[author]WANG B, QIN Q
[content]
PhD student at the Law School of Sichuan University
Keywords: labor relations; From attribute theory; Recognition criteria; Platform employment; Special recognition criteria
1. Problem posing
The attribute theory and its recognition rules of labor relations are the threshold and key standards for identifying labor relations in the sense of labor law and applying the specific rights and interests protection system of labor law. It is generally believed that attribute standards can be subdivided into three types: personality attributes, economic attributes, and organizational attributes. The strength of these standards determines whether labor relations and civil labor relations can be clearly distinguished. However, the question of whether there are attributes between the platform and platform practitioners, what are the specific criteria for determining attributes, and so on, remains unresolved. At present, there are various viewpoints in the field of labor law, including labor relations, contracting relations, non labor relations, and incomplete labor relations. The practical field continues to use the subordinate criteria determined in the "Notice on Matters Related to Establishing Labor Relations" (Ministry of Labor and Social Security [2005] No. 12, hereinafter referred to as the "Notice") issued by the former Ministry of Labor and Social Security for judgment. Due to the different characteristics of traditional recognition elements and factors in platform employment practice, the judgment logic and recognition conclusions of courts in various regions are different. The "Typical Cases of Labor and Personnel Disputes (Third Batch)" jointly issued by the Ministry of Human Resources and Social Security and the Supreme People's Court (hereinafter referred to as the "Typical Cases") clearly stipulate that the relevant elements of labor management are the core standards,And listed three typical elements of attributes, forming a hierarchical recognition approach based on industry and employment mode, and the strength of attributes, providing a normative basis and prerequisite for the systematic construction of platform employment labor relationship attribute standards. However, it is still difficult to make a definitive decision on the connotation and typological application rules of attribute standards, and further exploration is needed.
Existing research often focuses on policy analysis and theoretical debates within a specific industry, model, or case, with few full sample analyses. This results in limitations such as inconsistent discourse, insufficient understanding of development, and incomplete research perspectives. In view of this, based on 3016 labor dispute cases involving platform employment, this article attempts to summarize the current judicial practice experience on the basis of the recognition standards established in the "Notice" and "Typical Cases", further reflect on the interpretation approach of attribute standards, and prove the internal correlation and construction of unified applicable norms, in order to provide feasible basis for the specific protection of the rights and interests of platform practitioners.
2. Big data analysis of the judicial application logic of platform employment based on attribute standards
The sample is from the judgment of labor dispute cases publicly available on the Chinese Judgments Online platform, covering the period from January 1, 2014 to December 31, 2022. With the keyword of "Internet and existing labor relations", we limited the causes of labor disputes, downloaded and collected 3091 cases in total, eliminated all cases with blank information and duplicate information, and finally obtained 3016 valid samples. This section analyzes the basic characteristics and judicial logic of the sample, compares the differences between the judicial application practice of platform employment based on attribute standards and traditional recognition rules, and reveals their reasons.
2.1 The blurring and concealment of labor relations make it difficult to determine facts
Traditional labor relations have characteristics such as single employer management, stability, and sustained economic dependence at the factual level. Sample analysis shows that in practice, platform employment relationships exhibit characteristics such as multi-party employment, instability, and short-term nature, making factual review difficult.
One is that the flexibility characteristics of platform practitioners do not match the legislative assumptions of typical workers, and labor relations are ambiguous. Statistics show that 66.98% of the 3016 workers have worked in the same platform enterprise for 1 year or less, while those who have worked for 1-2 years, 2-3 years, and more than 3 years account for 17.75%, 7.91%, and 7.37%, respectively. The vast majority of platform practitioners have a clear phenomenon of short-term employment and unstable employment. In the sample, foreign-related salespeople, ride hailing drivers, and platform anchors ranked among the top three in terms of the number of cases, accounting for 81.66% of the total. The remaining 20% were from other professions, with a wide variety of job types within the industry, significant differences in employment, and varying demands. This means that it is difficult for judges to form a consensus on it, which can easily lead to biased judgments. From the recognition results, 45.42% of platform practitioners have not signed any agreements, and only 27.65% of them have been determined by the court to have established factual labor relationships based on attribute standards. About 80% of practitioners find it difficult to recognize them as factual labor relationships.
Secondly, the multi-party employment deviates from the regulatory orientation of labor relations in China, and the concealment of substantive employment relations is relatively strong. China adopts a single labor relationship theory in the confirmation of labor relations, and mainly adopts a "standardized development" attitude towards the legal regulation of multi-party employment. On the contrary, compared to direct employment, multi-party employment has become the main employment mode for current platform enterprises, and the increase in employment entities has increased the rate of courts denying labor relations. The statistical results are shown in Table 1. Table 2 shows the recognition of labor relations by different types of employing entities. It can be found that outsourcing and its derived multiple types of contracting entities have a significant blocking effect on the recognition of labor relations. Specifically, outsourcing partner companies, labor dispatch companies, platforms, and their franchisees are identified as having the highest number of labor relationships, accounting for 43.57%, 28.34%, and 22.28% respectively; The likelihood of outsourcing cooperative enterprises, platforms and their franchisees, and affiliated companies being denied the existence of labor relations is the highest, accounting for 58.64%, 35.76%, and 2.8% respectively. It can be seen that judges handle the most disputes involving foreign-related cooperative enterprises and are most likely to produce uncertain results. Outsourcing and labor dispatch are not the standard forms of labor relations in China. The more likely reason for the above abnormal phenomena is that in practice, there are many hidden labor relations situations of "fake outsourcing and real dispatch".
Thirdly, judges find it difficult to accurately respond to the demands of platform practitioners based on the existing labor legal system. Sample analysis shows that the rights protection needs of platform practitioners are basically the same as those of traditional workers. From the perspective of employment status, 68.42% of platform practitioners have an average monthly salary below 6000 yuan. From the perspective of appeals, single type appeals only account for 20.86%, while compound type appeals account for 79.14%. Among the latter, workers' demands for payment of labor remuneration, economic compensation, and joint liability of multiple units are the most common, but the court support rate is generally low, at 36.44%, 55.9%, and 20.52%, respectively. According to China's "packaged" labor rights protection system, the reasons may be explained as follows: firstly, the internal allocation of responsibilities among multiple employment entities is often unclear, but they all share certain labor management rights, making it difficult for judges to determine the actual employment entities; Secondly, even if it is recognized as a labor relationship, some labor rights protection systems designed for traditional employment are difficult to apply in platform employment scenarios.
表1 不同用工模式下法院认定劳动关系的情况 
2.2 Judges have a high degree of arbitrariness in choosing the elements and criteria based on attribute standards
The determination of factual labor relations requires four elements: subject qualification, labor rules and regulations, labor management, paid labor, and business components. Generally, the recognition approach follows the principle of "subject qualification - labor service payment as the main content - subordination". Based on the standards established in the "Notice", this article summarizes the factors of judges' judgments one by one, and summarizes the top 20 typical factors cited by judges. The statistical results are shown in Table 3. Analysis shows that the practical situation does not match the aforementioned approach.
Firstly, in terms of constituent elements, the requirement of "simultaneously possessing" is somewhat blurred, and judges actually distinguish the functions of various subordinate elements, and the selection of various subordinate elements is not consistent. In all cases, the number of citations related to economic attributes is the highest, but judges tend to examine personality attributes more in cases classified as labor relations, and cite economic attributes more in cases with opposite results. This preliminary indicates that in practice, economic subordination is regarded as a prerequisite "formal examination" element, personality subordination as a "substantive examination" element determines the existence of labor relations, and organizational subordination and subject qualification elements are weakened.
Secondly, in terms of reviewing the elements, the judge failed to accurately handle the relationship between each element. The fact that the payment subject, labor regulations, and reward and punishment system are among the top three elements in the review of two types of cases indicates that they do not have decisive significance for the results and are fundamental considerations. On the contrary, the freedom of work allocation (accepting orders) and the scope of enterprise business composition are ranked in the top three elements of positive and negative labor relationship case review, respectively. Therefore, it can be seen that the substantive control of labor process elements in personality attributes and the formal business correlation elements in organizational attributes have decisive significance for the results. There are relatively few references to elements such as onboarding management, whether the workplace is fixed, and employment training. In practice, judges tend to limit the purpose of "labor management". In addition, 41 documents only state that there is no labor management and do not specify the specific review elements. In summary, although the court basically follows the traditional identification requirements and elements, it has not been able to accurately distinguish "labor management" from other elements, and there is a high degree of uncertainty in selecting the elements.
表3 法院衡量从属性典型要素的统计分析
2.3 The different interpretations of attribute standards lead to varying degrees of discretion in judging standards
Comparing the reasons for judges' judgments in different judgments can analyze the judicial application path of the current platform's employment attribute standards (see Table 4).
Judges who deny labor relations cases generally start from formal requirements to strictly determine platform labor relations. There are three reasons for this: firstly, they determine that the worker bears the business risks on their own, including the lack of continuity and stability in the payment time of remuneration, the lack of basic guarantee for the total amount of remuneration and the influence of market factors, and the fact that the production tools are provided and maintained by the worker themselves. For whether working on the platform is the only source of livelihood, it is generally necessary to retrieve the time when the worker registered on the platform and their average monthly income, and use common sense to determine whether it is all or the main source of labor income. Secondly, it is believed that the management measures of the platform are not labor management in the sense of labor law. In terms of nature, it is believed that information technology management such as dress code requirements, behavioral norms, and penalty points are industry habits and needs; To some extent, due to the lack of systems for daily attendance, workload assessment, and leave management, it is considered that the level of strong management and control over working hours, locations, and content in labor relations has not been achieved; Formally, it is believed that there are no characteristics of continuous working hours and daily management. Thirdly, there is no agreement on labor relations. The main basis for judgment revolves around the worker's self-determination theory and reverse inference based on the evidence presented. If there is a judgment stating that the worker knowingly registered the agreement despite the exclusion of the labor relationship, it can be regarded as having a clear understanding of the nature of part-time work; Some judgments also hold that the worker has not had direct contact and negotiation with the employer before, and the written agreement does not specify relevant labor law obligations, so it cannot prove the agreement of the labor relationship.
Judges who affirm labor relations cases tend to loosely recognize platform labor relations from the perspective of substantive requirements. There are two paths of explanation: firstly, focusing on the platform's control intention and its actual possibilities. Some judgments hold that factors such as self provided production materials and salary being paid by other entities are not sufficient to deny labor relations, and the essence of labor management lies in the fact that workers do not have the autonomy to make labor decisions. Generally speaking, platform enterprises that impose manual scheduling or related restrictions offline, implement unilateral pricing and closely monitor the labor process online, and agree on exclusive terms for the payment of labor services are more likely to be judged as having the intention of labor management and reaching the level of actual control, and workers essentially have no autonomy in decision-making. Secondly, exclude formal agreement. Partial judgments are not limited to considering attributes as the sole criterion, but incorporate other value judgment criteria in individual cases to assist in the judgment. Such judgments usually use a variety of methods to determine labor relations, including adding necessary elements of labor law protection, appropriately reversing the burden of proof, and so on.
表4 法院支持与否定劳动关系的理由统计表
3. Analysis of the reasons for the divergence in the application of attribute standards in platform employment
3.1 The traditional concept of formal review has drawbacks
By comparing the formal requirements of labor relations established in the Notice and the Labor Contract Law, it is found that the long-term emphasis on written agreement and organizational management representation in the form review concept excludes flexible employment and cannot identify and explain the spatial differentiation logic of platform enterprises (see Figure 1). Under this concept, it is difficult to achieve the protection of workers' rights and interests. In other words, on the one hand, the disadvantaged position in contracts hinders the expression of workers' true intentions. The platform protocol, which is characterized by electronic, formatted, and comprehensive features, is difficult to reflect true consensus. In addition, algorithms are opaque, legal regulations are lacking, and there is controversy over whether the new labor relationship belongs to a "hidden labor relationship" or a "fuzzy labor relationship", which weakens the power of judges to review facts; On the other hand, labor organization in physical space has fixed, closed, and continuous characteristics, which makes judges easily ignore the concealment of algorithmic management as a control tool based on fixed thinking, thereby negating platform labor relations. In addition, the issue of which subordinate facts exist between the worker and which one is stronger or weaker is closely related to the evidence presented. However, due to the electronic nature of evidence and the lack of data, it is extremely difficult for workers to provide evidence of subordinate facts from the perspective of formal requirements. In terms of regulations, the criteria for determining labor dispatch employment and part-time employment are vague, and there is a lack of specialized regulations on the responsibility of outsourcing employment for enterprises, which cannot provide guidance for them. In fact, the strength of attributes depends on the judge's overall judgment of the approximation of typical labor relations, but the traditional formal examination concept focuses on the one-on-one, internal, and continuous control of employees by enterprises, which requires a high level of evidentiary ability from platform workers. Once the platform enterprise deletes the account or cancels the registration, it becomes more difficult for workers to find the responsible party from fragmented management, the burden of proof becomes more passive, and relief channels are blocked. Considering that other stakeholders with shared algorithmic control are accountable based on the labor benefits of the workers. Therefore, some judges have attempted to change the unequal status of workers in litigation based on Article 6 of the Labor Dispute Mediation and Arbitration Law regarding the reversal of the burden of proof. However, due to differences in the ability of individual laborers to build evidence chains, varying levels of judges' understanding of the evidential power of various types of evidence, and easy shifting of responsibility between different management entities, the applicable results lack predictability.
3.2 The application rules of attribute standards are incomplete
The court has inconsistent understanding of the requirements for determining labor relations, which is due to both normative and theoretical reasons. Firstly, the standards established in the "Notice" have problems such as rigid patterns and a focus on form over substance. In addition, there is a lack of legislative definition of workers and labor relations in China, and there are no rules related to employment and labor services, so it is impossible to obtain normative guidance from legislation. Secondly, the theoretical community has different understandings of the relationship and attribute connotations between labor, employment, and labor relations, resulting in unclear theoretical basis. Specifically, there is a bias in the identification of economic attributes. In practice, the mechanism of risk sharing and benefit sharing is regarded as a contracting relationship where workers are responsible for their own profits and losses. The Notice also categorizes salary payment and social security payment records as one type of voucher. Based on this, the economy essentially embodies the triple characteristics of labor exchange, time continuity, and risk-taking, with a high degree of comprehensiveness and inclusiveness. The essence of labor relations is the dependence relationship between employees and employers in individual labor relations, that is, "labor determined by others". In terms of economic attributes, it is manifested as the long-term economic dependence relationship between employees and employers. This sustained dependency relationship is the prerequisite and foundation for enterprises to bear a series of social risks. In other words, the labor law obligations involved in the latter are the result of the former. Therefore, in practice, the improper examination logic that confuses the criteria for determining and evaluating results has expanded the connotation of economic subordination, leading to judicial practice treating many factors such as compensation composition, calculation, and payment methods as key criteria for determining subordination without distinction, exacerbating the uncertainty of rule application. Secondly, confusing personality with economic and organizational attributes results in a lack of independence. The core characteristic of labor relations is that workers provide services for a specific purpose or within a limited time, and their personality has priority in terms of effectiveness hierarchy. However, the "Notice" does not clarify the relationship between "labor regulations", "labor management" and other related expressions, as well as how they correspond to various attributes. There are also differences in the understanding of attribute connotation in academia, including monism, dualism, and trialism. The imperfection of attribute systematization rules has led to a lack of clear standards for the concept and scope of labor management in judicial organs.
3.3 Two contradictory explanatory paths coexist
Legal formalism and legal functionalism are often used as means to justify the legitimacy of rights protection. The former is based on a priori premise of actual legal model texts, and the argumentation approach relies on procedural and textual objective elements; The latter focuses on the instrumental perspective of norms, demonstrating the legitimacy of values by quantifying and measuring the social role of norms. Part of the reasons for affirming labor relations go beyond the scope of existing standards for factual determination, emphasizing that employers use algorithmic power to achieve labor control goals, with the value judgment orientation of safeguarding the rights and interests of vulnerable workers, reflecting the functionalist interpretation path. The negative judgment applies the method of inclusiveness or analogy to select key employment facts, and makes similarity judgments with existing standards. If the degree of subordination of typical unit workers is not reached, it is difficult to determine the labor relationship, reflecting the adherence to legal formalism. Legal formalism has the certainty and predictability of law, but it may lead to a narrow scope of labor law protection. The functionalist approach to regulating labor laws for platform employment can solve the urgent problem, and its advantage is to break free from the closed and vague concepts based on purpose or interests, and achieve open legal interpretation and legal continuation. The two paths reflect the involvement of two different value orientations, labor rights and enterprise development rights, in the aspects of factual recognition and legal application. Judges consider both values comprehensively, making it difficult to avoid arbitrariness, and the phenomenon of different judgments in the same case is also not uncommon. The reason for this is that, firstly, in terms of basic labor rights and interests, platform workers and traditional workers have both similarities and differences. The "one size fits all" approach of following traditional attribute recognition standards or relaxing recognition criteria beyond legal provisions has insufficient adaptability; Secondly, the traditional judicial path cannot properly achieve value balance, and the judicial organs, as the main body of legal application, are difficult to go beyond the legal framework to create recognition norms for new types of workers. The root cause still lies in the need to improve the specific classification and hierarchical allocation mechanism of labor rights and interests in China.
4. Suggestions on Improving the Application of Attribute Standards for Platform Employment in China
At present, in improving the application of attribute standards for the recognition of labor relations in China's platform employment, we should abandon the idea of formal review and direct application of existing standards, adhere to a flexible regulatory scheme based on the classification adjustment of labor laws, and adopt a combination of basic labor rights protection "priority" and general standards and exception standards "superposition". On the basis of identifying hidden labor relations, relevant judicial interpretations can be issued to construct general standards using the "elements+requirements" model, supplemented by judicial application standards and reasoning, gradually forming hierarchical subordinate standard application norms. It can be carried out from three dimensions: conceptual reshaping, rule optimization, and judicial adjustment, in order to improve the completeness and flexibility of the application of attribute standards.
4.1 Conceptual reshaping: substantive examination of subordinate facts
4.1.1 Refine the application of the principle of prioritizing facts. The principle of fact first "refers to the fact that the determination of labor relations is not affected by any contrary contract name or other form of arrangement, and should mainly be guided by facts related to the worker's work status and remuneration. Our country has established this principle in the form of guiding cases and emphasized its function of identifying hidden labor relations. However, in practice, there are cases where labor relations are denied based on formal agreement, and the application of the principle of "priority of facts" needs to be refined.
From a goal perspective, in order to protect the rights of workers, it is not advisable to require specific agreements between the parties involved, as long as abstract agreements are reached regarding the provision of services and payment of remuneration. The practice of some courts denying the agreement on labor relations due to factors such as the lack of a clear labor relationship agreement between the two parties, and the fact that the employee knowingly registered and provided services on the platform despite knowing its flexible employment nature, is not comprehensive enough. Considering the widespread use of formulaic and formatted contracts in practice, it is difficult to truly and comprehensively reflect the will of workers. Therefore, in the future process of consensus recognition, it is necessary to tilt towards protecting the rights and interests of workers and correcting the substantive injustice of private law contracts.
In terms of effectiveness, labor contracts are typical relational contracts, and the actual contracts and agreements that exist are not limited to the process of fulfilling the contract content, but also exist in various aspects of actual management, and have strong variability. A series of overall agreements need to be examined in order to fully explore the true intentions of the parties involved. Therefore, in individual cases, all subordinate facts need to be examined, and formal elements such as subject qualification and explicit agreement should not be directly relied upon. Meanwhile, considering that most platform agreements in practice are formal contracts that can be signed online without the need for offline negotiations, it is necessary to clarify that for those who exclude labor relations through platform agreement names, labor management facts take priority. If individual clauses in the agreement do not match the characteristics of the labor relationship, a comprehensive judgment should be made based on the actual performance and bargaining power.
4.1.2 Reasonably increase the burden of proof for enterprises to ensure substantive equality. The reason why platform workers request confirmation of their labor relationship is often closely related to their own and their family's survival security, and has urgency. Individuals find it difficult to bear the burden of litigation and the cost of providing evidence. In practice, platform enterprises are prone to transferring costs in advance and avoiding risks during the process by leveraging their data advantage. The reversal of burden of proof is an important mechanism for social law to tilt towards the weak in the judiciary, which can be a solution. There are two specific methods: one is to consider the degree to which the worker is close to the evidence and the ability to preserve the evidence in the case, and comprehensively judge the rationality of the worker's inability to submit some valid evidence. It can be combined with administrative regulatory requirements such as fulfilling information disclosure obligations and partner qualification review obligations to determine whether platform enterprises have access to key evidence. It is more appropriate to allocate the burden of proof to the enterprise for evidence related to the cooperation mode and management authority allocation between internal data of the platform and related enterprises. The second is to explore the conditional reversal of the burden of proof. For workers, economic subordination is easier to prove and judge than personality subordination. It can be considered that workers only need to prove the basic facts of the existence of economic subordination, labor behavior payment, and labor management, and the platform enterprise can provide evidence to prove that both parties have no strong personality subordination. Of course, correcting the disadvantaged position of workers in providing evidence relies on imposing obligations on platform enterprises outside of litigation to establish mechanisms for storing and querying distribution data information, partner employment management mechanisms, dispute resolution linkage mechanisms, etc., in order to prevent workers from suffering harm due to weak evidence presentation at the source.
4.2 Rule optimization: Clarify the general standards of the "elements+elements" model through judicial interpretations
The "element model" refers to the element composition model adopted by China's traditional labor relations recognition standards, which has three characteristics: firstly, it must comply with the three constituent elements in the "Notice", including personality, economy, and organizational attributes from three aspects; Secondly, the pursuit of comprehensiveness and unity in the constituent elements, the establishment of labor relations depends on the establishment of all factual elements, which are indispensable; Thirdly, the attribute related elements have a high degree of abstraction and are not clearly identified as specific elements.The "element mode" refers to the fact that the composition of labor relations does not depend on the establishment of all elements, but rather on the comprehensive consideration of relevant elements of labor management before making a judgment. Compared to the 'element mode', the 'element mode' has openness and diversity. At present, China has established the basic direction of the "elements+elements" recognition model through typical case forms. The preliminary exploration of the "element mode" in judicial practice also highlights the necessity and feasibility of breaking through the traditional "element" trial standards. Moreover, the types of employment on the platform are diverse and complex, making it difficult to create new constituent elements for unified description. Therefore, on the basis of adhering to the constitutive model of elements, it is possible to flexibly and openly supplement elements that conform to the value of labor legislation, and comprehensively identify the attributes of platform labor relations.
The relationship between constituent elements and representational elements is mutually supportive and dynamically combined, with inherent consistency and both closed and open. Specifically, firstly, in addition to the constituent elements of legal norms, all relevant representational elements that can reflect the constituent elements are identified and listed, and their weights are measured to achieve the concretization of abstract constituent elements and enrich the hierarchical structure of attribute standards. Secondly, from the perspective of attribute characteristics, which are the root of the biased protection of workers' value positioning in labor law, it is necessary to clarify that each characteristic element is centered on "labor management" and highlight internal consistency, in order to avoid emphasizing economic disadvantage and the necessity of social protection alone, which may lead to uncertainty in the scope of labor law protection. Finally, the tools used on the platform have internal and external heterogeneity, and are a collection of multiple types of workers and employment models, making it difficult to establish a unified constituent element for them. Therefore, it is necessary to dynamically combine different types of employment facts, guided by the abstract elements of "similar cases" and the special elements of "individual cases", to achieve the unity of formal logic and substantive logic, comprehensively measure the existence and strength of attributes, and obtain legal evaluation results, making the judgment results more predictable.
Regarding the form of establishing rules. At present, the flexibility of China's labor legal system is insufficient, and it is still in the transitional stage from a single adjustment mode to a multi-level typological adjustment. It will take time to fully understand the characteristics of workers on different types of platforms, so it is difficult to formulate and modify legal provisions in the short term. Therefore, relevant judicial interpretations should be issued to further improve the existing standards from the following aspects:One is to define labor relations, clarify the legal attributes and rights and obligations of labor relations, and prevent the concept of labor relations from escaping into sociology; The second is to declare that the determination of labor relations should adhere to the principle of "fact first"; The third is to update the criteria for determining factual labor relations. The requirement of 'simultaneously possessing' in the 'Notice' should be removed, as in practice this requirement is' non-existent 'and cannot achieve the expected effect.To solve the problem of overlapping and chaotic internal structure of attribute standards, the phrase 'various labor rules and regulations formulated by employers in accordance with the law apply to workers' should be deleted, and the three subordinate attribute elements of' labor management ',' paid labor ', and' business components' should be retained. The core elements should be refined, and auxiliary elements should be listed openly. Specifically, the following points should be done:
1. Clarify the connotation of personality attributes and make it a core element. Personality attributes focus on employees who are unable to independently control the time of labor payment, decide on detailed payment content, comply with work rules established by employers, and accept inspections and sanctions for a considerable period of time. Empirical research has shown that in practice, the connotation of personality attributes is blurred and formalized, leading to the neglect of personality attribute characteristics within a single order due to the external flexibility of multiple orders. In this regard, "Case 1" in the "Typical Cases" weakens the requirements for continuity and daily work hours, placing personality attributes at the core, explaining that the labor process of workers is constrained and controlled by platform algorithm instructions, platform work rules, labor discipline, reward and punishment methods, and does not have autonomous decision-making over work hours and workload. This explanation demonstrates the core connotation of personality attributes, that is, workers divide their working time and personal time according to the employer's will, and their labor behavior is subject to payment constraints. Therefore, labor management can be summarized into two dimensions: time and control. The core elements of the time dimension include continuous working time and fixed workload. Based on the task-based characteristics of platform employment, the key to determining working hours lies in the identification of continuous order taking behavior, which should be discussed on a case by case basis according to who has the decision-making power, whether there are job opportunities and remuneration disadvantages for not taking orders. Generally speaking, if a worker accepts orders continuously based on their subjective will and the platform does not impose punishment or harm on non acceptance behavior, it should not be recognized as a labor relationship and may constitute an economically dependent worker with weak subordination; If a worker continues to take orders under the deterrence of disciplinary rules, and although the rules have not been actually implemented, there is a possibility of implementation, they should be evaluated as having strong personality subordination. The main elements of labor behavior control include: the employer unilaterally presupposes and decides on work content, methods, locations, work processes, etc. The worker loses labor control and accepts supervision and punishment. Regarding whether the workplace and content are fixed, physical spatial thinking should be penetrated, based on whether the worker can unilaterally decide. Personal performance is an important manifestation of personal attributes, and should not be based on the agreement. It is necessary to dynamically review whether the employee can freely transfer the order, and comprehensively consider whether it is completely based on the employee's autonomy, without the need for enterprise reporting, review and other procedures.
2. Limit the connotation of economic attributes and use it as a supplementary element. The economic attribute is the external characteristic of employers fulfilling labor consideration payments. Workers are unable to operate independently due to their weak contractual position and restricted labor processes, which distinguishes them from other labor consideration payments that are solely based on results.
From the perspective of connotation, there are three views on the existence of economic attributes: the main economic source theory, the dependence on means of production theory, and the risk free theory for workers. The unclear relationship between the three is the crux of the improper expansion of the connotation of economic attributes in practice. The main source of income theory emphasizes that workers fall into economic difficulties due to the loss of their primary source of income. German law defines it as working for only one party or having one party account for more than half of the income, but there is no specific proportion in China. The theory of dependence on means of production focuses on the provision of raw materials and labor tools by employers. The risk free theory emphasizes the altruistic purpose of workers providing labor. Workers are not working for their own business, but are subordinate to others. Based on this, their labor remuneration should be protected from the impact of fluctuations in profits and risks at any time. This article advocates the risk free theory, as it emphasizes the core position of personality as a subordinate attribute and the inherent correlation between the two. Logically, it is conducive to the extension of the attribute system and delineates the boundary of economic subordinate attributes, while avoiding the homogeneity problem of the first two theories. At the local level, both Guangdong and Shanghai have explicitly regarded the establishment of a risk sharing mechanism as a factor in determining the unit's risk burden, essentially embodying the theory of risk exemption. The "Typical Case" distinguishes the economy from its attributes into three elements: the subordinate position of workers in information technology, the loss of pricing power of workers, and platform income as the main source of income for workers. It also presents the specific manifestations of the risk free theory of workers in three levels: production materials, market position, and behavioral sustainability. In summary, to avoid uncertainty, it is necessary to clarify the internal relationships and external systems of various elements of economic attributes. On the one hand, economic subordination is dependent on personality subordination, and the existence of only economic subordination cannot be recognized as a labor relationship. On the other hand, the core of economic attributes lies in whether labor remuneration has sustainability and stability, and the high citation rate of this element in judgments also proves that China's judicial practice attaches more importance to wage stability. In other words, in the platform employment scenario, the composition, calculation method, and payment subject of remuneration cannot be clearly distinguished from labor payment and other labor payment, and should not be used as the core standard. Throughout the world, it is often not limited to a certain factor of examination, and China's practice also makes judgments from multiple perspectives. Therefore, factors such as who owns important production tools, whether workers lack the decision-making power of labor payment consideration, and whether the main or all income comes from the unit can be used as auxiliary factors to judge the strength of attributes in individual cases.3. Relax the requirements for organizational attributes and use them as auxiliary elements. The statistical results of typical attribute elements in the previous text show that the impact of attribute elements on the determination of employment and labor relations on platforms is not significant for traditional organizations. On the one hand, it is easily seen as a part of both personality and economic attributes; On the other hand, organizations rooted in a hierarchical structure exhibit many discomforts in terms of attributes when dealing with disorganized platforms. Although "Typical Cases" examined the organizational attributes of workers being included in the platform organizational system, becoming an organic part of the platform enterprise's production and operation organization, and providing services to the outside world in the name of the platform, comparing "Case 1" and "Case 2", it was found that whether to include workers as stable members and assume organizational member obligations according to traditional labor management methods had a greater weight, and the aforementioned organizational attributes were more used to identify the strength of labor relations. To avoid the generalization of labor relations, organizational attributes should not be taken as the core standard. From the perspective of the labor process of a single order, although the characteristics of workplace separation, work time segmentation, and employment and use differentiation have disrupted traditional hierarchical organizations in the platform workplace domain, the concept of organizational structure is integrated with information technology and business relationships, and most platform workers still conform to the connotation of organizational attributes. Even though platform companies claim to only provide information matching technology, this logic cannot explain the impact of algorithmic authority such as pre-set production processes, online ratings, and reputation reward and punishment mechanisms within the platform system on workers. From the perspective of external management of multiple orders, traditional organizations have the function of identifying the strength of labor relations through attribute representation, which can serve as auxiliary elements; The personality and economic attributes of standard labor relations are mainly reflected through organizational attributes, such as workers being incorporated into organizations and exhibiting collective dependence in the work process. From the perspective of evidence, organizations have a higher degree of formalization and standardization in attribute representation, which reduces the difficulty of proof and is conducive to improving trial efficiency. In summary, considering the current situation of employment on the platform, it is possible to relax the requirements for organizational attributes based on the "Notice", weaken the collaborative elements between the workplace and organizational members, and clarify whether there are external characteristics such as recruitment management, labor behavior manifested as organizational appearance, and business scope that cannot be overturned by the existence of labor relations.
4.3 Judicial adjustment: clarifying the special criteria for determining the value balance of individual cases
In the absence of theoretical deconstruction of labor rights, construction of a new spectrum of rights, and specialized legislative design, the judiciary can fill the space for discretion, achieve a dynamic balance between the interests of platform enterprises and workers, and also reserve space for the development of attribute theory and practical response to the recognition of labor relations in platform employment in China. This requires taking the legislative purpose of tilted protection of the rights and interests of vulnerable workers as the criterion, adhering to the equal importance of protecting the rights and interests of workers and safeguarding the survival and development of employers, distinguishing different types and situations, and realizing the concretization of judicial application based on attribute standards, in order to achieve limited expansion of specific labor rights and interests. On the one hand, maintaining the determinacy of attribute standards centered on legal formalism; On the other hand, using legal functionalism as an auxiliary value measurement standard provides a possible path for the hierarchical assumption of employment responsibilities. Suggest starting from the following aspects:
1. Adhere to the principle of prioritizing primary payment. The labor management methods of different types of platforms and job types have differences, and the main determining factor should be the main payment obligation of both parties. Specifically, it includes the obligation to pay remuneration closely related to labor behavior, personally fulfilling obligations, and receiving disciplinary actions for violating obedience obligations. A court mechanically judges that there is no labor relationship agreement between the two parties due to the employer's failure to fulfill obligations such as recruitment and onboarding management, employment training, personal income tax, and insurance payment. This plan is not suitable for adoption. The above elements do not directly involve labor behavior payment. Moreover, in the process of marketization of human resources factors, the scope of enterprise management rights is gradually being stripped away, and specialized service agencies are responsible for it, which does not fully reflect the unilateral instructions of employers.
2. Implement typological identification standards. At the factual level, tailored identification schemes are classified based on the level of labor management across different platforms and employment models. Firstly, based on two factors: whether the platform enterprise participates in the pricing and contracting process before the transaction, and whether it organizes, coordinates, and controls the labor process of individual tasks, professional service-oriented platforms, pure scheduling platforms, and organizational management platforms are identified. Professional service-oriented platforms generally establish entrusted management relationships with employers in terms of wages, tax collection, and other aspects, and do not intervene in labor behavior management. The pure scheduling platform provides information matching services and only implements inspection and supervision functions within the scope of ensuring the delivery of transaction results, without any personal subordination. However, for workers who complete labor services and deliver results offline on such platforms, there may be hidden employment situations, and it is necessary to prioritize piercing the appearance of hidden labor relationships based on facts. Secondly, the three employment modes of direct employment, crowdsourcing, and outsourcing are determined based on different methods of labor allocation and management. Whether there is manual scheduling and control, whether there is participation in business management to identify "fake outsourcing", and which party the worker has a labor relationship with are important factors. Finally, based on the first two, it is necessary to comprehensively measure the situation of labor relations from the perspective of attribute facts. For the crowdsourcing model under the autonomous registration of workers, emphasis should be placed on whether algorithm management restricts continuous working hours, which is the key to whether labor management achieves a degree of control and domination.
3. Implement appropriate separation of relationships and responsibilities. Empirical research has found that workers' demands mainly focus on basic labor rights protection such as labor remuneration, rest and vacation, labor safety, and working conditions. However, the legal principle of sole employer responsibility in China cannot cope with the allocation of responsibilities under multiple labor relationships. To cope with the characteristics of multi-party employment, the identification of labor relations can be appropriately separated from "packaged" responsibilities. In terms of content, for labor standard rights, we can refer to the regulations of Guangdong Province, reduce the weight of working hours, emphasize the unilateral decision-making power of labor remuneration, technological dependence, and organizational management factors. Some regions have also relaxed the requirements for autonomy and continuity of working hours, placing forms of employment that do not fully comply with established labor relations on par with temporary, scattered, and short-term forms of employment. For the rights and interests closely related to the legal principles of continuous labor relations, such as rest and vacation, and economic compensation upon termination of labor contracts, the criterion for judgment is still based on the strong subordination attribute. Technically, the content and form of labor benefit agreements can be separated. Platform employment agreements are mostly mixed contracts, making it difficult to classify them as a typical type of contract as a whole. At present, China has constructed a diversified rights and interests protection system in the form of administrative guidance documents, but has not directly classified "written agreements", aiming to achieve judicial relief for workers while not ruling out the possibility of being recognized as labor relations. This essentially separates the determination of the nature of the contract from the protection of rights, adjusting it from a single labor contract protection to multiple agreements for joint protection. This provides operational space for judicial organs to divide contracts clause by clause and apply labor law and civil law norms separately according to specific circumstances.
5. Summary and Prospect
Under the "binary" framework of China's labor legal system, attribute standards not only relate to the scope of normative application, but are also closely related to the protection of workers' rights and interests. Since 2014, China's judicial exploration in the determination of employment relations on platforms has shown that the existing attribute standards still have explanatory power and inclusiveness in the determination of employment relations on platforms.Faced with the challenges brought by the diversification, flexibility, and complexity of new forms of employment, China has formed a "case comprehensive consideration" model based on factual priority, and moved towards the "elements+factors" model, avoiding the negative consequences of a "one size fits all" trial while preventing the generalization of labor relations.However, it still requires sufficient time to form a consensus experience on how to meet the labor rights and interests protection needs of workers in the new employment form and build a systematic and standardized system based on attributes. It cannot be denied that the difficult situation of judging based on attribute standards highlights the limitations of the judicial path for determining labor relations in terms of protecting labor rights and interests. China's labor legislation needs to adapt to judicial practice and policy needs, and expand the scope of labor law protection.In the short term, judicial interpretation can be used to clarify the identity and status of new forms of employment workers and implement their basic labor rights. In the long run, it is necessary to clearly define labor relations in the Labor Code and construct a special rights system and exemption mechanism for new types of labor relations based on the general norms of standard labor relations.