The Labor Law Should Clarify The "Legal Status" Of The Salesperson.

Regulate our country

The regulations on direct selling Administration promulgated and implemented in 2005.

From the provisions of thirteenth, eighteenth, twenty-first and twenty-fourth articles of the Ordinance, direct selling enterprises and their branches are responsible for conducting business training and examination for the recruited salesmen, and issuing direct sellers' certificates, which indicates that direct selling enterprises have certain management and control power over direct sellers.

At least monthly payment of the remuneration of direct sellers shows that there seems to be labor relations between the two sides.

However, fifteenth, sixteenth, nineteenth and 25 of the regulations also stipulate that direct selling enterprises should sign sales contracts with direct sellers who are recruited. They must not recruit full-time employees of direct selling enterprises as direct sellers, and direct sellers have the same "cool off period" as consumers. These regulations also indicate that there is no labor relationship between direct sellers and direct selling enterprises.

The current laws and regulations do not clearly define the "legal status" of the salesperson, which directly leads to the frequent cases of direct sellers' prosecution of direct selling enterprises in the judicial practice.

In view of the above problems, the author puts forward three legislative proposals.

Will "

"The legitimate rights and interests of direct sellers and promoting the healthy development of direct selling industry" are written into the legislative purpose.

China's current regulations on direct selling management was promulgated in 2005. However, in regard to the legal direct selling industry, the regulations on direct selling management failed to be revised and improved in accordance with the needs of practical development in a timely manner.

Judging from the legislative purposes stipulated in Article 1 of this regulation, the legislation does not emphasize the intention of protecting the legitimate rights and interests of direct sellers, and promoting the healthy development of direct selling industry, but everything is based on strengthening industry supervision and maintaining social stability.

However, direct selling staff is a bridge and link between direct selling enterprises and consumers. The importance of protecting the legitimate rights and interests of direct sellers is conducive to promoting the healthy and sustainable development of direct selling industry, and is conducive to guiding and standardizing the business model of direct selling, playing an active role in the market economy.

Therefore, the author suggests that we should "protect the legitimate rights and interests of direct sellers and promote the healthy development of direct selling industry" as the legislative purpose and write into the "Direct Selling Management Ordinance".

Clearly define the legal relationship between distributors and direct selling enterprises, and clarify the "legal status" of salesmen.

As mentioned above

China's current laws and regulations do not define the "legal status" of the salesperson directly, and the characteristics of direct selling are an important reason.

In judicial practice, the author finds that the basic legal relationship between direct sellers and direct selling enterprises is usually the relationship between sales contracts. The sale and purchase activities of both sides make the ownership of direct selling products pferred to direct sellers. Direct sellers can visit and publicize direct sales products at unfixed locations in accordance with the agreed sales relationship stipulated by the two parties, and sell products to the final consumers, thus obtaining the "reward reward" or the so-called "membership discount" of the direct selling enterprises as compensation for their trustees and their own products.

Therefore, from the characteristics of the above direct selling behavior, the legal relationship between the direct selling agent and the direct selling enterprise is very complicated. The sales contracts signed by the two parties under the direct selling regulation also have the characteristics of various contracts, such as buying, selling, entrusting, and labor services.

It is very necessary to accurately define whether the salesman's labor behavior for direct selling enterprises belongs to labor relations or labor relations in the legal nature.

From the current theory and practice of labor law in China, whether there is a subordinate relationship between management and management is the key factor to define the difference between the two parties.

The salesperson is not a formal employee of the direct selling enterprise. The two sides are equal civil legal relationship, reflecting the exchange relationship between the labor force and the labor force in the product promotion.

In addition, the management of salesmen in labor relations will increase the social responsibility and economic burden of enterprises, and is not conducive to giving full play to the advantages of flexible use of direct selling enterprises.

Therefore, defining the legal relationship between two parties as labor relations is more in line with the actual situation, and is also more conducive to the sustainable development of direct selling industry.

We should improve the social security system and pay attention to the harmonization of relevant regulations.

It clarifies the legal nature of the labor relations between the salesmen and the direct selling enterprises, and suggests that the legislators should further clarify that the sellers should enjoy the rights stipulated in the second provision of the social insurance law in accordance with the law.

In addition, attention should be paid to the coordination and harmonization of the relevant provisions. For example, the interpretation of the Supreme People's Court on several issues applicable to the trial of labor dispute cases (three) can be applied to the direct selling industry in the eighth provision. If applicable, the new employer should make clear and formulate relevant supporting regulations for how to pay the social insurance premiums for the laborers when there is a dual labor relationship.

(author: Beijing procuratorate first branch)