Partnership Does Not Constitute Labor Relations.

For young people in employment, whether they start their own business as a "boss" or join a "partner" or work part-time as a "laborer", they should clearly define the legal relationship between the parties before work, especially if they distinguish the relationship between labor and partnership.

Xiao Lu and Xiao Zhou were acquainted with the old. In September 2013, Xiao Lu came to the coffee shop where Xiao Zhou invested and talked about cooperation. Xiao Zhou agreed to cooperate with Xiao Lu's coffee. The two sides agreed that Xiao Lu served as a partner in the coffee shop of Xiao Zhou as a partner, and was formally recruited in August 23, 2013 to take charge of the daytime operation and other staff recruitment and participate in the bonus of daytime turnover. Small land and small week appointment, small land revenue and turnover linked, turnover of more than 50000 yuan, according to 5% dividends, more than 60000 yuan, according to 6% dividends, and so on. Later, due to illness in small land, small land and Xiao Zhou agreed to pay 3000 yuan a month from November 2013, and pay dividends according to their turnover. Xiao Lu pointed out that the coffee shop did not sign a labor contract with it, and did not pay overtime wages and pay social insurance premiums according to law. To this end, small land and small weekly negotiations, were rejected by Xiao Zhou. In June 15, 2014, after collecting dividends last month, Xiao Lu stopped coming to the store the next day. In December 2014, Xiao Lu sent the small coffee house to the court, requesting the court to order the defendant to pay the wage difference between September 23, 2013 and June 17, 2014, and two times the wage difference. Xiao Zhou believes that the relationship between him and Xiao Lu is not a labor relationship. Finally, the Court confirmed that Xiao Lu and coffee houses did not constitute labor relations and dismissed Xiao Lu's claim.

With the increasing number of youth entrepreneurship projects in the market, many young friends are similar to the small and small investment restaurants in this case. Do they constitute labor relations? What is the difference between labor relations and partnership? The author makes a brief introduction from two aspects: subjectivity and objectivity.

Labor relations refer to the agreement between the laborers and the employing units in establishing labor relations. The laborers provide labor for the employing units and the labor becomes an integral part of the business activities of the employing units, and the economic and social relations between management and management formed by the remuneration paid by the employing units.

In the foregoing cases, the small land department entered the defendant's office as a partner. On the subjective level of expression, from the agreement between the two sides, we can see that the two sides intend to cooperate in "win-win" rather than make Xiao Lu simply "work for the coffee shop". The two sides agreed that the agreement on business dividends can be clearly introduced such a judgement. On the one hand, the nature of "labor" considered by Xiao Lu is actually formed by the two sides based on partnership agreement. Partnership This labor, which includes the labor provider itself. Direct interest On the other hand, the "labor" can be understood as a form of contribution of small land to partnership, in return for dividends and remuneration by "management labor", and finally, the desirable " labour "It is also a form of partnership obligations and responsibilities undertaken by partners as partners in" joint labor and co operation ", and its fundamental motivation is the realization of the purpose of partnership.

In the notice on the establishment of related matters concerning labor relations (No. 12, No. 2005 of labor department, No. 12), it is clear that employers have not signed a written labor contract, but at the same time, the labor relations are established: (1) the main qualifications stipulated by the laws and regulations of employers and laborers; (two) the labor rules and regulations formulated by the employing units in accordance with the law are applicable to the labor management of the laborers, the labor management of the employing units, and the remuneration work arranged by the employing units; (three) the labor provided by the workers is an integral part of the business of the employing units.

In this case, there is no actual labor relationship between the two sides. First of all, based on partnership, the status of the partners is equal, and there is no subordinate management relationship. It can be seen from the objective and practical work that although Xiao Lu is the manager of the coffee shop in the small week, the small land working hours are not fixed. The behavior of the small island self arranges the work and rest time shows that the coffee houses do not manage them. The relationship between the two sides has not formed personal dependence and control relations, and the rights, obligations and behavioral abilities of both sides are equal and equal. Therefore, the small land and cafe in this case do not conform to the constitutive requirements of establishing labor relations. Finally, the court has no support for all claims filed by Xiao Lu based on labor relations.