JILPT Report

Change and Challenge: Regulation on the Internet
Platform Based Labor
Tianyu WANG
Associate Professor
Institute of Law, Chinese Academy of Social Sciences
Abstract: The new working form rendering of service, based on the Internet
platform, has risen with the “sharing economy” and has changed the employment
pattern of independent labor and dependent labor in the past. The network platform
rendering of service mode can be divided into an autonomous platform and anorganization platform. The former only provides virtual network labor transaction space,
and the platform does not participate in labor transaction; the latter is the platform
actually organizes its entire labor transaction process, meanwhile Labor Requester andthe Labor Provider are as transaction object based on the platform. In the organizational
platform mode, in addition to the labor providers directly employed by the platform or
indirectly through agents, there are some network labor providers who have theautonomous determination of labor independence and are economically subordinate to
the network platform. This will lead to differences in legal relations between the labor
provider and the platform. The analysis of existing judicial decisions shows that a few
courts have determined that they constitute a employment relationship, and most courts
have denied it. In terms of academics, the application scope of labor law is based on
the subservience theory, and it emphasizes that employees must be under the commandand supervision of employers, while that type of network labor providers are not fully
possessive subservience because of their autonomy, thereby resulting in labor law of
applicable dilemmas. Some scholars regard it as a challenge to workers, and advocate
the revision of the subservience theory in whole or in part. The legal regulation model
for constructing network platform labor should be under the framework of“independent labor-dependent labor”. Such new labor service transactions belong to thetransitional zone from independent labor to dependent labor. It should not be regulated
by expanding the scope of labor law, but should extract some systems from the laborlaw system based on the necessity of social protection in order to build an independent
legal guarantee mechanism, and form a multi-level protection network for labor
providers.
Keywords: Network labor services, Labor law, Independent labor, Dependentlabor

Change and Challenge: Regulation on the Internet Platform Based Labor
1. Introduction: The main types of network platform services
2. Judicial trial positions and differences
3. Subservience theory based on literature study
4. Dichotomy of legislation based on comparative study
5. Conclusion

1. Introduction: The main types of network platform services
The transaction form based on the rendering of service by the Internet, as part of the“sharing economy”, has developed under the impetus of network technology. Today,
when the Internet is closely tied to everyone through mobile terminals, the dissemination
and utilization of transaction information can penetrate into the subtle pores of social life.
In addition to the sharing of idle property represented by Airbnb, the integration andallocation of idle labor has gradually become an important part of the “sharing economy”.
Through the network platform to collect and disseminate labor information, enterprises
and other labor demand can establish contact with countless labor providers, however
network and information can be used to decompose massive tasks into unspecified laborpools.1 With the increase and accumulation of job opportunities, some labor providers
gradually deviated from the traditional labor mode, and changed from idle participation
1 See Alek Felstiner, Working the Crowd: Employment and Labor Law in the Crowdsourcing Industry, (2011) 32
Berkeley Journal of Employment and Labor Law, p.145.

to the main network labor transaction, thereby separating the "gig economy" of “service
demand-oriented” (on-demand) from the “sharing economy”. 2 In China's media andrelated discussions, it seems that the network labor service providers have become a"network contractor", and in the academic discourse of the field, such work methods are
regarded as a new form of "crowd-work" in the network age. It is used to summarize
certain tasks in the context of business crowdsourcing.3 The concept of “crowdsourcing”
was originally proposed by Jeff Howe,4 which can be understood as the outsourcing ofwork tasks to crowds. The World Bank divides the crowdsourcing work type into a“bilateral model” and a “trilateral model”. The former refers to the labor service main
body self-built platform using rendering of service. This type of platform is“managed
service platforms”; the latter refers to the third-party establishment and operation
platform, the labor demand and the provision of the two sides to conduct transactions on
the platform, this is "open service platforms".5 In practice, the former has a small scopeof application, and both practice and academic focus on the latter. Based on the existing
major platform trading methods, we further divide the platform under the “three-party
main model” into two categories:
1.1 Autonomous platform. The positioning of such platforms is to provide virtual
trading places and their trading rules. Labor Requester and labor providers are registeredon the platform respectively. Compared with entering the trading place, Labor Requester
publish work tasks, deadlines and quotations, and labor providers select jobs. The task,
which completes the offer-committed transaction process, does not participate in labortransactions and pricing, but charges a fee after the transaction is successful, typicallyAmazon's Mechanical Turk (AMT). The types of labor on such platforms are usually
microwork that requires only basic computing and language skills, such as selecting
pictures, modifying articles, paragraph translations, questionnaires, and so on.6 After thetransaction between the labor supply and demand sides is successful, the labor demandside shall pay 20% of the payment service consideration to the AMT as the platform usage
2

See Antonio Aloisi, Commoditized Workers. Case Study Research on Labour Law Issues Arising from a Set of‘On-Demand/Gig Economy’ Platforms, Comparative Labor Law & Policy Journal, Vol. 37, No. 3, 2016, p.654.
3 See Bernd Waas, Wilma B. Liebman, Andrew Lyubarsky, Katsutoshi Kezuka, Crowdwork – A Comparative Law
Perspective, HSI-Schriftenreihe 2017, p.13.
4
Jeff Howe, ‘The Rise of Crowdsourcing’, (2006) Wired 14.06,
http://archive.wired.com/wired/archive/14.06/crowds.html, August 19, 2018.
5
World Bank, The Global Opportunity in Online Outsourcing (2015), p.1.
https://openknowledge.worldbank.org/handle/10986/22284, August 20, 2018.
6 Panagiotis G. Ipeirotis, Analyzing the Amazon Mechanical Turk Marketplace, http://crowdsourcingclass.org/readings/downloads/platform/analyzing-mturk.pdf, August 20, 2018.

fee (MTurk Fee), which is at least 0.01 US dollars. 7 The trading structure of suchplatforms is shown in the Figure:

It can be seen that the platform is in a relatively neutral position, and the labor
provider does not regard the platform as accepting and managing laborers. For example,
in the CrowdFlower case, CrowdFlower is a data analysis company that splits theanalytical workload and subcontracts it to the service providers on the AMT platform as
Requesters. The labor provider sued CrowdFlower and demanded that it assumed theemployer’s obligations, but did not use the AMT platform as an employer or a joint
employer.8
1.2 Organizational platform. Such platforms provide not a virtual trading place, but
based on the Internet to construct remote trading access and formulate trading rules.
Representatives such as Uber and major domestic transporting and food delivery
companies in China, like Didi, Meituan, and Elema, Flashex, Dada, etc. Because suchplatforms directly participate in market development and competition, they are moreproactive and expandable. Their business is related to people's daily life, with more
popularity and numerous participants. It is the most important way to provide network
services in China. Some scholars have examined the provision of such rendering ofservice for a certain network car platform. The first stage is registration. The driverprovides relevant information such as name, ID number, driver's license, etc. The
platform reviews the information and informs the software operation and service process
through video. The registration can be completed; the second stage is the driver opens the7This regulation is a general platform usage fee. If a certain service needs to be decomposed into 10 or more tasks,
the labor demand side shall pay an additional fee to the platform at 20% of the labor consideration. See
https://www.mturk.com/pricing, 2018/8/23.
8 Otey v. CrowdFlower, Inc., No. 12-CV-05524-JST, 2013 WL 5734146 (N.D. Cal. Oct. 22, 2013).

software, and the platform sends the order, the driver confirms the order and completes
the work task.9 Existing such platforms follow this transaction structure, but the second
stage of work content is different due to different service areas. We summarize thespecific rendering of service such as network car, driving, and distribution into the"transaction" with labor as the target. Therefore, the transaction structure can be
expressed as "registration-transaction", which is the basic mode, and we call"organizational platform A".

This basic model derives two other modes in practice. One mode is that the platform
enters into a labor contract with the labor provider, and the two parties are clearly definedas labor relations. At this time, the “transaction” in the A model has been embodied as themeaning of labor law. On the "labor", the platform serves as the "employer unit" tomanage and supervise the working hours, workload, work flow, etc. of the labor providers
as "laborers". This is the organizational platform B. From the current practice point ofview, the B mode is relatively small, and still shows a decreasing trend.

Another derivative model is that the platform packages the workload of its specific
9 Wu Qingjun and Li Wei: "Labor Control and Work Autonomy in the Sharing Economy--A Mixed Study on theWork of Drivers of Network Cars", "Sociology Research", No. 4, 2018.

area as a whole to the agent, and the agent organizes the labor provider to complete thetask. The agent signs the labor contract with the labor provider, and the labor provider
accepts the command and supervision as the “employee” hired by the agent, and registers
with the platform to accept the order. This model is “Organization Platform C” and its
transaction structure is shown in the figure.

In a case, a large-scale distribution network platform explained the three ways ofrendering of service: one is APP crowds of riders, the natural person downloads andregisters the platform APP, and uses their own spare time to receive orders; the second is“self-operated rider” ", that is, the labor provider and the network platform enter into alabor contract; the third is the agent rider, and the platform agent and the labor provider
enter into a labor contract. 10 The three parties correspond to the three modes oforganizational platforms A, B and C respectively. That is to say, the same platform canhave three labor organization modes. For example, some network car platforms also haveself-employed drivers, and the same as the self-employed riders of the distribution
platform. From the perspective of legal relationship, the platform or agent under the B
and C modes has signed a labor contract with the labor provider, and there is a clear
employment relationship. The court also recognizes the result of the autonomy of bothparties. After the accident, the referee is judged according to the employment
relationship.11

1011Case No.: (2017) Su 0106, Minchu 1322.
Case No.: (2018) Shanghai 0107 Minchu 4036"; (2017) Jin 0104 Minchu 9557; (2017) Ji 0102 Minchu No. 223.

2. Judicial trial positions and differences
The divergence of the nature of the network labor contract is concentrated in theorganizational platform A mode, that is, the labor provider completes the work task
through platform registration and order taking, which is a typical " rendering of service
based on the Internet." The common point between the A mode and the B and C modesis that the Labor Requester sends an offer to the platform to complete the specific work
results. The platform organizes the labor service provider through the grab or dispatch
system to complete the work task. The control of performance and the autonomy ofworkers’ work are only “work tasks become more fragmented and labor control becomesfragmented.” 12 Platform organization services involve tripartite relations that do notconform to typical contract characteristics, resulting in two types of views on the natureof contractual judicial decisions:
The first type of judgment states that labor providers and online platforms do notconstitute labor relations. Specifically, it includes two situations. One is that the labor
provider directly appeals to the court to determine the employment relationship, and theother is that the third party has personal damage caused by the labor service. The court
needs to judge the relationship between the labor provider and the network platform. The
main points of the court's investigation include the flexibility of the labor service
provider's working mode. It has the right to decide whether to work, the time and placeof work. The work income is not the labor compensation; the network platform does notprovide labor tools, and there is no management and control over the labor providers or
mandatory constraints, do not meet the characteristics of the subservience, the two sides
do not constitute an employment relationship.13 Therefore, the network platform does
not assume labor law obligations to labor providers, nor does it assume liability for third
party damage caused by labor providers.
12

Professor Wu Qingjun pointed out that compared with traditional employment organizations, the sharing
economic platform has undergone new changes in the control of the labor process through new Internet
technologies and new forms of employment. The platform only controls the process of the laborer to complete thework task, while the other time is self-management by the laborer; at the same time, the laborer can also freely
choose the working time and the work place, and has certain work autonomy. See Wu Qingjun and Li Wei: "Labor
Control and Work Autonomy in the Sharing Economy--A Mixed Study on the Work of Network Drivers","Sociology Research", No. 4, 2018. It should be noted that in the sociological sense, "laborers" are different from"laborers" in the sense of labor law. The former does not presuppose the existence of labor relations, andcorresponds to labor employment in the general sense.
13 Case No.: (2018) Jing 03 Minzhong 5233; (2016) Shanghai 0109 Minchu 22401; (2017) Jing 0102 Minchu
32348; (2017) Jing 0101 Minchu 6586; (2017) Jing 0102 early No. 10084; (2017) Wan 11 Min Zhong 938; (2017)
Lu 10 Min Zhong 1858; (2017) Su 0106 Minchu 1322; (2016) Beijing 0107 Minchu 4021.

While negating the employment relationship, some courts further analyzed thenature of the contract, pointing out that the network platform engaged in intermediation
services in the form of providing information, and it was an intermediary contractual
relationship with the labor provider.14 In the cases of personal injury, a few courts did
not use the existence of labor relations as the starting point of analysis, but directly
identified them as intermediaries based on the behavior and function of the network
platform .15
The second type of judgment considers that labor providers and labor platforms
constitute labor relations. In the judgments that have been retrieved, the focus of suchcases is the issue of liability for personal injury during the performance of rendering ofservice. The minority of them are personal injury suffered by labor providers
themselves, and most of them are third-party damage caused by labor providers. The
court examines the legal relationship between the labor provider and the online platform
in order to determine the subject of responsibility. In the analysis of legal relations, eachcourt has determined that the labor provider is engaged in the business provided by theplatform, accepts the management of the platform and is bound by the relevant system.
The platform pays the labor remuneration. There are also individual cases that have notbeen characterized using the above concepts, using only the descriptive concepts of“staff” and “execution of duties”.16
The combing judgment can find that the main differences in the contract nature of
the judicial judgment include:
First, whether the network platform has “use labor service” for labor providers.
The judgment of non-labor relations position holds that there is no fact of using labor
service between the network platform and the labor provider. The judgment that
advocates the intermediation relationship more clearly indicates that the behavior of the
network platform is only providing information. The judgment that the two are labor
relations is based on the fact that the use of labor is recognized. The difference lies in
the fact that the judgment of the employment relationship is based on the "Notice on

14

Case No.: (2017) Beijing 0106 Minchu No. 14428; (2017) Su 0213 Minchu 8149; (2017) Lu 0213 Minchu No.
187; (2018) Jing 0102 Minchu No. 4883; (2017) Tianjin 0102 early No. 7604; (2017) No. 5396, Su 0102, No. 5396;(2016) Shanghai 0115, the beginning of the 81742; (2017) Shanghai 0115, the early 25255; (2017) Shanghai 0115,
the early 25257; (2017) Shanghai 0106 early No. 8770; (2017) Shanghai 0104, the beginning of the 8948; (2017)
Zhejiang 0108 early 1626; (2017) Zhejiang 0108 early 1046; (2017) Beijing 0107 early 13804.
15 Case No.: (2017) Su 0104 Minchu No. 937; (2015) Drum Minchu No. 7340.
16 Case No.: (2017) Zhe 01 Min Zhong 4425; (2017) Shanghai 01 Min Zhong 10822.

Establishing Labor Relations Related Matters" issued by the former Ministry of Laborand Social Security (The Ministry of Social Affairs issued [2005] No. 12, hereinafterreferred to as Circular No. 12).17 The main judgments of other personal injury cases
are based on Article 34, paragraph 1, of the Tort Liability Law. “If the staff of theemployer causes damage to others due to the execution of work tasks, the employer
shall bear the tort liability”. In the legal sense, the judgment applies to the No. 12
document that the employment relationship is also the judgment of the contract nature,
which of course includes the fact of using rendering of service. However, theapplication of the provisions of Article 34, paragraph 1, of the Tort Liability Act does
not imply a contract. The Supreme Court’s use of the concept of employers andemployees in the Interpretation of Several Issues Concerning the Application of Laws
in the Trial of Personal Injury Compensation Cases (hereinafter referred to as“Humanity Interpretation”) establishes the responsibility of the employer, and Articles
34 and 35 of the Tort Liability Act changed to the responsibility of the user. The
difference is that in the case of the responsibility of the employer, the court should be
responsible for determining the employment relationship. The premise of theapplication of the responsibility of the user is to use the relationship. “The use
relationship is not a legal relationship, but a factual relationship, that is, the fact thatone party uses the other party.” 18 Therefore, in the case of a third party’s damage
caused by the labor provider, the legal relationship between the platforms is not the
judgment of the court. The court only needs to verify the fact that the platform has theuse of rendering of service.
Second, whether the network platform has “management control” for labor
17 The "Notice on Establishing Matters Related to Labor Relations" is the basic norm for judicially recognizedlabor relations in China. Article 1 of the notice stipulates that if the employer recruits the laborer without entering
into a written labor contract, but at the same time, the labor relationship is established. 1. The employer and theemployee meet the qualifications of the subjects stipulated by laws and regulations; 2. The labor rules andregulations formulated by the employer according to law apply to the laborer, the laborer is employed by theemployer, and the employer is paid by the employer. Labor; 3. Labor provided by workers is an integral part of theemployer's business.
18 Porf. Liang Huixing pointed out that the responsibility of employers is the earliest one of the civil law tort
liability. Later, in the referee practice, a problem was found. If the employer’s responsibility was strictly followed,
the court should first examine whether there is an employment contract relationship between the defendant and theperson causing the damage. In the early practice, if it was examined that there was no employment contract
between the person who caused the damage and the defendant in the case, the court would reject the plaintiff's(victim) request. Because the name of the employer's responsibility will make the judge think of the employment
contract and the employment contract relationship as a prerequisite. Later, I noticed that such a treatment wasinconsistent with the legislative purpose of the system, so I changed the name and renamed it as the responsibilityof the user...that is, to prevent the judge from dying at the time of application or not. See Liang Huixing: “Several
Issues in Civil Legislation, Theory, and Practice”, China Law Network
http://www.iolaw.org.cn/showArticle.aspx?id=3999, August 10, 2018.

providers. In the process of using labor service, whether the platform has management
control over labor providers is the main basis for distinguishing labor relations from othertypes of civil labor contract relationships. In the first type of judgment, the court foundthat there was no employment relationship or the fact that the intermediation relationshipwas denied when the use of labor was denied, and of course there was no management
control. In the second type of judgment, the court's analysis of "management control" incases of personal injury is the factual determination of serving "use of labor", so only theappearance factors such as work cards, uniforms, pricing power, charging standards, etc.
As long as it can infer the fact that there is labor service between the platform and thelabor provider. However, in cases where labor relations are recognized, management
control analyzes the labor payment method based on the facts of using rendering ofservice, based on the subservience theory. 19 In the widely-recognized "Flashex
Confirmation Labor Relations Case", the court's interpretation of "management control"
includes: First, personality is subordinated, platform company and flasher are in line with
the qualifications of labor relations; platform companies work mode, characteristics,
income calculation and other aspects of the description belong to the recruitment
information, there are work standards requirements, belonging to the company's
recruitment and training; the platform company issued the badge and the service process
requirements after the badge; the delivery staff can decide whether to take the order, but
the company's rules and regulations must be followed after receiving the order. Second,in terms of economic subservience, the flasher working hours and remuneration are
relatively stable, and this remuneration constitutes its main labor income. Third, thebusiness composition requirements, the court believes that the platform company actuallyorganized the entire process of cargo transportation, so the nature of the company is the
cargo transportation company, the delivery service of the flasher is part of its business. In
addition, the court also admitted that the flasher can decide whether to take the order ornot, and decide which kind of transportation to use. The platform company has no
attendance, does not limit the working time, place, workload, and does not provide labor
tools. The above-mentioned labor characteristics are classified as the flexibility of labor

19

The theory of subservience is the basis for the recognition of labor relations recognized by academic circles andthe judiciary in China. The so-called subservience refers to the laborer's payment of labor under the command andsupervision of the employer, including personality and economic and property. From the origin of subservience
theory in Germany, through Japan and Taiwan to the mainland, please see Wang Tianyu: "The Distinction between
Manager Employment Contract and Appointment Contract", China Law, No. 3, 2016.

relations by the court, and are the characteristics of new job jobs after Internet information
technology intervenes in traditional labor relations.20

3. Subservience theory based on literature study
The so-called “subordination” refers to that the employees provide the labor under
the command and supervision of the employer, which is the essential characteristic of
employment relations, and also the basis for the determination of employment relations
recognized by academic circle and judicial practice.21 Some scholars have pointed outthat “subordination” is the most prominent feature of the labor contract, and all conceptsof labor law different from the concept of traditional civil law are carried out on thisconcept.22
German academic theory of takes the “personality subordination” (persönlichen
Abhängigkeit) as the general theory, namely, the difference between the employment
relations and other labor service providing relations like the commission and thecontract is “the different degree of personal dependency of labor service provides (denunterschiedlichen Grad der Persönlichen Abhängigkeit)”.23 Academic community inJapan and China’s Taiwan Region also agree to take the personality subordination as
the core standard. According to Prof. Wagatsuma’s point of view, the commanding
power of the user (employer) is only to facilitate their own interests, while to bind thelabor person’s (laborer) personality improperly...... so that “to a certain extent to form
a personality combination relation” between employers and employees, which makes
the labor service community (Arbeitsgemeinschaft) with a large number of personality
law color (personenrechtliche Farbe). While in other labor supply contracts, such as theappointment, the inseparability between the labor service and personality does not
20

Case No.: (2017) Beijing 0108 Minchu 53534.
Refer to academic argumentation: Zheng Shangyua. Law Boundary of Employment Relation Adjustment--The
System and Idea of the Adjustment of Employment-type Contractual Relations in Civil Law and Labor Law. China
Legal Science, 2005(3); Feng Yanjun, Zhang Yinghui. Rethinking and Determination of Standard for theDetermination of Employment relations. Contemporary Law Review, 2011(6); Xie Zengyi. The Connotation of
Employment relations and The Identification Determination of the Employer and the Employee. Journal ofComparative Law, 2009(6); Li Haiming. On the Labors in Labor Law. Tsinghua Law Review, 2011(2); Lv Lin. On
the Standard for Determining the Subject of “Laborers”. Studies in Law and Business, 2005(3); There are so many
relevant judicial case, for the cases recommended by Beida Fabao, refer to [2013] Tian Min Yi Chu Zi 1109, [2012]
Hu Yi Zhong San (Min) Zhong Zi 1344, [2010] Hu Er Zhong Min Yi (Min) Zhong Zi 58, [2015] Tong Zhong Min
Zhong Zi 01440.
22 Huang Yueqin. New Discussion on Labor Law. China University of Political Science and Law Publishing House,
2003:94.
23 Rimund Waltermann. German Labor Law, translated by Sheng Jianfeng. Law Press, 2014: 47-48.23
21

constitute the improper restraint on the personality of the debtor. 24 Academic
community in China’s Taiwan Region stresses on the employer’s command anddiscipline on the interpretation of personality subordination. For example, Professor
Huang Chengguan believes that “the employer should be disciplined to protect thenormal production and operation of enterprises and authority of the investor’s operationand management.”25 Professor Huang Yueqin also points out that “the subordinationof the personality instructs the relation of subordination, and it also includes the issueof disciplinary power in the order. Because of the existence of disciplinary power, theemployer can reach a certain degree of interference and coercion concerning theinternally psychological activities of the labor, which is therefore the strongest effect of
personality subordination, and also the most fundamental point.” 26
In the process of judging employment relations by the application of subordination
theory, countries’ judiciary has accumulated a large number of practical experiences,which has detailed the interpretation of academic theories by case-based reasoning. In
the judicial practice, the German Federal Labor Court sums up the characterization of
personality subordination into three aspects: first, the laborer provides the labor under
the command and supervision of the employer, and the time, place and manner of labor
are determined by the employer, not autonomously determined by the labor; second,
the laborer enters into the employer’s business or production organization to provide
labor services; third, laborer provides the labor services for the purpose of realizing theemployer’s interests.27 In the judgment of specific cases, the court “has the necessity
to comprehensively consider all relevant situations to make an overall evaluation”,28
and the judgment that are finally made shall be in accordance with the “typical method”(Typologische Methode), namely, “the inclusion of a legal type requires in specific cases
the assessment and weighing of all indicators that are symbols for objecting andsupporting the existence of employment relations or autonomous working relation.29
For example, in the case of “employment status of TV journalist”, the court held that in

24 Wo Qirong (わがつま さかえ) . Notes of Civil Law. Individual Discussion on Obligation Law (Vol 2),translated by Zhou Jianghong. China Legal Publishing House (2008): 4,13.
25
Huang Chengguan. Labor Law. Open University of Kaohsiung Publishing House (1997): 64.
26
Huang Yueqin. New Discussion on Labor Law. China University of Political Science and Law Publishing House(2003): 94.
27
BAG NZA 1993, 174, 175; 1992, 36, 37; 894, 895.
28 BAG 19.1.2000, AP Nr. 33 zu § 611 BGB Rundfunk. Cited from Wang Qian, Zhu Jun. Studies on the Typical
Judgment Cases from German Federal Labor Court. Law Press, 2015: 15.
29 Rimund Waltermann. German Labor Law, translated by Sheng Jianfeng. Law Press, 2014: 48.

the field of media, the judgment of employment relations could not pay too muchattention to the external manifestations. Under the long-term cooperation framework
between two Parties, defendants could dominate the plaintiff’s time like the employer,
while the plaintiff always kept the state of being on standby, then this situation showeda typical personality subordination.30
Japan’s judicial judgment for the subordination of employment relations is also
based on the employer’s command and supervision as the core. For example, in the“Yamazaki Securities Incident”, the Japanese Supreme Court held that the securities
export sales stuff engages in the export sales act, accepts and makes orders on behalfof clients, and bears corresponding obligations independently. From the content pointof view, it is not an employment contract, but an appointment or contract similar to theappointment, which is applicable for the labor law.31 In the Daping Paper Event, abusiness appointment contract was signed between the technician and the company,
while the Japanese Supreme Court held that the technician’s working hours is fixed,
and the technician is subject to the company’s command and management. Therefore,
although the Parties has signed the appointment Contract, which in essence should be
the employment contract.32
Judiciary in China’s Taiwan Region is deeply influenced by the “theory of
dichotomy” between personality and economy subordination. Therefore, both of them
are discussed in the case judgment. For personality subordination, the reviewing
elements proposed by the court include: first, whether the providing of labor services
is under the command and supervision; second, whether the laborer has the right torefuse to implement the instructions; third, whether the working hours and theworkplace are determined by the other Party.33 For economy subordination, the court
interpreted it as “the employee works not for his own business, but subordinate to others,
and works for the purpose of others.”34 Specifically, “the labor service provider works
not for his own business, but subordinate to others, and works for the purpose of others.
The labor service provider works not by his production tools, and cannot implement
30 Wang Qian, Zhu Jun. Studies on the Typical Judgment Cases from German Federal Labor Court. Law Press,
2015: 6.
31
Yamazaki Securities Case. Decision Made by the First Small Tribunal of Supreme Court in 25 May, 1961, Civil
Law 15-5-1322.
32
Daping Paper Case. Decision Made by the Second Small Tribunal of Supreme Court in 18 May, 1962, Civil Law
16-5-1108.
33 [2014] Zhong Lao Shang Zi 19, the civil judgment made by “High Court” in China’s Taiwan Region.
34 [1992] Tai Shang Zi 347, the civil judgment made by “High Court” in China’s Taiwan Region.

the influence on his work with commanding, planned or creative approaches.”35
Based on the analysis of subservience theory, network labor providers cannot be
included in the scope of labor law adjustment due to lack of subservience. Then, if we
insist on the use of labor law as an institutional tool to adjust network labor, or insist on
incorporating this network service into the scope of labor law adjustment, then thesubservience theory becomes a “roadblock”. The reluctance and weakness of labor law
for network labor lies in the boundary defined by subservience theory. Therefore, in
response to the “challenge” of labor service on labor law, there is a “challenge” on thesubservience theory. The viewpoints worthy of reflection include:
First, the overall challenge, that is, the generation of subservience theory in the eraof large industry, is no longer in line with modern production methods, and the laborlaw based on subservience theory is also a "traditional labor law" and should bechanged. However, we can see that the transformation of production methods inGermany and Japan was earlier than in China, but it still adheres to the subservience
theory and continues to develop richly in the judiciary. In Germany, in the non-large
industries case of the "TV reporter employee status" case 36 and Japan "securities
exporter case",37 it is still based on the analysis and judgment of the subservience. The
reason is that, although the production mode has changed, the nature of the labor service
under the supervision of the employer has not changed. China's current production
methods are already rich and diverse, and judicially generally based on the subservience
theory to identify labor relations. We believe that what needs to be done is to improve
the system norms based on the subservience theory in the "Notice on Establishing Labor
Relations Related Matters" (Labor and Society Department [2005] No. 12), instead of
negating it from the outdated subservience theory. The subservience theory is the"tradition" of labor law. This kind of "tradition" needs to be studied and understood in
more depth, rather than giving up.
Second, local challenges. This view recognizes that personality traits are theessential characteristics of labor relations, but considering that some network labor
providers use this as their main source of life, they have formed economic subordination.

35[2007] Lao Shang Zi 6, the civil judgment made by “High Court” in China’s Taiwan Region.
Wang Qian, Zhu Jun. Studies on the Typical Judgment Cases from German Federal Labor Court. Law Press,
2015: 2.
37 Yamazaki Securities Case. Decision Made by the First Small Tribunal of Supreme Court in 25 May, 1961, Civil
Law 15-5-1322.
36

Therefore, personality and economics should be separated from subservience, based on
economic subservience. Introduce the concept of “analogous workers in Germany” andconstruct a new type of “laborers”, thereby expanding the scope of identification oflabor relations and giving certain protection measures for labor laws. However,"analogous laborers" are not "laborers" in the sense of labor law, and they have special
protection because of economic subservience. Although applicable labor law systems
such as paid annual leave, labor safety protection, and collective contracts can beapplied, labor laws and regulations other than this basically do not apply.38 This is akind of independent legal protection object, not a new type of labor law adjustment
object. The application of certain labor law protection measures does not mean
expanding the scope of application of labor law. Therefore, it is possible to define theeconomics from the subservience from the list of subservience to define the labor
providers with protection needs, which does not negate the integrity and validity of thesubservience theory under the labor law framework. These two are separate systems
that are independent but interconnected.
An analysis misunderstanding that seems to exist is to set the network labor
provider into the scope of labor law adjustment as a logical starting point, and to achieve
the purpose of expanding the scope of application of labor law by "challenging" andcorrecting the subservience theory. However, this "result-oriented" thinking ignoresthat the adjustment of the law to social life should proceed from objective reality. Sincecyber labor is different from dependent labor, the corresponding guarantee mechanism
should be constructed based on the characteristics of the labor service, instead of “cutthe feet to fit the shoes”, and changing the labor law in order to apply the labor law. If
so, how does the labor law stabilize, and how most of the employment groups that haveconcluded labor relations based on existing rules and from the subservience theory will
be affected.

4. Dichotomy of legislation based on comparative study
Most countries in the world have constructed a rule system based on
employee/self-employed dichotomy based on the dichotomy of "independent labor38 Wang Qian, “The Determination of Labor Relations in German Law”, Journal of Jinan (Philosophy and Social
Sciences), No.6, 2017.

dependent labor", such as the United States, Japan, and France. France's recent
judgments have determined that online food delivery staff are not laborers, 39 andJapanese justice tends to limit the scope of laborers, but recognizes that the scope ofworkers in the collective labor relations law is larger than the individual labor relations
law. 40 This type of legislative model is “one or the other”. This is in line withinstitutional logic that labor law protects workers, not other labor providers.
Another legislative model is to regard "independent labor-dependent labor" as twopoles, to construct a transitional type of labor from independence to dependent, and toprovide corresponding protection measures according to the degree of protection needsof various types, representing the country as Germany, the United Kingdom and Canada.
Among them, the scope of "workers" in English law is wider than "employee". In 2017,
the British government Taylor Review proposed to change "workers" to "dependent
contractors" that can obtain protective measures such as wages and working hours 26.
Canadian law on the “dependent contractor” and its collective bargaining mechanism.
This type of legislative model is “progressive” and can be expressed as “independent
labor...dependent labor”.
Regardless of the legislative model, the scope of adjustment of the labor law isbounded, and the basis for delineating this boundary is the subservience theory. With
the gradual weakening of the subservience, labor relations and appointments. Theremay be unclear borders on other labor service payments, such as contracting, but itshould be recognized that the general boundary exists. Within the boundary of thisdependent labor, the problem of insufficient flexibility of labor law is that different
protection measures are not given to workers who have different strengths andweaknesses, so that company executives and migrant workers apply the same rules,
resulting in partial labor. The level of protection is too high, and the level of protectionof some workers is insufficient. This is the realistic basis for the classification
adjustment mode of labor law. However, due to lack of subordination, network service
providers have not entered the boundary of the scope of labor law adjustment.
Regardless of how the labor law is classified and flexible, it does not actually involve
network labor providers. Of course, network labor service does not pose a challenge to39

E.g. Paris, pôle 6, 2e ch. 20 avr. 2017 n° 17/00511, confirmant une décision du cons. prud'h. Paris, 17 nov. 2016.
Bernd Waas, Wilma B. Liebman, Andrew Lyubarsky, Katsutoshi Kezuka, Crowdwork – A Comparative Law
Perspective, HSI-Schriftenreihe 2017.
40

labor law.
Labor law is a set of rules system, which can be regarded as a “toolbox” ofprotection measures, such as minimum wage, working hours, labor safety protection,
paid vacation, collective bargaining, etc., which can be extracted from the “toolbox”.
On the basis of the contract of civil labor payment, a new type of protection mechanism
is constructed. Through the referral and sham between public and private law, therelationship between regulation and autonomy is formed. It cannot be said that the
introduction of the institutional tools of the labor law falls within the scope ofadjustment of the labor law, just as the administrative contract is not within the scopeof adjustment of the contract law. For example, the “analogous laborers” in German
law, although applying certain labor law systems, are not the subject of adjustment oflabor laws.
Therefore, the real problem for network labor providers is how to provide themwith appropriate protection mechanisms, rather than discussing their inclusion in thescope of labor law adjustments. The direction of our efforts should be to explore theestablishment of a multi-level legal protection network in addition to the dependent
labor adjusted by the labor law, so that those who overflow from the labor law due toinsufficient property can obtain the next level of legal protection. At the same time, itneeds to combine a variety of institutional tools of the public and private laws to build
a gradual protection system, and to achieve the normative model from "independent
labor - dependent labor" to "independent labor ... dependent labor", rather than to obsesswith expanding the scope of labor law adjustment and to trap in a anxiety of"Challenge".

5. Conclusion
The transaction form of rendering of service based on the Internet platform ismixed with a variety of forms of employment. The current literature has been explainedin general. The research in this paper emphasizes the type of network labor, and extracts
the labor service providers with work autonomy. It advocates providing corresponding
guarantee mechanisms on the characteristics of its work and the social risks it faces.
The main conclusions are three:First, among the transaction models formed by network labor providers andorganizational platforms, only labor service providers with work autonomy have thenecessity of special research and special protection. In the transaction model formed by
the organizational platform as the core, there are labor providers hired according tolabor contracts, and there is no substantive difference from the regular labor relationship.
It should be noted that a group of labor service providers with work autonomy createdby their information advantages and flexibility can independently decide whether towork and the time and place of work, so that they are different from the workers in thegeneral sense. This labor providers are new types created by the Internet platform, andto some extent represent the development direction of network services. It is also a new
problem what kind of legal relationship between the labor provider and the platform.
The judiciary mainly has differences on whether it can constitute a labor relationship.
The mainstream opinion does not constitute a labor relationship.
Second, the network labor service provider with work autonomy does not have thesubservience of labor relations, and does not belong to the scope of labor law
adjustment. The subservience theory is the legal basis for determining labor relations,and it is also the theoretical basis for determining the scope of application of labor law.
The subservience requires the laborer to provide labor under the command andsupervision of the employer, and the laborer does not have work autonomy. The
network labor service provider is independent in personality and has work autonomy,
but it is economically subordinated to the platform, and the labor income is the main
source of life. It should be acknowledged that this type of network labor service
provider has the necessity of social protection, but its working mode is intrinsicallydifferent from the labor relationship because it does not have the subservience. It should
not be included in the scope of labor law adjustment, but should give corresponding
protection according to its own characteristics.
Third, the law should establish a protection mechanism for network labor
providers between “independent labor” and “dependent labor”. The development of
network information technology has enabled labor to break away from organizedenterprise units, and individuals have gained greater autonomy. In the past, the legal
framework for adjusting the "labor trade" was established on the basis of organizedemployment, that is, the labor mode in the organization is subservience labor, and thelabor mode outside the organization is independent labor, and the two correspond tolabor law and civil law respectively. However, the Internet platform has graduallystructured and organized the production system, which has resulted in the formation ofa new type of labor provider with independent personality and economic subservience
between “independent labor” and “dependent labor”. It doesn’t meet its characteristics
and needs that simply adjusted by labor law or civil law. Therefore, some systems
should be drawn from the labor law, civil law and related social security laws, and an
independent legal guarantee mechanism should be constructed.