The labor dispute case, the people's Court of civil and commercial cases in a larger class of. This phenomenon is the transition period to reflect normal labor relations in China rapid change, improve the social from all walks of life, but also improve the rights and interests of workers and laborers concern legal self-protection consciousness to enhance the awareness of the inevitable consequences. Closely related to production and labor disputes and the enterprise life, if not promptly resolved, the normal production order of the enterprises not only influences, and workers of daily life, and affect social stability. Therefore, to properly handle the labor dispute cases, is a key part of maintaining the stability of the labor relation and the smooth development of the enterprises.

 

1,How to avoid the program led to the failure of the arbitration or litigation defeat?

2,How to collect the evidence?

3,How to carry out the trial defense?

4,How is itThe trial?

 

A, how to avoid the program led to the failure of the arbitration or litigation defeat?

 

Not long ago,KThe company received a labor dispute arbitration committee of the summons, the original company has employees leaving the company to court Li Qiang. Li Qiang claims the incumbency has not and the signing of a written labor contract requirements, and require companies to pay not signed a written contract double pay the difference9Million yuan.KThe company by the investigation that, the reason was not signed a written contract for Li Qiang delay, the company also specially sent to the written notice signed labor contracts, with Li Qiang's signature and the notice.KCompanies that have the evidence, the company has victory in the hand. So the company organize files, in court that day to arrive on time and submit the arbitration tribunal, the prepared material to the arbitrator. Who knows, the arbitrator to inform the company has already been submitted evidence time limit, if the other party dissent, the arbitration tribunal may not organize quality certificate of the evidence. Sure enough, after hearing the other lawyers said over the time limit for adducing evidence, the evidence submitted to the temporary not recognized. The final award by the arbitration tribunalKThe company paid to Li Qiang not to sign a written labor contract double pay the difference9Million yuan.

 

1,KThe company has staff deliberately delay not sign labor contract evidence why losing?

 

Usually the arbitration organization or in the service of notice of court or court summons file will also send "Notice of proof", "litigation risk book", these files are often ignored by enterprises. The file to the enterprise deadline to submit evidence, have carried out detailed provisions, if the enterprise to complete the evidence collected in the above period cannot be, shall timely communicate with the arbitrator or judge, avoid late proof bear the unfavorable results.

In this caseKThe company has sufficient evidence to refute the staff put forward the application for arbitration, could be relaxed in the arbitration

Won, but due to a careless missed the submission of evidence time, lead to hold its favorable evidence cannot be recognized, leading to lost in the arbitration.

 

2,How to avoid the procedure led to the failure of the arbitration or litigation defeat?

 

The labor dispute arbitration or litigation is program strong activity, enterprises must be in the entity to find in favor of one's own evidence, to find loopholes in the procedure, such as:

A review of each other, arbitration or litigation request is belong to the scope of accepting cases. Enterprises in the receipt of the request or complaint should first examine the arbitration request whether to conform to the standard. First, review the application matters whether it belongs to the category of labor dispute. "Labor dispute mediation and Arbitration Law" provisions of article second, only belong to the provisions within the scope of labor dispute to the labor dispute arbitration entrusted with the labor arbitration, if the enterprise staff promotion unfair filed a labor dispute arbitration, disputes arbitration obviously does not belong to the category of labor law to solve, may request the arbitral tribunal to reject the request for arbitration.

Secondly, review the applicant file exceeds the limitation. Prescription litigation and arbitration of the applicant or the plaintiffs filed a request for arbitration or litigation request must comply with the provisions of the law, "labor dispute mediation and Arbitration Law" article27The provisions of the labor arbitration shall be in the relevant subject, within one year as of the date the arbitration filed an application, if after the examination of the request for arbitration, the application filed from the date of occurrence of such incident has been more than a year, has exceeded the limitation, can request to reject the request for arbitration.

Finally, review the case whether the agency to have jurisdiction over the. "Labor dispute mediation and Arbitration Law" article21The provisions of the labor dispute, a labor contract or the local labor dispute arbitration committee under the jurisdiction of the employer, if the examination reveals that the agency is not a labor contract is performed or the employer where the labor dispute arbitration commission, the application for arbitration is not in conformity with the law, may file an objection to jurisdiction.

The provisions of two, in accordance with the law, do a good job responding to

Usually the arbitration organization or in the service of notice of court or court summons file will also send "Notice of proof", "litigation risk book". The file to the enterprise deadline to submit evidence, the submission of defence for the detailed provisions, if the enterprise to complete the evidence collected in the above period cannot be, shall timely communicate with the arbitrator or judge, apply for an extension of burden of proof, avoid late proof bear no beneficial result.

Secondly, enterprises should do a good job in court procedures, such as:

(1) entrust formalities

 If the court by employees of the company shall be made by the Proxy Companies, the company issued orders, orders a blank file usually send out in the arbitration documents, fill seal can be. If you need a lawyer in court, you need before handling the relevant agency agreement and commissioning procedures.

(2Remember hearing time and place of the court session)

 This is a point we often neglect leads to poor, sessional time must not be missed. Also the important place of the court session, according to a designated place of the court session, most probably it did not actually happen. Don't go to court, because some courts under the tribunal was not in court this part, some court has sent the court case in court, sent.

(3The original of the evidence) Order

  We usually in evidence within the period of arbitration or court evidence, but this is a copy of the original proof, but the evidence in the trial to trial for cross examination. If the parties do not carry the original evidence cannot lead to confrontation situation occurs frequently in practice, light may cause the trial cannot proceed, heavy may be identified the evidence can not be checked in the burden of proof and the original adverse consequences.

(4) prosecution within the statutory time limit or appeal

After the trial, arbitration or court ruling period prescribed by law, on receipt of the award if the verdict against the can to the court or the appeal (to accept arbitration results may bring a suit to the court, the judgement of the appeal may appeal against the ruling); if the result should be according to the judgment documents indicating prosecution or court of appeal in the the corresponding period within the corresponding, time can not exceed the development period, the court of appeal remains shall comply with the relevant provisions of jurisdiction.

 

 

Two, how to collect the evidence?

 

MCompany law Liu recently very depressed. Originally not long ago, MThe company has been employee Zhang Liang filed a labor arbitration application, calledMThe company terminates the labor contract law, require the company to pay compensation to terminate the labor contract law6Million yuan. The company assigned Xiao Liu handling of the dispute. Little Liu Xiang arbitration submitted by Zhang Liang during the work with colleagues fighting drunk by the company punishment notice fights, the notice covered with the seal of the company. In addition, the company also submitted a handbook of company employees, employee handbook regulations chapter labor discipline: Employee shall safeguard the normal order of the workplace, the fight can be expelled from the treatment in the workplace. Liu said the company with Zhang Liang to terminate the labor contract is made according to company policy decision, there is no violation. But the trial Zhang Liang denies having a fight. The arbitration tribunal thinks via cognizance,MThe company submitted the penalty notice by the company made unilaterally, not that Zhang Liang had a serious plot fights with colleagues, he orderedMThe company pays the dissolution of the labor contract law damage compensation to the Zhang Liang6Million yuan.MThe company leadership that the company had very angry, think Xiao Liu's work ability is not enough, and in the department meeting criticized liu. Liu was very upset, Zhang Liang work time fighting, the real and we all know, the court can judge company lost?

 

1,MWhy do companies will lose?

 

The case, Zhang Liang if there are serious violations of the company policies of fighting behavior is the focus in the trial, evidence of tissue, Liu should provide detailed evidence to prove the above situation. The trial process, Liu only submit a company made the punishment decision, but the decision has not been signed by Zhang Liang, Zhang Liang denied that the case, Liu provided the evidence does not show that Zhang Liang has a serious violation of the rules and regulations of the conclusion unit. But Liu mistakenly believe that as long as the decision was made to prove the fact of punishment, and not to the arbitration tribunal for the presence of staff to testify in court, did not submit the testimony of a witness. Therefore,MCompany to be lost.

 

2How to collect evidence?

 

A collection of legal evidence submitted

The laws and regulations of our country, the court shall be final decision evidence should have authenticity, legitimacy, relevance and must be approved by the

After cross examination. So we submitted to the arbitration commission or the court evidence must also have the authenticity, legitimacy and relevance. Among them, the authenticity, also called the objectivity of evidence or certainty. It refers to the evidence reflected content should be true, objective, and the parties to submit evidence must be objective existence. There are a lot of labor arbitration cases is documentary evidence, the parties must submit the original evidence to the court. For example, we have to prove and employee conclude a labor contract, must be presented in the original contract signed by the employee, if the original is lost only a copy, the authenticity of the evidence will be under suspicion.

  The validity of evidence forms and should be made legal evidence, for example, formed in the recording mode of evidence may exist legitimacy and can not be accepted.

  The relevance of evidence requirements between the evidence and the facts to be proved there is a link, to prove the facts of the case, and form a complete chain of evidence. For example, we want to prove by employees during the subject of criminal punishment with the dissolution of the labor contract act legitimate legal documents, it shall provide corresponding, if we commit a criminal judgment as evidence, but the verdict according to the facts and the judgment time are not during the existence of the labor relations, then the two is the relationship does not exist, such evidence for the same case no relationship, not recognized by the court.

Two, fully collecting evidence

  In the labor arbitration or litigation cases in labor, the parties need to collect a lot of evidence evidence submitted by the fact that. Never think that certain evidence is not important, not essential but not to collect any seems to be of no great importance, because, the evidence may be the key to the case reversed. In practice, the parties need to be based on clear facts on the list, can prove that the materials, according to the clues to collect relevant evidence. For example, we have a clear need to prove their own do not want to conclude a labor contract and delays in fact, all signed with the text of the labor contract when the materials are likely to become useful evidence, we can in this range to search and collect, such as: to employees under the contract text and written materials by employees sign, the company notice announced the conclusion of labor contracts in the web site or the public, to employees signed contract text collection notice etc..

  Three, a comprehensive analysis of all the evidence

  We require evidence fully, but also a comprehensive analysis and trade-offs. Based on comprehensive analysis of all the evidence, we may find some evidence materials and we are going to prove the facts are contradictory, or we prove several, including an evidence to prove a fact but can lead to another to be evidence of the fact that the question or contradiction, then comprehensive analysis to decide whether to submit the evidence.

Four, making the list of evidence

In order to evidence, according to the evidence category and prove the fact that making list of evidence, the evidence is not only beneficial to the referee organization list to understand the evidence and facts, but also conducive to the comprehensive analysis and management to provide clear evidence, clues for the trial, to avoid trial when he could not find evidence of embarrassment. The list of evidence can refer to the following table:

Serial number	The name of evidence	To prove the contents	The page number	Remarks

The person who submitted:

Date of submission:

 

Three, how to carry out the trial defense?

 

    2013Years2Month,SThe company is employee labor arbitration filed application, required to pay overtime wages. BecauseSThe company assigned to handle disputes the lack of personnel litigation experience, neither the submission of defence to the Arbitration Commission, is not ready to improve trial outline, leading to adoption of court hearing process more employee opinions and requests, resulting in hearing very passive. The Arbitration Commission final decree supports all of the request for arbitration.

 

1,SWhy the company will lose?

 

In practice, the labor arbitration or litigation in labor, the unit as the party, enjoy the right of reply. But in reality, many units do not pay attention to defense, and some do not even submitted a written reply, hastily in the trial defense, walk. The situation is bound to harm the interests of the company, should safeguard the interests not maintained. In practice, the staff about labor arbitration request or how many there are facts and legal flaws. As a unit, need to court before a detailed understanding of case analysis, make sufficient preparation for the case. In this case,SThe company did not timely powerful and lost the chance that, not fully prepared for the trial, is the main reason leading to the losing.

 

2,How to answer?

   A,The timely submission of defence. The provisions of the civil procedure law, the people's court after docketing the case5Days, will notice the indictment and copies sent to the respondent, and inform the defendant received a copy of the bill of prosecution after15Days is entitled to put forward written pleadings. The defendant did not submit answer form within the statutory time limit, does not affect the court on the trial of cases. The reply is for the application for arbitration or lawsuit against documents, documents of the applicant or the defendant is the key to the tribunal, court opinions, written reply can let the arbitrator or judge to understand refuted opinions and reasons the applicant or the defendant, in many cases before the trial judge had formed opinions generally, if no reply to fully explain the objection and reasons may lead to adverse consequences. Therefore, the employer should not despise the respondent, shall timely submit pleadings.

Two, how to write the written pleadings. Civil defense in civil proceedings the defendant is proposed for the plaintiff in the lawsuit of the facts, reasons and claims to answer or differentiate barge book like. So, how to write a reply?The basic content and format of civil pleading:

　　1.The first title, stating: "civil pleading", the basic situation of the respondent, if the agent on a line indicating the agent's basic situation(The lawyer agent, only to write their name and position);Reply reason it can be generally expressed: "because the plaintiff filed a * * * * * *(Cause of action)Litigation case, we hereby put forward the following reply".

　　2.Abstract: This is the main part of the pleadings. Including defense and defense request, this is mainly targeted at the complaint facts, evidence, law and other aspects of the respondent, the respondent their claims, that the plaintiff's claim is not accepted or not accepted as well as to the case handling opinions.

　　3.Tail: sent to any court, the respondent's name and the reply time, report etc..

The reply is not too long, but must hold a key, especially to seize the indictment is inconsistent with the fact that, the evidence is insufficient, the lack of legal basis for content, systematic refutation, in order to ascertain the trial court in the plaintiff's claim is true, whether there is a legal basis, so as to make the right judgment.

The reply should be targeted. The respondent for arbitration or litigation request, according to the applicant or the plaintiff requests to refute them one by one. The core of the arbitration or litigation request is the fact and law. The reply to the facts refute them one by one, and attached to the evidence to corroborate. For example, the staff proposes its long-term work overtime and required the company to pay overtime. In these cases, cases is the fact that the employee to work overtime for a long time, employees may submit a punch card records, we need to counter punch card records can prove their time away from the company, does not prove that it is in the company to work overtime. The company can provide the company overtime system, approval process, and how the company arranges overtime work overtime and confirm the situation. To the employee punch record is not enough to prove the fact of overtime through these statements of facts.

The defense also for those able to support the arbitration or litigation request to focus on refutation. For example, requests to terminate the labor contract law to pay compensation, but in fact expressed repeatedly mentioned that companies often work overtime, and does not require the company to pay overtime wages, such case, for its overtime a fact can not comment.

Three, to full answer. The respondent should refute the fact, to refute the legal basis; the facts to refute them one by one, the legal basis for the proposed if errors should also be pointed out one by one, do not.

 

 

Four,How to do the work of trial in court?

 

2013Years4Month,YThe company is employee filed a labor dispute arbitration application, the staff said the company is not in accordance with the provisions of the signing of non fixed term, require companies to pay not signed a non fixed term contract double pay the difference; at the same time, require companies to pay during the overtime5Million yuan; after receiving the notice of the company assigned the employee's Department Manager in court. The Department Manager with the staff at work on the existence of contradictions, during the trial, the Department Manager accused even curse each other by the arbitrator has repeatedly stopped, resulting in not signed without a fixed term contract is signed by employee delays, and other related staff's responsibility is not fully explained and argumentation. The final arbitration court arbitration request support staff.

 

1,YWhy do companies losing?

 

ObviouslyYThe company in court staff did not fully prepared before the court trial procedure, not clear, content and function of not understanding the trial process. There is no complete trial plan, and not fully discussed on the fact, so only in the trial is limited to passive.

 

2How to do the work, the trial court?

 

First, before the court should do the preparatory work     

The hearing before the court personnel should be familiar with all the case materials and conditions, including the facts of the case, the evidence material, application, company excuse, legal basis; writing and hearing the outline of pleadings. Should also prepare related materials in the case before the court, especially the need of various materials for trial, such as: the company's business license copy of the company authorized agent, trial attorney, agent ID, the identification certificate of the legal representative.

The trial in second, under the command of the arbitrator or judge

The arbitration or litigation must follow certain procedures and links, arbitrator and judge is the organizer and director, trial activities shall obey the command, according to the judge or arbitrator requirements statement of facts, evidence, proof of a debate. We often see is the mixed debate in court investigation stage, and mentioned some new case in court debate, these are likely to influence the trial and the arbitrator or judge's judgment.

 Third, speak to the

First of all, we should according to the arbitrator or judge questioning or investigation of the link in the facts of speech, usually by the applicant or the stage of the first statement, the respondent or defendant after the statement; in the stage of the statement to listen carefully, for which in fact does not match the situation should be recorded one by one, in a statement to the court of arbitration or the Court pointed out. Avoid by all means in the trial because the other party misrepresentation can interrupt each other, self speech, this speech and not for the arbitration tribunal noted or recorded, will only increase antipathy, may also lead to the omission of other important facts. The statement should pay special attention to the arbitrator or judge's questions, for which the question to give a simple, clear, accurate answer, don't Equivocation, don't drag in all sorts of irrelevant matters, give an irrelevant answer.

Secondly, on the basis of the claim to speak with the facts and the law of arbitration and lawsuit only aims at the request of the parties to investigate and confirm the courtroom speech, only on the fact and legal dispute can be, do not involve the staff statement of fact in fact on the other, such as not to evaluate the level of employee attitudes or moral work, unless these facts and employee requests directly. The most specific and should seek for the legal terms, don't confuse in the legal basis, such as did not sign labor contract compensation standard double salary request terms and terminates the labor contract law on the similarities and differences, we should distinguish the.

Again, according to the request and pay special attention to the facts on the basis of the court added, can answer and the answer that, if need to supplement the evidence shall be submitted to the arbitration tribunal or court.

Fourth, cross examination carefully

Cross examination is very important, before the court session, we usually have to evidence copy is analyzed, which is true, which may be problematic; for the questionable evidence shall be checked carefully in evidence, look at the original and copy are the same; the original look whether there are forged or altered. For the questionable evidence points to the arbitration tribunal or court said one one, not missing.

Fifth, the court debate to be found 

The applicant or the plaintiff to provide evidence to prove the facts. Through the investigation and proof quality certificate, statements are both facts and evidence is clear, the debate is to debate clear evidence can prove his claims. For example, the arbitration or litigation request whether there is a legal basis. There are legal provisions in order to obtain legal conclusions based on determining the fact also.

Secondly, the legal argument to refute the legal basis of error and bias of legal interpretation, usually as the law does not the fundamental basis of the occurrence of fault, we need to pay special attention to the other specific claim is based on the correct calculation basis and, for example, the loss on the basis of correctly, make compensations according to what the standard calculation? By what standard length compensation settlement, is three times higher than the editorial wage? These are we need according to the specific legal provisions to review, if found to be present in the debate.

 

 

 

 

 Author: Beijing Guantao law firm (Shanghai)Yu Nengjun

 Tel: 13774228139