Case: some enterprises adjust according to the policy of salary to employees, and the results were posted. Ma said the workers wage adjustment error, many petitions request to change its wage. In the petition application after two years of labor dispute arbitration, aging has more than applying for arbitration organs believe, will not be accepted. Ma also filed a civil lawsuit. From time speaking, Ma Mou request to obtain legal protection? Some people think that, MA in its right to damage, to claim the relevant departments, in accordance with the interruption of prescription and re calculate case, shall not exceed the stipulated by law, the rights shall be protected by law.

    In social life and judicial practice, the same point of view with the above examples are numerous. Even think, the parties involved in a labour dispute petition behavior shows its has been claimed, the interruption of the limitation of legal fact. The author thinks that, this view made the limitation would apply for labor dispute arbitration is equivalent to the wrong prescription. Because of the aging apply for labor arbitration is not equal to the limitation of action. The legal relationship between the application effectiveness and litigation of labor arbitration is similar, but the difference is obvious. In order to clarify this issue, the author from the following several aspects analysis. If inappropriate, please correct me:

    The one or two main legal characteristics of the same

    1, two are the provisions concerning the parties not within the statutory time limit the right to request the law to protect their rights, and legal system also bear the corresponding legal consequences. The legal consequences and the two has the continuity, the parties in the legal period does not exercise the right to request the arbitration, the protection of rights according to law, and shall request the judicial organ judicial protection of the loss of rights. The Supreme People's Court Interpretation (2001) No. 4 "on the trial of the law applicable to a number of Labor Dispute Cases Interpretation of" third rules "to have exceeded the time limit of the arbitration application, and there is no force majeure or other legitimate reasons, to dismiss the lawsuit." 2, the time when the two rights are the party knows or should know that his rights have been infringed on the. 3, all two stipulation calculation time in certain circumstances.

    The main characteristics of law two, two different 

    (a) the application limitation and limitation of labor dispute arbitration is the different legal concept.

    1, the limitation of action is a legal system for the obligee does not exercise the right to request the people's court for protection of civil rights according to law within the statutory period. "General rule of the civil law" the seventh chapter the basic provisions of the statute is: the party knows or should know that his rights have been infringed on, to a people's court for protection of civil rights of the period of limitation of action for two years; in accordance with the law 136th stipulation situation, the period of limitation of action for a year; at last 6 months in the period of limitation of action, due to force majeure or other obstacles cannot exercise his right of claim, litigation limitation suspension. The grounds for the suspension are eliminated from the date, the period of limitation of action to continue the calculation. The limitation of action for litigation, a party demands or agrees to interrupt obligations, from the time of the interruption, the period of limitation of action re calculation. But the infringed right from the date of more than 20 years, the people's court shall not protect. Legal provisions from the provisions of.

    2, for the limitation of labor dispute arbitration, according to the provisions of the labor law, labor contract the parties believe that the right is damaged, the statutory period for arbitration to the labor dispute arbitration mechanism; in the statutory period does not exercise the right to request the labor dispute arbitration institution in accordance with the law to protect their rights, and legal system at the same time, bear the corresponding legal consequences. In the "labor law" entry into force of the people's Republic of China, issued by the State Council of the people's Republic of China "enterprise labor dispute handling Regulations" provisions of article twenty-third, party knows or should know within 6 months of their rights have been infringed on, apply for arbitration to the arbitration committee in written form. The application limitation of arbitration due to force majeure or other justifiable reasons, the provisions of the preceding paragraph, the Arbitration Commission shall be accepted. In the "labor law" before the commencement of the application for arbitration, time since the party knows or ought to know within 6 months from the date of their rights are infringed. "Labor law" the eighty-second regulation, the party knows or should know that his rights have been infringed on, the party that has requested arbitration shall, within one year of labor dispute arbitration committee to submit a written application has occurred since the day of labour dispute. Prescription for entry into force of the "labor dispute mediation and Arbitration Law" after the application for arbitration, has been in the form of law provisions for the year.

    (two) the law according to different.

    The limitation of action during the civil legal relationship of parties that the protection of the civil right to request from civil law, basic law. However, regulations for legal prescription of labor arbitration from the labor legal relations. In the legal relationship of labor disputes, should first of all applicable laws, regulations, labor legal relations. Therefore, the application of the prescription of labor arbitration, should be based on the relevant provisions of the labor law shall prevail.

    (three) and the scope of the object is not consistent.

     Litigation limitation applicable to a wide range of civil disputes, civil trial activities should consider a period according to whether the parties on this proposition; during the civil rights of the facts, to examine the client's civil rights in the legal protection scope of time. If the party holds its civil rights over the period of limitation of action is not legal, law to protect their rights, namely the right to win loss. Application for limitation of labor arbitration is the legal relationship of labor, applicable object is the legal relationship of Labor Party; between the parties is a dispute arising from the labor relations, the parties to apply for legal period arbitration to the labor dispute arbitration institutions according to the relevant provisions; over this period, arbitral institutions are no longer accept, also lost the basic law protection.

    (four) the nature and length of two different.

    The limitation of action is the limitation period for civil trial activities. Aging apply for labor arbitration is to the labor dispute arbitration institution for arbitration of the statutory period, the limitation period for belonging to the nature of the labor administrative legal norms.

    In the period, the limitation of action and the normal aging and the special prescription, general prescription for two years. A special aging, comply with the "general principles of civil law" stipulates that the 136th case, the limitation of action for 1 years. Because the foreign goods sale contract dispute litigation or arbitration for a period of 4 years. Longest limitation stipulated by our country law for 20 years. But for the limitation of labor arbitration in force, "labor dispute mediation and Arbitration Law", issued by the State Council of the people's Republic of China "enterprise labor dispute handling Regulations" article twenty-third stipulated deadline is 6 months; "aging apply for labor arbitration provisions of the labor dispute mediation and Arbitration Law" is a year. Therefore, application of prescription and lawsuit prescription of labor arbitration is two kinds of different legal nature of aging, aging apply for labor arbitration is far greater than the period of limitation of action is much shorter, not be confused.

    (five) the suspension of two different.

    Suspension of prescription is prescribed by the law, in the aging process, due to legal reasons certain and make right the person cannot exercise his right of claim, to temporarily stop during aging. Although all two stop due to objective reasons, but the duration of suspension were different. From the "Regulations of the people's Republic of general principles of the civil law" the seventh chapter, limitation of action in the last 6 months in the period of limitation of action, suspend the reason is due to force majeure or other obstacles cannot exercise his right of claim. The grounds for the suspension are eliminated from the date, the period of limitation of action to continue the calculation. From these Provisions, the conclusion can be drawn that the suspension of limitation of action, the number can be repeated, suspended is not determined in advance. The length of time the suspension shall be determined according to specific circumstances.

    Caveat prescription of labor arbitration and the limitation of action period is not exactly the same. Aging now apply for labor arbitration is one year, suspended can break down within a year; the law does not define the suspension period specific. Suspend the reason for the limitation of labor arbitration, except for the presence of interruption due to force majeure or other obstacles cannot exercise his right of claim, the labor department "on the implementation of 'issues' labor law of the people's Republic of China opinions" provisions of article eighty-ninth, labor dispute parties to the enterprise labor dispute mediation committee for mediation the day, apply for arbitration from the parties, stop aging, the enterprise labor dispute mediation committee shall, within 30 days after the mediation, the suspension period shall not exceed 30 days. The end date of the mediation, the parties continue to calculate aging. Mediation for more than 30 days, the time from the first day after 30 days to calculate the. That is to say, because during the suspension of the enterprise labor dispute mediation committee for mediation produced up to 30 days; in this case the application limitation of labor arbitration shall be on the date of occurrence of the dispute within 90 days.

    A continuous damage limitation party sues labor relations, and the parties to the relevant departments for the petition can become the grounds for the suspension of labor arbitration issues, according to the labor department general office "on the" people's Republic of China enterprise labor dispute handling Regulations > twenty-third how to understand the reply "provisions" knows or should know their rights have been infringed on, is the beginning of labor dispute prescription". Therefore, this kind of situation for application for arbitration shall according to the regulations, rather than from the continuity of tort the end of the day or during the process of calculation. The objective reasons to complain to the relevant departments to appeal, does not belong to obstruct the parties applying for arbitration, not to petition, complaint is not to apply for arbitration, but can not apply for behavior to petition, complaint behavior instead of the application for arbitration. As the petition, complaint behavior is not the parties do not apply for arbitration to the subject matter of the law, legitimate reasons can not be attributed to suspension of limitation, so it cannot form the caveat prescription of labor arbitration. Of course, can not be denied the petition departments to solve the dispute, plays an important role in the process of social life in china. Some parties used to press the petition or other channels to resolve the dispute, but due to the complaints department or other departments of the results are not legally binding, does not have the enforcement of the legal effect, so that some parties cannot direct objective in the exercise of the right to protect their, and even the loss of legal remedies, the lesson is profound.

    (six) the existence of interruption of prescription is one of the most prominent difference for the two.

    From the "provisions of civil law of the people's Republic" look, the limitation of action for litigation, a party demands or agrees to interrupt obligations, from the time of the interruption, the period of limitation of action re calculation. But the infringed right from the date of more than 20 years, the people's court shall not protect. This is a limitation of action in civil law legal system's interrupt. The interruption of the limitation of actions cause boils down to two aspects, one is the claim, on the other hand is the consent of the other party to fulfill the obligations. Results the interruption of the limitation of actions is the limitation of action re calculation. And the limitation of actions may not only once.

    Because of the prescription system is a legal system, the law does not expressly provided does not presume the existence. Throughout China's current labor laws and regulations, there is no on the interruption of prescription of labor arbitration application regulations. So there is no application for legal system of labor arbitration interruption of limitation, not provided with the interruption of the limitation of actions for the aging problem apply for labor arbitration. Therefore, the labor arbitration application period, generally do not like the suspension of prescription, interrupt generated during the back so long. Due to aging apply for labor arbitration stop just apply time sequence, there is no re calculated for aging problems, such as there is no force majeure factors, labor arbitration application period even stop, nor may last longer and even a few years.

    Litigation the party refuses to accept the arbitration of labor disputes shall issue: because of the current law on labor disputes litigation procedure mode is generally adopted to arbitration, the parties in the arbitration award, according to the "labor law" provisions of article eighty-third, "15 days" of arbitration award from the date of receiving, may bring a civil lawsuit to the people's court; if the arbitration award is legally effective. In a sense, the limitation of action only happen in "from the date on which the arbitral award" of the problem, and the limitation of action in "within 15 days from the date of receipt of the arbitration award". Litigation is overdue, the people's court shall not accept. It can be said that this is the limitation of action in our country at present the most short.

    Three, the labor relationship between the parties according to the law the right to exercise their rights, effectively protect their legitimate interests will not be harmed.

    Because the labor dispute has the characteristics of timeliness, labor disputes happen later if not in time, there will be When the incident., forensics difficult, is not conducive to the legitimate interests of the parties to protect the labor dispute arbitration organs and judicial organs legal timely. Therefore, the disposal principle of the labor dispute of our country labor law is legitimate, fair, timely. Visible the importance of timely. As a law, plays the same role in the protection of the legitimate rights and interests of the parties to the labor contract. The parties to a labor contract in the establishment of labor relations, to understand the labor laws and regulations, grasp the legal weapons to protect their legitimate rights and interests, a complete labor contract terms. Such as the labor dispute occurs, it shall timely according to the channel and method of legal provisions to deal with disputes. This can be their own legitimate rights and interests be protected effectively.

Retirees or exceed the statutory retirement age of workers

Then hire injuries can enjoy the treatment of work-related injuries

    Retirees or exceed the statutory retirement age of staff because of injuries can enjoy the treatment of work-related injuries problems at work, because this kind of personnel of the special status, there is a big controversy in practice. All rules and policies in China for such personnel injuries that holds the opinion can be roughly divided into the following two types:

    One is to deny that. For example, the Organization Department of the Central Committee, the Central Propaganda Department, the central United Front Work Department, Ministry of personnel, Ministry of science and technology, the Ministry of labor and social security, the PLA General Political Department, China Association "on the further play rules retired technicians": "the views of the role of retired professional technical personnel employed work during the occupation, due to injury, treatment of the relevant standards should be the employing units to refer to the industrial injury insurance for work properly; occurrence dispute occupation harm and employment unit, through civil litigation; and the employing units to a dispute arising from the performance of the contract between the employed, which can be solved by personnel or labor dispute arbitration channel." The State Council Legislative Affairs Office of instructions "on re entering the field of labor and production of retired personnel can enjoy the treatment of work-related injuries insurance" reply: "the provisions on re employment of retired personnel injured how to deal with the problem, the current law, administrative rules and regulations have no clear. We think, "shall refer to the general office of the CPC Central Committee Organization Department of the Central Committee of the forwarding <,> notice" (in [2005]9). Provisions." Hold similar views and:

    1, "Beijing City, the Implementation Regulations > < inductrial injury insurance measures" article twenty-first (two) provision "hurt personnel are employed the employer retirement personnel or exceed the statutory retirement age, shall not accept the application for ascertainment of a work-related injury". Beijing Higher People's Court on the "on the trial of administrative cases of work-related injury issues opinions" (for Trial Implementation) Notice (Beijing high Law No. [2007]112) sixth article: "child, retirees suffered injuries at work, does not belong to the scope of the ascertainment of a work-related injury, protect the lawful rights and interests shall be settled through other means."

    2 Sichuan. Sichuan Provincial Department of labor and social security "on more than the statutory retirement age of personnel injury confirmation reply" (Chuan Lao Club functions [2003]261 No.): "retirement (including retired) personnel and more than the legal working age (beyond the statutory retirement age) personnel, injury accident in migrant workers, the labor relations is not established, the scope of regulation does not belong to the" labor law "and relevant laws and regulations, the casualties properties identified for labor and social security departments should not acceptance. This kind of personnel in migrant workers injury, should be handled according to other regulations."

    3 Henan. Henan province "industrial injury insurance regulations" seventeenth article: "the applicant application for ascertainment of a work-related injury, in accordance with the State Council" industrial injury insurance regulations "article eighteenth provisions, but one of the following circumstances, the administrative department of labor security shall not be accepted, and inform the applicant in writing:...... (four) hurt personnel are employed the employer for retired personnel;"

    4 Jiangsu. Jiangsu provincial labor and Social Security Bureau comments on the implementation of "Regulations" some problems of industrial injury insurance treatment (Sulao community [2005]6): "leave, retirement is still in the work of the staff," Regulations "does not belong to the scope of adjustment." The Jiangsu High Court "on hearing closed injury cases of administrative issues opinions" sixteenth: "leave, retirement is still engaged in labor and obtain remuneration, does not belong to the industrial injury insurance regulations" injury "cognizance."

    5 Fujian. Fujian Department of human resources and social security of workers "reached the statutory retirement age is still in the field of labor and production for work-related injuries that can accept the injured reply" (Fujian Lao She the letter [2009]376): "according to the" labor contract law "Regulations for the implementation of article twenty-first of the" worker to reach the statutory retirement age, the spirit of the termination of the labor contract provisions "the workers, whether to enter the labor production area has reached the statutory retirement age, or to meet or exceed the statutory retirement age before entering the field of labor and production, is not suitable for the adjustment of labor relations, the state and provincial laws and regulations. Therefore, its suffer accident harm to apply for work-related injuries, the administrative departments of labor security shall not be accepted, the employer according to the related standards of treatment of inductrial injury insurance properly; workers who work occupation harm and the employer disputes, according to the Legal Affairs Office of the state Council" reply "(state secret letter [2005]310) regulations, through civil litigation." Fujian Court on the guiding case certain security administration recognized labor injury trial opinion (Trial) Fourth: "employees retirement original work units or in the new unit is injured in an accident, not law belongs to the scope of the work unit, retired workers and the bridge unit or the newly formed is the employment relationship, procedures shall be through civil litigation."

    6 Zhejiang. Zhejiang labor and social security bureau "about more than the statutory retirement age workers injured on the job can accept the application for ascertainment of a work-related injury replied" (Zhejiang labor agency office word (2004) No. 246): "according to the" labor law ", the (1978) 104 date regulation, employers use beyond the statutory retirement age of persons, objects that do not belong to the establishment of labor relations. Such persons are injured, do not belong to the scope of the industrial injury."

    7 Guangzhou. Notice of Guangzhou Municipal People's Government on the issuance of "Guangzhou city" of the industrial injury insurance regulations (ear Fu (2008) No. 6): "employers to hire retired personnel or personnel more than the statutory retirement age (the extension workers pay endowment insurance except) does not belong to the scope of the provisions of the said workers."

    8 Taiyuan. Notice of Taiyuan Municipal People's Government on the implementation of "Regulations" issued by the Taiyuan municipal industrial injury insurance rules (and G [2004]30) fourteenth: "application for ascertainment of a work-related injury in any of the following circumstances, will not be accepted: (two) hurt personnel are employed the employer retirement personnel or exceed the statutory retirement age of workers".

   ......

    The second is that, for ascertainment of a work-related injury. Such as "notice" Shanghai City Labor and Social Security Bureau on issues concerning the special labor relations: "the provisions of the Shanghai municipal labor and Social Security Bureau, Shanghai Municipal Medical Insurance Bureau of Shanghai city on the implementation of 'regulations' issues notice" provisions, retired Shanghai city employment the employer accident injury, the ascertainment of a work-related injury, identified the ability to work in accordance with the provisions of the measures for the implementation of Shanghai City, "" industrial injury insurance regulations implementation, treatment of inductrial injury insurance according to the measures for the implementation of Shanghai City, "" industrial injury insurance paid by the employing unit. There are similar: the provisions of the Hebei labor and Social Security Department of Hebei province to the Tangshan City labor and social security bureau "for" problem identification of migrant workers industrial injury determination and ability to work over the state pension age, the reply said: application for ascertainment of a work-related injury than the national statutory retirement age of migrant workers industrial injury after, that should be submitted with the the employer employee labor relations. For both the existence of labor relations, at the same time, in accordance with the provisions of other relevant acceptance, can be accepted the application for ascertainment of a work-related injury.

    I am inclined to the second view:

    1, to enjoy the old-age insurance benefits for retirees, should not be work-related injuries, can refer to the mutual agreement in accordance with the compensation or civil disputes the common personal injury.

    2, to reach the statutory retirement age as migrant workers and staff, should be identified as work-related injuries to the. The law does not prohibit the use of more than the statutory retirement age of migrant workers, but as the farmer does not matter when to retire. In fact, many more than 60 years old migrant workers and enterprises to form the factual labor relationship. In order to guarantee the legitimate rights and interests of the workers, should apply the "industrial injury insurance regulations" of the industrial injury. In March 17, 2010 the Supreme Court Administrative Tribunal "about more than the statutory retirement age of migrant farmers and deaths and injuries," Regulations "should apply to industrial injury insurance request reply" states: "employers to hire more than the statutory retirement age of migrant workers, working time, because working reason casualties, should apply the" relevant "industrial injury insurance regulations of work-related injury."

    How to avoid retirees or has reached the statutory retirement age of personnel employment risk? The author thinks that the first enterprise should be carefully employed retirees or has reached the statutory retirement age of employees, although the companies to hire these workers can reduce labor cost for enterprises in the social security, wage, but because they were older, in case of illness or injury, the enterprise may take a great loss; second, enterprises in the likely case lower pay industrial injury insurance for the staff; again the enterprise should buy commercial insurance for the staff, but it is important to note that in the purchase of commercial insurance for the staff, should be signed agreement, appointment enterprise compensation instead of by commercial insurance compensation. Because otherwise the beneficiary commercial insurance for employees, if no prior agreement, the enterprise is likely to "throw the helve after the hatchet".