山东科技大学学报(社会科学版)

网络直播用工关系纷繁复杂,司法实践中主要依据《关于确立劳动关系有关事项的通知》将网络直播用工关系认定为平等民事关系,使得大部分网络主播权益未得到充分保障。第三产业发展的显著特点即灵活就业普遍化,传统劳动关系认定方式已经难以适应灵活就业环境,从而陷入了网络直播用工系劳动关系还是民事关系的认定困境。网络直播用工关系的性质认定,应综合考量网络直播用工模式、劳动关系从属性标准及网络主播权益社会保护必要性等因素。可以将网络直播用工关系划分为标准劳动关系、非标准劳动关系和劳务关系三种类型,对不同用工模式下的网络主播进行全面保护,从而实现网络主播与直播平台之间权益的平衡。

The employment relationship via live webcast is growing increasingly more complex. In judicial practice, the employment relationship via live webcast is recognized as an equal civil relationship in accordance with the Notice on Matters Concerning the Establishment of Labor Relationship, which fails to fully protect the rights and interests of most network anchors. The tertiary industry is featured with the generalization of flexible employment, and the traditional way to recognize labor relationship is hard to adapt to the flexible employment environment, thus falling into the dilemma of recognizing the labor relationship in the live webcast as the civil relationship. To determine the nature of the employment relationship via live webcast, comprehensive consideration should be given to the webcasting employment models, labor relationship subordination standards, and the social necessity to protect the rights and interests of network anchors. The webcast employment relationship can be divided into three types: standard labor relationship, non-standard labor relationship and labor service relationship, so as to fully protect the network anchors under different employment models and realize the balance of the rights and interests between the network anchors and the live broadcast platforms.