Wang Tianyu, Deputy Head of and Associate Research Fellow at the Social Law Department of CASS Law Institute

Abstract: The existing laws classify labor into two categories: subordinate labor and independent labor, which are regulated by employment law and civil law respectively, thus forming the institutional framework and knowledge system of labor dichotomy. However, with the rise of platform employment, this new form of labor cannot be interpreted and regulated properly with the “labor dichotomy”. All countries in the world are interpreting the existing rules or creating new rules in labor law to deal with the problem of platform employment. The employee-like person theory in Germany could be taken as a path to the explanation of platform employment. According to this theory, labor activities performed by labor providers pertain to "operational labor", with a significant personal attribute. The labor providers are not real market participants. However, their remuneration obtained through the platform has the attribute of the right to subsistence and constitutes their "economic subordination" to the platform - which are consistent with the constitutive requirements of employee-like person. In the construction of the platform employment regulatory system, China should take employee-like person as the orientation and, on the basis of platform employment contract and through the approach of "addition of the civil law", introduce such compulsory protection mechanism as pricing and remuneration protection system, continuous online time control system, occupational risk protection system, and appeal and relief system, so as to fill in the institutional gaps in the labor dichotomy, enrich the legal understanding and expression of and response to labor itself, promote the transformation of institutional framework towards the trichotomy of subordinate labor, operational labor and independent labor, and develop a multi-level labor group protection system.

This article is published in Global Law Review 3 (2020).