Abstract: At present, the main path for the legal regulation of platform work in China is administrative guidance, which means that relevant ministries issue “guiding opinions” to regulate platform work. This path leads to many problems such as abstractness of the content of relevant rules, inconsistency between rules, lack of judicial rules, and difficulty in obtaining legal remedies. The introduction of the concept of “a situation where the standard of labor relationship is not completely met” (“incomplete labor relationship”) in “guiding opinions” has brought about many theoretical controversies and practical difficulties. Judicial organs also issue judicial documents and reports on typical cases, but their guidance on judicial practice is limited. In view of these problems, China should adjust and optimize the regulatory path for platform work by building through special legislation and judicial interpretations a set of comprehensive and consistent rules with complete rights content and legal remedies. In addition, in light of the new characteristics of platform work, China should improve the rules for the determination of labor relationships and basic labor standards, as well as the rules related to algorithmic management, data protection, and regulation of artificial intelligence in platform work. At present, China does not need to introduce the concept of “subject of third category” in labor law or the concept of “incomplete labor relationship” in its legislation. Instead, it should provide basic labor rights protection for most platform workers through the exclusion of certain platform workers. On this basis, platform workers who meet the definition of “employee” should be fully protected by the labor law.

Key Words: platform work; regulation; algorithm; subject of third category

Author: XIE Zengyi, research fellow and deputy director, CASS Institute of Law;

Source: 2 (2024) Peking University Law Journal.