What conditions are not considered an employment relationship

If the employee finds that the employer does not have contact with him/her, he or she should pay attention to collecting the following evidence in case of emergency.

1) Wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums.

2) The "work permit", "service certificate" and other documents issued by the employer to the worker that can prove the identity.

3) Recruitment records such as the "registration form" and "registration form" of the employer filled in by the worker.

4) Attendance records.

5) Testimony of other workers, etc.

A de facto employment relationship formed by an invalid labor contract.

1. With regard to invalid labor contracts, Article 18 of the Labor Law of the People's Republic of China stipulates two situations:

1) Labor contracts that violate laws and administrative regulations;

2) Labor contracts concluded by means of fraud, threats or other means.

An invalid employment contract is not legally binding from the moment it is concluded.

The Labor Law does not clearly stipulate the legal consequences of an invalid employment contract. According to the provisions of the Labor Law, invalid labor contracts are generally caused by the fact that the subject is not qualified, the content of the contract does not comply with the provisions of the law, and the contract is concluded by fraud or threats.

According to the provisions of the Labor Law, an invalid labor contract is not legally binding from the time it is concluded, that is, the labor contract is invalid from the beginning. In this case, if the employee has provided the work, the labor contract that has been invalid ab initio can no longer be the basis for the right of both the employee and the employer to make claims to each other. If the contract is invalid according to the theory of contract law, the property acquired as a result of the contract shall be returned.

Obviously, the principles of contract law cannot be applied to the labor contract, and once the labor force is paid, it cannot be restored to the state before the contract is contracted. The employment relationship arising from the invalidity of the labor contract shall also be regarded as a de facto employment relationship. In this case, the interests of the worker shall be protected by law, and the worker shall have the right to claim remuneration for his work in accordance with the law.

For the treatment of this de facto labor relationship, according to the provisions of the current legislation and relevant judicial interpretations, first, the employer may pay labor remuneration to the employee with reference to the wage standard of the same period, the same type of work and the same position of the employer; Second, if the conclusion of an invalid labor contract is caused by the employer and causes losses to the employee, the employee can be compensated.

A de facto employment relationship formed by an invalid labor contract.

1. With regard to invalid labor contracts, Article 18 of the Labor Law of the People's Republic of China stipulates two situations:

1) Labor contracts that violate laws and administrative regulations;

2) Labor contracts concluded by means of fraud, threats or other means.

An invalid employment contract is not legally binding from the moment it is concluded.

2. With regard to invalid labor contracts, Article 26 of China's new Labor Law and Contract Law stipulates three situations:

1) Using fraud, coercion or taking advantage of the danger of others to cause the other party to conclude or modify a labor contract contrary to its true intentions;

2) The employer exempts itself from statutory liability and excludes the rights of employees;

3) Violating mandatory provisions of laws or administrative regulations.

The following five circumstances cannot be recognized as an employment relationship.

1. The employer recruits personnel who have enjoyed the benefits of pension insurance in accordance with the law.

2. The employer has already received a pension.

of personnel. 3. The service relationship between the family or individual and the domestic service staff. Qiao Sui.

4. The contract relationship between individual workers and helpers and apprentices.

5. Cooperative relationship between rural contractors and employees.

Labor Contract Law of the People's Republic of China

Article 10 A written labor contract shall be concluded in order to establish a labor relationship. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If the employer and the employee conclude a labor contract before employment, the employment relationship shall be established from the date of employment.

The following five situations cannot be recognized as labor relations, civil servants and employees of public institutions and social organizations that implement the civil service system mutatis mutandis. Agricultural laborers (except for employees of township enterprises and farmers who go to urban areas for work and business). Active-duty military personnel.

Family babysitter. Persons who have not established a labor contract relationship with public institutions or social organizations.

Legal analysis

Labor relationship refers to the legal relationship between the employee and the employer when the employee and the employer sign a labor contract in accordance with the law. The worker accepts the management of the employer, engages in the work arranged by the employer, becomes a member of the employer, and receives labor remuneration and labor protection from the employing unit. "Employer" refers to domestic enterprises, individual economic organizations, private non-enterprise units and other organizations.

At the same time, it also includes the establishment of labor relations between state organs, public institutions, and social organizations and workers. Laborer refers to a natural person (Chinese and foreign natural person) who has reached the legal age, has the ability to work, takes income from certain social work as his main livelihood, and engages in labor under the management of the employer in accordance with the provisions of the law or contract. The three elements of the determination of labor relationship are as follows:

The employer and the employee meet the qualifications stipulated by laws and regulations. The labor rules and regulations formulated by the employer in accordance with the law are applicable to the workers, and the workers are subject to the labor management of the employer and engage in paid labor arranged by the employer. The labor provided by the worker is an integral part of the employer's business.

Legal basis

Labor Law of the People's Republic of China

Article 1 This Law is enacted in accordance with the Constitution in order to protect the lawful rights and interests of laborers, adjust labor relations, establish and maintain a labor system suited to the socialist market economy, and promote economic development and social progress.

Article 2 This Law shall apply to enterprises and individual economic organizations (hereinafter collectively referred to as "employers") within the territory of the People's Republic of China and to workers who have formed labor relations with them. State organs, public institutions, social organizations, and former know-how workers with whom they have established labor contract relations shall be subject to this Law.

Article 16 A labor contract is an agreement between a worker and an employer to establish a labor relationship and clarify the rights and obligations of both parties. A labor contract shall be concluded for the establishment of labor relations.

Summary. We are happy to answer for you, dear, the following 5 situations cannot be recognized as labor relations. 1. The employer recruits personnel who have enjoyed the benefits of pension insurance in accordance with the law.

2. The employer recruits personnel who have received pensions. 3. The service relationship between the family or individual and the domestic service staff. 4. A contractual relationship between individual craftsmen and helpers and apprentices.

5. Cooperative relationship between rural contractors and employees.

We are happy to answer for you, dear, the following 5 situations cannot be recognized as labor relations. 1. The employer recruits personnel who have enjoyed the benefits of endowment insurance in accordance with the law. 2. The employer recruits personnel who have received pensions.

3. The service relationship between the family reputation or the individual and the domestic service staff. 4. A contractual relationship between individual craftsmen and helpers and apprentices. 5. Celebration of the cooperative relationship between rural contractors and employees.

Legal basis: Article 10 of the Labor Contract Law of the People's Republic of China establishes a written labor contract. If a labor relationship has been established and a written labor contract has not been concluded, a written labor contract shall be concluded within one month from the date of employment.

If the employer and the worker enter into a labor contract before employment, the labor relationship shall be established from the date of employment.

Summary. Hello, dear. We're happy to answer your <>

The five circumstances cannot be recognized as employment relations, and they are full-time students. Laborers are retirees. When an employer hires the above two types of persons, it can only be handled according to the civil employment relationship, but not according to the employment relationship.

The five circumstances cannot be determined as what the employment relationship is.

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5. The situation of filial piety cannot be recognized as an employment relationship, and they are full-time students in school. Laborers are retirees. When an employer hires the above two types of persons, it can only be handled in accordance with the civil employment relationship, but not in the employment relationship.

Hello, dear. In general judicial practice, it is still held that students do not have the qualifications to be the subject of labor relations, so they cannot form a labor barrier with the employer, and Jian Congqiao's part-time work can only be handled as a general civil relationship. In accordance with the principle of freedom of contract, labor remuneration is not subject to the minimum wage under the labor law, and there is no need to purchase social security for them.

From the perspective of Zheng Qian, it is understandable that employing students can legally reduce labor costs.

Summary. In the legal sense, labor relations refer to the relationship of rights and obligations arising from the employment of workers as its members by an employer and the provision of paid labor by the workers under the management of the employer. The parties are not in an employment relationship, are not subject to the adjustment of labor laws and regulations, and are not subject to the requirements of labor laws and regulations in terms of social insurance, low wages, overtime, employment period, etc.

For example, students can not be paid wages for internships, and both parties can agree to terminate employment at any time. However, there are special provisions in some areas, such as the so-called "special labor relationship" in Shanghai, under which the three aspects of labor protection, working hours, and low wages are still regulated by labor laws and regulations, but other aspects can be agreed upon.

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The five circumstances that cannot be recognized as an employment relationship are as follows:1

1.Students enrolled in the full RI system. Article 12 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China issued by the former Ministry of Labor

Students who use their spare time to work and study are not regarded as employment, and if they have not established labor relations, they may not sign a contract for labor and economic development. ”2.Those who have gone through the retirement procedures and enjoy retirement benefits:

Retired personnel should be divided into two categories, one is those who have gone through retirement procedures and enjoy retirement benefits; The other category is those who have reached the retirement age (usually 60 years old for men, 50 years old for women, 55 years old for female cadres, and can be advanced for special posts), but they are not entitled to retirement benefits. 3.The other category is those who have reached the retirement age (usually 60 years old for men, 50 years old for women, 55 years old for female cadres, and can be advanced for special posts), but they are not entitled to retirement benefits.

4.The fact of employment exists, and the rights and obligations of both parties have been actually performed, but the unit that uses potatoes does not have the qualifications of the employing entity; 5.The employee provides labor services for the employer, and the employer pays labor remuneration.

In the legal sense, labor relations refer to the relationship of rights and obligations arising from the employment of workers as its members by an employer and the provision of paid labor by the workers under the management of the employer. The parties are not in an employment relationship, are not subject to the adjustment of labor laws and regulations, and are not subject to the requirements of labor laws and regulations in terms of social insurance, low wages, overtime, employment period, etc. For example, students can not be paid wages for internships, and both parties can agree to terminate employment at any time.

However, there are special provisions in some areas, such as the so-called "special labor relationship" in Shanghai, under the special labor relationship of Songda, the three aspects of labor protection, working hours, and low wages are still subject to labor laws and regulations, but in other aspects can be agreed upon.