배움과 공유의 시간

01 Labor dispute

Korean companies tend to be overly afraid of labor lawsuits. Thus, if there is a labor dispute with an employee, it can be a case of visiting Wuxi, or of trying to get a handle on the issue while in a hurry to reach a compromise with the employee himself.
In China, "labor litigation" is a matter of daily plurality. Instead of making a ruling, whether it is a labor arbitration or a court, the arbitrator or a judge always tries to adjust (reconciliation) to the right line between labor and management. Therefore, it is also necessary to take the initiative in encouraging employees to file labor lawsuits, rather than on sensitive issues that threaten the order of the workplace or affect other employees.

1. Labor arbitration

In the event of a labor dispute, the party shall not be allowed to file a suit directly with the court. First, the arbitration shall apply to the Labor Arbitration Commission for arbitration (the "principle" of the arbitration panel). In the event of objection to the arbitration decision made by the arbitration panel, the party may, as a rule, file a suit with the court.

Current trend of labor arbitration (corporate view)

1 Submission of arbitration application
Workers shall prepare and submit written work arbitration application form 1 and 2 to the Labor Arbitration Commission.
2 Repair and repair costs
The Labor Arbitration Commission shall determine whether repairs are carried out within five days of receipt of the arbitration application. In the event of determining non-repair, or within five days, the worker may file a suit with the court. Labor arbitration is free.
3 An application for arbitration of workers to a company from the arbitration committee
If the arbitration committee decides to repair the application, it shall send a notice of appeal, together with an application for arbitration, to the company within five days. The notice requires an enterprise to submit an answer to the arbitration committee within 10 days of receipt of the application for arbitration.

[Point]
Answers refer to replies and explanations submitted by the entity in relation to the worker's application for arbitration, and may specify the opinions and reasons of recognition or disapproval of claims claimed by the worker. However, an entity’s submission of an answer is not mandatory, and is not at any disadvantage. When an entity submits an answer, the arbitration board sends it to the worker within five days, so the entity does not have to submit the answer in advance to expose the company’s views to the workers in advance. Through lawyers, submit it at the time of the revision of the Labor Arbitration Act, or give an oral answer.

4 Notice of Revision
The Arbitration Commission shall notify the parties in writing of the date of the amendment and the location of the amendment five days before the amendment. The party may apply for postponement up to three days before the amendment, if there is a valid reason, and the arbitration committee shall make the final decision on the postponement.
Fifth Amendment hearing
During the hearing process of the Labor Arbitration Commission, both labor and management are allowed to argue with each other. The preparation work before the revision, the method of claiming the management position in case of revision, and the strategy of litigation are important keys to eliciting favorable arbitration decisions.
6 Arbitration decision (裁决)
Mediation decisions are divided into two types: one final arbitral decision, two non-substantial arbitration decision.
(a) Determination of eventual arbitration;
The ultimate arbitration decision is a system to protect the interests of workers on small agendas, as specified in the "Adjustment and Arbitration of Labor Disputes Act." Regarding the arbitration panel's final judgment, the staff may complain and file a complaint with the court, but the company shall not be allowed to file a complaint with the court in protest of the court.

[Iljizongguk system]
Before the Labor Dispute Arbitration Act was enacted in May 2008, there were many cases in which a company intentionally filed a complaint with the court to prolong the court hearing to the maximum extent possible under the 1裁2 (Labor Arbitration Act). In the process, workers were often forced to accept management`s proposal for coordination due to time and cost issues. This system is intended to prevent users from over-issuing lawsuits after arbitration decisions, in the case of small-scale or clear labor standards of labor,
It was stipulated that the issue should be terminated by the decision of the Arbitration Commission.
Labor remuneration, expenses for casual medical care, economic compensation or economic compensation and national labor
A clear standard, small labor not exceeding 12 months of the local minimum wage.
a matter of dispute

(b) Determination of non-subsidiary arbitration (裁决)
In the event of a general labor dispute that does not constitute a final arbitration decision, the arbitration committee shall make a non-final arbitration decision. In this case, the entity and its employees may file a suit with the court within 15 days of receipt of the arbitration decision, if either party does not comply with the arbitration decision. If a lawsuit is not filed within 15 days, the arbitration decision will go into effect and the litigant will face its arrest.

2. Labour litigation

1 Submit the indictment to the court.
Where no non-substantial arbitration decision has been made by the Labor Arbitration Commission, enterprises and employees may submit an indictment to the competent court either way.
2 Repair
The competent court shall conduct a formal review of the documents submitted and, if accepted as conforming to the repair conditions, issue a notice of legal cost payment to the plaintiff.
3 PREPARATION OF Suit costs (P
The plaintiff shall prepay the costs of the case (10元 in one case) within seven days of receipt of the notice. The final responsibility of the plaintiff and the defendant for the legal costs of this 10元 shall be determined by the outcome of the court ruling.
4 Appointment (former)
The court should book the plaintiff within seven days after receiving the plaintiff's indictment (Article 112 of the Civil Procedure Act), but in reality, it is common for the plaintiff to check the deposit of the plaintiff's charge and then to charge it. The date of the booking is very important because it is the date of reckoning.
5 Notice to the defendant
The court sends a notice of return with the indictment to the defendant within five days of the date of the charge. The defendant shall submit a reply within 15 days of the date of receipt (Article 113 of the Civil Procedure Act).
6 Send an answer sheet
The court shall send this letter to the plaintiff within five days of receipt of the reply from the defendant (Article 113 of the Civil Procedure Act).
7 Notice of Revision
Up to three days before the date of amendment, the court shall notify the parties of the revised notice and the time and location of the amendment (Article 115 of the Civil Procedure Act).
8 Words of a Single Decision
The first court must end the hearing on the agenda within six months of the date of the booking and make a ruling. For special reasons, it can be extended by six months with the approval of the respective court chief. If an extension is required, the higher court shall grant it (Article 135 of the Civil Procedure Act).
9 appeal
In the event that a party dissents from the first trial, it may appeal to the higher court within 15 days of the delivery of the first trial decision. Failure to appeal within 15 days will result in the 1st judgment being effectuated and the parties being arrested (Article 147 of the Civil Procedure Act). In the event of appeal, the appeal chief shall submit it to the court which made the first decision.
Notice of Appeal: 1The court which has made the decision shall send the subpoena of the Appeal within 5 days after receiving the Appeal and require the submission of the reply within 15 days from the date of receipt of the appeal (Article 150 of the Civil Procedure Act).
10 Second Judgement (final trial)'s)
The second court must end the hearing of the case within three months from the date of the second trial and make a ruling. If there is a special reason, it can be extended with the permission of the head of the court concerned (Article 150 of the Civil Procedure Act).

3. Responsible for proving labor disputes

In civil proceedings, the principle of "the principal (proven by the captain)" is established. In other words, in the case of claiming something, the captain must prove it by submitting evidence backing up his argument (Article 64 of the Civil Procedure Act).
Although labor disputes are basically in accordance with this principle, labor relations have the characteristics of human subjugation of "manage-defence" and, in light of the fact that many of the evidence is kept in the enterprise, the enterprise is obliged to submit these evidence (Article 6 of the Arbitration of Labor Dispute Act). For this reason, an entity needs to manage and take care not to lose documentation about its labor relationship from day to day. Failure to submit necessary documents through negligence may result in disadvantages in labor litigation.

(1) Applies burden of proof to workers (general burden of proof)

Not all evidence of workers should be proved by an enterprise by submitting counterargument evidence. Where a worker makes the following claims, the worker himself shall present evidence to prove it.
1 Where overtime is claimed to be unpaid, it shall be demonstrated that overtime is not paid.
2 Where a labor relationship with a company is claimed to have been established, evidence of the establishment of a labor relationship shall be submitted.
3 Where the received wages are claimed to be less than the agreed wages, the worker shall certify the agreed wages.
4 If a woman claims the right to special protection during the third term (fertile breastfeeding), she must submit evidence of misbirth, miscarriage, etc.
5 In the case of filing an application for arbitration with the Labor Arbitration Commission, not on corporate property, and filing a suit with the court, the worker must prove where the labor contract is to be carried out.
6 If a non-fixed labor contract is claimed, it shall be demonstrated that it conforms to the requirements for the conclusion of an indefinite labor contract.

(2) Applies burden of proof to enterprises (Special burden of proof - Conversion of burden of proof)

1 In the case of labor disputes concerning termination of employment, reduction of wages, and determination of the length of service, the enterprise shall submit evidence (Article 13 on the slight application of the highest People's Court labor dispute proposal). In other words, the entity must present data proving its legitimacy by demonstrating the reasons for firing the worker, the reason for the reduction in wages and the basis for calculating the number of years of service.
2 In the event of a dispute between an entity and a worker over whether it is a fantasy, the entity shall:
It shall be borne the burden of proof and shall prove that it is not a fantasy (article 19 of the Commercial Insurance Ordinance).
3 Since the wage payment statement, social insurance purchase and insurance premium payment records, and absenteeism and tardiness inspection records are kept by the company, the company is responsible for submitting these evidence (Article 2 of the Ministry of Labor and Social Security's Notice on Establishing Labor Relations)
These evidence is under the management of the entity and the employee cannot submit them. If the entity does not submit these evidence, it is assumed that the employee’s argument is established. For example, if an employee claims not to have received wages, it is assumed that the entity did not pay wages if it did not submit a wage statement.