Comparative Study On Chinese And Japanese Treatment System Of Labor Dispute

Labor dispute is the court case triggered off by the dispute caused bythe labor right exertion and obligation fulfillment between the two parties inthe labor relationship and this kind of dispute is on the rise with thespeeding up of the adjustment of the marketing economic construction inour country and further deepening of labor employing system. The currenttreatment system of labor dispute in our country was recovered in 1987 andalthough it tended to be enhanced under the promotion of the reform oflabor legislation and labor system, it still lags facing the expanding state ofcomplicated labor dispute. This paper puts the difference between thetreatment system of labor dispute between China and Japan as thebreakthrough point; attempts to explore the defects and merits of the currenttreatment system of labor dispute in our country and puts forward somesuggestions of its own.This research paper is composed of five chapters.The first chapter is the introduction of the current labor disputeproblem in our country. This chapter firstly clarifies the concept of labordispute. In our country, labor dispute specifically refers to the disputecaused by the application of national laws and regulations and theestablishment, fulfillment, change, termination and cancellation of laborcontract and other problems directly related to labor relationship betweenlaborers and employing units in the adjustment scope of labor law.According to the second regulation of the "Treatment Regulations ofEnterprise Labor Dispute of People's Republic of China"in our country,labor dispute mainly includes the following ones. The first is the disputecaused by the enterprise discharging, disbarring and dismissing employeesand employees'voluntary demission. The second is the dispute caused bythe exertion of the national regulations of salary, insurance, benefits,training and labor protection. The third is the dispute caused by thefulfillment of labor contract. The fourth are other disputes which should betreated by "Treatment Regulations of Labor Dispute"according to the lawand regulations. Secondly, the chapter discusses the formation and relatedproblems of labor market. With the development of the contract workingsystem, labor disputes triggered off by labor contracts is on the gradual risewith years and this chapter analyzes the causes for the occurrence of labordispute. The second chapter is about the establishment of Chinese and Japanesetreatment system of labor dispute. The establishment of Japanese treatmentsystem of labor dispute dated back to the issue of "The Conciliation Act ofLabor Dispute"on July, the first, 1926 before the war (the fifteenth year ofDaZheng period). After the war, under the pressing of the occupying troopsof UN, Japan established "Three Labor Laws", in which "The AdjustmentLaw of Labor Relationship"was formally put into effect on October, 13th,1947 after the approval of the Congress. This law regulates that all labordisputes must be treated on three stages of mediation, conciliation andarbitration. The treatment system of labor dispute in our countryexperiences three historical periods, that is, the first period is the treatmentsystem of labor dispute after the foundation of the New China from 1949 to1956. In February of 1949, the Chinese National Federation of TradeUnions issued "Instructions about Establishing Trade Board in PrivateEnterprises", from that moment to the end of June, 1953, about 12,000private enterprises established the trade board system all over the countryand 162,000 labor contracts had been signed. The second period is from1956 to 1987 during which the treatment system of labor dispute had beenneglected for a time. The third period is from 1987 to 1993. The treatmentsystem of labor dispute was re-established. The symbol is the "TemporaryRegulations of Labor Dispute for State Enterprises"issued by the StateDepartment on July, 31st, 1987. The third chapter is about the principles and institutions of Chinese andJapanese labor dispute treatment. In Japan, the principle of labor disputetreatment is that the two parties should try to solve the dispute by their ownby seeking common points while reserving difference; but when this can notbe realized, they can also ask help from the court or labor committee.According to the regulation of "Labor Law", the principle of labor disputetreatment in our country is "to solve labor dispute according to legal, fairand timely treatment principles and to maintain the legal rights and interestsof parties in labor dispute". Besides, the "Treatment Regulations ofEnterprise Labor Dispute of People's Republic of China"also gives outmore specific regulations on the treatment principle of labor disputes. Theyare adjustment stressing and timely treatment principle, the principle oftreatment according to law on the basis of facts ascertain and the principlethat every party is equal in the application of law. The fourth chapter is about the ways and procedures of Chinese andJapanese labor dispute treatment. The Japanese institution of labor disputetreatment is composed of three representatives of labor, capital and publicwelfare. The concrete treatment procedures are four steps of mediation,intervention, arbitration and emergent adjustment. According to "LaborLaw"and "Treatment Regulations of Labor Dispute", there are mainly threekinds of current treatment institutions of labor dispute in our country: theconciliation committee of enterprise labor dispute, local labor arbitrationcommittee and people's court. The parties in labor dispute have four ways tosolve the dispute. They are negotiation procedure, intervention procedure,arbitration procedure and litigation procedure in which the negotiation andintervention procedures are not necessary procedures in that the parties candirectly apply for arbitration to the labor arbitration committee withoutnegotiations or interventions and can apply for arbitration with the failure ofnegotiations and interventions. However, labor arbitration is the prereguisiteprocedure of litigation and only when the parties are not satisfied with thearbitration decision can they sue to people's court. This pattern is called"one intervention, one arbitration and two inquisitions"or the system of"first arbitration and then inquisition", that is the single-track system. The fifth chapter is about the reconstruction of the institution of labordispute treatment in our country. This chapter analyzes the problems exist inthe current treatment system of labor dispute in our country and putsforward suggestions on the reconstruction of the institution of labor disputetreatment so as to perfect the treatment system of labor dispute; balance therelationship between labor and capital to better promote the socialisteconomic construction in our country. The problems exist in the currenttreatment system of labor dispute in our country are as the followings. First one is the deficiency of labor representatives and representativesof employing units leads to the dispute treatment pattern on the basis of"three-party system"lack functioning conditions. This to some extent...