Is net red and platform labor relationship?Net red how to pay liquidated damages?

2022-05-28 0 By

With the rapid development of Internet platform economy, the employment patterns of workers have undergone extensive and profound changes. There are many types and large numbers of new employment forms of workers, including network anchors and bloggers, and the complexity of labor and employment conflicts has become increasingly prominent.The following is a termination dispute between Internet celebrities and company platforms concluded by the Intermediate People’s Court of Suzhou city, Jiangsu Province, to discuss several issues.Brief introduction Of the case Wang is a well-known female network celebrity of Dayu Company. The two parties began to cooperate in May 2018, and agreed that Wang entrusted COMPANY A with the exclusive agency of advertising, business and e-commerce business of his Microblog and Douyin account, and made corresponding share.On April 1, 2019, both parties signed an Online Celebrity Management Agreement, which is relevant to the case as follows: 1. Party B agrees to entrust Party A with acting for all its performing arts activities around the world;2. The term of cooperation under this Agreement is six years from the signing date of this Agreement, that is, from April 1, 2019 to March 31, 2025;4. Party B shall not unilaterally terminate the Agreement, otherwise, Party B shall be deemed to have breached the agreement;5. If party b unilaterally terminates this agreement, party a shall have the right to hold party b liable for breach of contract in one of the following ways :(1) require party b to continue to perform this agreement;(2) party a has the right to unilaterally terminate this agreement, and require party b to pay penalty due to breach of contract, breach of contract amount for the day of sending the notice of termination by party a, party b related tech-oriented account all fans number multiplied by 5 yuan calculation amount or 10 million, will be subject to the higher, and the requirements for party a shall pay party b to party a by party b into acting cost and the expected loss.On the same day, the two sides signed a “labor contract”, agreed that Wang mou in Suzhou Industrial Park engaged in red work, the contract period from April 1, 2019 to June 30, 2020;Implement a combination of basic pay and performance pay.In June 2019, Wang proposed to Dayu company that he could not record the video for personal reasons, and wanted to terminate the contract involved, and submitted the “Resignation Slip” to terminate the labor contract relationship between the two parties.Dayu company appeal to the court, request decree to remove the two sides signed on April 1, 2019 “network celebrity broker agreement”, Wang to dayu company to pay breach of contract 500,000 yuan.On July 16, 2021, the Ministry of Human Resources and Social Security and other eight departments jointly issued the Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Employment forms, aiming at safeguarding the labor security rights and interests of workers facing new situations and new problems.The Opinions made it clear for the first time that, in addition to (1) “complete labor relationship”, that is, conforming to the situation of establishing labor relationship, enterprises should conclude labor contracts with laborers in accordance with the law;(2) “Complete civil relationship”, that is, the rights and obligations of both parties shall be adjusted according to civil laws when individuals independently carry out business activities and engage in freelance work on the platform;There is also a third kind of labor form (3) “not completely consistent with the establishment of labor relations”, that is, not completely consistent with the establishment of labor relations but the enterprise labor management of workers, guide enterprises and workers to conclude a written agreement, reasonable determination of the rights and obligations of enterprises and workers.In this case, there are “labor contract” and “Network celebrity broker agreement” between Wang mou and Dayu Company, and the relationship between the two sides is closer to the third form mentioned above.The court heard that the “labor contract” is a contract signed by Dayu company as an employer and Wang Mou as a laborer to establish the labor relationship and clarify the rights and obligations of both parties.”Network celebrity Broker Agreement” is a comprehensive contract signed by Dayu Company and Wang on the development of wang’s we-media performing arts career, which includes a variety of legal relations, such as entrustment, disciplinary, intermediary, copyright and so on.The two contracts are related to each other and independent, binding different legal relations. This case is a dispute arising from the performance of the Online Celebrity Broker Agreement between the two parties, and Dayu company has the right to claim corresponding rights according to the Online Celebrity Broker Agreement.The court considers that if wang unilaterally terminates the contract in the Online Celebrity Brokerage Agreement signed by both parties on April 1, 2019, it is deemed as a breach of contract, and Dayyu company has the right to terminate the contract.During the performance of the Network Celebrity Broker Agreement, Wang unilaterally rescinds the contract for his own reasons. Wang’s behavior above conforms to the conditions of rescinding stipulated in the contract. Dayu company exercises the right of rescinding according to the contract, which has legal basis and should be supported.Three, Wang should pay the company’s liquidated damages amount Dayu company in accordance with the “Network celebrity broker agreement” advocate Wang mou to pay liquidated damages 500,000 yuan, and Wang Mou thinks 500,000 yuan is obviously too high, and Dayu company has no corresponding loss, so it should not pay liquidated damages.In this case: 1, dayu company as a broker for the development of wang mou investment brokerage cost and time cost, and wang mou unilaterally terminate act constitutes a breach of the contract, the breach of the contract can’t continue to perform, lead to dayu company unable to obtain the corresponding performance of the interests, namely dayu company really hurt by a wang mou’s default behavior, has the right to demand that wang mou be liable for breach of contract.2. The nature of the liquidated damages is that both parties presuppose losses. If the parties think the liquidated damages are too high, they may request the court to adjust the liquidated damages.3. Dayu Company shall bear the corresponding burden of proof for the fact that Wang’s breach of contract caused losses to Dayu Company.At present, Dayu Company has not provided sufficient evidence to prove its claim of labor cost input and activity expenses, and at the same time, Dayu Company cannot provide evidence to prove that the above-mentioned expenses were only invested to Wang.4. Considering the time limit and performance of the contract, the cost invested by Dayu company, wang’s liability for breach of contract and other factors, the court decided that Wang should pay Dayu company liquidated damages of 100,000 yuan.