网络直播用工关系的劳动法思考

网络直播行业光鲜亮丽的背后是网络主播寻求劳动法保护基本劳动权益的征途。经纪公司进军网络直播行业的初心也在于该行业用工关系处在劳动法调整的灰色地带,用工成本低且获利大。现行劳动法单一调整模式日益暴露出诸如网络表演用工等非典型劳动关系规范漏洞,加上从属性标准抽象化在演绎推理式的裁判逻辑中拔高了劳动关系认定难度,法院更倾向于用合同法来解决网络直播用工纠纷。为保护网络主播等自治性劳动者的基本劳动权益,今后可以考虑两种立法体例,或是转变劳动法调整模式,采用三分结构增设类似劳动者制度,扩大调整对象,或是保持劳动法体系的稳定,专门制定下位法,规范网络直播用工关系。

A Reflection on Employment Relations in Webcast Sector from the Perspective of the Labor Law

Behind the glory of the live webcast sector, people can see that network anchors are trying to seek protection of their basic labor rights by the labor law. The intent of the brokerage companies entering the web broadcast sector is that the employment relations in the sector lie in the gray zone of the labor law adjustment, which means low labor costs and high profits. The single adjustment model of the current labor law has increasingly exposed its normative loopholes of atypical labor relations, such as webcast employment. Moreover, the court is more inclined to solve the webcast employment disputes by the contract law, as the abstract engagement standards has increased the difficulty of identifying labor relations when deductive reasoning is used in judging a case. Thus, to protect the basic labor rights of autonomous laborers such as network anchors, two types of legislations are needed in the future. One is to set up a similar laborer system and expand the adjustment targets by adopting a three-point structure in changing the adjustment model of labor law, while the other is to maintain the stability of the labor law system by specifically making a subordinate law and standardizing the webcast employment relations.