The Improvement Of Chinese Labor Dispute Handling Mechanism

It has been over two years since the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes has become effective on May 1, 2008. The labor dispute handling mechanism of consultation-mediation-arbitration-litigation was confirmed by the law. While maintaining the previous mechanism, the new law completes and reforms the specific rules which easily arouse many disputes. From our legal practitioners engaged in practical work, the procedures of dealing with the cases of labor dispute do not reveal much obvious changes before and after the promulgation of the new law and the difficult situation of rights protection for the laborers does not compose a fundamental change. By the study of Chinese handling mechanism of labor dispute and its comparison with the developed countries, the author holds that Chinese existing handling mechanism of labor disputes conform to Chinese national condition whereas it shows some flaws that need to be completed.The author proposes some suggestions.This paper is consisted of three parts:The first part is an Overview of Chinese Labor disputes Handling Mechanism. First is the presentation of the concept and categories of the labor disputes. Second is the brief introduction to the handling mechanism of labor disputes in developed countries and the development history and current situation of Chinese handling mechanism of labor dispute.Labor dispute, generally referred to by its narrow sense, means the dispute of labor rights and labor obligations between parties or groups in labor relations. The main categories include right dispute, benefit dispute, collective dispute and individual dispute.According to the different features of the labor disputes in different countries, this paper introduces the handling mechanism of labor disputes in Britain, United States, Japan, and Germany respectively with the focus on the organization structuring, its personnel and the methods of handling the labor dispute in the countries above.Chinese government establishes the handling mechanism of dispute since the founding of the nation. It has gone through the initial establishment since 1949, abolishment after transforming the capitalist industry and commerce and reconstruction since the reform and opening up. On December 29, 2007, the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes is promulgated.At present, from the perspective of law, the labor disputes handling mechanism in China forms a legal system consists of laws, administrative regulations as well as judicial interpretation including Law of the People's Republic of China on Mediation and Arbitration composed of Labor Disputes, Labor Law, Regulations of the People's Republic of China on Settlement of Labor Disputes in Enterprises, and judicial interpretation proclaimed by the Supreme People's Court, etc. In addition, China has also established well-developed organizations for handling the labor disputes, enterprise labor disputes mediation committees, basic-level people's mediation organizations and organizations for labor disputes mediation founded by the government in villages and towns and neighborhood, the labor disputes arbitration committees (labor arbitration organization), and the people's court (judicial adjudication organs for labor disputes), forming a complete labor disputes handling organizations, and the handling procedures made up of consultation, mediation, arbitration and litigation.Part two is the Analysis on the Disposal Mechanism of Labor Disputes in China. The author firstly elaborates the institutional progress made since the promulgation of the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes. Afterwards, the author analyzes the existing problems and the causes in the labor disputes handling mechanism since the promulgation of the arbitration laws.After the promulgation and implementation of the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes, the basic framework of the labor disputes handling system did not reveal changes, but still pursuant to "one adjudgement and two litigations, and pre-placement of arbitration", while making some changes on the specific system, for example, diversity for mediation organizations is realized, application for payment order become available for some mediation agreements, legal provisions on arbitration timeliness are completed, duration of arbitration is shortened, and some arbitration award become final.Although the new law has made great progresses, there are still many problems in the present handling mechanism of labor disputes, which are especially highlighted in the following aspects: consultation and mediation are not fully functional, separation of arbitration and litigation and excessive duration in right protection. Existence of these problems is not conducive to maintaining the stability of the labor relations and laborers'rights protection. The main causes for this ineffective mechanism are concluded in four aspects: firstly, unreasonable design of "tripartite mechanism" which leads to unequal strength between both sides in the process of consultation and mediation; secondly, inconsistence between arbitration and adjudgement and separation between arbitration and litigation; thirdly, excessive duration in handling the labor disputes currently (including the duration of arbitration and litigation);fourthly, the retrial system applicable to labor disputes.The third part is about the Reform and Measures for Perfecting the Handling Mechanism of Labor Disputes in China. In connection with the existing problems and causes of China's labor disputes handling mechanism, the author puts forward some improvement proposals. These proposals include carrying out and implementing the "tripartite mechanism", rationalizing the relations between arbitration and litigation, setting up a special labor disputes trial court inside the People's Court, revoking the retrial system in the trial of labor disputes cases.China's "tripartite mechanism" basically becomes a "one-party mechanism" due to the stake among government, trade union and enterprises. The reform of the trade union is the key to implementing the"tripartite mechanism". Based on the opinion that China's labor disputes won't have fundamental changes in short term, the author does not propose arbitration final award for the management of separation between arbitration and litigation. However, the author proposes an advice that litigation should be carried out on the basis of arbitration award, and in order to keep the consistence between arbitration and adjudgement, the author suggests setting up a special labor disputes trial court inside the People's Court. For the reason that the rights protection duration is too long, the author proposes the retrial system which is stipulated in the Civil Procedure Law does not apply to labor disputes cases since no matter how the arbitration and litigation term are shortened, the status that the over-long rights protection duration of the laborers can not be fundamentally changed, let alone putting an end to the situation that a labor dispute case can not be finalized for years.