"Golden Autumn Explosion" Rule of Law Drama "Bottom Line"

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"Professional Beauty" and "Real Grounding"

Is the audience's evaluation

"Professional rigor is worth pursuing" and "This is our daily work"

It is Amway and recognition for many legal workers.

The legal issues involved.

It has also attracted everyone's attention.

Bottom line, the first civil case is the sudden death of a female anchor. In this case, Luo Youyou was the female anchor of Kababa Culture Media Co., Ltd. and died suddenly during the live broadcast.

Therefore, Luo Youyou's parents sued the court, demanding that Luo Youyou had a labor relationship with the company, and demanding that the company pay a total of 6,543,800 yuan in funeral subsidies, support relatives' pensions and one-time work death subsidies.

Kabakaba Company believes that it signed a brokerage contract with Luo Youyou, which belongs to the contractual relationship between equal civil and commercial subjects, and there is no labor relationship.

Finally, the court ruled that Luo Youyou had a labor relationship with Kabakaba Company, and Kabbah Company paid Luo Youyou's parents 6,543,800 yuan.

What legal knowledge is involved in this case?

It is the legal obligation of the employer to sign a labor contract with the laborer. If no labor contract is signed, but it conforms to the characteristics of labor relations, it is likely to be considered as the existence of factual labor relations. Therefore, it is a misunderstanding that a labor contract is not signed, or the name of the signed contract is not a labor contract, which does not constitute a labor relationship.

Although Luo Youyou did not sign a labor contract with the company, he signed a brokerage contract, but the court found that there was a de facto labor relationship between them after investigation.

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People's Republic of China (PRC) labor contract law

Article 7 Establishment of Labor Relations The employing unit shall establish labor relations with laborers from the date of employment. The employing unit shall establish a roster of employees for future reference.

Article 10 A written labor contract shall be concluded when establishing labor relations.

If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment.

If the employer and the employee conclude a labor contract before employment, the labor relationship shall be established from the date of employment.

According to the relevant regulations, the establishment of labor relations first requires employers and workers to meet the subject qualifications stipulated by laws and regulations; Then, workers should be managed by the employer and engaged in paid labor arranged by the employer; Finally, the labor provided by laborers is an integral part of the employer's business.

Kabakaba Company is a webcast company, which has the main qualification to become an employer. Luo Youyou is an anchor, engaged in the company's business. Luo Youyou's live broadcast location is in the company. The content and time of live broadcast are decided by the company, and the working hours are relatively fixed. She also has a company access card. The company pays the basic salary for its live broadcast, and the payment time and amount are relatively fixed. It can be seen that Luo Youyou has accepted the management of the company and engaged in paid labor arranged by him.

Therefore, the court held that although the two parties signed a brokerage contract, there were personal subordination and economic subordination in the actual performance process, which was in line with the characteristics of labor relations and ruled that there was a labor relationship between the two parties.

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Notice of the Ministry of Labor and Social Security on establishing labor relations. Ministry of Labor and Social Security issuedNo. [2005] 12

1. The employer has not signed a written labor contract, but in any of the following circumstances, the labor relationship is established.

(a) the employer and the employee meet the subject qualifications stipulated by laws and regulations;

(2) Laborers accept the labor management of the employing unit and engage in paid labor arranged by the employing unit, and the labor rules and regulations formulated by the employing unit according to law shall apply;

(3) The labor provided by laborers is an integral part of the employer's business.

In addition to being injured by accidents in working hours and workplaces due to work reasons, accidents in workplaces around working hours due to work-related preparatory work or finishing work are also industrial injuries. In addition, traffic accidents on the way to and from work, if not my main responsibility, are also work-related injuries.

It should be pointed out that a sudden illness or death within 48 hours after being rescued is regarded as a work-related injury.

Luo Youyou died suddenly during the live broadcast, which is in line with the situation of sudden illness death or death within 48 hours after being rescued, and belongs to work-related injuries.

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Regulations on industrial injury insurance

Fourteenth employees in any of the following circumstances, should be identified as work-related injuries:

(1) Being injured by an accident during working hours and in the workplace;

(two) before and after working hours, in the workplace, engaged in preparatory or finishing work related to the work and was injured by an accident;

(three) during working hours and workplaces, due to the performance of duties by violence and other accidental injuries;

(4) Suffering from occupational diseases;

(five) during the business trip, injured or missing due to work reasons;

(six) on the way to work, I was injured by a traffic accident or an urban rail transit, passenger ferry or train accident for which I was not primarily responsible;

(seven) other circumstances that should be recognized as work-related injuries as stipulated by laws and administrative regulations.

Fifteenth employees in any of the following circumstances, as a work-related injury:

(a) died of sudden illness during working hours and at work, or died within 48 hours after being rescued;

(2) safeguarding national interests and public interests in emergency rescue and disaster relief activities;

(3) An employee who was formerly in the army and was disabled due to war or business has obtained a revolutionary disabled soldier's certificate, and the old injury recurs after going to the employer.

Employees who fall under the circumstances mentioned in Items (1) and (2) of the preceding paragraph shall enjoy the treatment of work-related injury insurance in accordance with the relevant provisions of these Regulations; In case of item (3) of the preceding paragraph, the employees shall enjoy the treatment of work-related injury insurance in addition to the one-time disability allowance in accordance with the relevant provisions of these regulations.

Article 16 An employee meets the provisions of Articles 14 and 15 of these Regulations, but under any of the following circumstances, it shall not be deemed as a work-related injury or regarded as a work-related injury:

(a) Intentional crime;

(2) Being drunk or taking drugs;

(3) Self-mutilation or suicide.

If an employee is injured by an accident or is diagnosed and identified as an occupational disease in accordance with the provisions of the Law on the Prevention and Control of Occupational Diseases, the unit to which he belongs shall, within 30 days from the date of the accident injury or the date of diagnosis and identification as an occupational disease, apply to the social insurance administrative department in the overall planning area for work-related injury identification. If the employing unit fails to apply for work-related injury identification, the workers with work-related injuries or their close relatives and trade unions may apply for work-related injury identification directly to the social insurance administrative department of the overall planning area where the employing unit is located within 1 year from the date of accident injury or occupational disease diagnosis and identification.

If there is a dispute between the employee and the employer on whether there is a labor relationship in the process of identifying the work-related injury by the administrative department, the administrative department will generally suspend the time limit for identifying the work-related injury, and the employee will apply for arbitration to confirm the labor relationship. If he refuses to accept the arbitration, he can bring a lawsuit to the court. After the confirmation of labor relations, the administrative department shall make a decision on the determination of work-related injuries. If it is identified as a work-related injury, but the employee and the employer cannot reach an agreement on the treatment of the work-related injury, the employee needs to apply for labor arbitration again.

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Regulations on industrial injury insurance

Article 17 If an employee is injured by an accident or is diagnosed and identified as an occupational disease according to the provisions of the Law on the Prevention and Control of Occupational Diseases, the unit to which he belongs shall, within 30 days from the date of the accident injury or the date of the diagnosis and identification as an occupational disease, apply to the social insurance administrative department in the overall planning area for work-related injury identification. Under special circumstances, with the consent of the administrative department of social insurance, the application time limit may be appropriately extended.

If the employing unit fails to apply for work-related injury identification in accordance with the provisions of the preceding paragraph, the employees with work-related injuries or their close relatives and trade unions may directly apply for work-related injury identification to the social insurance administrative department where the employing unit is located within 1 year from the date of the accident injury or the date of being diagnosed as an occupational disease.

In accordance with the provisions of the first paragraph of this article, matters that should be identified by the provincial social insurance administrative department shall be handled by the municipal social insurance administrative department located in the district where the employer is located in accordance with the principle of territoriality.

If the employer fails to file an application for work-related injury identification within the time limit specified in the first paragraph of this article, the employer shall bear the relevant expenses such as work-related injury treatment in accordance with the provisions of these regulations during this period.

Measures of Shanghai Municipality for the Implementation of Industrial Injury Insurance

Article 18 (Application Materials for Work-related Injury Identification)

To apply for work-related injury identification, the following materials shall be submitted:

(a) the application form for work-related injury identification;

(two) the existence of labor relations with the employer (including factual labor relations);

(3) Medical diagnosis certificate or occupational disease diagnosis certificate (or occupational disease diagnosis certificate).

The application form for work-related injury identification shall include the time, place and cause of the accident and the degree of injury of the employees.

If the materials provided by the applicant for ascertainment of a work-related injury are incomplete within the time limit as prescribed in these Measures, the county human resources and social security bureau shall, within 10 working days from the date of receiving the application for ascertainment of a work-related injury, inform the applicant in writing of all the materials that need to be corrected at one time. The applicant for work-related injury identification shall make corrections as required within 30 days. If it fails to make corrections within the time limit but does not exceed the statutory application period, it may re-apply for work-related injury identification.

Article 21 (Identification Procedures)

County Human Resources and Social Security Bureau shall make a decision on work-related injury identification within 60 days from the date of accepting the application for work-related injury identification, and deliver the decision on work-related injury identification to the employees who apply for work-related injury identification or their close relatives and employees' units within 10 working days from the date of making the decision.

If it is necessary to take the conclusion of the judicial organ or the relevant administrative department as the basis for making a decision on work-related injury identification, the time limit for making a decision on work-related injury identification shall be suspended while the judicial organ or the relevant administrative department has not yet made a conclusion, and it shall be resumed in time after the reasons for suspending work-related injury identification are eliminated. If the time limit for work-related injury identification is suspended or resumed, the district and county human resources and social security bureau shall inform the relevant parties.

Generally speaking, employers should pay work-related injury insurance premiums for their employees. Workers who die at work can receive funeral subsidies, pension for dependent relatives and one-time work-related death subsidies from the industrial injury insurance fund. In addition, workers who are disabled at work can enjoy one-time disability allowance, medical treatment for work-related injuries, food subsidies and other benefits.

If the labor employment contract expires, or the employee himself proposes to terminate the labor contract, he can also receive a one-time work-related injury medical subsidy from the work-related injury insurance fund, and the employer will pay a one-time disability employment subsidy.

However, if the employer does not participate in work-related injury insurance, all the expenses under work-related injury benefits will be paid by the employer.

Because the company has always denied the existence of labor relations with Luo Youyou, and certainly did not pay work-related injury insurance premiums for Luo Youyou, the company should pay Luo Youyou's parents a pension for his death. Many netizens think that Luo Youyou's parents are also responsible for Luo Youyou's death, but this is different from their treatment of death at work and cannot be confused.

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Regulations on industrial injury insurance

Article 39 If an employee dies at work, his close relatives shall receive funeral subsidies, pension for supporting relatives and one-time work-related death subsidies from the industrial injury insurance fund in accordance with the following provisions:

(a) the funeral subsidy is the average monthly salary of employees in the overall planning area for 6 months;

(2) The pension for supporting relatives shall be paid to the relatives who provided the main source of livelihood before the death of the employee and were unable to work because of work according to a certain proportion of the employee's salary. The standard is: spouse 40%, other relatives 30%, widowed elderly or orphans 10%. The total approved pension of dependent relatives should not be higher than the salary of employees who died at work. The specific scope of supporting relatives shall be stipulated by the administrative department of social insurance of the State Council;

(three) the standard of one-time work death allowance is 20 times of the per capita disposable income of urban residents in the previous year.

If a disabled employee dies at work during the period of paid suspension, his close relatives shall enjoy the treatment stipulated in the first paragraph of this article.

If a disabled worker of Grade 1 to Grade 4 dies after the expiration of his unpaid leave, his close relatives may enjoy the treatment specified in Items (1) and (2) of the first paragraph of this article.

Article 62 If an employer fails to participate in work-related injury insurance in accordance with the provisions of these Regulations, the social insurance administrative department shall order it to participate within a time limit, pay back the work-related injury insurance premium that should be paid, and impose a daily overdue fine of 0.5 ‰ from the date of default; Failing to pay within the time limit, a fine of 1 times shall be imposed.

If an employee of an employer who should participate in work-related injury insurance in accordance with the provisions of these regulations suffers from work-related injuries, the employer shall pay the fees in accordance with the treatment items and standards of work-related injury insurance stipulated in these regulations.

After the employer participates in work-related injury insurance and pays back the work-related injury insurance premium and overdue fine, the work-related injury insurance fund and the employer shall pay new fees in accordance with the provisions of these regulations.

It can be seen that it is very important to confirm labor relations. I would like to remind you that if you don't sign a labor contract with the employer in your usual work, you can be a conscientious person and fix the evidence that you have worked for the employer, such as application registration form, employment notice, work clothes, attendance card, payroll, meeting notice, work group chat record, etc. Can be used to provide evidence to protect their legitimate rights and interests in the event of a dispute.