workers who meet the definition of "employees" will be identified as employees and included in the scope of protection of labor law. In this way, the introduction of the complex concept of "not fully meeting the situation of establishing a labor relationship" can be avoided, and most platform workers will be protected by basic rights. Therefore, how to exclude platform workers whose legal relationship is purely civil has become an important task. Since the concept of civil relations or civil contracts is stipulated by law, it is easier to judge than "not fully meeting the situation of establishing a labor relationship". With the help of the "Guiding Opinions" of the Ministry of Human Resources and Social Security, it can continue to stipulate that "individuals rely on the platform to independently carry out business activities, engage in freelance work, etc., and adjust the rights and obligations of both parties in accordance with civil law." In other words, platform workers other than such subjects are all objects of special legal protection. Therefore, the "three-part method" of the "Guiding Opinions" should be converted back to a "two-part method". As long as the platform workers do not belong to the third category mentioned in the "Guiding Opinions", they can be protected by basic rights. According to this idea, the online car-hailing drivers and food delivery workers of transportation platforms and food delivery platforms, which currently have prominent problems in platform employment, are strictly managed and supervised by the platform during their service process, and the service prices are also determined by the platform. Therefore, they obviously do not belong to "independent business activities and freelance occupations". Such platform workers, who are large in number and have prominent rights protection issues, can naturally be protected by the basic rights of labor law. Although the above model is adopted, there is still the problem of whether some platform workers have labor relations. However, since most platform workers have been protected by the basic rights of labor law, the importance of platform worker identification has declined. Moreover, through the traditional definition of labor relations or employees, or through the improvement of the identification method of platform workers, platform workers who meet the definition of employees can still be fully protected by labor law.

Since data protection and algorithm regulation are mainly based on the basic rights and obligations of information processors and data subjects and the regulation of the use of algorithms by platforms and other enterprises for employment management, they are not closely related to the legal relationship between platform enterprises and platform workers. Therefore, the rules on data protection and algorithm regulation can be applied to all platforms without restriction. The EU directive recommends and the above-mentioned Spanish legislation also adopt this approach.

5.4 Timely release of relevant judicial interpretations

The above analysis shows that relevant judicial documents in my country, including the "Opinions on Providing Judicial Services and Guarantees for Stable Employment" and typical case reports, provide useful references for the identification of platform employment labor relations and other matters. The current main task is to transform the important contents into more authoritative and mandatory judicial interpretation contents, and provide operational rules for judicial practice. According to practical needs, judicial interpretations should mainly include two aspects.

One is the identification of platform employment labor relations. The above-mentioned "Opinions on Providing Judicial Services and Guarantees for Stable Employment" on the rule content of "reasonably identifying new employment forms of labor relations in accordance with the law" has great reference value and should be introduced into judicial interpretation. In addition, the important contents in the typical case reports issued by the Ministry of Human Resources and Social Security and the Supreme People's Court should also be transformed into legislation or judicial interpretation. The "identification of labor relations should adhere to the principle of fact priority" mentioned in the typical case report. "The core feature of labor relations is 'labor management', that is, there is personal subordination, economic subordination, and organizational subordination between workers and employers." "At present, to determine whether there is a labor relationship between new employment forms of workers and platform companies, we should compare the relevant elements of labor management and comprehensively consider the presence and strength of personal subordination, economic subordination, and organizational subordination." These contents involve the basic characteristics, main contents and basic judgment principles of labor relations, and should be included in legislation. As for the specific judgment factors and methods of personal subordination, economic subordination and organizational subordination mentioned in the typical case report, they can be placed in judicial interpretation. In other words, the rules for the recognition of platform labor relations should be jointly resolved through legislation and judicial interpretation. Through legislation and judicial interpretation, we should promote the unification of judicial practice in the recognition of platform employment labor relations, and try to promote the relative unification of the judgment rules and judgment results of the legal status of similar platforms and similar personnel. For example, the identity identification of platform workers with high similarities, such as "dedicated" riders and "crowdsourcing" riders on food delivery platforms, and "dedicated car" drivers on online car-hailing platforms, should gradually form unified rules. This will not only help strengthen the protection of platform workers' rights and interests, but also help clarify the rights and obligations of all parties, enhance the predictability of platform companies and related companies and platform workers, and minimize the uncertainty and inconsistency caused by individual case handling.

The second is the rules on the responsibility between platform companies or cooperative companies and platform workers. For example, the "Opinions on Providing Judicial Services and Guarantees for Stable Employment" contains the rights to protect the labor remuneration of platform workers, the effectiveness of algorithmic rules, and the rules for compensation for damages caused by algorithms, which should also be included in the judicial interpretation in a standardized expression. At present, it is especially important to refine the outstanding problems faced by judicial practice and improve the rules on the responsibility for damages suffered by workers in platform employment and the responsibility for damages caused to third parties by workers performing tasks mentioned in the "Opinions". Although the First Civil Division of the Supreme People's Court has proposed a principled solution to this problem, pointing out that "according to the type of legal employment relationship between the enterprise and the worker, the corresponding liability rules shall apply. If a worker causes damage to others while performing work tasks, the liability shall be determined in accordance with Article 1191 of the Civil Code; when a worker causes damage to others while performing tasks of an employment cooperation enterprise, the liability may be determined in accordance with the law based on the fault, control, and degree of benefit of the platform enterprise." However, such a principled provision is obviously too simple. For example, there is a question whether platform workers are "staff members" of the "employer" platform enterprise. If not, Article 1191 of the Civil Code will be difficult to apply. When workers perform tasks for "employment cooperation enterprises", they are often also performing tasks for platform enterprises and are subject to the instructions and supervision of platform enterprises. Therefore, how to divide the responsibilities of employment cooperation enterprises and platform enterprises requires relatively specific rules to clarify. In general, the construction of personal injury compensation rules in platform employment should rely on the relevant provisions of tort liability in the Civil Code, consider the nature of the legal relationship and the fault of the parties, and also fully consider the following factors: First, the relationship between platform enterprises and cooperative enterprises, the platform's intention to introduce third-party cooperative enterprises, and the platform's dominant position in its relationship with third parties; second, the restrictions imposed by platform enterprises on workers entering and exiting the platform, as well as the instructions and supervision of the workers' labor provision process through algorithms, and the degree of control over workers by platform enterprises; third, the dominant position of platform enterprises in various legal relationships, including the dominant position over cooperative enterprises, and the significant differences in status and strength between platform enterprises and workers; fourth, factors such as the ability of workers to bear responsibility and the necessity of social protection for workers, so as to reasonably determine the responsibilities of all parties.

6 Conclusion

The choice of legal regulation path for platform employment is related to the effect of platform employment regulation. The regulatory path currently adopted by my country is generally ineffective and needs to be improved. In terms of form, my country currently mainly adopts administrative guidance and judicial guidance, and has not yet issued finalized legal rules. This regulatory method is reasonable in the early stages of platform employment development. However, as platform employment has been developed for many years, the labor rights and interests of platform employment have emerged, and platform employment legislation in various countries has become increasingly popular, the drawbacks of administrative guidance and judicial guidance paths have gradually been exposed, and my country must make adjustments to this. In the future, my country should establish institutional rules with comprehensive content, unified rules, complete rights content and relief channels, and both behavioral norms and adjudication norms through special legislation and judicial interpretation. At the same time, we should focus on the new characteristics of platform employment. In addition to improving the rules for the identification of platform employment labor relations and basic labor standards, we should also improve the rules on algorithm management, data protection and artificial intelligence regulation, and build systematic platform employment rights protection rules. In view of theoretical disputes and practical difficulties, my country does not need to rush to introduce the "third category of entities" or introduce the concept of "not fully meeting the circumstances for establishing a labor relationship" in legislation. Instead, it should adopt the method of exclusion to provide protection of basic labor law rights for most platform workers. On this basis, by improving the standards and methods for identifying labor relations in the context of platform employment, platform workers who meet the definition of "employees" should be included in the scope of protection of the labor law.

The original article was published in the 2024 issue 2 of "Chinese and Foreign Law Studies". Thanks to the WeChat public account "Chinese and Foreign Law Studies Editorial Department" for the authorization to reprint.