The Law on Mediation and Arbitration of Labor Disputes has made great reforms and innovations in legislative spirit, concept and basic system, which basically meets the requirements of handling labor disputes under the market economy, and is of great significance for building harmonious labor relations. However, due to many conditions, there are still some outstanding problems and shortcomings in this new law, which need further study and solution. Based on the perspective of jurisprudence and comparative law, this paper analyzes the concept and essence of labor disputes, the handling methods and characteristics of labor disputes in western countries, and makes a preliminary discussion on the shortcomings and perfection of China's labor dispute mediation and arbitration law.
Keywords: labor dispute mediation and arbitration law; Labor disputes; Essence; Processing mode; Characteristics; improve
On February 29th, 2007, the 31st session of the Standing Committee of the Tenth NPC passed the Law on Mediation and Arbitration of Labor Disputes, which came into effect on May 29th, 2008. This "authoritative law" has great reform and innovation in the legislative spirit, concept and basic system of handling labor disputes, and there are many "highlights" worthy of recognition. For example, the mediation function is obviously prominent, the scope of arbitration acceptance is expanded, the limitation of arbitration is extended, the time limit for arbitration trial is shortened, the system of arbitration first and execution first is established, the burden of proof of the employer is increased, the parties to labor disputes in labor dispatch cases are specifically defined, and labor dispute arbitration is no longer charged. This is basically in line with the requirements of handling labor disputes under the conditions of market economy and is of great significance to building harmonious labor relations. However, due to many conditions, there are still some outstanding problems and shortcomings in this new law, which need further study and solution. Based on the perspective of jurisprudence and comparative law, this paper analyzes the concept and essence of labor disputes, the modes and characteristics of handling labor disputes in western countries, and makes a preliminary discussion on the shortcomings and perfection of China's labor dispute mediation and arbitration law, hoping to contribute to the supporting legislative work of China's upcoming labor dispute mediation and arbitration law.
First, the concept and essence of labor disputes
(A) the definition of labor disputes
To carry out research, we must first clarify the research object, which involves the definition of the concept of labor dispute. Although "in the initial stage of every study, the concept is the most difficult to define." [1] In China, Mr. Shi Shangkuan was the first scholar to define the concept of labor dispute, which has the most extensive influence on later generations: "Labor dispute, in a broad sense, refers to all disputes centered on labor relations. In this sense, disputes caused by labor contracts, disputes between employers and employees, or disputes about workers' protection or insurance, disputes between employers and the state, disputes caused by internal relations between employers' groups and employees' groups, and disputes caused by negotiations between employers or employers' groups and employees' groups are all labor disputes. However, the labor disputes mentioned in this chapter refer to labor disputes in a narrow sense. In other words, only disputes between employers and employees and disputes between employers or employers' groups and employees' groups are restricted. If the parties to the dispute are different, the former can become an individual dispute and the latter is called a group dispute. " [2] Professor Huang Yueqin believes that "the term' labor dispute' is a proper noun with specific legal significance, and not all conflicts, fights and disputes can be called controversial acts." Because: "According to the concept of the existence of constitutional rights, workers can exercise the right of unity to negotiate with groups, and then exercise the right of dispute to achieve their goal of improving working conditions. In order to achieve this goal, the laborer's right to dispute will eventually be implemented in the collective agreement signed with the employer, so the purpose of exercising the right to dispute is to conclude a collective agreement. (The author points out that all behaviors that are not based on concluding or amending a collective agreement are not labor disputes. Therefore, "it is a pity that there is a tendency to vulgarize legislation, practice and even academics. Not only can we not correctly understand the legal meaning of this proper noun, but we can even arbitrarily cut it or confuse it with other terms. " [3] 3 18 Professor Xing believes that labor relations can be divided into individual labor relations and collective labour relations. The labor dispute corresponding to a single labor relationship is a narrow labor dispute, that is, the dispute between workers and employers about labor rights and obligations. Labor disputes corresponding to group (collective) labor relations and individual labor relations are broad labor disputes, including narrow labor disputes and group (collective) labor disputes. 〔4〕
Based on the above analysis, labor disputes refer to disputes between workers and employers, and disputes between employers or employers' groups and trade unions around rights, obligations and related interests. This is consistent with Mr. Wang's narrow labor dispute and professor's broad labor dispute. Because Professor Xing's broad labor dispute is actually Mr. Xing's narrow labor dispute. This meaning includes the following contents: (1) The subject of labor dispute is specific, that is, one party is the laborer and the trade union, and the other party is the employer and the employer group. (2) The content of labor disputes is extensive. Labor rights and obligations are extensive, including legal rights and contractual rights, property rights and personal rights. Including employment, working hours, wages, labor safety and protection, labor insurance and welfare, vocational training, democratic management, rewards and punishments, etc. At the same time, in collective contract disputes, disputes will arise around related interests. (3) Labor disputes are conflicts of economic interests in the labor field. For example, the dispute over the termination of labor relations is essentially a dispute over certain interests. (4) Labor dispute is the contradiction and conflict of the subject's rights or interests. Therefore, the handling of labor disputes has become a legal procedure to solve such conflicts of rights or interests. (5) Labor disputes are based on labor relations and have strong social characteristics. Therefore, procedural justice in handling labor disputes will play an important role in the stability of labor relations.
(B) the nature of labor disputes
The phenomenon of labor disputes presents multiple individuality and incompleteness. From a global perspective, to summarize the individuality of labor disputes, it can be abstracted as follows: the requirements of rights or interests are obvious, and the forms are disputes and conflicts. Since the 1990s, China's labor disputes have shown the characteristics of adapting to social changes: First, the number of labor dispute cases has continued to increase substantially; Second, the number of labor disputes in non-state-owned enterprises has risen sharply; Third, collective labor disputes have increased substantially. On the one hand, the individual characteristics of labor disputes show the complexity of the allocation of rights and obligations of workers, and different disputes involve different levels and different attributes of rights claims; On the other hand, it also makes all kinds of procedural laws to solve labor disputes more operable and more in line with procedural justice.
Conflict is only the external manifestation of the disharmony of social subjects' interests. Although conflict means "struggle, competition, dispute and tension between obviously contradictory social forces." [5] However, western conflict theory also believes that conflict has the function of social integration. In fact, the purpose of right relief itself is to restrain the negative impact of conflict, reduce the occurrence of conflict or prevent the deterioration of conflict, thus guiding social change. Therefore, the basis of solving or restricting conflicts by law lies in affirming rights, while the premise of solving or restricting conflicts by law lies in the essential attribute of rights. The analysis of the nature of labor disputes must be based on the analysis of the nature of labor relations.
Labor relationship is a kind of social and economic relationship formed between workers and employers in the process of realizing labor. This socio-economic relationship is a contradiction: the pursuit of survival opportunities and the pursuit of profits have different value orientations. The contradiction of labor relations needs legal adjustment, which not only realizes the freedom and equality of personality, but also embodies the survival and development of human beings, and is the harmonious unity of the two.
From the perspective of historical analysis, labor relations are different from ordinary civil property relations and personal relations, and have strong social relevance. Judging from the historical development clues of labor relations, the era of wage labor is the revolutionary era of labor relations. Liberals fully converted labor relations into creditor's rights and realized the transformation of labor relations from identity to contract. The difference of interests and the independence of personality make the contradiction of labor relations increasingly prominent. However, the abstract equality conceals the actual inequality of this relationship and ignores the accumulation process of labor relations conflicts under the guise of human rights equality. Moreover, with the expansion of industry and the intensification of socialization of labor relations, the dual forces of spontaneity and consciousness have gradually produced the collective strength of workers. After entering the 20th century, with the establishment of the concept of social rights, the trade union law and its right of solidarity system endowed labor relations with richer contents. The labor law, which pays attention to the organic adjustment of the personal and property attributes of labor relations, has also become an independent legal department, which has attracted the attention of legislators. Looking at labor relations from a historical perspective, we can see that the social system is so closely related to it. The transformation of legal thoughts and concepts: the track of operation and integration of public law, private law and social law also illustrates the essence of labor relations and its position in social relations from one side.
Second, the labor dispute handling mode and its characteristics
(A) the way of handling labor disputes
The above analysis of the internal structure and extroverted performance of different interest relations-right conflict, and pointed out that labor disputes are the inevitable result of the operation of labor relations. The socialization of labor relations and its close relationship with social and economic system make the substantive law-labor law, which regulates this relationship, quite distinctive: it embodies the concept of taking labor rights as the standard, and makes the natural personality in private law expand in labor law and become the real personality under the care of law. 〔6〕
The formation and development of labor dispute settlement procedures in western countries are closely related to the labor legal system models adopted by various countries. Mr. Huang Yueqin, a famous labor jurist in Taiwan Province Province, divided these modes into four types, namely, struggle mode, multiple laissez-faire mode, coordinated autonomy mode and integration mode. [3]73 The mode of struggle has not been adopted by the country at present; The pluralistic laissez-faire model mainly refers to the United States, which is very different from Europe in solving labor problems; There are two modes of college autonomy: labor-capital balance and balance of power, represented by France and Germany. The integration model is complex, and it has formed social integration model, operator integration model and national integration model represented by Sweden, Japan and Taiwan Province Province. The difference between these models mainly lies in the intensity of labor disputes and the improvement of working conditions: the agreed autonomy model strengthens the role of trade unions, while the integrated model emphasizes the role of the state and groups.
(B) the characteristics of labor dispute handling mode in western countries
1. Labor disputes are generally divided into rights disputes, individual labor disputes and collective contract disputes, and different procedural laws are adopted for relief.
According to the different objects of dispute, labor disputes can be divided into rights disputes and interests disputes. The right dispute refers to the dispute between the employer and the employee on the existence or infringement of their rights or the performance of their debts according to laws, collective contracts and labor contracts. According to the principle of judicial final settlement, labor disputes can be solved through public relief-litigation. Interest disputes generally refer to disputes arising from determining or changing working conditions. This kind of dispute is unmeasurable and not actionable in law. Interest disputes are resolved through specially designed mediation and arbitration in all countries. If necessary, Japan and the United States adopt "emergency adjustment procedures" of public intervention. The division of rights disputes and interests disputes has become an important basis for procedural legislation and even the division of jurisdiction.
According to the different subjects of disputes, labor disputes can be divided into individual labor disputes and collective contract labor disputes. Individual disputes between individual workers and employers are generally the labor rights and obligations agreed in the labor contract. This kind of dispute involves the direct and immediate rights and interests of specific workers. The main body of the dispute is the laborer and the employer in the individual labor relations.
Collective contract labor dispute refers to the labor dispute between the trade union and the employer or its group due to the signing and performance of the collective contract. One party to a collective contract labor dispute is a trade union representative, and the other party is an employer or its organization.
The significance of distinguishing individual labor disputes from collective contract labor disputes lies in that they adopt different procedures in dispute handling. 2. The principle of tripartite mechanism is the main principle of labor dispute procedure law. The embodiment of tripartite mechanism principle in labor dispute procedure law is mainly constructed in different procedures. Although American arbitration institutions are divided into temporary arbitration institutions and permanent arbitration institutions, they are all composed of three parties; Rights disputes in Germany are handled by labor courts. The court of first instance consists of 65,438+0 professional judges and 2 honorary judges from employees and employers. The composition of judges in the second instance is the same as that in the first instance, but the second instance requires that employers must have representatives of employers' associations, employees must have representatives of trade unions to appear in court, and the parties concerned cannot appear in court. Except for the judges of the third instance, the proportion of professional judges and honorary judges has increased. Mediation and arbitration institutions for interest disputes are generally presided over or appointed by the minister of labor, and other members are composed of employers' groups and employees' groups.
3. A sound legal system for trade unions and a legal mechanism for collective bargaining. At present, most countries in the world have promulgated trade union laws or trade union legal systems. In some western countries, trade unions have become an important factor in their own labor legal system model. For example, France and Italy are representatives of labor-capital competition mode, advocating the idealism of trade unions and emphasizing the autonomy of labor relations; The labor-capital balance model represented by Germany and Austria advocates "industrial democratization", which not only operates the Senate system, but also strengthens the role of trade unions in safeguarding rights; The social integration model represented by Sweden is characterized by the fact that trade unions are in a dominant position among workers in the country. The coordination between the All-China Federation of Trade Unions and the All-China Employers' Federation forms the basis of individual labor relations and opposes state intervention. Japan, represented by the operator integration model, although not as powerful as Sweden, still emphasizes the negotiation mechanism between trade unions and employers at the enterprise level. Corresponding to the legal status of the above-mentioned trade unions, all countries have established a relatively perfect legal mechanism for collective trial. Moreover, this legal mechanism is not just a collective contract or a collective agreement, but an organic system of labor-capital consultation based on the "three rights in one" such as the right of association, contracting and litigation.
4. Statutory peace obligations. The emergence of labor disputes-conflict, can never be understood only as fighting and fierce external confrontation. All countries' labor laws or labor procedure laws have legal peace obligations to the parties concerned. If the right to strike is exercised, it is generally stipulated that it must be exercised by the trade union, and action must be taken when it breaks down. According to statistics, 57% of collective agreements in Switzerland have absolute peace obligations. [3] 76 When employers and employees conclude a collective contract or an alliance agreement through consultation procedures, they should fully perform the contract and must not object to the contents of the agreement, otherwise they will violate the obligation of harmony.
Thirdly, the deficiency and perfection of the Labor Dispute Mediation and Arbitration Law.
The Law on Mediation and Arbitration of Labor Disputes has largely solved the problems and disadvantages existing in China's previous labor dispute handling procedures, such as the limitation of the parties' right to arbitrate before litigation, the separation of arbitration institutions from administrative functions, the long and inefficient procedure cycle, and the "tripartite principle". Many "highlights" worthy of recognition appeared at the beginning of the article. However, due to many conditions, there are still some outstanding problems and shortcomings in this new law, including: labor disputes focus on individual labor disputes, and collective disputes are not included in the labor dispute handling procedures; Still adhere to the compulsory arbitration system (only some cases, some cases are final), and the scope of dispute arbitration is limited to rights disputes; There are still some defects in legislative technology and so on. These problems need to be further studied and solved in order to facilitate the supporting legislative work of the Labor Dispute Mediation and Arbitration Law. Based on the perspective of jurisprudence and comparative law, the perfection of labor dispute mediation and arbitration law should focus on solving the above problems and deficiencies from the following aspects:
(A) improve the collective dispute handling mechanism
Labor disputes in the Labor Dispute Mediation and Arbitration Law are aimed at individual labor disputes and collective labor disputes. Because the collective labor dispute in the Labor Dispute Mediation and Arbitration Law refers to the labor dispute with more than 10 people with the same demands, and its essence is still individual labor dispute, it is a great pity that the Labor Dispute Mediation and Arbitration Law does not actually involve collective contract labor disputes. In essence, judging from the causes of collective contract labor relations, it is based on individual labor relations and is bound by internal mechanisms. Its subject, content, object, operation mode and scope, and its influence on social order and economic order are different from individual labor relations. In a certain sense, the operation result of collective contract labor relations affects the economic foundation of a country, and then indirectly affects the changes of the superstructure. Collective contract labor disputes are not only disputes over the performance of collective contracts, but also include the conclusion, modification and dissolution of collective contracts, the exercise of the right to strike and the confirmation of unfair labor behavior disputes. In China, because there is no legislation on the right to strike and no systematic legislation on unfair labor practices, these two disputes are completely divorced from the operating mechanism of the right relief law. However, disputes over the conclusion and performance of collective contracts are not actually involved in the Law on Mediation and Arbitration of Labor Disputes, which makes the handling of labor disputes in collective contracts extremely irregular.
The imperfection of the settlement mechanism of collective contract labor disputes has a great relationship with the lack of understanding of the function of collective contract labor relations. In fact, labor-capital balance model, labor-capital balance model and social integration model all emphasize the independent role between labor and capital. The representative countries of these models are similar to the present situation of China in the early stage of market economy, that is, they mainly rely on individual labor relations law and labor standards law to adjust labor relations. However, due to the low standard and rigid characteristics of the Labor Standards Law, it is difficult to reconcile the opposition between employers and employees. After World War II, under the influence of neo-liberalism, western countries began to seek ways of autonomy, and gradually strengthened the legal system of trade unions and the labor dispute settlement mechanism of collective contracts. At present, mature market economy countries basically adopt three legal structures to adjust labor relations: individual labor relations law as the main line (middle structure), labor standards law as the basis (lower structure), and collective contract labor relations law as the focus (upper structure).
The basis of perfecting the labor dispute settlement mechanism of collective contract in China is to improve the trade union system and strengthen the rights of workers and staff groups. Whether it is the democratic management of employees, collective negotiation or collective contract labor disputes within an enterprise, it must be guaranteed by a sound trade union system and a coordination and negotiation machine. Due to the unitary trade union system in China, the top-down trade union structure system has played an important role in state-owned enterprises. However, with the expansion of the number and scale of private enterprises, it is an important task to establish trade union organizations in private enterprises. In private enterprises, labor relations are tense and the opposition is serious. Emotional means to solve collective disputes is very common. In state-owned enterprises and state-controlled enterprises, the representativeness of trade unions deserves special attention. Weakening or losing representativeness actually means losing the foundation of the collective contract labor dispute resolution mechanism. As far as workers' right of unity is concerned, collective negotiation and collective contract should be regulated by law, and a separate settlement mechanism should be established for disputes between negotiation and collective contract, and the "tripartite mechanism" should be strengthened, with the focus on mediation and arbitration of collective contract labor disputes. Under the condition that the current law does not give workers the right to strike, it is suggested to expand the scope of mediation on the basis of the original mechanism for solving labor disputes caused by signing collective contracts. In the relevant laws, negotiations between employers and workers are mandatory. In collective labor disputes, it is advisable to separate interest disputes from rights disputes. Interest disputes are mainly resolved through mediation mechanism, and rights disputes should be resolved through arbitration mechanism.
(2) Further reform the labor dispute arbitration system and procedures.
In the past, China implemented the compulsory arbitration system in labor disputes, which actually overemphasized the role of arbitration procedures. Its legislative starting point is that arbitration institutions have administrative dependence, which makes labor arbitration tend to be more administrative. The Labor Dispute Mediation and Arbitration Law makes some cases final, which breaks through the compulsory arbitration system to some extent, but only in a few cases, the compulsory arbitration system has not been fundamentally shaken, and the scope of arbitration is limited to rights disputes. Most western countries advocate the constitutional principle of equal litigation rights and rights, and take the principle of "judicial final settlement" as the principle to construct different settlement mechanisms for rights disputes and interest disputes, which has a strict academic and institutional basis. After 1980s, although some countries tried to relieve the court's pressure through mediation due to the realistic influence of "litigation explosion" [3] 320, it did not change the main relief function of judicial procedure. "The practice of labor dispute arbitration system in various countries shows that labor dispute arbitration is not the only way to solve disputes, and the scope of compulsory arbitration is mostly strictly controlled in labor disputes that affect public interests and social order." [7] To improve the labor dispute mediation and arbitration law, it is advisable to take the division of individual rights disputes and collective disputes as the standard, and on this basis, build individual labor dispute handling procedures and collective dispute handling procedures respectively. Individual labor disputes (rights disputes) are mainly solved by judicial means, and collective disputes are mainly solved by arbitration procedures led by the "tripartite mechanism". Both methods can be solved through mediation procedure, which fully embodies the fair value of the procedure.
(C) the legislative technology should be high
Many provisions in the current legal system of labor dispute settlement procedure in China are caused by legislative technical defects. Mainly as follows: (1) The content of relative certainty rules is expressed in the form of absolute certainty rules, and the content of absolute certainty rules is expressed in the form of relative certainty rules. For example, Article 80 of the Labor Law stipulates: "A labor dispute mediation committee may be established within the employer." Article 10 of the Labor Dispute Mediation and Arbitration Law does not explicitly solve this problem. Since it is "possible" to set up a labor dispute mediation institution, how to mediate if the enterprise does not have a labor dispute mediation committee? And so on, all these need to be clearly stipulated in the labor dispute mediation and arbitration law. (2) At present, many people have formulated procedures for handling labor disputes, especially the labor administrative department and its office have issued a series of regulations on prescription, jurisdiction and supervision, parties' system, preservation system and pre-execution system, which are related to arbitration system, arbitration system, litigation system and litigation system. (3) Since the labor dispute mediation and arbitration law does not involve the labor dispute litigation system and litigation system issues, how to determine the legitimacy of major issues such as the basic system and basic principles of labor disputes in the Supreme People's Court by judicial interpretation? According to Article 8 of the Legislative Law, "Arbitration and litigation systems can only enact laws", the labor dispute handling litigation system and litigation system should also be formulated by the National People's Congress or its Standing Committee to unify legal authority.
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