Should the labor contract be said to be recruiting or hiring people?

Recruitment should be written in the labor contract, and recruitment is usually used to express the labor relationship determined by both parties.

Labor contract and employment contract correspond to labor contract relationship and employment relationship respectively.

Employers and workers need to sign labor contracts to establish labor relations in accordance with the Labor Contract Law, and employers and workers need to sign labor contracts to establish employment relations.

The difference between labor relations and employment relations

The employment contract is not clearly stipulated in China's contract law, but it is reflected in separate laws and judicial interpretations, such as the Provisional Regulations on Urban and Rural Individual Industrial and Commercial Households and the Reply of the Supreme People's Court on Employment Contracts. Generally speaking, however, an employment contract is considered as "a contract in which both parties agree that one party will provide services for the other party and the other party will pay remuneration within a certain or indefinite period." Regarding the labor contract, according to Article 16 of China's Labor Law, "a labor contract is an agreement between a laborer and an employer to establish labor relations and clarify the rights and obligations of both parties." Broadly speaking, the labor contract is the embodiment of the socialization of the employment contract, which is derived with the development of social economy and large-scale industrial production, leading to the weakening of its autonomy and the expansion of legal compulsion.

Labor contract and employment contract are both labor remuneration contracts, both based on the agreement of the parties, both paid contracts for two kinds of services, both aiming at providing services. The difference between labor relations and employment relations is mainly reflected in the following aspects:

1. Different subject qualifications

According to Article 2 of China's Labor Law, the main body of a labor contract includes the employer and the laborer (natural person). Mainly refers to:

(1) All kinds of domestic enterprises, individual industrial and commercial households and workers who have established labor relations with them;

(2) State organs, institutions, social organizations and laborers who have formed labor relations with them. These workers mainly refer to the workers recruited by state organs, institutions and social organizations, and the staff of institutions that implement enterprise management. The parties to an employment contract are generally natural persons, as well as rural contracted business households and their employees, which are not within the scope of adjustment of the labor law. The difference of subject qualification is the main difference between labor contract and employment contract.

2. Different subject status

In the labor contract, the laborer is combined with the means of production provided by the employer, thus realizing the socialization of labor. Moreover, the laborer has become a member of the economic organization, and he and the employer are subordinate and dependent in identity, and both are strong and weak subjects, which is also the biggest difference between them and the employment contract. In the employment contract, the subject of the employment contract does not have the above restrictions. The subject of employment contract is equal, and the legal status of the subject is completely equal and independent, and there is no subordinate and dependent relationship in identity.

The rights and obligations of both parties to the contract are different.

The rights and obligations of both parties to the employment contract can only be determined according to the law and the contract signed by both parties, while the rights and obligations of both parties to the labor contract are determined not only according to the law and the contract signed by both parties, but also according to the collective contract signed by the trade union and the employer. Article 35 of the Labor Law stipulates that the standards of working conditions and remuneration in the labor contract concluded between individual employees and the employing unit shall not be lower than those stipulated in the collective contract. In the labor contract signed before the collective contract takes effect, if the labor conditions and labor remuneration standards are lower than the collective contract, it shall be implemented according to the standards of the collective contract, and if it is higher than the collective contract, it shall be implemented according to the standards of the labor contract. In the labor contract signed after the collective contract takes effect, the standards of working conditions and labor remuneration shall not be lower than the collective contract. After the expiration of the collective contract, if the corresponding terms of the labor contract have been modified according to the standards of the collective contract, it shall still be implemented according to the stipulations of the labor contract, and the collective contract will take effect after the expiration. In the labor contract, the existence of labor legal relationship is relatively stable, and the employer has the obligation to pay social insurance such as endowment insurance, medical insurance and unemployment insurance for the workers; In the labor contract, its stability is poor, and the employer has no obligation to pay social insurance for the workers.

4. The intensity of state intervention is different.

As a civil contract, the employment contract takes autonomy of will as its basic principle. In the process of signing, changing and canceling a contract, it is mainly the expression of the will of the parties, and the state basically does not interfere. Both parties to the contract also have greater freedom in the terms of the contract. Although the establishment of the labor contract also reflects the agreement of the parties, it emphasizes the dominant position of the national will. In order to standardize the rights and obligations of both parties to the labor contract, the state often stipulates the rights and obligations of both parties to the labor contract in the form of mandatory laws, and interferes with the determination of the contents of the labor contract. The agreement of the parties cannot go beyond the provisions of the law. The provisions of the labor law are mainly semi-mandatory, that is, the state stipulates the minimum standards for employers to provide working conditions. The working conditions agreed between the employer and the employee can be higher than those stipulated by the state, but not lower than those stipulated by the state, such as the minimum wage and the maximum working hours, that is, some agreements that are more favorable to the employee can be concluded.

5. Different legal sources

Employment contract is a kind of civil contract, regulated by civil law and contract law, and has existed since Roman law. Labor contract is regulated by the special law of labor law, which is an independent contract type, the product of capitalist industrialized production and the result of state intervention in employment relations. Labor contract is a special kind of employment contract. Where there are special provisions in the labor law, the provisions of the labor law shall apply. Where there are no provisions in the labor law, the provisions of the civil law shall apply. However, the labor law was enacted to protect economically disadvantaged workers. According to the purpose of standardization, the provisions of labor law cannot be applied to employment contracts in civil law.

6. Different forms

The form of employment contract is not required by law. According to the contract law of our country, it can be a written contract, an oral contract or an unnecessary contract. According to Article 19 of China's Labor Law, China's labor contract should be in written form, which is a necessary contract.

7. Different ways to resolve disputes

As a civil contract, if there is any dispute, the parties have the right to bring a lawsuit directly to the people's court. If there is an arbitration clause in the employment contract, they should apply to the arbitration committee selected by both parties for arbitration. However, if a party wants to bring a lawsuit to the people's court because of a dispute over the labor contract, he must first apply to the competent labor dispute arbitration committee for arbitration. Only those who refuse to accept the arbitration award can bring a lawsuit to the people's court. The parties cannot choose whether to arbitrate, that is, if the labor contract dispute is not submitted to the labor dispute arbitration institution, the people's court will not accept it.