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The trial characteristics of the employment contract

The employment contract belongs to the scope of the labor contract. The legal provisions on employment contracts are scattered in many normative files. For example, the Ministry of Labor's Provisional Regulations on Recruiting Employees in Various Areas on May 15, 1951, the Interim Provisions on the Implementation of Labor Contract System by State-Owned Enterprises, issued by the State Council on July 12, 1986, issued by the State Council on July 31, 1987. The Interim Provisions on the Handling of Labor Disputes in State Enterprises, the Provisional Regulations on Private Enterprises issued by the State Council on June 25, 1988 are the legal basis for adjusting the employment contract.

When the employment contract is signed, of course, it should first meet the conditions for signing the general contract, but it has its own characteristics once it is effective.
First, the employment contract requires a special subject. The main body of the employment contract is usually an employer such as a company, a business, or an organization. The other party is one or several workers.
Second, the employer of the contract has a subordination in status. After the employment contract is established, the employed worker becomes an employee of the employer and accepts the administrative management of the employer. Laborers and employers form an administrative affiliation. Workers have the right to work, rest, and welfare according to the agreement or state regulations.
Third, workers are mainly paid in the form of wages. Workers can get paid by completing a certain quantity, quality indicator or task through their own work according to the contract. This reward is directly linked to the work done by the worker.
Fourth, workers do not bear operational risks in their work. Operating risk does not directly affect the employee's basic salary, but only affects the reward salary.

In practice, employment contracts are easily confused with contracts such as joint ventures, partnerships, and contracts. Knowing the relationship between them is of great significance for accurately identifying the case.
1. The difference between the employment contract and the joint venture contract The joint venture is an economic organization form of joint production and management between equal legal persons and legal persons. Among them, the joint venture contract between the legal person and the individual is easily confused with the employment contract. Their differences are mainly reflected in the contract subject, distribution method and risk commitment. The main status of the joint venture contract is equal, and the parties to the joint venture share the risks and share the risks. There is an administrative affiliation between the subjects of the employment contract. The hiring person is mainly paid in the form of wages, and the production and operation risks are borne by the hiring. A close-knit joint venture will also set up a new legal body, and there is no such special requirement for employment. For example, the self-employed household Wang has signed an agreement with a water heater factory. The agreement states that the water heater factory employs Wang as a product salesman. Wang pays for the water heater factory at his own expense and gets paid according to 30% of the sales profit. This is essentially a joint sales contract. Wang pays for the sales of the product himself and bears the risk of the product not being sold. The water heater factory is responsible for the quality of the product. The legal status of the parties to the joint venture is equal. Although the word "employment" is used in this agreement, it does not prove that it is an employment contract. The essence of its joint venture contract can be seen in the terms of the profit distribution method and risk-taking method stipulated in the contract.
2. The difference between the employment contract and the partnership contract Individual partnership refers to an agreement between two or more citizens to provide partnerships, joint labor, and joint contracts for funds, materials, and technology. The contractual relationship of an individual hiring individual is ostensibly a relationship between an individual and an individual compared to an individual partnership. However, the employment contract shows the affiliation between the employer and the employee, and the status of each partner in the partnership is completely equal. In terms of distribution methods and risk-taking, the hiring person pays the hiring of the hiring person in the form of wages. The hiring person bears the risk alone, and each partner will receive the remuneration according to the joint labor, share the risk, and each partner will bear the joint liability for unlimited settlement. There are also different requirements for partnership and employment in legal form. Partnerships must go to the industrial and commercial department to apply for a business license, and employment does not require this.
3. Differences between employment contracts and contractual contracts Employment contracts are easily confused with various forms of contractual contracts within the enterprise. The similarities between hiring and internal contracting are manifested in the existence of certain administrative affiliation between the subjects. The difference is that the contractor bears risks to production and operation, and the contractor's compensation is directly linked to the profit realized by the contractor. The hired person obtains the labor remuneration in the form of wages, and the risk in the production and operation is borne by the hiring person. The relationship between hiring and commitment is that there are not necessarily contractors for employment. However, there must be employment for contracting. Employment is a prerequisite for contracting. The employment contract determines the administrative and personnel relations between the subjects, and assumes the contract to determine the economic relationship between the two parties. Employment is subject to a different substantive law adjustment than the contractor, and the two cannot be confused and replaced.

In judicial practice, when a dispute arises between the parties to the contract, some courts accept it as an economic dispute case, and use the “employment contract dispute” as a case for economic disputes. The author thought it was inappropriate. According to the statistical table of the Supreme People's Court on economic disputes, and the recent draft of the Jiangsu Provincial Higher People's Court on the economic contract dispute, there is no provision for the employment of contract disputes. So what about the departments and programs that handle contract disputes? The Supreme People's Court issued the "Notice on Strengthening Economic Trial Work", stating: "Many internal economic disputes require the court to accept. Such disputes should in principle be handled by the enterprise or its superior authority. Wages, benefits, bonuses, etc. In terms of disputes, the situation varies from unit to unit, and there are many changes. It is more appropriate for the enterprise or its superior authorities to mediate. Disputes such as wages and benefits that occur during the performance of the employment contract. Generally, it can be coordinated by the enterprise or its superior authority through administrative means. The legal means of handling employment contract disputes may be applied to the Labor Dispute Handling Regulations. The program is for the parties to apply for arbitration from the Corporate Labor Dispute Mediation Committee. If the parties are dissatisfied with the arbitration, they may file a suit in a people's court within 15 days of receiving the arbitration decision. If one party fails to sue and does not execute after the expiration of the party, the other party may apply to the people's court for compulsory execution. The handling of employment contract disputes must first go through an arbitration program. If the plaintiff has not applied for arbitration first and has directly filed a lawsuit with the court for the employment contract dispute, the court should not directly accept the case, and the plaintiff should be informed to apply to the relevant department first. Regarding the nature of the employment contract dispute and the subject matter of the case, the Supreme People's Court of October 19, 1988, the Law of the People's Republic of China [1988] No. 50 "Approval on the Trial of Litigants in the Trial of Labor Dispute Cases" states: "The labor dispute parties are not satisfied. The arbitration decision of the Labor Dispute Arbitration Commission shall be brought to the People's Court for prosecution. The parties to the dispute are still enterprises and employees. The parties dissatisfied with the arbitration decision of the Labor Dispute Arbitration Commission and filed a lawsuit with the People's Court. The parties to the dispute are still enterprises and employees. Applicable law and litigation status are equal. Such cases are not administrative cases. When the people's courts are tried, the parties to the dispute should be the litigants." It can be seen that such cases are economic administrative cases, and the main body of the lawsuit is different from the administrative case, and the people's court at the place where the arbitration institution is located is responsible for the trial.

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