Parties: Wang Guilian, Shiyan XX industry and trade limited company employees

   

    On the laborArbitration of labor disputes the parties in the court of first instance after the prosecution, litigation process, legally summoned, not to participate in litigation by people's court as a case, this kind of cases is whether again litigation, court shall accept the case, part of the point of view that the parties may again litigation, court shall accept the case. There are two reasons for this view the crowd:
　　
1, labor dispute cases are prescribed procedures for arbitration, and in the proceedings the plaintiff did not appear in court as a case, based on the opinions of the Supreme People's court "some issues concerning the application of" the PRC Civil Procedure Law > "(hereinafter referred to as the" opinions ") 144th regulation, the withdrawal or the people's court as a case after treatment, the parties to a lawsuit to a lawsuit, the people's court shall accept. Therefore, on the basis of the above provisions, the parties to a lawsuit is in accordance with the law, the people's court shall accept;
　　
In July 19, 2000 2, the implementation of the "about people's court for the labor dispute arbitration disputes to approve the withdrawal or dismiss the complaint after the labor dispute arbitration in force from time to explain" (hereinafter referred to as the "interpretation") the first rule, if a party refuses to accept the arbitration of labor disputes to the people's court and the application for withdrawal of the case, the people's court review of permitting withdrawal of the arbitration award, the people's court served since the date of legal effect. The "interpretation" clearly defined by the parties to apply for withdrawal, not by the automatic withdrawal treatment situation, the withdrawing is a kind of behavior of party autonomy right and treatment, according to the automatic withdrawal treatment is made under the authority of a court of appeal, the processing is not voluntary choice of the parties in the results, so the situation is not the application of the provisions of.
　　
Some people think that this kind of case can't again the proceedings, the court shall not accept the. Several reasons:
　　
1, "a number of opinions" although the withdrawal or by withdrawing treatment may have the same litigation request again for litigation, but the labor dispute case has the particularity, which is the precondition of arbitration, the arbitration case, on receiving the award within fifteen days after the parties have not action the arbitration award, the original effect, if a party fails to perform the obligations, the other party may apply to a people's court for compulsory execution;
　　
2, "explained" and does not specify if a party refuses to accept the arbitration of labor disputes to the court hearing for no reason not to appear in court and the court ruled by withdrawing treatment, labor arbitration award shall be legally effective when. But to apply for withdrawal and withdrawal treatment in essence is said to give up the meaning of the legal consequences of litigation, two are the same. The difference between the two is only an intention in different ways: apply for withdrawal by the parties in writing, make it give up litigation rights mean; as a case processing, is by the parties refuses to appear in court actions, to make its give up litigation rights is willing to submit to arbitration award means.
　　
3, if the case is "a number of opinions" provisions, the court may once again entertained the plaintiffs request, it will produce such a result: Court Plaintiff still refuses to appear in court proceedings, also can press again the withdrawal treatment, although the automatic withdrawal treatment according to the court, the parties may again action so move in circles, effectiveness, the original arbitration is long-term in a state of uncertainty, this result is obviously contrary to the development of the "interpretation" of the original, the other party is not fair, not to protect the party timely and effectively (especially the legitimate rights and interests of workers), another lawsuit of this the case, the court shall not accept the.

 

   A consulting office today, he said he is a state-owned enterprise workers, because there is no sign a written labor contract, the unit did not give him a pay social insurance and overtime without overtime pay labor dispute. He put forward the labor arbitration to the labor arbitration commission, due to dissatisfaction with the ruling, he sued to the court. The court after accepting the case, the unit to find him, and he negotiated let him withdraw, and promised to give him overtime wages and pension costs and pay part payment. As the other side is sincere, or public relations work to do good, he promised, second days to the court to apply for withdrawal, the court also with the fastest speed made an order on permitting the withdrawal. Now the question is, the unit that the original commitment, refused to give him overtime wages and pension costs and pay for part of the pay, only agreed to by the labor arbitration execution. He had to ask the question now is can not be re charged.

   The consultant who raised the issue, the lawyers also occurred in the dispute, that can be indicted again, that can't again prosecution. Think you can sue again held on the grounds thatAccording to the Supreme People's court "on the application<Civil Procedure Law of the people's Republic of China>The views of a number of issues "(hereinafter referred to as""Several opinions"") article144"The withdrawal or the people's court to withdraw after the treatment, the parties to a lawsuit to sue, the provisions of the people's court shall accept the case.".Think not to sue the reason isAccording to the Supreme People's court "about people's court for the labor dispute arbitration disputes to approve the withdrawal or dismiss the complaint after the labor dispute arbitration in force from time to explain" (hereinafter referred to as the "interpretation") the provisions of Article 1, namely "the party refuses to accept the arbitration of labor disputes to the people's court and applies for the withdrawal of the suit, the people's the court granted review the withdrawal of the suit, the people's court arbitration award since served the date of legal effect."

  "Civil Procedure Law" article 111st (five) Regulations ("The verdict, ruling has already become legally effective case, the prosecution, notify the plaintiff to appeal. But the people's court to withdraw the order except.""Opinions" provisions) and article 144th does not involve the arbitration of labor disputes come into question, again the court cannot according to these Provisions to allow the parties involved in a labour dispute. "Explain" the first is special provisions on labor disputes, should be the priority application. According to this provision, if a party refuses to accept the arbitration of labor disputes to the people's court and the application for withdrawal, the court granted review the withdrawal of the suit, the people's court arbitration award since served to the parties, legal effect. Since the arbitration award is legally effective, the parties involved in a labour dispute also has lost the original labor dispute again prosecution, the court should not be accepted.

   Interestingly, if the prosecution to the court, the trial court in accordance with the law by withdrawing my absence, the parties can also indicted again. According to the "interpretation" of the provisions of Article 1, it is clear the withdrawing, rather than by the automatic withdrawal treatment. If the parties apply for withdrawal is a kind of behavior has its own right parties, while the automatic withdrawal of treatment is a treatment to act under the authority of a court, the right is not made in the case of voluntary, the parties choose indicted again rule is not subject to "explain"?

   In fact, the labor dispute cases has its particularity, that is a pre condition for arbitration, the arbitration award after the case, the parties in litigation is not received within fifteen days after the original verdict, ruling came into effect, if one of the parties fails to perform the obligations, the other party may apply to the court for compulsory execution. Although the "interpretation" is not defined if a party refuses to accept the arbitration of labor disputes to the court hearing for no reason not to appear in court and the court as a case to handle the situation, when the labor arbitration legal effect. But to apply for withdrawal and withdrawal treatment in essence is said to give up the meaning of the legal consequences of litigation, two are the same. Application for the withdrawal of the suit is the written language expression form, to give up its rights, but as a case, by the parties refuses to attend the trial behavior, that the Party waives the right to litigate, willing to submit to arbitration. The effectiveness of the labor arbitration proceedings because of Party and ineffective, because the parties not to initiate a prosecution or to withdraw the prosecution after and takes effect, so the court according to the automatic withdrawal treatment allows the parties to re action, so move in circles, the arbitral award is the long-term effectiveness in a state of uncertainty. This result is obviously and the formulation of "interpretation" against the original intention, the other party is not fair.

   Of course, meet now as a result of, can be said that the flat side of operation method with improper, the consultants have their own undeniable responsibility. The first is to safeguard their rights, rights in accordance with the law, the second is to understand their rights since, only the law can use.

 

 

 

By withdrawing treatment also mention the labor arbitration (SUE) do

 

  [case]

  Jia is a clothing Limited company employees, because of a dispute with the company, in 2009 May to a district labor arbitration commission filed application, require the company to pay economic compensation for termination of the labor contract and annual leave pay. In June 8, 2008, labor arbitration committee hearing, Jiamou because of the traffic jam than hearing about 40 minutes later, and then seek the company views, labor arbitration committee to Jia a case made by automatic withdrawal decision. In 2008 October, Jia again with the same reason to the labor arbitration commission filed application.

  [lawyer]

  In the case of the trial, the company agent raised an objection to Jia a second appeal, that Jia was in 2009 June to the labor arbitration request, but absence in court, arbitration has been made according to the automatic withdrawal decision, therefore, Jiamou not on the same facts and reasons to file. As Jia one agent, lawyer thinks: first, a first arbitration court because of the traffic jam of the reasons for not timely appear, do not belong to no justification for court. Secondly, be accepted according to the general office of original labor department "has dropped about labor disputes arbitration committee for labor disputes could reply" (Lao Ban Fa No. [1997]61) spirit, the withdrawal or the labor dispute arbitration commission as a case of handling cases, such as when the thing person the same arbitration request for arbitration again, as long as with accepting the case, the labor dispute arbitration commission shall again to initiate proceedings, time for arbitration from the withdrawal date begin to calculate. Therefore, Jia has the right to request for arbitration again for the same.

  [practice]

  The example above mentioned is mainly labor arbitration stage if the employee withdrawal or by the automatic withdrawal treatment, laborers also can the same arbitration request again filed an arbitration case, in this case, if the worker voluntarily withdraw, workers can again apply for; but if the workers refused to unwarranted by the labor arbitration according to withdraw treatment, in the before January 1, 2009, may again apply, but if after January 1, 2009,38A: "the applicant received written notice, without any justifiable reason, refuses to appear in court or arbitral tribunal agreed to drop back to back, can apply for treatment according to the withdrawal of the arbitration, the applicant to apply for arbitration, the Arbitration Commission shall not accept the. Notified in writing by the applicant, refuses to appear in court or arbitral tribunal agreed to drop back to back, can award."

  If this happens to the court of first instance stage, the prosecution and withdrawal or by automatic processing, also can again prosecute?

  The Supreme People's court "on the application of" the PRC Civil Procedure Law > opinions on several problems of "the 144th stipulation:" the withdrawal or the people's court to withdraw after the treatment, the parties to a lawsuit to a lawsuit, the people's court shall accept." According to the content, the withdrawal of prosecution after withdrawal or in court after the treatment, the parties can still have the same lawsuit to sue. But the labor dispute cases is different from ordinary civil disputes, labor dispute cases preprocessing program of Labor Arbitration: labor arbitration case must pass through the labor arbitration, labor arbitration is received within fifteen days of the people's court to prosecute. The Supreme People's court "about people's court for the labor dispute arbitration disputes to approve the withdrawal or dismiss the complaint after the labor dispute arbitration in force from time to explain" (hereinafter referred to as the "interpretation") provides that: "the labor dispute arbitration, the people's court to prosecute and the application for withdrawal or parties, after the review by the people's court to approve the withdrawal the arbitration award, the people's court by the parties as of the date of legal effect." The "interpretation" is not included as a case processing situation, but the lawyer thinks, but applies for withdrawal and withdrawal treatment in essence is said to give up the meaning of the legal consequences of litigation, two are the same. According to the withdrawal of treatment should also follow the "interpretation" provisions, the parties once withdrawing or court or court automatically withdrawn, the original labor arbitration court ruling is served since the date of entry into force of parties, the parties was lost in respect of the same claim again prosecution.

 

Xie Moumou work left, right ear burns, identified as work-related injuries by labor and Social Security Bureau, the appraisal committee of labor ability as the four level disability, Ziliujing District, Zigong city by the arbitration of labor dispute arbitration committee: lift Xie Moumou and Zigong so Catering Company Limited (hereinafter referred to as the catering company) of the fact labor relationship, food and beverage companies pay Xie Moumou disposable disability allowance, Medicaid, shutdown leaves firewood period wages, medical fees, nursing fees 16 yuan, catering companies may, upon receipt of the decision within fifteen days after the court proceedings, requesting revocation of inductrial injury, disability identification, the arbitration award and the Xie Moumou disability grade re identification of. In the course of legal proceedings, catering company legally summoned, not to take part in the proceedings, the court according to the provisions of the "PRC Civil Procedure Law" in article 129th, made by withdrawing treatment decision. Catering company received the order, the cause of action, based on the same facts in fifteen days to request to the court again filed a lawsuit.

Catering company does is another lawsuit, court shall accept the case, and some that can be reused, it shall accept the. The reason is this case belongs to labor dispute cases, according to the provisions of a pre procedure for arbitration, in the proceedings the plaintiff did not appear in court as a case is treated, but according to the opinions of the Supreme People's court "some issues concerning the application of" the PRC Civil Procedure Law > "(hereinafter referred to as" the "several opinions" ") 144th" the withdrawal or the people's court to withdraw after the treatment, the parties to a lawsuit to sue, the provisions of the people's court shall accept the case ", catering company again action is in accordance with the law, shall be accepted; two the Supreme People's court shall enter into force as of July 19, 2000 of the" about people's court for the labor dispute arbitration ruling of the dispute to approve the withdrawal or dismiss the complaint after the labor dispute arbitration in force from time to explain "(hereinafter referred to as" "explain" the first "), although the provisions" if a party refuses to accept the arbitration of labor disputes to the people's court and the application for withdrawal, the court granted review the withdrawal of the suit, the arbitration award since the people's court shall be served to the parties concerned on the date of legal effect ", but the" interpretation "is definitely the parties apply to withdraw V., rather than by the automatic withdrawal of treatment, and the parties to apply for withdrawal is a kind of behavior has its own right parties, while the automatic withdrawal of treatment is a treatment to act under the authority of a court, the right is not made in the case of voluntary, so this case does not apply to the provisions.

The author thinks that food companies can't again litigation, the court shall not accept the. The reason is the "several opinions" clear the withdrawal or by withdrawing treatment may have the same claim another lawsuit, but the labor dispute cases has its particularity, that is a pre condition for arbitration, the arbitration award after the case, the parties in litigation is not received within fifteen days after the original verdict, ruling came into effect and, if a party fails to perform the obligations, the other party may apply to the court for compulsory execution; two although the "interpretation" is not defined if a party refuses to accept the arbitration of labor disputes to the court hearing for no reason not to court and court ruled by withdrawing treatment, labor arbitration when taken legal effect, but apply for withdrawal and withdrawal treatment in essence is said to give up the meaning of the legal consequences of litigation, two are the same. Application for the withdrawal of the suit is the written language expression form, its give up litigation rights; and as a case, by the parties refuses to attend the trial behavior, that the Party waives the right to litigate, willing to submit to arbitration. Three if the case for "several opinions" provisions, to accept the claims of the plaintiff, the court, the Plaintiff still refuses to appear in court proceedings, also can press again the withdrawal treatment, although the automatic withdrawal treatment according to the court, the parties may another lawsuit, so move in circles, the original arbitration will effect the long-term in a state of uncertainty, this result is obviously contradicts with the formulation of the "interpretation" of the original, the other party is not fair, more can not be timely and effectively protect the legitimate rights and interests of workers, especially the catering company, another lawsuit, the court shall not accept the.

[author] in Sichuan Province Zigong City artesian district people's court.

 

Case playback:

He in February 1, 2007 entry of a Guangzhou food limited company, position is. Because in September 10, 2008 the company fails to pay the overtime to a labour dispute arbitration committee for arbitration, the labor arbitration committee hearing, the two sides in October 28, 2008 received the arbitration award. He refuses to accept the arbitration award, in 2008 November 2 to the court. In March 2, 2009 the court the same day, he does not appear before the court without any treatment, according to a withdrawal. In March 4, 2009, he again the prosecution to the court, the court to award has been in force, where a prosecution dismissed. Excuse me, according to the labor dispute arbitration case withdrawing treatment can sue again?

Lawyers say:

Guangdong Hua Yu law firm Zheng Xianchun lawyers analysis, the focus of dispute in this case is according to the labor dispute arbitration case withdrawing treatment can sue again?

Firstly, according to the Supreme People's Court issued "on the application of 'problems of Civil Procedure Law of the PRC' opinions" (hereinafter referred to as the "civil") 144th stipulates that: "the parties to withdraw or the people's court to withdraw after the treatment, the parties to a lawsuit again prosecution, the people's court shall accept the case". In the case where a reason not to appear in court, the court as a case processing, if according to the regulations, He Mou to sue, the court shall accept the case. But the labor dispute arbitration cases as a special civil cases, especially the labor arbitration the parties have the right of prosecution to the court within 15 days, more than 15 days without charge, labor arbitration in force, which has the force of law. If the parties are allowed to sue after withdrawal, the prosecution in the 15 days period by cumulative or continue to enjoy 15 days of prosecution deadline? Either way, both would have an adverse impact on the problem of labor force, the enforcement of arbitral awards.

Secondly, according to the "Supreme People's Court on the labor dispute arbitration disputes to approve the withdrawal or dismiss the complaint after the labor dispute arbitration in force from time to explain" the first stipulation: "if a party refuses to accept the arbitration of labor disputes to the people's court and the application for withdrawal, the court granted review the withdrawal of the suit, the original the arbitration award from the people's court shall be served to the parties concerned on the date of legal effect". In the case where a reason not to appear in court actions of legal consequences and the withdrawing the withdrawal should be consistent. Therefore, Hemou award in October 28, 2008 the date of receiving the ruling has been in force.

To sum up, the labor dispute arbitration procedure is a quasi judicial procedure, for the Arbitration Commission to make a decision, if the parties do not sue within the prescribed time limit, the arbitral award shall have the force of law, namely; if the prosecution after withdrawal or the court as a case processing, then the party will lose the right to sue again. Because the labor dispute arbitration cases is different from other ordinary civil cases, does not apply to "Civil Procedure Law" provisions of article 144th. Therefore, the labor dispute arbitration cases, the prosecution after withdrawal or the court as a case processing, after the people's court to withdraw the arbitration ruling by the parties as of the date of legal effect, the parties can not sue again. Zheng lawyers suggest that you cannot regard labor arbitration procedures as a result, in the process of labor arbitration, should be strictly in accordance with the labor arbitration claim rights and obligations, otherwise it may bear the adverse legal consequences.