As two widely used forms of employment, labor outsourcing and labor dispatch, on the one hand, bring convenience to enterprise employment. On the other hand, because they involve the three subjects of employing units, dispatching units (outsourcing units) and workers, their legal relations are relatively complex and easy to be confused in practice. Once a tort dispute occurs in the process of performing their duties, the judicial determination of the subject of responsibility will become a difficult problem in such cases.

本文在深入分析劳务派遣与劳务外包相互关系的基础上，得出区分劳务派遣和劳务外包的关键点，从对劳动者的管理权归属出发，来确定劳动者侵权的责任主体。

Based on the in-depth analysis of the relationship between labor dispatch and labor outsourcing, this paper obtains the key points to distinguish labor dispatch and labor outsourcing, and determines the subject of labor tort from the ownership of workers' management right.

1、适用的法律不同劳务派遣适用劳动合同法，劳务外包适用合同法。

1. The applicable laws are different, the labor contract law applies to labor dispatch, and the contract law applies to labor outsourcing.

2、劳务承包单位可以是个人，也可以是法人或其他实体劳务派遣单位一定是严格按照劳动合同法规定的依照公司法的有关规定设立、注册资本不得少于五十万元的法人实体；劳动者完成的工作都是企业的业务或职能活动。

2. The labor contract unit may be an individual, a legal person or other entity, and the labor dispatch unit must be a legal entity established in strict accordance with the provisions of the labor contract law and the relevant provisions of the company law, with a registered capital of no less than 500000 yuan; The work completed by workers is the business or functional activities of the enterprise.

3、劳动者管理的责任主体不同，这是两者主要的区别发包企业对劳务承包单位的员工不进行直接管理，其工作组织形式和工作时间安排由劳务承包单位自己安排确定；劳务派遣单位的员工一定按照用工单位确定的工作组织形式和工作时间安排进行劳动。

3. The main difference between the two is that the employer does not directly manage the employees of the labor contract unit, and its work organization form and working time arrangement are arranged and determined by the labor contract unit itself; The employees of the labor dispatch unit must work according to the work organization form and working time arrangement determined by the employing unit.

4、结算费用的方式不同劳务外包一般按照事先确定的劳务单价根据劳务承包单位完成的工作量结算，其合同标的一般是“事”；劳务派遣一般是按照派遣的时间和费用标准，根据约定派遣的人数结算费用，其合同标的一般是“人”。

4. There are different ways to settle expenses. Labor outsourcing is generally settled according to the labor unit price determined in advance and the workload completed by the labor contractor. The subject matter of the contract is generally "matter"; Labor dispatch is generally based on the dispatch time and expense standard, and the expenses are settled according to the agreed number of dispatched personnel. The subject matter of the contract is generally "person".

5、违法的后果不同劳务发包单位对劳务承担单位的员工不承担任何责任。劳务外包适用合同法，违约人除承担合同约定的违约责任外，适用民事赔偿责任。劳务派遣中，给被派遣劳动者造成损害的，劳务派遣单位与用工单位按劳动合同法承担连带赔偿责任。

5. The consequences of violation of the law are different, and the labor contract issuing unit shall not bear any responsibility for the employees of the labor service unit. The contract law shall apply to labor outsourcing. In addition to the liability for breach of contract agreed in the contract, the defaulter shall apply civil liability for compensation. If any damage is caused to the dispatched workers during labor dispatch, the labor dispatch unit and the employing unit shall bear joint and several liability for compensation in accordance with the labor contract law.