Bloggers note: the new "Supreme People's Court on the law applicable to a number of Labor Dispute Cases Interpretation (three)" conducted by interpretation, and gives the solutions to the enterprise of understanding. With the relevant judicial documents official links, for reference: (1) "interpretation of the Supreme People's Court on the law applicable to a number of labor dispute cases" (France - [2001]14) published in April 16, 2001, in April 30th formally implemented; (2) "interpretation of the Supreme People's Court on the trial of the law applicable to a number of labor disputes cases (two)" (France - [2006]6) published in August 14, 2006, in October 1st formally implemented; (3) "guiding opinions on doing a good job in the trial of labor dispute cases under the current situation" (method [2009]41) on July 12, 2009 announced.

  

The Supreme People's court held a news conference to announce "interpretation of several issues concerning the applicable law of labor dispute cases (three)"

 

One interpretation: Interpretation of the Supreme People's Court on the law applicable to a number of labor dispute cases (three)

(method 2010) release (No. 12)

 

   "Interpretation of the Supreme People's Court on the law applicable to a number of labor dispute cases (three)" the Supreme People's Court on July 12, 2010 the 1489th meeting of the judicial committee, is hereby promulgated, shall enter into force as of September 14, 2010.

 

Two September 13th 2010

 

   For the trial of labor dispute cases, according to "people's Republic of China Labor Law", "people's Republic of China Labor Contract Law", "people's Republic of China labor dispute mediation and Arbitration Law", "PRC Civil Procedure Law" and other relevant laws and regulations, combined with the practice of the civil trial, the following explanation.

 

   Article 1 workers with employer fails to handle the social insurance procedures, and the social insurance agency cannot go make it unable to enjoy social insurance treatment on the grounds, to require the employer to pay compensation for the losses and the dispute, the people's court shall accept the case.

    Interpretation: the terms in the judicial practice relates to the social security dispute, some places will be excluded from the social security dispute, labor dispute cases, some places will not lead to loss of social insurance for workers in the labor dispute case series. The interpretation (three) defined the social security cannot submit cause laborer loss as the labor dispute cases. Needs to be pointed out is, not all social disputes are included in the labor dispute cases, but refers only to satisfy (1) enterprise fails to apply for security clearance, (2) social security agencies cannot go, (3) fail to enjoy social insurance benefits and losses; three conditions of the social security dispute. Namely, social insurance shall be identified as the main basis of labor dispute between workers and the actual loss. The rest of the social security dispute, by the social security agencies processing.

   Enterprises to deal with: in recent years, the reform of social insurance system and the "social insurance law" forthcoming, the enterprise should pay more attention to the importance of social insurance matters in the labor and personnel management. Especially because of the special nature of social security system, because the company causes can not pay the social security can not enjoy the treatment, the enterprise shall bear corresponding responsibility. Enterprises should be in accordance with the provisions of relevant laws and policies of social insurance, and the timely and full payment of social insurance.

 

   Article second for enterprise restructuring disputes, the people's court shall accept the case.

    Clause interpretation: restructuring disputes regarding the enterprise, whether to belong to the category of the autonomy of enterprise management, has been more controversial. However, if the right to operate independently in clear violation of the principle of fairness and to damage the interests of the people's court has actual, I shall accept the. The interpretation (three) gives a clear explanation of.

   Enterprises to deal with: self reform, should also be in accordance with the law and the principle of fairness and reasonableness principles, not operational autonomy that damage the legitimate rights and interests of workers.

Independent enterprises, shall solicit the trade union and the staff opinion, in full consultation and agreement, avoid the potential and current controversy.

 

   Article thirdThe workers according to the labor contract law the eighty-fifth regulation, bring a lawsuit to the people's court, requires employers to pay and pay for the damages, the people's court shall accept the case.

    Interpretation: the terms "labor contract law" eighty-fifth stipulates: "the employer in any of the following circumstances, the labor administrative department shall be ordered to pay labor remuneration, overtime or economic compensation; labor remuneration is lower than the local minimum wage standard, the difference shall be paid; fails to pay within the time limit, the employer shall be ordered to payable the amount of fifty percent to one hundred percent of the standard added to laborer pay compensation: (a) is not in accordance with the labor contract or regulations of the state, timely and full payment of labor remuneration; (two) to pay workers wages below the local minimum wage standard; (three) arranging overtime work without paying overtime remunerations; (four) the dissolution or termination of the labor contract, not according to the provisions of this Law shall pay economic compensation." Previously, the judicial practice of most areas are the compensation matters as the labor administrative department accepting the scope, the people's court shall not accept. But the interpretation (three) defined, worker claims to pay damages, the people's court shall accept the case. To some extent, the interpretation (three) to increase the enterprise's illegal cost.

   Enterprises: enterprises on wages and economic compensation payments should be paid more attention, to avoid legal risk is not timely and full payment of wages and economic compensation to. For the payment of overtime pay, pay for performance issues, year-end bonus and other daily non basic wage category and turnover of the economic compensation calculation and payment matters, should as far as possible through rules and regulations and the labor contract to be specified or agreed upon, and through strict and orderly process of carding.

 

   Article fourth labor and did not apply for business license, business license shall be revoked or business continued to dispute after the expiration of the term of operation of unit of choose and employ persons, shall the employer or its contribution to be one of the litigants.

   Interpretation: the terms in the judicial practice of previous workers, and did not apply for business license, business license shall be revoked or business continued to dispute after the expiration of the term of operation of unit of choose and employ persons, in general as a general civil disputes. The interpretation (three) clear the dispute into the category of labor dispute cases, and in accordance with the provisions of the employer or its contribution to be one of the litigants.

   Enterprises to deal with: recent judicial interpretation in the process of protecting workers pay more and more attention. Enterprises should pay special attention to the protection of workers rights and interests coordination entities, in order to adapt to the trend of the judicial policy.

 

   Article fifth does not apply for business license, business license shall be revoked or business term still continue to operate the employer, borrowing others to link, business license, the employer and the business license shall be the lender as the party.

    Clause interpretation: for the affiliated business situation, explain (three) clearly stipulates the lenders to the employer and business license, so as to expand the laborers to seek relief way, in order to better protect the rights and interests of workers.

   Enterprises: enterprises should pay attention to keep a good rule to follow in the industrial and commercial registration. Don't put their own business qualification and business license linked to business units to use, to avoid unnecessary legal risks.

 

   Article sixth the parties accept the labor dispute arbitration committee for arbitration awards, bring a lawsuit to the people's court according to law, the people's court examination that the omission of the arbitration award must participate in the arbitration common parties, shall add missing human litigants.

   The additional party shall bear the liability, the people's court shall be dealt with.

    Provisions of the judicial practice: earlier in the arbitration award, missing must participate in the arbitration common parties, often with arbitration deal first principle, without the arbitration parties or claims, not directly into lawsuit scope of admissibility. Interpretation (three) in order to improve the efficiency and simplify procedures, clearly stipulates: the arbitration award is missing both parties must participate in the arbitration, shall append; and for the additional party shall bear the liability, the people's court shall also be processing.

   Enterprises: enterprises should adapt to the judicial interpretation in the efficiency to laborer trend. In arbitration or litigation matters, basic ideas should be aware of the people's court handles the case, grasp the initiative quite.

  

   Article seventhThe employer and the employed labor dispute has to enjoy the old-age insurance benefits or pensions of staff, bring a lawsuit to the people's court, the people's court shall be treated according to labor relations.

   Provisions of the judicial practice: in earlier, for the retirement personnel and enterprise labor dispute, except the labor protection, working time and minimum wage labor constraints, usually in a civil relationship processing. The interpretation (three) makes clear, defined between the retirement personnel and enterprise labor relations, still in accordance with the civil service relationship.

   Enterprises to deal with: the retirement personnel not only professional knowledge, but also in the labor relations law relationship between rights and obligations can be less, most free agreement. Enterprises can according to their own actual situation appropriate employment retirement personnel.

 

   Eighth enterprises lwop personnel, did not reach the statutory retirement age of early retirement staff, laid-off workers laid off workers and the enterprise production a long holiday, with the new employer, labor disputes, according to the people's court proceedings, the people's court shall be treated according to labor relations.

    Provisions of the judicial practice: in earlier, for lwop personnel, retired workers, laid-off workers laid off workers and other special labor relations staff and the enterprise labor dispute, except the labor protection, working time and minimum wage labor constraints, usually in a civil relationship processing. The interpretation (three) defined (1) lwop personnel of enterprises, (2) did not reach the statutory retirement age, retirement personnel (3) laid-off laid off workers, (4) business production holiday personnel four personnel, is still recognized as the labor relationship, the relevant provisions of applicable labor law.

   Enterprises to deal with: treatment for special labor relations staff, enterprises should establish a new concept of employment. For the above four categories of personnel, also should carry on the management and cost accounting in accordance with the standards of workers. For example, in the termination of labor contracts, labor relations, legal reasons and program termination, accounting overtime and pay economic compensation etc., special attention should be paid to the appropriate review.

 

   Article ninth labor advocate overtime, overtime work shall be the existence of the facts bear the burden of proof. But workers have evidence to prove that the employer master overtime evidence of facts, the employer is not provided, the employing units shall bear the adverse consequences.

    Interpretation: the interpretation of the terms of (three) of this article has the certain subversion. A special treatment is the overtime to appear since the implementation of "labor dispute mediation and Arbitration Law" practice in the trial of cases of various kinds of fees to an awkward problem. Previously, because of the burden of proof is often applied to the enterprise, and the enterprise to not approved overtime is not proof of overtime does not exist, there is a basic contradiction. The interpretation (three) according to the principle of reasonable integration of "who advocates, who bears the burden of proof" and the labor dispute in the "burden of proof leads to" two principles, set to assume additional burden of proof and adverse consequences of enterprises, employees of the burden of proof.

   Enterprises to deal with: overtime management is the enterprise labor personnel management matters a headache. The interpretation (three) introduced does not mean that the enterprise can be relaxed in the overtime control. Enterprises should further establish and improve the working hours, wages and attendance leave system, through the system and contractual provisions to prevent overtime legal risk payment items.

 

   Tenth of the workers and employers have the dissolution or termination of the labor contract shall go through the relevant formalities, payment of wages, overtime pay, economic compensation or damages and other agreements, mandatory provisions do not violate laws, administrative regulations, and there is no danger of fraud, coercion or by the shape, it should be recognized as valid.

   The protocol has significant misunderstanding or obviously unfair situation, where a party concerned requests to withdraw, the people's court shall support.

    Clause interpretation: in order to enhance the enthusiasm of enterprises and employees self mediation and reconciliation, the interpretation (three) defined by mutual agreement the agreement, as long as it does not violate laws and regulations of the mandatory provisions, and there is no danger of fraud, coercion or by human shaped, which is effective. But if this agreement is a major misunderstanding or obviously unfair situation, where a party concerned requests revocation, the people's court should also be supported. This interpretation (three) will still depend on, for the workers may have agreement in the waiver (that is, to give up some rights and not unfair or significant misunderstanding), the judiciary is also approved.

   Enterprises: enterprises in dealing with matters of staff labor dispute, should more strengthen reconciliation efforts, balance the rights of both parties and interested, try to reach a settlement agreement. And the reconciliation agreement once on a voluntary basis made and signed by both parties, it is very effective, the judiciary is also approved.

 

   Article eleventh labor dispute arbitration committee made a legally effective mediation book, filed a lawsuit against a party estoppel, the people's court shall not accept the case; has to accept, reject.

    Interpretation: the interpretation of the terms of (three) specified for Committee of labor and personnel arbitration mediation has taken legal effect, one party goes back on his word, the people's court shall not accept the case; has to accept, reject. This provision is intended to improve the efficiency of handling labor disputes.

   Enterprises should understand: efficiency and rhythm enterprise dealing with the labor dispute cases.

 

    Article twelfth labor dispute arbitration committee fails to make the decision of acceptance or the arbitration award, the parties directly file a lawsuit, the people's court shall accept the application for arbitration, except for the case of existence of the following reasons:

   (a) transfer of jurisdiction;

   (two) is served or delivery delay;

   (three) wait for other litigation result, disability evaluation conclusion;

   (four) are waiting for the labor dispute arbitration committee hearing;

   (five) start identification procedures or by other departments to investigate and collect evidence;

   (six) other legitimate reasons.

   The parties to the labor dispute arbitration commission fails to make an arbitral sue, shall be submitted to the labor dispute arbitration committee issued a notice of acceptance or other has accepted the application for arbitration certificate or proof.

   Clause interpretation: for the strict implementation of the "dispute resolution" system, to prevent a large amount of labor dispute cases without arbitration will directly enter the trial procedure, the interpretation (three) provisions, the parties to the Arbitration Commission fails to make an arbitral sue, shall be submitted to the Arbitration Commission issued a notice of acceptance or other accepted arbitration application for certificate or proof. At the same time, interpretation (three) also provides for the transfer of jurisdiction, (1), (2) is served or delivery delay, (3) wait for other litigation result, disability evaluation conclusion, (4) are waiting for the labor dispute arbitration committee hearing, (5) start identification procedures or entrust other department investigation forensics, (6) other legitimate reasons such as six kinds of reasons, the people's court may refuse to accept the application.

   Enterprises: enterprises to deal with the labor dispute case calculation of time and the people's Court of arbitration pending cases caliber understand. Therefore, enterprises should pay special attention to assess the arbitration and litigation of labor dispute cases may experience.

 

   Thirteenth of workers on the basis of mediation and Arbitration Law Article forty-seventh (a) provision, recourse labor remuneration, work-related injury medical expenses, economic compensation or damages, if the arbitration involves several items, each item to determine the amount of not more than the local minimum wage standard twelve months amount, should be in accordance with the final processing.

    Interpretation: the terms "labor dispute mediation and Arbitration Law" forty-seventh article: "the following labor dispute, except as otherwise provided in this act, the arbitral award for the final award, the award made since the date of legal effect: (a) recourse labor remuneration, work-related injury medical expenses, economic compensation or damages, not more than the local minimum wage standard twelve months amount of dispute; (two) for implementing the national labor standards in working hours, rest and vacation, social insurance and other aspects of the dispute." Previously, some local legal caliber is according to (1) the request does not exceed, (2) dual control request amount does not exceed the principle to deal with. The interpretation (three) (1) the actual verdict does not exceed the amount, (2) the requests are not more than loose principles to deal with. Such regulations to further expand the processing caliber "Finality" category, is conducive to the protection of the rights and interests of employees.

   Enterprises to deal with: (three) clear explanation to "expand the recourse labor remuneration, work-related injury medical expenses, economic compensation or damages" "Finality" treatment, greatly simplifying the staff recourse to economic rights progress, also led to the enthusiasm of the staff related rights of recourse in objectively, possible rate increase enterprise labor dispute. Enterprises should strengthen the legal operation of labor remuneration, work-related injury medical expenses, economic compensation and other matters, avoid risk.

 

   The same arbitration article fourteenth labor dispute arbitration committee also contains the final award items and non final award item, if a party refuses to accept the arbitration award to the people's court proceedings, shall be in accordance with the non final processing.

   Clause interpretation: in order to further protect the rights and interests of workers in the rules of procedure, the interpretation (three) makes clear a regulation, the same arbitration also contains the final award items and non final award item, if a party refuses to accept the arbitration award and the prosecution, the people's court shall, in accordance with the non final processing, namely in the process of lawsuit and trial final award item and non final award item.

   Enterprises: enterprises to cope with the judicial organs have considerable knowledge of the procedural matters on the aperture.

   

   Fifteenth of workers on the basis of mediation and Arbitration Law forty-eighth stipulation to the grassroots people's court proceedings, the employing units on the basis of mediation and Arbitration Law stipulates that the forty-ninth intermediate people's court to the labor dispute arbitration commission to apply for the cancellation of the arbitration award, the intermediate people's courts shall be dismissed; has accepted the case, the court shall apply.

   By the people's court rejected the prosecution or the withdrawal of the suit, the employer may within thirty days of the receipt of the statement of award to the intermediate people's court, the labor dispute arbitration commission is located for the cancellation of the arbitration award.

    Clause interpretation:: "labor dispute mediation and Arbitration Law" forty-eighth article: "against the workers on the forty-seventh article of this law arbitration, may institute proceedings in a people's court within fifteen days from the date of receipt of the arbitration award." The article forty-ninth also states: "employers have evidence to prove that the forty-seventh article of this law the arbitral award in any of the following circumstances, can the intermediate people's court within thirty days of labor dispute arbitration commission is located apply for revocation of the award of arbitration award from the date of receiving the: (a) applicable laws, regulations is wrong; (two) the labor dispute arbitration commission has no jurisdiction; (three) in violation of legal procedures; (four) on which the award is based evidence is false; (five) the other party has concealed enough to affect the impartiality of ruling; (six) the arbitrator in the arbitration case when there is bribery, play favouritism and commit irregularities, pervert the law adjudication." "The people's court collegiate bench ruling the circumstances specified in the preceding section, it shall revoke the award." "The arbitration award by the people's court ruling revoked, the parties may within fifteen days of the labor dispute to the people's court proceedings from the receipt of the statement of award." In the local case diameter, both prosecution and apply for revocation of the case have been revoked shall not accept or reject the prosecution of the employer to apply for; in the court rejected the prosecution or the employee withdrawal under the premise, the enterprise just can apply for revocation of the award. The interpretation (three) of this approach to be sure and give a specific.

   Enterprises to deal with: the interpretation (three) in many procedures provided for employees benefit, enterprises should understand this.

 

   Article sixteenth the employer in accordance with the provisions of the law on Mediation and arbitration of forty-ninth to the intermediate people's court for the cancellation of the arbitration award, the intermediate people's court to reject the application or cancellation arbitration ruling shall be final.

    Interpretation: the interpretation of terms (three) to further clarify the enterprises apply for revocation of an arbitral award, the court ruled that the decision made for life. In order to avoid enterprises further appeal, resulting in simple "Finality" rulings chain is too long, but against the legislative intent of efficiency.

   Enterprises to deal with: the interpretation (three) in many procedures provided for employees benefit, enterprises should have full understanding of the.

 

   Article seventeenth labor according to the labor contract law article thirtieth paragraph second and mediation and Arbitration Law sixteenth stipulation to the people's court for a payment order in accordance with the civil procedure law, the seventeenth chapter supervision procedure, the people's court shall accept the case.

   Pursuant to the labor contract law the thirtieth paragraph second for an order of payment by the people's court shall terminate the procedure for hastening debt recovery, workers labor dispute lawsuit directly to the people's court, the people's court shall inform it to the labor dispute arbitration committee for arbitration.

   According to the provisions of the law on Mediation and arbitration of sixteenth for an order of payment by the people's court to terminate the procedure, on the basis of the mediation agreement workers directly file a lawsuit to the people's court, the people's court shall accept the case.

    Interpretation: the terms "labor contract law" thirtieth paragraph second: "where the employer fails to pay labor remuneration in full, the worker may apply to the local people's court for a payment order, the people's court shall issue a payment order." "Labor dispute mediation and Arbitration Law"The provisions of article sixteenth:"Delayed payment of labor remunerations, work injury medical expenses, economic compensation or damages mediation agreement is reached, the employer fails to perform within the time limit prescribed in the agreement, workers can hold in accordance with the law to the people's court for a payment order mediation agreement. The people's court shall issue a payment order." The interpretation (three) clearly stipulates: if they meet the civil procedure law seventeenth chapter supervision procedure, the people's court shall accept; in accordance with the "labor contract law" the second paragraph thirtieth and to terminate the program, the staff directly file a lawsuit, the people's court shall inform its first application for arbitration; but in accordance with the "labor dispute mediation and Arbitration Law" the sixteenth ruling to terminate the program, the staff directly file a lawsuit, the people's court shall accept the case. Namely, to distinguish between different circumstances, combined with the relevant provisions of the Civil Procedure Law of the corresponding processing.

   Enterprises to deal with: the interpretation (three) in many procedural provisions to make more detailed provisions, enterprises should have full understanding of the.

 

   Article eighteenth labor dispute arbitration commission to make the final ruling, apply to the people's court for enforcement of laborers, the employing units to the intermediate people's court where the labor dispute arbitration commission to apply for revocation, the people's court shall order the suspension of execution.

   The employer shall apply for arbitration or withdraw its application was rejected, the people's court shall rule to resume enforcement. The arbitration award has been revoked, the people's court shall order the termination of execution.

   The employer for the cancellation of the arbitration award is rejected to the people's court, and in the execution of the program with the same reason plea not to be enforced, the people's court shall not support.

   Interpretation: the interpretation of the terms of (three) in accordance with the relevant provisions of the civil procedure law, for the final implementation for cancellation made clear the corresponding. At the same time, interpretation (three) also to withdraw the application and the application was rejected when the decision of the people's court to restore it for the same reason to perform defense matters were clearly not recognized execution and implementation process.

   Enterprises to deal with: the interpretation (three) in many procedural provisions to make more detailed provisions, enterprises should have full understanding of the.

 

The relevant judicial documents:

  1."Interpretation of the Supreme People's Court on the law applicable to a number of labor dispute cases"(Interpretation No. [2001]14) published in April 16, 2001, was formally implemented in April 30th;

  2."Interpretation of the Supreme People's Court on the law applicable to a number of labor dispute cases (two)"(Interpretation No. [2006]6) published in August 14, 2006, was formally implemented in October 1st;

  3."Guiding opinions on doing a good job in the trial of labor dispute cases under the current situation."(Law No. [2009]41) announced in July 12, 2009 the implementation of;

 
  4."Interpretation of the Supreme People's Court on the law applicable to a number of labor dispute cases (three)"(method 2010) release (No. 12) published in September 13, 2010, September 14th formally implemented.

 

       

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Mr. Wang Huayu is selling publications series:

Wang Huayu: "enterprise labor cost control and legal risk prevention -- human resource management" under the financial crisis, China legal press 2010 Edition(the new labor law and the financial crisis after the double background of labor cost control and human resources management practice books)

Wang Huayu wrote: "human resource management and practical tool --.Rar system, contract, process, form example and interpretation of" China legal press, 2009 Edition(China mainland first published by professional legal publishing house's new labor law under the human resources management tool)

Wang Huayu: "the practical operation of the labor contract law and intensive case", China legal press 2008 Edition

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Wang Huayu, Wan Jiang: "the labor dispatch practical guidelines", China legal press 2008 Edition

(China mainland area the first labor dispatch legal practice guidelines practice books)
 

Mr. Wang Huayu reported the talent market reviews series

One of the talent market newspaper commented: how much overtime resentment?

Talent market newspaper reviews two: fire a pregnant female workers = mine?

Talent market report three: dismiss employees properly, careful lawsuit upper

Talent market report four: illegal employment, careful employee settle accounts with sb. afterwards

Talent market report five: Students' practice: don't forget to sign an agreement to buy insurance

Talent market report seven: employee "minor", enterprises to be put in a quandary?

Talent market report eight: employees job hopping is commercial secret

Talent market report nine: employees can get year-end bonus?

Talent market report ten: the employee is incompetent and refused to move hillock, do how?

Rule Eleven: Shanghai city round about the latest trial set points and response

Rule twelve: round table on "three" female worker management practices

 
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