勞動爭議案件仲裁與民事訴訟銜接問題探討
發(fā)布時間：2018-09-11 20:02
【摘要】：勞動仲裁制度本身在多數(shù)國家和地區(qū)都有存在，只是我國的勞動仲裁在產(chǎn)生和演變過程中融入了自身特色而“獨樹一幟”，其同時帶有行政色彩，也具有司法色彩。在極具中國特色的勞動仲裁制度下，仲裁與訴訟的緊張關(guān)系在實踐中已經(jīng)越來越突出，有些地方法院改變仲裁裁決的比率曾經(jīng)達到近七成，這表明我們現(xiàn)有的勞動仲裁和民事訴訟程序的銜接存在問題。 本文第一章首先對于勞動仲裁與民事訴訟程序銜接的國內(nèi)外研究現(xiàn)狀做了總結(jié)，整體而言我國國內(nèi)的相關(guān)研究并不在少數(shù)，但是多數(shù)集中在模式概念之爭，缺少對法制現(xiàn)狀的容忍，這導致現(xiàn)有研究成果難以付諸實踐。國外的研究則認識到勞動仲裁的特殊性，故而對于勞動仲裁與訴訟的并存制度沒有異議，反而是認為勞動爭議解決機制的過于自由化不利于保護勞動者。 本文第二章對我國勞動仲裁與民事訴訟銜接的現(xiàn)狀及其原因進行了分析。我國勞動仲裁與民事訴訟并非毫無銜接，但是問題在于存在諸多的銜接不暢問題。雖然立法上對于勞動仲裁與民事訴訟銜接做了良好的立法假設(shè)，但是在實踐中卻不斷凸顯現(xiàn)有制度的困境。最主要的現(xiàn)實困境是：仲裁后的訴訟率居高不下、訴訟改判率居高不下。勞動仲裁與民事訴訟銜接不暢的原因主要體現(xiàn)在三個方面：立法的銜接不暢、法律適用上的差異、仲裁機構(gòu)與法院溝通不暢。 本文第三章提出了勞動仲裁與民事訴訟的銜接的三項基本目標，即：減少勞動者的訴累、減輕法院審判負擔、提高勞動仲裁的權(quán)威性。 本文第四章針對學者提出的兩類勞動仲裁與民事訴訟關(guān)系的模式進行分析，認為如果實行單軌模式（包括“只審不裁”模式、“只裁不審”模式、分階段實行“只裁不審”、“只審不裁”）、并存模式均存在現(xiàn)實困境，并不能有效實行勞動爭議糾紛解決機制的設(shè)計目標，對當前有限制的并存模式下進行改良則成為最現(xiàn)實的方案。 本文第五章對我國勞動仲裁糾紛解決機制運行的解構(gòu)，從而對勞動仲裁與民事訴訟程序的具體銜接過程做了一一的分析。在仲裁主體上主要涉及：仲裁組織與法院的銜接，仲裁員與法官的銜接。勞動仲裁組織的實體化是實現(xiàn)名正言順的基礎(chǔ)，是實現(xiàn)法律獨立、公正形象的前提，進而才能與法院進行平緩的對接。需要在多大的程度上提高仲裁員的素質(zhì)，這關(guān)系到勞動仲裁裁決的法律地位高低，如果承認目前的勞動仲裁社會功能定位，則亟待提高勞動仲裁員的選任標準，我們長期法學教育的發(fā)展也為此提供了人才保證。在立案程序上，包括仲裁時效與訴訟時效的銜接、仲裁受案范圍與訴訟受案范圍的銜接、仲裁地域管轄與訴訟地域管轄的銜接、反訴中疑難問題的銜接處理。其中，勞動仲裁的前置程序決定，勞動仲裁在受案范圍、訴訟時效和地域管轄等方面有取代訴訟時效、訴訟受案范圍和訴訟地域管轄的問題，為此勞動仲裁在勞動爭議方面的時效、受案范圍等理應(yīng)寬于訴訟的相關(guān)制度，以此體現(xiàn)勞動仲裁對于勞動爭議糾紛更多的救濟。在審理程序方面，涉及仲裁證據(jù)規(guī)則與訴訟證據(jù)規(guī)則的銜接、仲裁庭審與訴訟庭審模式的銜接。因為勞動仲裁與訴訟程序的銜接并非是實現(xiàn)勞動仲裁的訴訟化，而是要體現(xiàn)勞動仲裁與訴訟程序的分工負責，各有所長，這要求勞動仲裁的審理程序應(yīng)該有更多的靈活性，同時在其靈活范圍內(nèi)提供勞動仲裁的公信力。 本文第六章對法院對勞動仲裁的監(jiān)督與支持進行了分析，因為法院具有司法終局性，，其制度涉及上是社會糾紛解決和正義的最后一道防線，故而勞動仲裁一方面需要受到法院的監(jiān)督，另一方面需要獲得法院的支持，才能實現(xiàn)司法資源的優(yōu)化配置。院對勞動仲裁的監(jiān)督包括對其不作為的監(jiān)督和不當作為的監(jiān)督。法院對勞動仲裁的支持包括法院對仲裁保全措施的支持和對仲裁裁決結(jié)果的支持。在監(jiān)督和支持是實現(xiàn)勞動仲裁與訴訟銜接的一大方式，但是也應(yīng)該注意勞動仲裁與訴訟各有分工，不能出現(xiàn)越俎代庖的過度聯(lián)系。此外，法院還應(yīng)當完善勞動訴訟的審理程序，從而積極與勞動仲裁實現(xiàn)無縫銜接。 總結(jié)而言，本文所秉承的態(tài)度是以最小的社會成本來實現(xiàn)勞動仲裁與訴訟的銜接，這就要求我們仔細分析各項爭議解決制度的功能以及勞動仲裁所應(yīng)當承擔的社會定位。我們無需一味的追求西化，也不能夜郎自大，而應(yīng)當充分尊重我國的本土優(yōu)良資源，借鑒西方成熟的勞動爭議解決制度，有發(fā)展的實現(xiàn)我國勞動爭議的完善處理。
[Abstract]:Labor arbitration system itself exists in most countries and regions, but labor arbitration in our country has merged its own characteristics into the process of its emergence and evolution, and it also has administrative color and judicial color. Under the labor arbitration system with Chinese characteristics, the tension between arbitration and litigation has been in practice. As it has become increasingly prominent, some local courts have changed almost 70 percent of their arbitration awards, suggesting that there is a problem in the connection between our existing labor arbitration and civil proceedings.
The first chapter of this article first summarizes the research status of the connection between labor arbitration and civil procedure at home and abroad. Generally speaking, there are not a few related studies in China, but most of them focus on the controversy of mode concept and lack of tolerance for the legal status quo, which makes the existing research results difficult to put into practice. In view of the particularity of labor arbitration, there is no objection to the coexistence of labor arbitration and litigation. On the contrary, the liberalization of labor dispute settlement mechanism is not conducive to the protection of workers.
The second chapter of this paper analyzes the current situation and reasons of the convergence between labor arbitration and civil litigation in China. There is not no lack of convergence between labor arbitration and civil litigation in China, but the problem is that there are many problems in the convergence. However, the dilemma of the existing system is constantly highlighted. The main practical dilemma is that the rate of litigation after arbitration remains high and the rate of judicial reform remains high.
The third chapter of this article puts forward three basic objectives of the connection between labor arbitration and civil litigation, that is, to reduce the burden of labor litigation, reduce the burden of court trial, and improve the authority of labor arbitration.
Chapter Four analyzes the two modes of labor arbitration and civil litigation proposed by scholars, and holds that if we adopt the single-track mode (including the mode of "only trial but not adjudication", the mode of "only adjudication but not adjudication" and the mode of "only adjudication but not adjudication" in stages), the coexistence mode has realistic predicament and can not effectively carry out labor. The design goal of dispute resolution mechanism is to improve the current limited coexistence mode.
In the fifth chapter, the dissertation deconstructs the operation of the dispute resolution mechanism of labor arbitration in our country, and makes an analysis of the concrete process of the connection between labor arbitration and civil procedure. To what extent the quality of arbitrators needs to be improved, which is related to the legal status of labor arbitration awards. If the current social function of labor arbitration is recognized, it is urgent to improve the selection criteria of labor arbitrators. The development of our long-term legal education has also provided a guarantee of qualified personnel for this purpose. In the case-filing procedure, it includes the connection between the limitation of arbitration and the limitation of action, the connection between the scope of arbitration and the scope of litigation, the connection between the jurisdiction of arbitration and the jurisdiction of litigation, and the connection between the difficult problems in counterclaim. Labor arbitration has the problems of replacing limitation of action, limitation of action and territorial jurisdiction in the scope of accepting cases, scope of accepting cases and jurisdiction of litigation area. Therefore, the limitation of labor arbitration in labor disputes and scope of accepting cases should be wider than the relevant system of litigation, so as to embody that labor arbitration can save more labor disputes. As for the trial procedure, it involves the connection between the rules of arbitration evidence and the rules of litigation evidence, and the connection between the trial of arbitration court and the trial mode of litigation court. The trial procedure should be more flexible and provide the credibility of labor arbitration within its flexible scope.
Chapter 6 analyzes the supervision and support of labor arbitration by the court. Because the court has judicial finality and its system involves the last line of defense of social dispute resolution and justice, labor arbitration needs the supervision of the court on the one hand and the support of the court on the other hand to realize judicial resources. The court's support for labor arbitration includes the court's support for the safeguard measures of arbitration and the result of arbitral award. Supervision and support is a major way to realize the connection between labor arbitration and litigation, but we should also pay attention to labor. Arbitration and litigation have their own division of labor, and there can be no excessive connection between them. In addition, the court should also improve the trial procedures of labor litigation, so as to actively achieve seamless connection with labor arbitration.
In conclusion, the attitude of this paper is to achieve the connection between labor arbitration and litigation at the minimum social cost, which requires us to carefully analyze the functions of various dispute settlement systems and the social orientation that labor arbitration should assume. The excellent local resources, drawing on the mature labor dispute settlement system in the West, have developed to achieve the perfect settlement of labor disputes in China.
【學位授予單位】：華南理工大學
【學位級別】：碩士
【學位授予年份】：2013
【分類號】：D922.5;D925.1
本文編號：2237714
[Abstract]:Labor arbitration system itself exists in most countries and regions, but labor arbitration in our country has merged its own characteristics into the process of its emergence and evolution, and it also has administrative color and judicial color. Under the labor arbitration system with Chinese characteristics, the tension between arbitration and litigation has been in practice. As it has become increasingly prominent, some local courts have changed almost 70 percent of their arbitration awards, suggesting that there is a problem in the connection between our existing labor arbitration and civil proceedings.
The first chapter of this article first summarizes the research status of the connection between labor arbitration and civil procedure at home and abroad. Generally speaking, there are not a few related studies in China, but most of them focus on the controversy of mode concept and lack of tolerance for the legal status quo, which makes the existing research results difficult to put into practice. In view of the particularity of labor arbitration, there is no objection to the coexistence of labor arbitration and litigation. On the contrary, the liberalization of labor dispute settlement mechanism is not conducive to the protection of workers.
The second chapter of this paper analyzes the current situation and reasons of the convergence between labor arbitration and civil litigation in China. There is not no lack of convergence between labor arbitration and civil litigation in China, but the problem is that there are many problems in the convergence. However, the dilemma of the existing system is constantly highlighted. The main practical dilemma is that the rate of litigation after arbitration remains high and the rate of judicial reform remains high.
The third chapter of this article puts forward three basic objectives of the connection between labor arbitration and civil litigation, that is, to reduce the burden of labor litigation, reduce the burden of court trial, and improve the authority of labor arbitration.
Chapter Four analyzes the two modes of labor arbitration and civil litigation proposed by scholars, and holds that if we adopt the single-track mode (including the mode of "only trial but not adjudication", the mode of "only adjudication but not adjudication" and the mode of "only adjudication but not adjudication" in stages), the coexistence mode has realistic predicament and can not effectively carry out labor. The design goal of dispute resolution mechanism is to improve the current limited coexistence mode.
In the fifth chapter, the dissertation deconstructs the operation of the dispute resolution mechanism of labor arbitration in our country, and makes an analysis of the concrete process of the connection between labor arbitration and civil procedure. To what extent the quality of arbitrators needs to be improved, which is related to the legal status of labor arbitration awards. If the current social function of labor arbitration is recognized, it is urgent to improve the selection criteria of labor arbitrators. The development of our long-term legal education has also provided a guarantee of qualified personnel for this purpose. In the case-filing procedure, it includes the connection between the limitation of arbitration and the limitation of action, the connection between the scope of arbitration and the scope of litigation, the connection between the jurisdiction of arbitration and the jurisdiction of litigation, and the connection between the difficult problems in counterclaim. Labor arbitration has the problems of replacing limitation of action, limitation of action and territorial jurisdiction in the scope of accepting cases, scope of accepting cases and jurisdiction of litigation area. Therefore, the limitation of labor arbitration in labor disputes and scope of accepting cases should be wider than the relevant system of litigation, so as to embody that labor arbitration can save more labor disputes. As for the trial procedure, it involves the connection between the rules of arbitration evidence and the rules of litigation evidence, and the connection between the trial of arbitration court and the trial mode of litigation court. The trial procedure should be more flexible and provide the credibility of labor arbitration within its flexible scope.
Chapter 6 analyzes the supervision and support of labor arbitration by the court. Because the court has judicial finality and its system involves the last line of defense of social dispute resolution and justice, labor arbitration needs the supervision of the court on the one hand and the support of the court on the other hand to realize judicial resources. The court's support for labor arbitration includes the court's support for the safeguard measures of arbitration and the result of arbitral award. Supervision and support is a major way to realize the connection between labor arbitration and litigation, but we should also pay attention to labor. Arbitration and litigation have their own division of labor, and there can be no excessive connection between them. In addition, the court should also improve the trial procedures of labor litigation, so as to actively achieve seamless connection with labor arbitration.
In conclusion, the attitude of this paper is to achieve the connection between labor arbitration and litigation at the minimum social cost, which requires us to carefully analyze the functions of various dispute settlement systems and the social orientation that labor arbitration should assume. The excellent local resources, drawing on the mature labor dispute settlement system in the West, have developed to achieve the perfect settlement of labor disputes in China.
【學位授予單位】：華南理工大學
【學位級別】：碩士
【學位授予年份】：2013
【分類號】：D922.5;D925.1
【參考文獻】
相關(guān)期刊論文 前10條
1 柳經(jīng)緯;關(guān)于時效制度的若干理論問題[J];比較法研究;2004年05期
2 施高翔;關(guān)今華;;論民事訴權(quán)與民事審判權(quán)之關(guān)系——以當事人投訴無門難題為視角[J];福建師范大學學報(哲學社會科學版);2011年03期
3 王文惠;袁江;;芻議我國勞動爭議處理機制存在的問題[J];法學雜志;2006年05期
4 黃曉慧;;在公平與效率之間求得平衡——勞動仲裁機制重構(gòu)基本點之探析[J];廣東社會科學;2008年03期
5 刁振嬌;司法執(zhí)行模式的價值再探[J];甘肅政法學院學報;2000年04期
6 劉誠;;勞動爭議處理法核心問題研究[J];甘肅政法學院學報;2008年05期
7 申柳華;論我國勞動爭議處理體制的重構(gòu)[J];廣西政法管理干部學院學報;2004年05期
8 陳奎;;論多元糾紛解決機制的引導機制[J];河北法學;2010年09期
9 王工廠;走出勞動爭議訴訟與仲裁銜接的困境——由一起勞動爭議案件引發(fā)的思考[J];河南商業(yè)高等�？茖W校學報;2003年04期
10 姜銳;嚴俊春;;工傷保險賠償與民事侵權(quán)賠償適用關(guān)系——兼及對《人身損害賠償解釋》第12條的評析[J];經(jīng)濟與社會發(fā)展;2009年02期
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