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一、对事实劳动关系的认定问题确立劳动关系应当订立劳动合同.我国劳动法规定,劳动合同应当以书面形式订立.但在现实生活中,存在着大量的没有签订书面合同,但已实际履行的劳动关系.这种劳动关系虽然没按法律、法规规定的形式或程序签订书面合同,即形式要件欠缺,但其实质要件基本符合,且已经履行完毕或正在履行,劳动仲裁部门称之为“事实劳动关系”.常见的事实劳动关系有:(1)以口头约定代替签订书面合同.温州私营企业招工基本上没签订书面合同,双方口头说了算数;(2)以其他合同代替劳动合同.如在企业承包合同、企业兼并合同中规定职工的安排和待遇,以聘任书代替劳动合同;(3)劳动合同期满后,双方延续劳动关系,但没续签劳动合同;(4)所签合同部分必备条件无效或不明确.如劳动报酬没约定,工作内容不明确,或约定工伤事故由雇工自负等.
First, the identification of factual labor relations The establishment of labor relations should be entered into a labor contract.China’s labor law stipulates that the labor contract should be concluded in writing, but in real life, there are a large number of not signed a written contract, but has actually been implemented Labor relations Although this labor relation did not sign a written contract in the form or procedure stipulated by laws and regulations, that is, the formal elements were lacking, the essential elements of the labor relations basically met and had been fulfilled or were being fulfilled. The labor arbitration department called it the “fact Labor relations. ”Common facts Labor relations are: (1) the verbal agreement instead of signing a written contract Wenzhou private-owned enterprises basically did not sign a written contract, the two sides verbally said; (2) to replace the labor contract with other contracts, such as (3) After the expiration of the labor contract, the two parties continue the labor relationship but have not renewed the labor contract; (4) The contract part of the contract signed Ineffective or unclear prerequisites, such as labor remuneration is not agreed, the content of the work is not clear, or agreed to work-related accidents by the employer.