| To the China today, the fast growth in economical changing with each new day obvious to all, but under the economical high speed development surface, we must see, in order to fast development, we also paid the quite great price, now the tense labor and capital contradiction is one illustration. However if labor contradiction has not obtained rapid effective processing, it can bring the enormous negative influence to the economy. Therefore for the economical stability, relaxes the labor contradictory must be the question which our government nowadays must extremely take.Not only that, proposed today this thesis, I thought no time must be more important than, specially be a legal science researcher. Some teachers had said, took an intellectual, should maintain a calm heart, people all are drunk which I awake alone, like this I can point out the social being question, see bad symptom of a trend, cannot drift with the current. Has a look the nowadays China, everybody as if immerses in the economical high speed development, "the wallet" in the high speed inflation condition, has naturally neglected many hidden dangers, but these hidden dangers if nobody attention, will be able to develop into the big trouble and later have the serious influence to the society. Therefore when all contributes for a Chinese economy quicker development, all in waves the flag and shouts for the rich in the community, to be a legal person, I want to speak for the weak one in the community, and should cry out the right for them, because along with the economical high speed development, the distance between the rich and the poor inevitably more pulls in a big way, this is one of characteristics which the market economy unable to evade, therefore the better protection for the weak 's right changed importantly in this time, the goal of this article was pointing out the social hidden danger, and in conducted the careful research propose the solution .Simultaneously this article believed that, the solution is most important, the fundamental research divorced from reality is useless, therefore this article will be able take to provide the solution as a key point, the solution took the article main constitution system, the fundamental research merely provide the solution method and the support, hoped to provide the actual existence question the practical help, will give the true help to the great poor. This in my opinion, also belongs to the legal person's responsibility. But what this article wants emphatically to study is precisely the related question negotiates have in labor legal relationship in our country.The negotiations are extremely ordinary and omnipresent active things in our daily economy, diplomacy, human communication life. Perhaps the overwhelming majority person every day must carry on some kind of the negotiations, solve with other people's difference, or satisfy own desire. Although between each kind of negotiations has the obvious difference, but in the majority situation, the negotiations usually is for seek a plan, enable to dispute the question to obtain well distributed. Therefore the negotiations are the process form the decision together, all conflict quarters start to pay attention observe the common value, the common goal, the common interest and together solve the question, the goal is to reach the solution which can accept with all quarters and proper to all quarters benefits, finally forms double -win result. Just because negotiates have this superiority, with current global dependence stronger and stronger, the people are willing to take the negotiations to solve the conflict in the first choice way, also in the labor and capital contradiction area.The negotiations once enters to the labor and capital area, turned to be the collective negotiations right. Although the collective negotiations right is a very important moderator, like English renowned constitution scientist Albert Venn Dicey Introduction to the Study of the Law of the Constitution emphasized : To the right ,the protection and the relief, declared person's right is more important than really; Only has the effective relief method, the right under the legal can receive the respect, the right in the name can also transform as the solid right, therefore, collective negotiation right relief system effective establishment can not wait.This article first through the unity power understanding, has carried on the analysis to the collective negotiations power and it's the relief system characteristic, pointed out the collective negotiation power is not in the general significance public right, but is one kind with the private right as the foundation labor autonomous unifies in the together social right, the labor law adjusts the labor management relation first is one kind of private relations, the labor autonomous should be the balanced foundation of the labor management relation, But, the labor management relation certainly is not complete or pure autonomously, and must have nation involved, and provide relieves by one kind of special system, through this kind of public relational further standard private relations, which is precisely the collective negotiations power relief system biggest character .Afterwards, this article emphatically analyzed nowadays our country regarding the collective negotiations power and question present legislation situation and the existence question, points out our country collective negotiations power relief system two major problems: Pure administrative relief and right to strike lost. In this foundation pointed out these two major problems had showed the government the similar careful manner to the collective negotiations power, and specifically elaborated the reason and the disadvantageous consequence of this kind of manner. Pointed out the collective negotiations power cannot obtain the truly effective relief is because of trade union's soft rib and our country traditional culture influence, so the government appear discretely careful to the collective negotiations power in the relief. But also pointed out that, this must be the point when establishes systems must pay attention to, needs perform the rules and regulations , the above reason does not have to become the stumbling obstacle to establish the good relief system, instead ,must be the booster medicinal preparation to our country to provide relief the system. At the same time, obtains the collective negotiations power effective relief system establishment is the request to our government develops under the ability enhances big background, both wants the social stability, and the economic efficiency, this test our new generation of government more splendid being in power ability.Receives this article to point out that, solve the problem, may not heal where it hurts, the solution guiding ideology, must be solves the problem from the system, its key lies in through establishes the right, the duty to the right person achieved mutually restricts the function which mutually promotes, this is the true meaning from the solution which I thought to beat. In this rationale, this article proposed systematic solutions: regarding the sole government administration relief question, this article divide into the collective negotiations power discussion subject three kinds to the worker vital interest, regarding most important subject, for instance, directly involves related "the wages, the working time and other work conditions" and so on aspect both sides has the duty to carry on , implements the strictest protection, not only forces to the government relief, but also the judicature, gives the worker either the employer arbitrates or the lawsuit right, regarding the not very important subject, implements the pure government administration relief, moreover it is the voluntary.Simultaneously this article also propose the better realization government relief in the own view, thought the government relief should undertake by the newly built work committee. May consider establishes the place all levels of work committee, this took the tripartite consultative implementation providing relieves and synthesizes the coordinated work relations in the specialized agency. This organization should be the government, the employer and trade union's representative, which is composed by the same representative population, its director takes the post by the government representative, assistant director committee member takes the post by the employer and the union delegate. Moreover, it also should consider absorption the related work question expert participation outside in the work committee. The work committee convenes by director, the conference discusses official businesses, mainly through consultative decision, in difference of opinion situation voting by ballot. The committee makes the decision or the issue order, has the legal effect. About the work committee's authority, this article believed that, the work committee should subordinate as the National People's Congress standing specialized committee to the same level National People's Congress, and is responsible to the National People's Congress. The place works committee member the office through the decision or the order, regarding the government, the employer and the trade union tripartite all have the binding force. Refuses to accept to work committee's decisions, may seek the judicial relief.This article also analysis the theoretically advantage which the judicature finally provide relief afterwards, and in the arbitration trial mechanism critique foundation which revealed true colors proposed regarding the collective negotiations power relief cuts, examines the succession single track system view and proposed the logical and in fact basis.Finally, this article also talked about the pressure and the challenge which transforms like this must face, after contrasted several kind of patterns, advocated the establishment ordinary specially examines the non- independent type the court trial pattern, thought this links to our country reality most, also at the same time handles the pressure method.Regarding the right to strike question, this article gave own set of comments from the system construction to the right to strike legal construction, and in detail listed to the right to strike law limits, which is in principle and the concrete regulation two aspects limits, the question which and how to obtained the suspension to strike the authority establishes work through the American famous case. This article believed, after establishes the right to strike, we will suspend the final decision-making power which will stop striking according to the strike scale differently to deliver to the local corresponding rank of the court to do.Here strikes have two kind of situations including the ordinary suspension strike and the special suspension, the special suspension strikes is the situation refers to the government administrative organ makes based on the cooling time and the urgent provision correlation stipulation does not allow to strike which the trade union refuses to accept. Request stopping strikes regarding the ordinary suspension, must by the employer give the lawsuit to the court on both sides dispute, certainly this lawsuit also may voluntarily propose by the trade union, but once the court accepts, the court makes the decision stopping striking, this decision has the legal compelling force and the binding force. The request struck which regarding the special suspension, this article believed, when the government does not give the strike permission, this decision must implement, having the compelling force, but still gave the trade union the right to the local corresponding rank upper level of courts to appeal, but trialed in final for first trial, regarding this the article explained the reason. Judge in this situation the main consideration is whether has the cooling time or the urgent provision related evidence, if agree strike, then transfers the situation which the ordinary suspension strikes to make corresponding processing.
|
PDF Full Text Request