Si Chunyan: improving labor dispute settlement mechanism and building harmonious labor relations

发布时间: 2020-07-22 浏览次数:115
With the deepening of the reform of the market economy system, the disadvantages of the current labor dispute settlement mechanism have become increasingly prominent. It is urgent for us to reform the current labor dispute resolution mechanism, build a diversified labor dispute resolution mechanism, and strive to promote the coordination and interaction among various dispute resolution methods, so as to ensure the harmony in the field of labor relations.Improvement of labor dispute resolution mechanismWith the deepening of market economic system reform, labor disputes have become a major social problem affecting the harmony and stability of our society. Due to the characteristics of labor disputes, such as complicated legal relations, inconsistent application of laws and regulations, strong antagonism of the parties and difficulty in mediation, the current labor dispute settlement mechanism has been in short supply. Therefore, it is urgent for us to reform the current labor dispute resolution mechanism, expand the channels of labor dispute resolution, build a diversified labor dispute resolution mechanism, and strive to promote the coordination and interaction among various dispute resolution methods, so as to ensure the harmony in the field of labor relations.1、 China's current labor dispute settlement mechanismLabor dispute settlement mechanism refers to the organic whole composed of various institutions and ways to solve labor disputes in the process of labor dispute resolution. Article 79 of the labor law of the people's Republic of China stipulates that after the occurrence of a labor dispute, the parties concerned may apply to the labor dispute mediation committee of their own unit for mediation; if mediation fails and one of the parties requests arbitration, it may apply to the labor dispute arbitration committee for arbitration. One party may also directly apply to the labor dispute arbitration commission for arbitration. If the party is not satisfied with the arbitration award, it may bring a lawsuit to the people's court. &This kind of labor dispute settlement mechanism is usually called "one adjustment, one arbitration, two trials" or "arbitration before arbitration", that is, the single track system. After the occurrence of a labor dispute, the parties concerned may seek settlement on their own, or apply to the labor dispute mediation committee of their own unit for mediation; if mediation fails, the parties may apply to the labor dispute arbitration committee for labor arbitration. It is not necessary for the parties to apply for mediation and arbitration directly. If the parties concerned are not satisfied with the labor arbitration award, they may bring a civil lawsuit to the people's court and seek judicial relief. However, labor arbitration is the pre procedure or necessary procedure of litigation. Only when the arbitration award is not satisfied can the lawsuit be brought to the people's court. If one party does not bring a suit within the legal time limit and fails to perform the arbitration award, the other party may apply to the court for compulsory enforcement. If the case is not accepted by the labor dispute committee, it shall not be accepted by the labor dispute committee. It should be said that this kind of dispute settlement mechanism is still effective when there are not too many labor disputes and the nature of disputes is not too fierce. &The application of the "arbitration before" principle has played a positive role in the settlement of labor disputes, which has reduced the work pressure of the people's court to a certain extent.However, with the rapid development of market economy, labor disputes related to labor and personnel, wage distribution, social security and other contents are becoming more and more complex, and the total number of labor dispute cases continues to rise significantly. In the current labor dispute settlement mechanism, most of the labor dispute cases arbitrated by the labor arbitration committee continue to sue to the people's court. The arbitration does not have actual legal effect, and the number of cases in the court has not decreased because of the priority of arbitration. As there are litigation procedures after arbitration, the losing party often brings a lawsuit with a fluke mentality or for failing to perform the arbitration award to bring down the other party. This situation is obviously not conducive to the realization of the parties' rights and increases the litigation burden. Therefore, China's current labor dispute settlement mechanism can no longer meet the needs of the complexity of the current labor relations, social reality and judicial practice require us to reconstruct the existing labor dispute settlement mechanism.2、 Defects of the current labor dispute settlement mechanismThere are many problems in the current labor dispute settlement mechanism, which has been the consensus of the theoretical and practical circles. Its disadvantages are mainly reflected in the following aspects:(1) The "tripartite mechanism" in the alternative labor dispute settlement mechanism is a mere formality, which affects the realization of justiceAlternative labor dispute resolution mechanism, also known as non litigation labor dispute resolution mechanism, mainly refers to a series of systems to solve labor disputes through non-governmental mediation organizations or labor arbitration committees. The "tripartite mechanism" in the labor dispute settlement mechanism refers to the mechanism in which the representatives of both parties and the middle party of labor relations participate in the process of labor dispute settlement and coordinate the interests of the parties involved in the labor dispute. The representative of the workers is the trade union, the employer's Association is the representative of the employer, and the representative of the Chinese side is usually the government, and some are experts and scholars. &"Tripartite mechanism" has been confirmed by the International Labor Organization (ILO) and many countries' legislation, and has become a universal principle in the labor dispute settlement mechanism. However, in contemporary China, due to the absence of representatives of workers and employers, the dispute resolution method based on the "tripartite mechanism" lacks the conditions for operation. This leads to the fact that, to a certain extent, the existing alternative labor dispute resolution mechanism is not real.From the legislative point of view, China's labor dispute settlement mechanism has also implemented the "tripartite mechanism";. In the composition of the labor dispute mediation committee, the tripartite representatives are composed of the representatives of the employees, enterprises and trade unions; in the composition of the labor arbitration committee, the representatives of the trade unions at the same level, the representatives of the entrepreneurs' associations and the representatives of the labor administrative departments are composed of the representatives of the labor union at the same level. However, in practice, because on the one hand, a large number of employers, especially non-state-owned enterprises, have not established enterprise trade unions, which makes the internal labor dispute mediation committee of enterprises impossible to establish, and the grass-roots mediation system becomes empty talk; even in the enterprises that have established trade unions, due to the administrative control of enterprises, it is difficult for trade unions to work independently or even become owners of enterprises Tools. On the other hand, due to various reasons, trade unions have not become an independent force, which is difficult to truly represent the interests of workers and has limited ability in protecting workers' rights. However, the entrepreneur associations led by the economic and Trade Commission are different from those of foreign employers' associations, which can not truly represent the interests of employers. This makes the labor arbitration committee evolve into an organization that only labor administrative departments participate in, and labor arbitration becomes administrative arbitration. Therefore, in the actual grassroots mediation and arbitration of labor disputes, due to the absence of representatives of workers and employers, the alternative dispute resolution mechanism based on the "tripartite mechanism" has been seriously distorted and deviated from the original legislative intent.(2) The long trial period of arbitration and litigation violates the efficiency and efficiency of justice.The late justice is unjust, and efficiency and efficiency are the proper meanings of judicial justice. According to the regulations of the people's Republic of China on the settlement of labor disputes in enterprises, the time limit for labor arbitration tribunal to handle labor disputes is 60 days. If the case is complicated, it can be extended appropriately, but it shall not exceed 30 days. If a party refuses to accept the arbitration award, he may bring a suit to the people's court within 15 days from the date of receiving the award. The court shall apply civil procedure to hear labor dispute cases. The trial period of ordinary procedure of first instance shall be six months, and may be extended for six months under special circumstances; if the party refuses to obey the judgment of first instance, he may appeal within 15 days from the date of receiving the judgment, and the time limit for trial in the procedure of second instance It's three months. It can be extended under special circumstances. In this way, a labor dispute case usually takes more than a year to solve under normal circumstances. Therefore, due to the existence of the procedure of "before arbitration", the litigation costs of the parties involved in labor disputes will inevitably increase, and labor disputes can not be solved in time, which violates the principle that labor disputes should be handled in time. It is the inherent requirement of modern judicature to obtain the maximum benefit with the minimum cost. For the parties involved, it is always a psychological and economic burden to be entangled by disputes. Moreover, the longer the dispute delays, the heavier the burden on the parties. For the country, the limited judicial resources can not cope with the protracted disputes. The drag of disputes will lead to the unreasonable consumption of various judicial resources and affect the efficiency of the judicial department; secondly, it will affect the realization of the rights of the parties. Once the rights of the parties can not be realized, the justice creed established by the law will lose its adherents, because the unfulfilled "justice" can not be regarded as the real justice; thirdly, the delay of disputes will make the disputes exist in the society for a long time, and the rights and obligations relationship of the parties will be unstable for a long time, which will become a factor affecting social stability. The current labor dispute settlement mechanism seriously violates the principle of judicial efficiency and efficiency.(3) It limits the litigant's right of action and is not conducive to the protection of the legitimate rights and interests of the parties.Under the current "arbitration before" procedure, the litigant's right of action can only be obtained after the arbitration organization has accepted the dispute in procedure and made an entity award. The exercise of the right of action must be based on the arbitration institution's handling of the dispute first. This actually excludes the party's right to choose the lawsuit freely. If the Arbitration Commission, out of subjective understanding or some objective reasons, refuses to accept the labor disputes that should have been accepted, theoretically speaking, the court will not be able to accept these labor cases, which in fact deprives the people's Court of its jurisdiction and also causes the parties to lose the right to sue for this part of the dispute. The legitimate rights and interests of the parties to labor disputes can not get any relief. Moreover, it is easy to cause the parties to lose the protection of the limitation system. Arbitration, by its nature, should be a non administrative and non litigation act of social adjudication. The principle of voluntariness is a basic principle of arbitration. Whether or not to arbitrate should be freely chosen by the parties, which is the disposition of the parties to their substantive rights. And only when both parties have reached a consensus on arbitration after the occurrence of labor disputes can the arbitration institution accept it. In the current labor dispute settlement mechanism, as long as one party submits an application, the labor dispute arbitration committee can file a case without the consent of the other party. This eliminates the parties' free choice of arbitration, which is not in line with the spirit of the parties' voluntariness in arbitration as a non administrative and non litigation act of social adjudication, which increases the cost of dispute settlement arbitrarily.3、 Improve the mechanism of labor dispute resolution and build harmonious labor relations(1) We should cultivate social intermediary organizations to play their balance and coordination function in dispute resolutionSocial organizations are increasingly playing an indispensable role in modern society. They play the role of "providing services, reflecting demands and standardizing behavior" through activities in social services, intermediary coordination, social management and international exchanges. Under the condition of market economy, social relations tend to be diversified. Intermediary organizations can absorb specific social groups and provide a platform for communication among members, which is beneficial to the society