Rider Miyun’s Case Handling Notes: A relay of public interest lawyers that spanned two years and three places
M H When autumn came, Shao Xinyin went back to his hometown in Hebei to pick up chestnuts.
In Beijing, Chongqing, and all over the country, a group of young people are taking the last bat from the older generation of public interest lawyers. They are discussing the case of Shao Xinyin, the labor protection of riders, and the future of our country.
second stick
“From the very beginning when I received the case materials, I had a premonition that I would lose.”
The person who told us this was Wang Enhui, Shao Xinyin’s litigation attorney in Chongqing. He was second in the long and winding legal aid relay.
The end of the first stick is August 2020. Through sincere legal assistance, Ele.me sent its rider Shao Xinyin to file a labor arbitration in Beijing, confirming the existence of a labor relationship with Dias, the company that the site belongs to. When he learned the result, Shao Xinyin was elated. As long as Dias did not file a lawsuit with the court within 15 days, he could apply for a work-related injury determination with this effective ruling.
However, just about a week later, Dias filed a first-instance trial with the court, requesting confirmation that there was no labor relationship between it and Shao Xinyin. The place of indictment is not Beijing, but the company’s registered place, Chongqing.
“I was stupid when I saw it,” Shao Xinyin recalled the scene when he received the notice of prosecution from Dias in Chongqing. During those nights, he tossed and turned awake. On one side is the high cost of tolls, and on the other side is the much-needed compensation for work-related injuries, separated by 1,752 kilometers of mountains, rivers and rivers. “I have never been to Chongqing, and I have never been in court.” I thought that the long ordeal that lasted for more than a year had finally come to an end, but I didn’t expect everything to turn into unknown and start from scratch.
Due to the high cost of litigation, Zhicheng Legal Aid does not handle cases in different places in principle. “I’ll give up if it really doesn’t work,” Shao Xinyin said when speaking with Tong Lihua, director of Zhicheng. Tong Lihua couldn’t bear to hear it, “Let’s think of a way.”
After contact, lawyer Wang Enhui from Sichuan Migrant Workers Legal Aid Workstation took over the second baton.
On the evening of October 25, 2020, lawyer Wang Enhui drove from Chengdu, Sichuan to Chongqing to attend the first-instance trial the next day. As a result, when he arrived at the court, he was inexplicably told that “the plaintiff Dias company was not notified of the opening of the court”, which meant that the normal trial could not be held that day, and he would have to run again later.
The court did not explain why the lapse occurred. The staff probably did not know that this was a legal aid case connecting Beijing, Chengdu and Chongqing, and the subsidy for handling the case was only a few thousand yuan. A round trip between Chengdu and Chongqing will cost Wang Enhui about 1,000 yuan for food and lodging, even if they are frugal. Wang Enhui had no choice but to go back, but before leaving, she photographed the evidence submitted by Dias, “it’s equivalent to reading the papers in advance.”
When she returned to her office in Chengdu and read these materials carefully, Wang Enhui’s heart sank suddenly. The “Labor Service Contract Agreement” submitted by Dias Company clearly shows that it has subcontracted the takeaway delivery service service to Taichang Company, and the evidence about Dias Company in Shao Xinyin’s hands is scattered and insufficient. The case seems likely to be lost.
With such concerns, Wang Enhui searched the Internet for all rider-related cases of Dias in the Chongqing court – without exception, the Chongqing court ruled that there was no labor relationship between Dias and the rider.
That night, Wang Enhui sat in front of the computer and knew very well that this was almost a lawsuit with a decided conclusion. But if the case is doomed to lose, why insist on fighting it?
starting gun
Shao Xinyin came to Beijing to deliver food from his hometown in Hebei in 2017. Introduced by someone, he went to an Ele.me site to report, and was then called to another place to fill in the form and signed, and got back a set of blue rider overalls.
Every day in Beijing, he commutes to and from get off work on time according to company regulations. The only rest time is noon, because his battery car only has one set of batteries. He needs to charge it for two hours after running in the morning, and after 10 o’clock in the evening.
When we asked him what else he did other than delivering food, he recalled for a long time, “It seemed like he didn’t do anything.”
But Shao Xinyin clearly remembered April 27, 2019, the late night when he fell into the pit. Meituan riders who passed by helped him to the side of the road, and then the deputy head of the Ele.me site and colleagues took him to Jishuitan Hospital. At the time, he thought it was just an unfortunate traffic accident. “The team will definitely take care of it.”
In the early morning, he took a film in the emergency room and initially diagnosed a fracture of the tibial plateau and lateral malleolus. The doctor said he had fluid in his thigh, prescribed some painkillers, and told him to come back for a checkup in a few days.
But after a few days, Shao Xinyin never came to review.
The reason for not going for a recheck is because of mobility issues. After the injury, “the company didn’t care about me anymore, so they asked me to write a claim application. They sent it to the insurance company, and it was over.”
Shao Xinyin lies in a small rental house every day, leaning on a bench to move with difficulty when going to the toilet. To make matters worse, he found himself with a dull pain in his chest with every step he took. But when he thought of how difficult it was to go to the hospital in Beijing, Shao Xinyin gritted his teeth and decided to endure it.
Until one day, the site may suddenly think of Shao Xinyin and kick him out of the WeChat group. Shao Xinyin saw it at the time, but didn’t ask anything.
After nearly two weeks in this way, Shao Xinyin felt that his body had finally recovered to the point where he “can go home by car”. After a bumpy ride home, he went to the local county hospital the next day for a re-examination, where he also found three broken ribs.
When he was in Beijing, Shao Xinyin knew that he could not pay the deposit, so he did not ask for hospitalization. Now back at his hometown, he has missed the best treatment period. The doctor had to grab some medicine and let him go home to continue to recover.
In December 2019, in the middle of Shao Xinyin’s recuperation, the insurance company’s compensation finally arrived. He saw that it was only more than 90,000 yuan. “We have 100,000 work-related injuries with grade 10 disability in rural Hebei. Why is the insurance premium for level 9 disability in Beijing less than this?”
It was also on that day that Shao Xinyin first thought of finding a lawyer to defend his rights. What he didn’t expect was that the starting gun for a thousand-mile relay was also quietly clicked.
starter
Lawyer Zhang Zhiyou, who was working in Beijing Zhicheng at the time, took over the case.
The first time we saw the name “Zhang Zhiyou” was on a faded plaque hanging in the hall of Zhicheng Legal Aid.
Almost everyone who walks into the aid hall will look carefully at the plaque for a while. It reads “Xiaolangfang migrant workers demand 4 million wages to achieve justice, and sincere public welfare lawyers are dedicated to defending their rights and making a name for themselves”, followed by 112 Xiaolangfang workers. The autograph of Langfang Sichuan migrant workers. The handwriting is crooked, but if you look closely, you will find that every stroke is carefully written.
Later, we saw more “Zhang Zhiyou” in Zhicheng’s pennant room. Now that Lawyer Zhang has left Zhicheng, when we asked about his glorious past on the phone, he seemed reluctant to say more.
“Most of the migrant workers’ lawyers are like this. They work hard on cases, but they don’t like to express themselves.” Tong Lihua, director of Zhicheng, explained.
When Zhang Zhiyou was “deadly working on a case” in Beijing, Shao Xinyin, who was still recovering from his injuries in his hometown in Hebei, had an uneasy life. His legs have never been better, he usually doesn’t dare to run hard, and it hurts even when he walks too much. The doctor said that he was active too early at that time, so he didn’t take care of it well.
“But if you don’t come out and make money, you won’t be able to live.”
In June 2020, after a year and two months of recuperation in his hometown, Shao Xinyin came to Beijing again and started running Ele.me’s “crowdsourcing”. Compared with special delivery, crowdsourcing is characterized by the freedom to take orders.
That month, Beijing labor arbitration was held. After the end, Shao Xinyin ran crowdsourcing while waiting for news. Finally, on August 3, 2020, the arbitration result came down, confirming that he had a labor relationship with Dias.
Shao Xinyin was relieved, thinking that things were finally settled. But lawyer Zhang Zhiyou asked him to wait, because in labor dispute cases, companies often go to court to sue in order to delay time.
Shao Xinyin was very anxious in those days. He looked forward to the time to sneak away every day, and luckily waited until the ruling took effect. But in the end, Dias did not let him go, and to his surprise, the lawsuit was filed in a Chongqing court.
So there was the beginning scene. Zhicheng was unable to provide assistance for the follow-up off-site cases, but in order to find a glimmer of hope for Shao Xinyin, who was at a loss, “Let’s think of a way.”
In the end, Zhicheng contacted lawyer Du Wei at the Sichuan Workstation closest to Chongqing.
In September 2006, the Sichuan Provincial Migrant Workers Legal Aid Workstation was established, which is one of the first specialized institutions for legal aid for migrant workers promoted by Tong Lihua, director of Zhicheng. Du Wei, who loved to read martial arts novels since childhood, hopes to become a hero when he grows up. So when he filled out the college entrance examination, he chose to use “law” as the sword, and since then he has embarked on the road of “for justice”.
Du Wei had just entered the industry that year. Under the arrangement of Tong Lihua, he and more than 20 young lawyers from all over the country came to Beijing Zhicheng for internship. After returning from their studies, these young people carried out legal aid work for migrant workers in an orderly manner in accordance with the case handling rules and reception disciplines uniformly formulated by Zhicheng for local workstations. Over the years, Du Wei has promoted the Sichuan Workstation’s public welfare legal services to a great extent, almost becoming a copy of Zhicheng’s Sichuan.
When received Tong Lihua, director of Zhicheng? At the time of the phone call, lawyer Du Wei was writing materials in the office. After the call, he immediately convened an internal meeting of the Sichuan Workstation. After coordination, lawyer Wang Enhui took over the case of Shao Xinyin.
long night
“You must respond to the lawsuit in the first instance, otherwise you will be irresponsible to the parties involved.”
In 2009, Wang Enhui graduated from Sichuan University Law School, then joined the Sichuan Workstation and plunged into the field of public welfare law. It has been 12 years in a blink of an eye. Tong Lihua, director of Zhicheng, often said, “It is not difficult to do public welfare law for a day, a month, or a year; but if it is ten years or even a lifetime, it is very difficult.” Legal aid cases are big and small, easy and difficult, but the “sense of responsibility” he assigns to each case is surprisingly consistent.
After taking over the case of Shao Xinyin, Wang Enhui had no choice but to go back to Chengdu to wait for the notification. Fortunately, it didn’t take long for the Chongqing Changshou Court to notify the online court session.
Early in the morning, Wang Enhui and Shao Xinyin debugged their computers and mobile phones to connect from Chengdu and Beijing respectively. Arrived, no one was there. After waiting for more than an hour, the court notified the equipment failure and reopened the court on another day.
Shao Xinyin couldn’t sit still. At this time, more than a year has passed since he was injured. Originally, the application materials for work-related injury identification were submitted in Beijing, but the front line that was accidentally opened in Chongqing seemed to be against him from the beginning, and now it seems that there is no end in sight.
On November 12, 2020, the first trial in Chongqing finally opened on the spot.
Wang Enhui argued in court, pointing out that although Dias Company and Taichang Company had signed a “labor service contract agreement”, according to the content of the agreement, this was obviously a “capital fee” arrangement, and Taichang Company was not substantial. The benefits of managing Shao Xinyin can’t afford the corresponding labor risks at all.
But in reality, there are few twists and turns in TV dramas. As expected by Wang Enhui, Shao Xinyin lost the first instance.
“I felt very cold at the time, and I felt hopeless. I ran the takeout for so long, and the evidence and witnesses were obvious, but why did the court ignore it?” , “I’m also mad at myself. Why didn’t I keep an eye on the things I signed at that time?”
The Sichuan Workstation immediately reported the progress of the case to Zhicheng. In Beijing, lawyer Chen Xing on the side of the phone noticed that the insurance claim was based on “employer’s liability insurance”. So who is the employer?
Chen Xing immediately contacted the insurance company, but was told that Shao Xinyin was only the “insurance subject” of the employer’s liability insurance, neither the insured nor the insured-although the monthly insurance premium of 86 yuan was directly from Shao Xinyin’s salary Automatic deduction. In short, the insurance company refused to provide materials on the grounds that it was “not related to insurance”.
So lawyer Chen Xing had to detour and design a parallel lawsuit to sue the insurance company in Beijing, just to force it to hand over Shao Xinyin’s insurance materials. If you can get the materials before the second trial, you may be able to prove who the real employer is through it.
However, Beijing’s insurance litigation is still a step behind. The second instance in Chongqing was held first, and the court again ruled that Shao Xinyin lost the case.
When reviewing the situation of the second trial in Chongqing afterwards, Wang Enhui said, “Shao Xinyin’s absence had a major adverse impact on the case, because many details could not be stated through the personal experience of the parties, and the court did not even figure out the difference between special delivery and crowdsourcing. ”
But the problem with this type of case is that, as a farmer in Hebei, how could Shao Xinyin be willing to spend all kinds of transportation, food and lodging costs to go to Chongqing to fight this lawsuit?
reboot
Soon after, the news of Chongqing losing the case and Beijing getting the insurance evidence and withdrawing the case reached Tong Lihua, director of Zhicheng. That morning, Tong Lihua had a small-scale discussion with several lawyers.
At the meeting, the migrant workers’ lawyers unanimously believed that “this case cannot go on”. Because according to the existing laws and evidence, it is indeed difficult for Shao Xinyin to find an employer. After listening to everyone’s opinions, Tong Lihua came to a preliminary conclusion: Shao Xinyin should be persuaded to “suspend the lawsuit”.
But after returning home that night, Tong Lihua was still struggling with the matter. “Why can’t a person who is injured at work be unable to find an employer? Is this a legal issue or a case-by-case issue?”
As early as 2006, Tong Lihua led everyone to force KFC to completely stop using labor dispatch in China with a vigorous public interest lawsuit. In the past 16 years, Zhicheng has released a large number of empirical research reports, and Tong Lihua himself has participated in legislative and policy reform related work many times. It can be said that he is the most experienced lawyer in the field of public welfare legal services in China.
“Is there really no way?” Tong Lihua tossed and turned in bed that night, feeling confused and unwilling. He then thought, “If even we feel hopeless, does that mean that there is a huge, complex and unsolved problem behind this case?”
Early the next morning, Tong Lihua convened a meeting of all migrant workers’ lawyers, which was expanded in scale. At the meeting, Tong Lihua raised his confusion and pointed out the direction to solve the problem. Finally, after discussion, everyone decided to clarify the complex legal relationship intertwined in this system, help Shao Xinyin find an employer, and at the same time determined that lawyer Chen Xing would host the case, and initially set the research direction of the rider project. From that moment on, the case of Shao Xinyin was no longer a simple case for Zhicheng, but a complex project involving the vital rights and interests of tens of millions of riders.
In the afternoon, we had a long interview with Shao Xinyin.
At 11 o’clock in the evening, we contacted a lawyer representing a rider who was judged and lost by the Chongqing court in a similar case. She told us that the court in Chongqing seemed to have reached a consensus on a unified judgment, so even if the materials for “employer liability insurance” were submitted, The road of “confirming labor relations” cannot be followed.
We called lawyer Wang Enhui again. As the secretary-general of the Labor and Social Security Law Professional Committee of the Sichuan Lawyers Association, he explained in detail the proceedings of the Chongqing court and pointed out: “This is no longer a point problem, but a facet problem. It depends on individual cases alone. If you can’t solve it, I’m afraid you have to conduct systematic research.”
So that night, we made a comprehensive work plan overnight, vowing to study the rider problem thoroughly.
At this moment, we received a message from the lawyer representing the rider who lost the retrial in Chongqing on the other side of the screen. She gave some specific suggestions, and finally said:
“come on.”
Angel Wheel Volunteer
On March 15, 2021, the official account “Zhicheng Laborers” has not yet been launched. In order to break the stereotype of the public interest law industry, we released an Angel Wheel volunteer recruitment article, wanting to “roll up the public interest law industry”.
In just five days, we received applications from nearly 50 volunteers from colleges, law firms and other industries across the country. Despite their different professional backgrounds, all of them are full of curiosity and enthusiasm for participating in this new type of public interest law practice.
On May 14, 2021, exactly two months later, “Zhicheng Laborers” was launched urgently due to an incident involving an intern at Byte PUA Peking University. At the end of the scribbled inaugural speech, we left the resounding sentence “Iron shoulders bear morals, and whoever I am” pays tribute to the Beijing Zhicheng Legal Aid and Research Center for Migrant Workers established 16 years ago by Director Tong Lihua.
Since the rider program was fully launched at the end of June, in order to ensure the rigor and accuracy of the argument, we have organized more than 30 legal professional volunteers from all over the country to study almost all judgments related to riders’ determination of labor relations since the emergence of the food delivery platform. It takes at least 10 minutes for each judgment sheet to be quickly browsed, and the total of more than 3,000 initial judgments takes more than 500 hours, not including the later quality inspection, analysis, comparison and sorting.
For the past three months, the Shao Xinyin case has been haunting almost all of us. Does the fact that his case is so ordinary, yet so exhausting, mean that it is a universal predicament? At present, it is a period of historical changes in the protection of labor rights and interests under the platform economy. Where will this tide go? Can we grasp the direction and put forward specific suggestions to the country and society to solve this complex problem?
Behind the relevant laws and policies, the vital interests of every worker are involved. And these workers are everywhere on the road, and they are a part of our daily life.
When we think about this, we can’t sleep well, and we don’t dare to be lazy for a moment.
On a Saturday in July, after 12 o’clock in the evening, 12 volunteers in the database system were still diligently labeling the judgment. By 8am the next morning, seven more volunteers were online.
In the end, after several weeks of sleepless wheeling by volunteers, we initially built a database of 1,907 valid judgments. We breathed a sigh of relief when we saw the results of the statistical analysis that validated the initial assumptions and analytical framework.
for justice
In September 2021, the weather in Hebei is particularly good, and Shao Xinyin’s case seems to have a new turn. With the help of Zhicheng, he filed a second labor arbitration in Beijing, this time against Taichang and Ele.me.
A few weeks before the labor arbitration hearing, Shao Xinyin went back to his hometown in Hebei to pick up chestnuts.
He sighed on the other end of the phone, “I didn’t do heavy work, it hurts when I squat. Now I’m taking medicine again.” We consoled him and told him that the arbitration was about to start.
Like Shao Xinyin’s apprehension when he faced the first instance of the Chongqing court at this time last year, he is also unsure of the outcome of the second labor arbitration. But the difference is that this fall, a group of young volunteers are discussing the case of Shao Xinyin, the labor protection of riders, and the future of our country.
On September 16, we received a notice from the Beijing Changping District Labor Arbitration Commission early in the morning that the respondent was willing to settle.
However, when we arrived at the scene, the other party just threw us a poorly drafted non-disclosure agreement. After a while, we received another call from Shao Xinyin. He said that someone had contacted him directly, that he would give him a sum of money, and urged him to sign the settlement quickly.
Is that all there is to it?
There may be hundreds of injured Shao Xinyin all over China, but will there be a second “Shao Xinyin” who can survive five legal proceedings with the help of lawyers and volunteers in Beijing, Sichuan, Chongqing and all over the country ?
There won’t be, nor should there be.
At the report conference a few days ago, Tong Lihua, who has always been gentle, was uncharacteristically and pointed out that Ele.me and related companies did not have any reflection or apology in this case, “Behind this kind of thinking, it reflects the arrogance of capital. business conscience.”
The law is supposed to be the strongest net of protection for the weak, rather than a sophisticated way for the strong to blatantly transfer risks. Every “Shao Xinyin” should have enjoyed legal and reasonable protection as a worker, instead of being easily abandoned by capital at a low price because of an accident.
After the call with lawyer Du Wei, we were surprised to find that his WeChat signature was a sonorous and powerful “For Justice”. These four characters have been printed on the stairwell of Zhicheng Public Welfare Building in Beijing, welcoming everyone who visits Zhicheng. Whenever the morning sun passes by, it is always shining.
It should have been a slogan more than ten years ago. At that time, lawyer Du Wei had just graduated from university and joined the Sichuan Provincial Workstation. He was still a young boy. It was during Zhicheng’s internship that he was inspired by Tong Lihua to bring “for justice” back to Sichuan and into the hearts of more young people.
In this age of too much desire and emptiness, there are many occasions where talking about justice seems out of place. However, in the past two decades, Zhicheng has been insisting on promoting the development of public interest law. We are willing to believe that in the next ten years or even decades, more public interest lawyers will come forward.
Justice itself should flow equally to all of us like the sun shining on it every day.
“Lawyer Du, is your WeChat signature always for justice?”
“It’s always been, since I had a WeChat account.”
Postscript to Tong Lihua, Director of Zhicheng:
I have been paying attention to the issue of migrant workers since 2003, and in 2005, I established a legal aid workstation for migrant workers. With the support of the National Lawyers Association, we promoted the establishment of dozens of specialized agencies for legal aid for migrant workers in various places, and trained the first batch of legal aid lawyers for migrant workers. 16 years later, we still face the same challenges.
There are more than 280 million migrant workers in China. When they encounter difficulties, are there professional institutions and professional lawyers that can provide them with high-quality legal services in a timely manner? Legal aid for migrant workers is not a simple case. A slight inappropriate handling will not only infringe the rights of migrant workers’ friends, but may also lead to mass incidents or vicious cases.
Whether in the traditional construction industry or the platform economy in the Internet age, many companies have carefully designed various complex systems behind the scenes to avoid their legal responsibilities. Faced with this situation, not only the farmers’ unions feel helpless, but also many lawyers who do not understand this field are also difficult to deal with; so many rider cases have been lost, which is enough to show that we lack professional lawyers representing their rights and interests to reveal this complicated situation. system.
Fortunately, since 2010, the China Legal Aid Foundation’s Public Welfare Lottery Fund Project has provided financial support to specialized agencies for legal aid for migrant workers in various regions, which guarantees the development of these agencies and enables a large number of migrant workers to get help. Shao Xinyin’s case received relay help from a group of public welfare lawyers, which is enough to show the great significance of the public welfare lottery fund project. But the worry is that there are only a handful of specialized agencies for legal aid for migrant workers in the country. In the existing institutions, legal aid lawyers have a lot of work pressure and unstable personnel. In the past 16 years, how to cultivate a group of professional lawyers who provide legal assistance to laborers (especially migrant workers) in my country? This is still a real problem before us.
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