A Disccusion On The Structure Of Arbitrition And Litigation Realtion Of The Labour Dispute In China

As a major social issue in the market economy, naturally, the research on the labour dispute settle system has became an imporant subject in social public management.Labour dispute abitrition and labour dispute litigation are the two methods to deal with the labour dispute, thus, the structure relation of them are the core of the labour dispute settle system.The current labour dispute arbitrition and litigation structure-"bitrition praevia, one abitrition two judgement" model was established at the beginning of the reform and opening. However, with the development of the market economy, a range of changes has been taken place in subject, content, object, quantity, scope, degree and etc in the labour dispute.The social influence that bought about by those changes have beyond the regulative capability of the present structure, which makes the reconstructing of the present model of labour dispute abitrition and litigation meaningful.The history and status quo of the structure has shown some extent of continuity.After surveyed the theory of labour dispute structure, it can be classified into single track theory of labour dispute settlement and double track theory of labour dispute settlement. Although, the present Labour Dispute Mediation and Arbitrition Law added some "fisrt award being final" clauses, which has some positive effect in the supporting of litigation right of laborer, reflection of the high efficiency principle of arbitrition, and straightening out of arbitrition and litigation relations, generally speaking, the present structure lack the process of labour dispute litigation, restricting litigant's litigation right, violating the law priciple between arbitrition and litigation.From the perspective of comparative law, the author assorted the Britain france model based on individual dispute and collective dispute, the American model based on right dispute and interest dispute, and the approached adpoted by Taiwan, which have enlightening significance in reconstructing the labour dispute arbitrition and litigation structre in China.The aim is to reconstructing the structure by proposing the method of "arbitrait or adjudge depends on different cases", basing on the analysis and synthesis various theory schools, applying relevant law priciple and refering to the ways and models of labour dispute adopted by some advanced law-governed countires.Expanding the range of "first award being the final" during the arbitrition procedure in accepting cases, refelcting the features of consensus and high performance; further straightening out the arbitrion and litigation relaiton according to the classification of the right dispute and interest dispute and the different accepting scope based on arbitrition process and litigation process; during the litigation, trying to establish the labour court, setting up systems to embody thecial "law" rinciple, perfecting the litigation system. The present research aims to improve a harmounious working relation and provide a more scientific, reasonable and effective system guarantee.