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Study On The Burden Of Proof In Labor Dispute

Posted on:2014-04-25Degree:MasterType:Thesis
Country:ChinaCandidate:C X ZhangFull Text:PDF
GTID:2296330467465208Subject:Civil and commercial law
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In the course of the economic expansion of China, the cases regarding the labourdispute are uprising increasingly, characteristic of varying types and of wide range. Inthe judicial practice, the allocation of the liabilities of producing evidence in thosecases is of great significance since it determines the undertaking of these liabilitiesand fundamentally influences whether the party could make his right of action comeinto true. In China, as a special kind of civil dispute, the allocation of the liabilities ofproducing evidence concerning the labour dispute has convergences and divergenceswith the general civil dispute as well. There aren’t definite and systematic regulationsas to the allocation of the liabilities of producing evidence concerning the labourdispute in terms of specific legislation, and the relevant prescriptions scatter amongstthe Civil Procedural Law of PRC, the Regulations Concerning the Evidence in CivilProcedure of the Supreme People’s Court, the Labour Contract Law(LCL), theJudicial Interpretation of LCL and the Law of Settlement and Arbitration of LabourDispute, nevertheless, there are a number of loopholes, even some of which arecontradictory. On the basis of the theories, doctrines and enactments of burden ofproof in civil procedure, it is purported to comb the existing regulations about theburden of proof in the legislations, analyze the merits and demerits, and further tomake some suggestions to improve the system of the allocation of the liabilities ofproducing evidence concerning the labour dispute, considering the particularities inpractice involved.This dissertation has been divided into three parts, exclusive of the preamble andthe conclusion:Part one: the theoretical foundation of the liabilities of producing evidence. InChina, the labour dispute is defined as a special civil dispute, of which the allocationof liabilities of producing evidence bears not only the relations but also thedifferences. It is controversial about the principle of the allocation of the liabilities of producing evidence concerning the labour dispute amongst the scholars. It is secondedthat the doctrine “the party who claims shall produce the evidence and prove hisclaim” should serve as a general principle and the so-called doctrine “inversion ofburden of proof”(i. e., it is the party who refutes the counterpart’s claim shallproduce the evidence and prove his own claim”) should serve as an exception.Moreover, it is held by the author that it is necessary to specify the types of labourdispute applying the inversion of burden of proof in terms of protecting the labour’srights and interests, in order to ensure this doctrine can be more easily manipulated.Part two: the regulations as to the burden of proof of labour dispute in Chineseexisting legislations. During the period of nearly20years (that is, from the date of9April,1991when the Civil Procedural Law of PRC was promulgated to14September,2010when the Interpretation III as to Issues of Applying Act in theAdjudication of Labour Dispute of Supreme People’s Court was promulgated), Chinahas made a long-stride progress in the field of allocation of the liabilities of producingevidence concerning the labour dispute since it developed from the primary doctrine“the party who claims shall produce the evidence and prove his claim” to the doctrineof “inversion of burden of proof” subject to the situations, in doing so particularizingthe issue of allocation thereof to secure the operability in judiciary profession.Part three: the defects and improvement of the system of allocation of theliabilities of producing evidence concerning the labour dispute. Meanwhile, we shouldrealize soberly the regulations involved in the allocation thereof in China are far fromconsummation as yet, just like the lack of definite guidelines, the improper location ofthe general principle of “the party who claims shall produce the evidence and provehis claim”, etc., which needs restructuring the system of burden of proof throughexploration in practice. In my view, during the process of restructuring the system, weshould persistently insist on the basic notion of legislation that the labour law is toprotect the rights and interests of the labour, therefore it should cast a bit inclination tothe labour as against the management, which means it should categorize the labourdispute and particularize burden of proof in each kind of the labour dispute further, soas to bring a close to a consummation.
Keywords/Search Tags:burden of proof, labour dispute, allocation of liabilities ofproducing evidence
PDF Full Text Request
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