Contract management, referred to as contracting, is a common mode of management in social production。There are many phenomena of contract management in real life, because of the complexity of the subject, it is easy to be confused when judging labor relations。This paper tries to clarify the labor relations in individual contract management by analyzing several pairs of concepts。

According to whether the contractor has the qualification of the employer, the contract can be divided into individual contract and unit contract。In unit contracting, it is not difficult to identify the labor relationship between the contractor and the worker because the contractor has the qualification of the labor subject. This paper only analyzes the labor relationship related issues in the process of individual contracting。

一、True contracting and false contracting

The so-called individual contract refers to an operation and management mode in which the employer hands over part or all of its operation and management rights to a natural person, and the natural person is responsible for its own operation and profits and losses。

Individual contracting is characterized by autonomy, specifically:

1.Independent management。The contractor may independently decide the manner and time of performance of the contract, and may also decide whether to employ others or entrust others to perform the contract on his behalf。Therefore, it can be distinguished from labor relations with subordination。

2.Own profit and loss。Contracting should be profit-making, and the contractor has the right to benefit from contracting, that is, through the independent operation of contracting, which is also the ultimate purpose of contracting。Accordingly, if the contractor fails to complete the contracted affairs, he shall bear the responsibilities stipulated in the contract。This can be distinguished from the fake contract for the purpose of contract work。

For example: unitCanteen contractingIf the contractor can independently sell meals to the employees of the unit, it is in line with the characteristics of the contract relationship。If the kitchen of the hotel is contracted by the chef, because it does not have independent management, it is a task。

The so-called fake contracting refers to the behavior carried out in the name of contracting, but does not conform to the characteristics of contracting。Generally speaking, the contractor should have the act of making profit to the third party outside the contracting relationship。If the contractor's contract results are provided only to the employer, there are only two possibilities: contracting or contracting work。The contract is carried out independently by the contractor in its own name, equipment and technology;Contract work actually means that the contractor accepts the work assignment of the employer and completes the specific work content。The characteristics of contracting determine that it is not compatible with contracting, so when the contractor's contracting results are completely owned by the employer, this contracting should be regarded as work contracting, that is, false contracting。Although the fake contractor has a certain degree of independence and autonomy in the "contracted" affairs, it is still subject to the management constraints of the "contractor" and is a member of the organizational structure of the "contractor", and the "contracted" income obtained by it is nothing but alienated labor remuneration。Therefore, the relationship between the "contractor" and the "employer" is actually a labor relationship。It can be said that all non-profit-oriented contracts are fake contracts。

二、Legal contracting and illegal contracting

If the contract conforms to the characteristics of contract operation and does not violate the mandatory provisions of the law, it is a lawful contract。Illegal contracting refers to the contracting that has the characteristics of contracting but violates the mandatory provisions of the law。As Article 29 of the Construction Law states: "...It is prohibited for a general contractor to subcontract a project to a unit that does not have the corresponding qualifications。The subcontractor shall not subcontract the subcontracted project。As well as illegal subcontracting as provided for in Article 78, paragraph 2, of the Regulations on the Quality Management of Construction Projects。

Some people believe that to determine whether there is a labor relationship between the laborer and the employer, we should examine whether the contract relationship is legal。This view is derived from the Notice on Matters related to the Establishment of Labor Relations (Ministry of Labor and Social Security issued No. [2005]12, hereinafter referred to as No. 12)。Those who hold this view believe that document No. 12 specifically stipulates the attribute of labor relations in the contracting relations of construction and mining enterprises because in these fields, subcontracting and subcontracting are not legally protected and should be regarded as invalid, so it should be traced to the contracting unit with the labor subject。In other contracting relationships, the law is not prohibited, there is no illegal situation, so in other contracting relationships, it is not necessary for the contractor to hire the worker without permission。

In this regard, it has been stated above that whether there is a labor relationship lies in judging the truth or falor of the contract relationship。Whether the contract relationship is legal only depends on what kind of legal responsibility the employer bears。

Joint and several liability and the liability of the employer

Some sources of labor law in our country have made provisions on the legal responsibility of the contract relationship。

1.Article 4 of the "Notice on Matters related to the establishment of Labor relations" stipulates: "The employing units such as construction and mining enterprises contract the project (business) or the right to operate to organizations or natural persons that do not have the qualification of labor subjects，Workers recruited by the organization or natural persons，The employer with the qualification of the employer shall bear the responsibility of the employer。”

2.Article 41, paragraph 2, of the Regulations on Industrial Injury Insurance: "Where an employer conducts contracted operations, the liability for industrial injury insurance shall be borne by the unit to which the employee has labor relations.。”

3.Article 94 of the Labor Contract Law: "Where an individual contracted operation recruits laborers in violation of the provisions of this Law and causes damage to the laborers, the contracting organization and the individual contracted operator shall be jointly and severally liable for compensation.。”

4.Article 12 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Labor Dispute Cases (Interpretation [2001] No. 14) : "During the contract operation period between the employer and other equal subjects，Labor disputes with both the employer and the contractor，Bringing a suit before a people's court in accordance with law，The contractor and the employer shall be regarded as parties。”

As can be seen from the above provisions, there are two main ways for the employer to bear responsibility in labor relations: joint and several liability and the liability of the employer。The basis for distinguishing the two kinds of responsibility lies in whether the contracting act is legal。If the contracting act is legal, the employer shall bear joint and several liability.If the contracting act is illegal, it shall bear the responsibility of the employer。No matter whether the contracting act is legal or not, the employer shall bear the responsibility。The law makes this provision because the employer allows the contractor to operate in its name, so that others pay the benefit of trust, and the employer profits from this。From the point of view of the legislative purpose, it is to regulate the contracting behavior and prevent the employer from circumventing its own responsibility by contracting and infringing on the legitimate rights and interests of workers。The difference between joint liability and the liability of the employer is that after assuming joint liability, the employer can recover the contractor who is at fault according to the contract agreement, while the liability of the employer is directly borne by the unit, and because the contracting agreement between the two parties is illegal, it can not recover from the contractor。

4. Labor relations and employment relations

Apart from the sociality of labor relations, there is no substantial difference between labor relations and employment relations only in terms of their attributes。In reality, the usual way to distinguish the two is that the former subject is the employer and the worker, while the latter subject can be the natural person。This paper examines the labor relations in individual contract management。

(1) Workers employed by the contractor

1.In a legitimate contracting relationship, the contractor has operational autonomy, which includes the right to decide whether and by whom to employ others。The Labor Contract Law stipulates that "the labor relationship is established from the date of employment," so the basis for judging the labor relationship is the employment facts。Because the contractor has operational autonomy, there is an independent employment relationship between the contractor and the employee, and there is no employment fact between the employee and the employer, so there is no labor relationship。However, based on the fact that the employer allows the contractor to operate in its name and make profits from it, the Employer shall bear joint liability as a joint party according to Article 94 of the Labor Contract Law and the provisions of judicial interpretation。

2.If the worker is originally an employee of the employer's unit, then the worker still establishes labor relations with the employer before the employer rescinds or terminates the labor contract with the employer。The worker is subordinate to the contractor, which is a way of performing the labor contract。In this way, if the employer and the contractor become the joint employer of the worker and a labor dispute occurs, the provisions on labor dispatch may be applied mutatis mutinis。

(2) Contractor

Depending on whether the contractor is an employee of the contracting unit, there are two provisions。

First, the "Reply Letter on insurance treatment in Individual Contracting within enterprises" (Luo Insurance Word [1992] No. 27) stipulates: "The signing of contract contracts between enterprises and individual employees is a way of internal operation and management of enterprises。The transformation of the enterprise operation mechanism has not changed the labor relationship between the enterprise and the employee, nor has it changed the employee identity of the contractor, so the enterprise should protect the social insurance rights and interests of the employee in accordance with the current national policy。Enterprise units push the risk of disability death to the individual worker in the "contract", which is not in line with the Constitution of our country and the social insurance policy of the worker, among which the clause about the personal responsibility is not legal。”

其二，The "Reply Letter on the payment of industrial injury insurance benefits for the person in charge of Private contracting" (Labor Office [1995] No. 11) stipulates: "The person in charge of private contracting has no labor relationship with the contracting unit，Only economic contracts were concluded，If the contract has a clear agreement on the injury problem，From its convention;If there is no stipulation in the contract，They are responsible for their own work injury treatment。”

The judgment of labor relations lies in the employment facts。In the legal contracting relationship, the relationship between the employer and the contractor is the relationship between equal subjects。If the contractor is a former employee of the employer's unit, this contracting behavior is a special way for both parties to perform the labor contract, and the labor relationship between the two parties still exists。However, this kind of labor relationship is a virtual labor relationship, and its "reality" lies in that the contractor is responsible for the profits and losses and operates independently, and is not subject to the labor management and discipline of the owner. The contractor works independently for his own interests, rather than for the owner, and does not have personality and organizational subordination between them。Regardless of the identity of the contractor, the employer does not have to bear the responsibility for the contractor under the labor law。However, if the employer participates in the insurance for the contractor in the name of the employee, as a party to the social insurance administrative relationship, it shall bear the corresponding obligations。If the two parties agree on liability, such agreement shall prevail。If there is no agreement, the contractor shall bear the responsibility。

5. Contractors and illegal labor subjects

In addition to individual contracting and unit contracting, the existence of illegal labor subjects cannot be ignored。According to the provisions of the former Ministry of Labor and Security "One-time compensation Measures for casualties of illegal labor units" : "Illegal labor units refer to units without business licenses or without registration and filing according to law, and units that have been revoked by law or revoked registration and filing."，Article 93 of the Labor Contract Law stipulates: "Illegal and criminal acts against an employer that does not have legal business qualifications，Investigate legal responsibility according to law;The laborer has paid labor，The unit or its investors shall pay labor remuneration, economic compensation and compensation to laborers in accordance with the relevant provisions of this Law.Causing damage to workers，Shall be liable for compensation。Article 4 of the Supreme People's Court's Interpretation of Several Issues concerning the Application of Law in the Trial of Labor Dispute Cases (III) (Interpretation [2010] No. 12) provides that: "Disputes arise between workers and employers who have not applied for business licenses, whose business licenses have been revoked, or who continue to operate after the expiration of the business term.，The employing unit or its investor shall be listed as the party concerned。”

Natural persons and illegal employment units do not have the qualification of the employer subject as stipulated by law in legal form, that is, they are not legally registered。But the specific form is different。The illegal employment unit already has the form of a unit, such as its own name, organization, personnel, and premises;While natural persons lack these objective conditions, in the contract relationship, they are also dependent on the owner and organize production and operation in the name of the owner。

Therefore, in the contracting operation, if the contractor meets the main requirements of illegal labor, its sponsor or founder should bear legal responsibility。

Contracting and affiliations

When it comes to contracting, we have to mention affiliations。Affiliation refers to the behavior of units or individuals borrowing the legal qualifications or names of other units to engage in business activities, which is common in transportation, building decoration construction and other industries。The common point between affiliate and contract is to engage in production and operation in the name of other units, the difference is that the affiliate is usually the actual owner of the means of production, and the contractor usually has no ownership, only the right to use。For the attachment problem，The Administrative Tribunal of the Supreme People's Court, in its Answer to the question of whether the injury or death of the driver employed by the actual owner of the vehicle attached to other units can be identified as a work-related injury, held that: "The vehicle purchased by an individual is attached to other units and is operated externally in the name of the affiliated unit，A de facto labor relationship has been formed between the drivers employed and the affiliated units，Injury or death in the operation of a vehicle，The relevant provisions of the Labor Law and the Regulations on Industrial Injury Insurance shall be applied to determine whether it constitutes an industrial injury。Article 5 of the Supreme People's Court's Interpretation of Several Issues concerning the Application of Law in the Trial of Labor Dispute Cases (III) (Interpretation [2010] No. 12) stipulates: "Employers that have not applied for a business license, whose business license has been revoked or who continue to operate after the expiration of their business term.，Borrowing another person's business license to operate by means of affiliation or other means，The employer and the business license lender shall be listed as the parties。It can be seen that for affiliated operations, when there is a dispute, the affiliated party and the affiliated unit should be listed as joint parties。但是，Based on the affiliate's ownership of the means of production，And independent business, employ their own workers，If the affiliated unit does not participate in the management of workers，The relationship between it and the worker employed by the affiliate is the same as the contract relationship，There is no labor relationship between the two parties，However, whereas the affiliated unit allows the affiliated to operate in its name and make profits from it，Bear joint liability。

Contracting and leasing

The common point of contracting and leasing is that they have no ownership of the means of production. The former obtains the right to use the means of production through the contract agreement, while the latter obtains the right to use the means of production through the lease agreement。The difference between the two is that contracting is carried out in the name of the owner, while leasing is carried out in its own name。

Legal liability for leasing operations，The former Ministry of Labor's "Reply Letter on how to divide accident units in the process of leasing casualties of enterprises" (Lao Changfa [1997] No. 62) has stipulated: "...First, the enterprise in the leasing and contracting process，If the lessee or contractor does not have a business license，Only an individual (or partnership) signs a lease (or contract) with the lessor or the employer，In case of injury or death, the lessor or the employer shall be identified as the accident unit。2. In the process of leasing and contracting, if the lessee or contractor is not an independent legal person but belongs to a separate accounting unit, the lessor or contractor shall be identified as the accident unit in case of injury or death。3. If the lessee or contractor is an independent legal person or licensed individual industrial and commercial entity, if its production and operation activities are completely separated from the lessor or the contracting unit and independent production and operation, the lessee or contractor shall be identified as the accident unit in case of injury or death; otherwise, the lessor or the contracting party shall be identified as the accident unit。……”

However, the author believes that the accident unit identification is not equivalent to the identification of labor relations or labor legal responsibility identification。In the leasing relationship, the lessor only grants the right to use the means of production, but does not grant it to operate in the name of the enterprise. The lessor operates independently in its own name, so it should bear legal responsibility independently and has nothing to do with the lessor。

综上，To judge the labor relations in individual contract management，First of all, we must grasp the characteristics of labor relations，The employment facts (subordinate attributes) should be used as the basis of judgment.secondly，Distinguish between true contracting and false contracting;third，The distinguishing significance of legal contracting and illegal contracting lies in determining whether the employer should bear joint and several liability or the employer's main liability.finally，Attention should be paid to the connection and difference between contracting and contracting, affiliating, leasing and other adjacent concepts。