Research On The Convergence Of Labor Dispute Arbitration And Litigation

Labor right is the basic right of citizens in our constitution, and law protects the same as other rights in the constitution. The labor dispute is a kind of special form of social dispute, which is produced by the protection of the right of labor. The general labor dispute handling mechanism is composed of labor dispute arbitration and labor dispute litigation. They play a huge role in dealing with labor disputes and protecting labor rights. Most countries in the world have labor arbitration system, while China’s labor arbitration system has its own unique characteristics, which can be called “Chinese characteristics” labor arbitration system. It is both administrative and judicial. At present our country for labor dispute processing is a one-arbitration and a two-tier trial system, which means that labor disputes must go through arbitration procedure first and if parties refuse to accept the arbitration award, cases will go for trial and apply the two-tier trial system. In recent years, due to the growing awareness of workers’ rights in our country, the number of labor dispute cases also has showed a growth spurt. Under this background, the convergence between labor dispute arbitration and litigation is particularly important. Therefore, China has promulgated the "Labor Contract Law of the People’s Republic of China", "the People’s Republic of China Labor Dispute Mediation and Arbitration Law", "the People’s Republic of China Social Insurance law" and the four judicial interpretations of the application of legal issues in the trial of labor disputes, which involves the improvement of the procedure of arbitration to litigation. However, there are still many problems on the convergence between labor dispute arbitration and litigation. The conflicts between arbitration and court proceedings are particularly evident. The proportion of the local court to change the arbitration awards is high. The motivation of writing this thesis is born in this article. This paper forces on the problems of the convergence of labor dispute arbitration and litigation. These two procedures of dealing with labor disputes are crucial. In order to improve our current labor dispute handling mechanism as well as to provide constructive suggestions and comments, the paper starts with the relationship between the two procedures and analyzes the problems of convergence to explore feasible solutions and to build a special scheme of labor disputes litigation and a harmonious and stable labor management relationship.In addition to the introduction and references, the full text is divided into three chapters, the specific content is as follows:The first chapter that is the starting point of the full text is the research on the relationship and problems of the convergence between labor dispute arbitration and litigation. The relationship between labor dispute arbitration and litigation is inseparable. The first section is the relationship between labor dispute arbitration and litigation. Five parts are as follows. Firstly, the labor dispute arbitration and litigation are connected with each other. Secondly, the labor dispute arbitration and litigation are independent with each other. Thirdly, prior execution and compulsory execution mainly reflect the fact that the labor dispute litigation provides guarantee for labor dispute arbitration. Fourthly, the supervision of labor dispute litigation to the labor dispute arbitration is mainly embodied in the supervision of the arbitration institutions and the improper conduct of the arbitration institutions. Finally, there is combined the status quo analysis of our country labor dispute arbitration with the disadvantages of the relationship. The second section is to discuss the problems of labor dispute arbitration and labor dispute litigation in China. The article is divided into six parts. Firstly, there is the analysis of the exceptions of the pre arbitration. The applicant may bring a lawsuit directly to the court if the arbitration does not accept the case or fail to make a decision of acceptance or the award in the limited time. Secondly, there are explores the problems of convergence of the final judgment. This part discusses the characteristics of the final judgment, the judgment standard and the judicial supervision, and summarizes the five aspects of the convergence of the final judgment. Thirdly, there is the procedure of non-normal termination to influence and restrict the validity of the arbitration award, which mainly answers the question on the withdrawal of the labor arbitration of disputes going to prosecution again and whether this kind of case can be accept. Fourthly, there is about the convergence of the parties concerned and the change, which mainly answers what the court will do if the labor arbitration omits the party in necessary co-litigation. Fifthly, there is to discuss how the arbitration impacts and restricts the scope of litigation. The author analyzes the problems of increasing, decreasing and changing of the original arbitration claims, and discusses the question of the burden of proof and the witness to appear in court. In addition, the author discusses the question on what the impact of self-admission is in the labor dispute arbitration and labor dispute litigation. Finally, there is the summary of other aspects of the problem of convergence. Including the applicable law, the scope of litigation, jurisdiction system, prescription, court verdict statement, execution and prior execution,property preservation and perpetuation of evidence.The second chapter discusses the solution of the convergence of the labor dispute arbitration and litigation. The first section is to compare and analyze some modes that are one trial after arbitration, only arbitration, only trial and either arbitration or trial from the legislative and the interpretation of theory. The second section analyzes the reform of the arbitration institution and the court in the case of maintaining the existing system, from the perspective of interpretation. This section mainly discusses the reform of the arbitration institution and the main content is the form and the administration of the labor arbitration. The relevant countermeasures are to adhere to the three parties principle, the establishment of an independent labor arbitration institute, to strengthen the labor arbitration team building, to strengthen the supervision of labor arbitration, to expand the scope of application of the final judgment and to improve the convergence between labor dispute arbitration and litigation etc. On the reform of the court, it is argued that the basic-level court should establish the special labor tribunal in the issues on setting up a labor tribunal or a labor court. The third section discusses the characteristics of labor dispute and the function and power of the trial pattern. The characteristics of the labor dispute are the specific subject of labor relations, double attributes in labor disputes, the statutory rights and obligations of the parties, the right to relief without the right of choosing procedure and the double attributes application of the law. In the labor dispute, the function and power of the trial pattern is different in the disposition principle and the principle of debate. And the judge will reflect the power of the authority by the exercise of the right to clarify. The fourth section is to explore the professional path of the labor dispute settlement procedures, to analyze the necessity and the scheme of establishing the labor tribunal and to sum up the main points above. In addition, it is recommended to complete the labor dispute litigation procedure.The third chapter is the construction of the special procedure of labor dispute litigation. In our country, labor dispute lawsuits that apply the civil procedure law have no special procedure law and do not accord with the special request of labor disputes. Therefore, there is the necessity to establish the special procedure of labor dispute litigation. The first section describes the general principle of civil procedure. The most basic content is the right and obligation of the plaintiff, defendant and the court in the proceedings. The second section is about the special nature of the labor dispute litigation, which is concrete from the jurisdiction, the trial organization, the burden of proof, property preservation and first execution to prove the fact that the current civil procedure law of the People’s Republic of China is not fully applicable for labor disputes litigation any longer. The third section is the specific program of the construction of labor disputes litigation procedure that is the main part of this chapter. In respect of the jurisdiction system, the exclusive jurisdiction, the level jurisdiction and the priority jurisdiction of the labor contract should be increased. In the judicial organization, the three parties should be reflected in the maintenance of the people’s jury system, and the representatives of workers, employers and labor law experts and scholars. Special provisions on the limitation of labor dispute litigation should be added in the limitation of action. Legal elements should be insisted on the distribution of the burden of proof, which means that employers and employees take the burden of proof separately according to different legal elements. In addition, there are some provisions on reducing the trial time, increasing the jot legal procedure and the public interest litigation. The legislation should be inclined to the disadvantaged workers, and these related provisions should be revised to no requirement to provide security in the aspects of property preservation, act preservation and the prior execution.