标签归档 西安夜生活桑拿论坛

　　The live broadcast platform and online celebrity anchor have been interdependent communities of interests since their appearance. With the increase of the number of live broadcast platforms and the escalation of competition, the conflict of interests between the two parties has intensified.

　　Online celebrity anchor is favored by live broadcast platforms because of its huge fan base and high-quality content, and it is also the main target of poaching between platforms. In recent years, some well-known anchors have jumped ship from time to time. In addition to fighting with their platforms, some anchors have even been brought to court.

　　Recently, a dispute caused by anchor job-hopping has aroused social concern.

　　Jia is the contracted anchor of a live broadcast platform. In April 2017, during the contract period with the original live broadcast platform, Jia went to another live broadcast platform for live broadcast activities. Therefore, the original live broadcast platform sued Jia to the court.

　　Recently, the Shanghai No.1 Intermediate People’s Court made a final judgment on this case, upheld the first-instance judgment of the Shanghai Pudong New Area People’s Court, and ordered Jia to stop violating the agreement with the original platform, continue to perform the obligation of inaction in the agreement with the original platform, and immediately stop providing live broadcast services or similar live broadcast activities for the new platform and any third party. Jia should compensate the original platform for liquidated damages within ten days from the date of the effective judgment.

　　In recent years, there have been many cases of similar lawsuits between anchors and platforms. The reporter combed similar cases and found that how to identify the relationship between the anchor and the platform, how to determine the amount of compensation, and how to find a balance between the anchor’s freedom of employment and the demands of the old club to continue to perform the contract have always been the focus of controversy.

　　How to identify the relationship between platform and anchor?

　　The reporter found out that the relationship between the anchor and the platform can be roughly divided into three types:

　　First, the anchor signed a sharing agreement with the live broadcast platform, that is, the anchor has the right to live broadcast, can perform live performances on the platform, and get certain gifts and rewards. At the same time, the anchor is not subject to the management constraints such as labor time and total labor stipulated by the live broadcast platform, nor does it engage in other labor tasks arranged by the live broadcast platform.

　　Second, the anchor becomes a contracted artist of the live broadcast platform, and is bound by a series of labor rules and regulations of the platform. While obtaining guaranteed economic income, it needs to undertake corresponding duties and tasks, including the assessment of multiple standards such as live broadcast duration, content quality, number of fans and live broadcast activity.

　　Third, the anchor signed a sharing cooperation agreement with the live broadcast brokerage company or guild, and the brokerage company or guild built the anchor in an all-round way. At the same time, the brokerage company cooperated with various live broadcast platforms to cultivate the incubating anchor.

　　Then, among these three relationships, which one constitutes a labor relationship?

　　In this regard, Zheng Ning, deputy director of the Department of Law, Department of Law, Communication University of China, analyzed that it is necessary to satisfy two conditions, namely, economic and personal dependence, to determine that the live broadcast platform and the anchor constitute a labor relationship. Economic relationship means that the anchor provides labor and the live broadcast platform gives remuneration; Personal attachment means that the anchor’s working time, content and methods are constrained by the rules and regulations of the live broadcast platform or specific management behaviors. In line with the above two conditions, there is a labor relationship between the anchor and the live broadcast platform.

　　"As far as the first and third cases are concerned, there is no personal attachment between the anchor and the live broadcast platform, and the anchor is independent. Therefore, these two situations do not constitute labor relations; As far as the second case is concerned, the anchor provides labor, the live broadcast platform pays remuneration, and at the same time, it is managed by the live broadcast platform and has personal dependence, so it constitutes a labor relationship. " Zheng Ning said.

　　In the view of Wang Yanhui, a Shanghai lawyer, three conditions need to be considered to determine whether there is a labor relationship between the live broadcast platform and the anchor: First, whether the employer and the employee meet the subject qualifications stipulated by laws and regulations; Second, whether the various labor rules and regulations formulated by the employer according to law are applicable to the workers, and whether the workers are subject to the labor management of the employer and engaged in paid labor arranged by the employer; Third, whether the labor provided by the laborer is an integral part of the employer’s business. According to the above conditions, it can be judged whether there is a labor relationship between the platform and the anchor.

　　"Therefore, in the above three situations, only the second one meets the conditions for forming labor relations." Wang Yanhui said.

　　However, Wang Quanxing, a professor at the Law School of Shanghai University of Finance and Economics, believes: "The live broadcast activity of the network anchor on the live broadcast platform is an activity in which the platform and the anchor jointly provide video products or services to the audience, and it is also the digital labor and remote labor provided by the anchor to the platform in the virtual place arranged by the platform, which constitute the production factors of the platform’s business activities of providing video products or services to consumers; The anchor shall abide by the management rules of the platform when engaging in anchor activities in the virtual places arranged by the platform. At the same time, the relationship between the platform and the anchor is continuous with the anchor activity as the object. Therefore, although the relationship between the platform and the anchor is different from the labor relationship in the traditional format, that is, it does not have all the elements of labor relations, but it has some elements of labor relations, such as subordination and continuity. "

　　Wang Quanxing said that as for the "cooperative relationship" agreed by the anchor and the platform, it is not a standardized legal concept, nor is it a famous contract concept. Any contractual relationship, including labor contracts, is cooperative. Therefore, the so-called "cooperative relationship" is not mutually exclusive with contracting relationship, entrustment relationship and labor relationship.

　　"In the terms of the contract, the anchor and the platform do not belong to the labor relationship or employment relationship ‘ Know ’ , and can not be used as the sole basis for determining whether it is a labor relationship. If the anchor has the facts that meet the requirements of labor relations in the process of cooperation, and this fact is also the agreement of both parties, such as the fact that the anchor undertakes the obligation of non-competition, it is the element that constitutes subordination. Therefore, whether labor relations are determined or not should be judged whether there are facts that meet the requirements of labor relations. " Wang Quanxing said that there are certain reasons for determining the nature of the so-called "cooperative relationship" between the platform and the anchor.

　　If it constitutes a labor relationship, workers can safeguard their rights and interests according to the labor law. Then, if it does not constitute a labor relationship, can the anchor effectively protect his rights and interests?

　　In this regard, Zheng Ning said that in some cases, although the anchor and the live broadcast platform do not constitute a labor relationship, there is a contractual relationship between the anchor and the live broadcast platform, and the anchor can safeguard his legitimate rights and interests according to the provisions of the contract law. There is a contractual relationship between the anchor and the live broadcast platform. The contract follows the principles of equality, voluntariness and good faith. Both parties can determine the contents of the contract through consultation. When one party thinks that there is fraud, coercion, obviously unfair or major misunderstanding, it can request the court or arbitration institution to cancel or change the contract. The parties to a contract may also stipulate liquidated damages in the contract. When one party violates the contract, the other party may request the defaulting party to pay liquidated damages and other ways to assume responsibility.

　　How to evaluate the liquidated damages for job-hopping

　　Anchor is the core resource of live broadcast platform, and the competition between platforms will also affect the value of anchor. In the fierce competition between live broadcast platforms, the value of the anchor is constantly being raised, and even there is a false high situation. At the same time, some online celebrity anchors think that their popularity depends on their own abilities, but the platform thinks that they have invested in packaging, publicity, planning and even broadband resources. Therefore, when some online celebrity anchors change jobs, they are often asked by the live broadcast platform to pay high liquidated damages. In recent years, the amount of liquidated damages has been increasing. However, how to evaluate the liquidated damages?

　　"On the legal level, the setting of liquidated damages has two main meanings: on the one hand, it is to protect the transaction, and it is a means of punishment for the defaulting party; On the other hand, it is also the most important function of liquidated damages, that is, to make up for losses, because one party’s breach of contract will often bring economic losses to the observant party, including actual losses and expected benefits. The determination of the amount of liquidated damages should be based on the actual loss of the observant party, and the observant party should prove its actual loss and expected benefit. If the breaching party thinks that the liquidated damages claimed by the other party are too high, then it has the right to ask the court to make adjustments, and the court will also make reasonable judgments according to the actual situation and the general situation in the industry. " Wang Yanhui said.

　　In this regard, Zheng Ning’s point of view is: "As far as the assessment of liquidated damages is concerned, there are two situations: first, there is a labor relationship between the anchor and the live broadcast platform. According to the provisions of the Labor Contract Law, the platform provides training fees for the anchor, and the service period is agreed, and the anchor can be claimed to pay the training fees that have not been fulfilled. If the anchor terminates the contract in breach of contract, or violates the confidentiality obligations or non-competition restrictions agreed in the labor contract, causing losses to the employer, it shall be liable for compensation. "

　　"Another situation is that there is a contractual relationship between the anchor and the network platform." Zheng Ning said that the contract law stipulates that the parties may agree that one party shall pay a certain amount of liquidated damages to the other party in case of breach of contract, and may also agree on the calculation method of the amount of damages arising from breach of contract. If the agreed liquidated damages are lower than the losses caused, the parties may request the people’s court or arbitration institution to increase them; If the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people’s court or arbitration institution to reduce them appropriately. The Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of People’s Republic of China (PRC) Contract Law (II) stipulates that the agreed amount of liquidated damages exceeds 30% of the loss, which can generally be regarded as "excessively higher than the loss caused". Therefore, in the contract, the anchor and the network platform can agree on the liquidated damages in advance, and when one party violates the agreement, the other party can claim to pay the liquidated damages.

　　In Wang Quanxing’s view, in labor relations and labor law, the application of liquidated damages is subject to legal restrictions, and compensation has legal rules. In civil contracts, we should pay more attention to the principle of fault, the principle of fairness and the proof of damage facts for liquidated damages and compensation.

　　Both sides should raise their legal awareness.

　　Some people think that anchor job-hopping is an act that lacks the spirit of contract; Others believe that this is normal business competition. As anchors who want to jump ship, they want to get a job on a new live broadcast platform; As an old club, the anchor is generally required to continue to perform the contract and compensate for the losses. So, how to balance the different demands between the anchor and the live broadcast platform?

　　In this regard, Wang Yanhui said that according to the provisions of the Contract Law, the observant party has the right to choose to terminate the contract and demand payment of liquidated damages, and also has the right to choose to ask the defaulting party to continue to perform the contract. However, the purpose of China’s civil law is not only to protect transactions, but also to protect the freedom of transactions as much as possible. If the anchor has reasonable reasons to prove that he can’t continue to perform the contract with his old club, then the law generally won’t "buy and sell" and ask him to continue to broadcast live on the original platform.

　　In Zheng Ning’s view, in the case of labor relations, the labor law stipulates that workers have the freedom to work, and they can terminate the labor contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probation period. Therefore, the anchor has the right to terminate the labor contract in accordance with the provisions of the labor law. The employer can only demand compensation for the corresponding losses through terms such as non-competition, confidentiality obligations and training.

　　"In the case of a contractual relationship, both parties shall exercise corresponding rights and perform corresponding obligations in accordance with the contents of the contract agreed in advance. The live broadcast platform may require the anchor to pay liquidated damages and compensate for the losses for the anchor’s breach of contract. However, the subject matter of the contract has personal attributes and is not suitable for enforcement. Therefore, after the anchor pays the liquidated damages, the anchor can broadcast on the new platform. " Zheng Ning said.

　　In Wang Quanxing’s view, there is a legal basis for non-competition in labor relations. Because the restriction of non-competition is a restriction on the freedom of workers to choose a job, it is conditional for workers to undertake the restriction of non-competition, and it is based on the compensation given to workers by employers. As for whether the non-competition clause can be stipulated in the civil contract, there is no legal basis in China. There must be a legal basis for agreeing on non-competition. Even if it is allowed to agree on non-competition, the obligation to undertake non-competition should be conditional and have economic compensation as consideration. Otherwise, obviously unfair.

　　"In reality, many live broadcast platforms are unwilling to form a labor relationship with the anchor on the one hand, and require non-competition restrictions on the anchor on the other hand, and their goals are conflicting. In fact, choosing the arrangement of labor relations may not be unfavorable to the live broadcast platform. " Wang Quanxing said.

　　Then, once the anchor changes jobs, how should the anchor and the platform protect their rights and interests?

　　"Improve legal awareness. When signing a contract, clarify the legal relationship between the two parties, that is, clarify whether it is a labor relationship or a contractual relationship, and then stipulate the rights, obligations and legal responsibilities of both parties in detail. The contract should clearly stipulate the remuneration standard, payment method, payment period, etc., and determine a reasonable amount of liquidated damages. If conditions permit, it is best to hire legal counsel or consult legal experts. " Zheng Ning said.

　　"According to my understanding of this industry, many anchors are still young, their social experience is not rich, and their legal awareness is not strong. If you want to guarantee your own interests, the anchor must first sign a formal contract with the platform, and no matter what form of cooperation, it should be implemented in writing. " Wang Yanhui suggested that the rights and obligations of both parties should be clearly stipulated in the contract, and the anchor should be familiar with his obligations and the legal ways to safeguard his interests when his rights are violated. In addition, both the anchor and the live broadcast platform should keep their contracts and communication evidence in case of emergency. Live broadcast belongs to a new industry, which lacks corresponding laws and regulations to regulate. Only by improving the legal awareness can employees in this industry have better development.

　　□ Our reporter Han Dandong

Recently, the Press Office of Rushan Municipal People’s Government held a press conference on the adjustment of the basic pension for retirees. The relevant person in charge of the Municipal Social Insurance Center introduced the relevant situation and answered questions from reporters.

In 2021, Rushan City raised the basic pension for retirees of enterprises and urban residents in the city according to the unified arrangements of the higher authorities. Among them, the standard of basic pension for urban residents has been raised from 154 yuan per person per month to 162 yuan. The adjustment of enterprise basic pension adopts the method of combining quota adjustment, hook adjustment and appropriate tilt.

Quota adjustment

65 yuan’s pension will be increased every month.

Hook adjustment

Increase the pension according to the following two parts:

1. Determine the monthly increase according to 1.2% of my basic pension in December 2020.

2, enterprise retirees adjusted according to the payment period. According to my payment period, determine the monthly increase, among which, for the part below 15 years (inclusive), 1 yuan will be increased every month for every full year; For the part of more than 16 years to 25 years, the 1.3 yuan will be increased every month for every full year; For the part of more than 26 years to 35 years, the 1.6 yuan will be increased every month for every full year; For the part of more than 36 years to 45 years, the 1.9 yuan will be increased every month for every full year; For the part that has been over 46 years, 2.2 yuan will be added every month for every full year. The payment period includes the deemed payment period, excluding the additional years converted from special types of work; If the payment period is less than 1 year, it shall be calculated as 1 year.

Appropriate inclination

1. Before December 31, 2020, for retirees who have reached the age of 70 and under 75 (calculated by the date of birth confirmed by the regulations when going through retirement procedures, the same below), who have reached the age of 75 and under 80, and who have reached the age of 80, the pensions of 15 yuan, 30 yuan and 60 yuan will be increased respectively per person per month.

2. During the period from January 1 to December 31, 2020, the number of enterprise retirees who reach the age of 70, 75 and 80 (excluding the one-time payment of the insured by the enterprise) will increase in 290 yuan, 190 yuan and 360 yuan respectively per person per month, and the one-time payment of the insured by the enterprise will increase in 70 yuan, 60 yuan and 120 yuan respectively per person per month.

In 2021, there were more than 80,000 enterprise retirees who adjusted the basic pension in Rushan City, and the monthly average pension was increased by 129 yuan, and the basic pension for enterprise retirees was reissued by 63.06 million yuan; The basic old-age pension for urban residents has been raised by 5%, and the average treatment level has reached 198 yuan per person per month, with a replacement amount of 890,000 yuan. At present, all of them have been paid in place.

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Qustions

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Answers

Q1

In recent years, the treatment of retirees is improving every year, and many flexible employees also want to participate in the endowment insurance for enterprise employees. How do flexible employees pay for insurance? How is the base and proportion of paying endowment insurance premium stipulated?

Flexible employees can voluntarily apply for insurance payment. Flexible employees who are under 60 years of age and under 50 years of age can apply for insurance registration at Windows 2 and 3 of Area C on the second floor of Rushan Citizen Service Center with their ID cards or temporary residence permits, and can pay after registration.

Individual industrial and commercial households and flexible employees who participate in enterprise endowment insurance in their personal capacity, the amount of their pension insurance premiums shall be determined by multiplying the payment base stipulated by the state and the province by the payment ratio.

The current regulations are as follows: the payment base can be selected between 60% and 300% of the average salary of employees in full-caliber urban units in this province, and the payment ratio is 20%; Among them, 8% is credited to personal account and 12% to overall fund. For example, the payment in 2021 can be selected in the range of 3746 yuan to 18726 yuan. If the base of 3746 yuan is selected, the insurance premium to be paid in 2021 is 3746×20%×12=8990.40 yuan. There is 3746×8%×12=3596.16 yuan in personal account, which can be inherited.

When the insured persons who participate in the basic old-age insurance for enterprise employees as flexible employees reach retirement age (men over 60 years old and women over 55 years old), if the accumulated payment period is over 15 years, the pension will be paid according to the regulations. Among them: female flexible employees who have been employed in a flexible way and continue to pay endowment insurance premiums after the termination or termination of labor relations with the original enterprise after the enterprise has paid the insurance premium for 10 years, their retirement age is still 50 years old. If the female flexible employment insured payer has been employed in the enterprise for 10 years, his retirement age will still be 50 years old.

Q2

What should I do if employees reach the statutory retirement age and the payment period is less than 15 years?

According to the regulations, if the employees of an enterprise have paid the fees at the statutory retirement age for less than 15 years, they can extend the payment to 15 years. "Social Insurance Law" before the implementation of the insured, extended payment after 5 years is still less than 15 years, you can pay a one-time payment to 15 years.

Q3

Excuse me, under what circumstances can I repay the endowment insurance for enterprise employees? How to pay back?

If the employer and the employee have not insured or paid the old-age insurance premium during the labor (personnel) relationship, they can pay the old-age insurance premium for the period that they have not insured or paid. The specific policies shall be implemented in accordance with the Notice of Shandong Provincial Department of Human Resources and Social Security on Improving the Payment Policy for Employees’ Basic Endowment Insurance (Lu Ren She Gui [2019] No.13).

To pay back as an employee of the unit, the unit shall submit a written application and go through the formalities of paying back in the social insurance agency where the unit is insured; When applying for overdue payment, the following materials should be provided: ID card and original file of the payer, salary income credentials and other original materials corresponding to the reasons for overdue payment. Among them, if the one-time payment exceeds three years, legal documents issued by administrative departments such as people’s courts, auditing departments, labor inspection or labor and personnel dispute arbitration committees shall be provided.

The state clearly stipulates that people who are over the retirement age and do not meet the requirements shall not be included in the basic old-age insurance for employees by means of one-time payment. At the same time, it is stipulated that individual industrial and commercial households without employees and all kinds of flexible employees are not allowed to increase the payment period by making up the payment afterwards.

Q4

Recently, Shandong Province announced the upper and lower limits of the social security payment base. According to the requirements, who needs to pay the base difference and how to pay it?

According to the relevant data calculated by the provincial statistics department, the average salary of employees in full-caliber urban units in the province in 2020 was 74,906 yuan, with an average of 6,242 yuan per month. In 2021, the upper limit of employee social security payment base was 18,726 yuan, and the lower limit was 3,746 yuan. According to the regulations of the province, if the monthly payment base of employees at the beginning of the year was less than 3,746 yuan, it should be repaid according to 3,746 yuan.

Among them, the individual make-up part of the employees who are on-the-job and change their work units is withheld and remitted by the current unit to complete the make-up business, and the individual does not pay the make-up fee; The social security relationship has been transferred to the new insured place, died for some reason, went abroad and other accounts have been settled, and individuals do not make up the difference.

Individuals who need to make up the difference mainly include those who have stopped paying after leaving the company and flexible employees (including those who have gone through retirement procedures). The amount and data of personal makeup are automatically generated by the social security system, and the time for personal makeup payment is until December 2021.

Those who pay fees when the enterprise leaves the company need to bring their ID cards to the tax window in Zone D on the second floor of the Citizen Service Center to pay the fees.

Flexible employees can make up the difference through the WeChat applet "Shandong Tax and Social Security Payment" and Alipay "Citizen Center-Social Security-Social Security Payment-Flexible Employment-Special Payment", or they can take their ID cards to the tax window in Zone D on the second floor of the Citizen Service Center for payment.

Original title: "Press Conference | Raising the basic pension for retirees of enterprises and urban residents"

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