Article 1 of the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes stipulates that: "This Law shall apply to the following labor disputes between employers and employees within the territory of the People's Republic of China: (1) Disputes arising from the confirmation of labor relations. 5) Disputes arising from labor remuneration, medical expenses for work-related injuries, economic compensation or compensation, etc.; (6) Other labor disputes as prescribed by laws and regulations". In other words, the scope of the case accepted by the Labor and Personnel Dispute Arbitration Commission must not exceed the provisions of the current laws and regulations, and must meet three requirements at the same time: First, the dispute between the employer and the employee. Second, the dispute is a labor dispute or is expressly provided for by laws and regulations to be disposed of in accordance with the labor dispute procedures. Third, the dispute occurred within the territory of the People's Republic of China.
What is the definition of an employer?
According to Article 2 of the Labor Contract Law of the People's Republic of China, Article 2 of the Rules for the Arbitration of Labor and Personnel Disputes, enterprises, individual economic organizations, private non-enterprise units, state organs, public institutions, social organizations, and the military within the territory of the People's Republic of China may become the main body of the employer. With reference to Articles 58 and 74 of the Civil Code and Article 4 of the Regulations for the Implementation of the Labor Contract Law of the People's Republic of China, an enterprise can obtain the qualification of an employer in two ways: one is to obtain the legal person qualification through legal procedures such as registration procedures. The second is the authorized branch of the legal person. In addition, they cannot become the main body of employment. For example, Article 2 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases stipulates that "the following disputes are not labor disputes:(iv) Disputes between families or individuals and (v) between individual craftsmen and government servants; disputes between helpers and apprentices; (6) Disputes between rural contractors and employees".
What is the definition of a worker?
The so-called laborers are divided into broad and narrow senses. In a broad sense, a worker is a worker as long as he has the capacity for labor rights. For example, Article 42 of the Constitution of the People's Republic of China stipulates that "citizens of the People's Republic of China have the right and obligation to work". In the narrow sense, in addition to the ability to work rights, workers must also have the capacity for labor conduct (including limited capacity and full capacity). According to Article 19 of the Civil Code of the People's Republic of China and Article 15 of the Labor Law of the People's Republic of China, minors under the age of eight do not have the capacity for civil conduct and cannot be employed as workers. Minors between the ages of 8 and 16 who are restricted in civil conduct may independently carry out civil juristic acts that are purely beneficial or civil juristic acts that are appropriate to their age and intelligence, and with the approval and consent of the relevant departments, they may participate in the recruitment of literary and artistic, sports, and special craft units on the premise of fully protecting their right to receive compulsory education and their physical and mental rights and interests. Adults and minors over the age of 16 who live mainly on their own labor income** are persons with full capacity for civil conduct and have the capacity for independent labor conduct. In other words, minors under the age of eight and adults who cannot recognize their own actions naturally cannot become workers in the legal sense because they do not have the capacity for civil conduct. In addition, neither the Labour Code nor the Civil Code limits the capacity of citizens at the maximum age.
Accurately locating the relationship between the employer and the employee is the key to distinguishing the civil legal relationship from the labor relationship. Under the premise that the employer has the qualifications of an employing entity, if the employer and the employee are equal in status and there is no subordinate nature, that is, the employee is paid for the labor service and is not subject to the employer's system, we generally determine it to be a civil legal relationship, which shall be adjusted by the civil law. If the employer is in a dominant position, and the two parties are subordinate, that is, the employee obeys the work arrangement of the employer, is governed by the rules and regulations of the employer, is engaged in a job of 1,000 employees, is engaged in work as part of the employer's business, and the main income is the labor remuneration paid by the employer, etc., then we can determine that the employee and the employer have established an employment relationship and are subject to labor laws and regulations.
What is the relationship between the employer when the employer does not have the qualifications of an employing entity?
According to Article 1 of the Notice on Matters Concerning the Establishment of Labor Relations (Lao She Bu Fa (2005] No. 12) issued by the former Ministry of Labor, "if an employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances, the employment relationship shall be established. (1) The employer and the worker meet the qualifications of the entity as prescribed by laws and regulations. Obviously, it is a sufficient and necessary condition for the establishment of an employment relationship for an employer to meet the qualifications of the entity stipulated by laws and regulations. The employer does not have the qualifications of an employing entity, and the relationship between the employee and the employer is naturally not an employment relationship.
There are currently relevant legal provisions that characterize such situations as illegal employment situations, which can be summarized into three types: first, organizations or natural persons without the qualifications of the employing entity directly recruit workers; It is an employer with the qualifications of an employing entity that subcontracts or subcontracts its business to an organization or natural person without the qualifications of an employing entity, and the organization or natural person without the qualifications of an employing entity recruits workers; The third is the use of laborers after an organization or natural person with the qualifications of an employer is "attached" to a unit with the qualifications of an employing entity. One thing that the above three types of illegal employment situations have in common is that the actual recipient of the labor does not have legal employment qualifications.
Should I go to arbitration or litigation after a dispute over illegal employment?
Although the employer cannot establish a legal employment relationship with the employer because it does not have the qualifications of the employing entity, the current labor security laws and regulations clearly stipulate the liability for illegal employment in order to fully protect the legitimate rights and interests of the employee. For example, Article 93 of the Contract Law of the People's Republic of China stipulates that "the illegal and criminal acts of an employer that does not have legal business qualifications shall be investigated for legal responsibility in accordance with the law; If the worker has already paid the labor, the unit or its investor shall pay the worker economic compensation and compensation for labor remuneration in strict accordance with the relevant provisions of this Law; If any damage is caused to the worker, he shall be liable for compensation." Article 94 stipulates: "Where an individual contractor recruits a worker in violation of the provisions of this Law and causes damage to the worker, the contracting organization and the individual contractor shall be jointly and severally liable for compensation." Article 66 of the Regulations on Work-related Injury Insurance stipulates that: "If an employee of a unit without a business license or without registration or filing in accordance with the law, or an employee of a unit whose business license has been revoked or whose registration or filing has been revoked in accordance with the law, is injured in an accident or suffers from an occupational disease, the unit shall give a one-time compensation to the disabled employee or the close relatives of the deceased employee, and the compensation standard shall not be lower than the work-related injury insurance benefits stipulated in these Regulations; Where the close relatives of the disabled or deceased employees provided for in the preceding paragraph have a dispute with the employer over the amount of compensation. It shall be handled in accordance with the relevant provisions on the handling of labor disputes". Article 4 of the Notice of the former Ministry of Labor on Matters Concerning the Establishment of Labor Relations (Lao She Bu Fa (2005] No. 12) stipulates that "if the project (business) or management rights of an employer such as a construction or mining enterprise is contracted to an organization or natural person that does not have the qualifications of an employing entity, the employer with the qualifications of the employing entity shall bear the responsibility of the employing entity for the workers recruited by the organization or natural person". Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance (Ministry of Human Resources and Social Security Fa [2013] No. 34) Article 7: "If a contractor with the qualifications of an employing entity violates the provisions of laws and regulations by subcontracting or subcontracting the contracting business to an organization or natural person that does not have the qualifications of an employing entity, and the worker recruited by the organization or natural person engages in the contracting business due to work, the contractor with the qualification of the employing entity shall bear the work-related injury insurance liability that the employer shall bear in accordance with the law." 。 Article 59 of the Minutes of the National Conference on Civil Adjudication (2011) states: "Where a construction unit contracts a project to a contractor, and the contractor illegally subcontracts or illegally subcontracts to the actual constructor, and the worker recruited by the actual constructor requests confirmation of the existence of an employment relationship with the employer with the qualifications of the employing entity, it shall not be supported."
According to the above provisions, although an employee cannot establish an employment relationship with an employer that does not have the qualifications of an employing entity. However, from the perspective of protecting vulnerable labor groups, the labor paid by workers is still protected by labor security laws and regulations. In this case, the employee can decide whether to apply for arbitration or file a civil lawsuit according to the nature of his or her specific claim, such as labor remuneration and work-related injury benefits, etc., he or she should apply for labor arbitration, and if the claim involves creditor's rights, personal injury compensation, etc., he or she can directly file a civil lawsuit. Of course, in the case of illegal employment, if an employee wants to initiate labor arbitration, he must list the employer with employment qualifications as the main respondent, otherwise, the arbitration institution is likely to reject the application on the grounds that the respondent is "not qualified".
Not without consent).