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Proof Burden Distribution To The Labor Disputes

Posted on:2010-09-04Degree:MasterType:Thesis
Country:ChinaCandidate:K RenFull Text:PDF
GTID:2166360275960412Subject:Civil Procedure Law
Abstract/Summary:PDF Full Text Request
The labor dispute means that the dispute emerges on privileges and obligations between the labor force and the employer which based on labor contracts employment-related laws and regulations of employer.In China,the labor dispute adjusted by the civil procedure law.The labor relations is collateral and personal as it has the common feature of equality which the civil relation has.In the labor relations, because the laborforce are to be organized, produeed and operated, labor force and the employer aren't equal,they don't have the same possibility to adduce evidence.There isn't a clearly defined of the labor disputes of burden of proof.It has been an imminent problem in solving distributing proof burden correetly in the proeess of dealing to slove the labor dispute correctly and peacefully.The meanings of the labor relations disscussed by this thesis which adjusted by the labor law, are narrow and specific. Labor relations with the will of country and the main part of the parties, both equal and subordinate to, and both personal relationships and the nature of property relations. According to different classifications of labor disputes has been divided into individual disputes, collective disputes and controversial groups; the rights and interests of controversial disputes, confirm-type controversy, debate and change the payment type of controversy; confirmed type controversy, payment disputes, change-type controversy.Authorities in cases are faced with the question of how to allocate the burden of proof.The labor dispute of this issue is adjusted by the< Labor Dispute Mediation Arbitration Law>,,judieial explnaation and administrative regulations. Though the burden of proof which contains six type of labor dispute are provided in the regulations,it's seems like general and narrow.Ther are defects of this issue as following:First of all,there aren't clear theory of the burden of proof to slove case of labor dispute .Secondly,the scope of the burden of proof which defined in the regulation is too narrow.Thirdly, the burden of proof in the regulations aren't conformded to the"stipulation doctrine". At last, the burden of proof in the regulations isn't conformded to the theory of convert of purden of proof.Labor dispute on the allocation of burden of proof, it can not be separated from the substantive law of labor to carry out research, in accordance with laws and regulations to carry out the distribution of burden of proof. At the same time, labor disputes for the distribution of burden of proof, we must consider the distribution of our country about the inherent burden of proof theory, can not be completely aside the mature theory of this issue to open a new path. Labor dispute in the distribution of the burden of proof should be focused on several aspects to consider are as follows:1. The"stipulation doctrine" should be the basic principles to the labor disputes for the distribution of burden of proof.2.The rule should be set to protect the both side of the parties equally.3. Comprehensive legislation should be clear proof of labor dispute with the duty of the distribution system.In this thesis ,the labor dispute has been divided into confirmed type controversy, payment dispute s, change-type controversy.As these Categories,I'll disscuss the distribution of its burden of proof Separately.If the Labor disputes in the allocation of the burden of proof has sloved as above, labor force still exists the problem of proof ability. Employers in arbitration and litigation may have the evidence of the deliberate non-provision of materials, or labor advocates said the fact that "I do not know", "do not remember" or the negative of the employing units to make the above statement of truth. The author believes that if he system of presumption and conclude are used correctly, this situation could to improve .
Keywords/Search Tags:The Labor Relation, The Labor Dispute, Burden Of Proof, Stipulation Doctrine, Convert Of Burdne Of Proof
PDF Full Text Request
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