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.

3. Major rules for wage payment

Payment in money (principle of currency payment)
Wages shall be paid in the legal currency of the people's currency (Article 5 of the Immunity Settlement Regulations). Wages should be paid in money, and it is illegal to pay wages instead of their own products, for example, for bad management.

Payment on a fixed date (principle of payment on a fixed date)
1 Payment principle once a month
The entity shall pay wages at least once a month (Article 7 of the Immunity Regulations). Because the maximum payment cycle of wages is "months," for example, paying once every two months is in violation of the wage payment rules.
2 Payment on a fixed date
Whether at the end of the month or at the beginning of the month, the pay date needs to be clearly agreed. In addition, once the payment date has been agreed, the entity needs to pay the wages on the agreed date and, if the date is a holiday, the payment will be made on the previous date. Generally, Chinese companies are paying their former wages around the beginning and the middle of the next month.
3 In case a delay in the due date is recognized
Wages must be paid in full. However, if a private company occurs, such as a bad management, or if it obtains consent from the public association or workers, the payment can be delayed for up to one month. Without consent, the city of delayed wages may, in accordance with Article 38 of the Labor Contract Act, terminate the contract for unfair labor practices and request the company to pay economic compensation.

Full payment (principle of full payment)
Companies should pay full wages to employees, but they can deduct the following items.
ᄋ Personal income tax paid by employees
ᄋ Social insurance premium paid by employees, kitchen public money
ᄋ damages to a company
ᄋ Subsidies that must be deducted under the direction of the court

In the case of damages, the monthly deduction amount shall not exceed 20 percent of the employee's monthly salary and the wages after the deduction shall not be lower than the minimum wage standard in the area (Article 16 of the provisional wage provision).
For example, if a worker breaks an entity’s facilities, the entity may deduct damages from employee wages, but the monthly deduction should not exceed 20 per cent of the employee’s wages.
[Example] If the monthly salary of an employee who is required to pay a total of 6,000元 to an enterprise is 10,000元, the monthly salary deduction is allowed up to 2,000元 per month, and the deduction shall be made in three installments.

the delivery of a wage statement
Wage payment methods are possible, whether cash or bank transfer, but the payment of wages is mandatory for employees and a written record of the wage amount, time of payment, and the recipient's confirmation is kept for two years (Article 6 of the Contingency Regulations). the preparation of a wage table

Preservation is very important because it provides important evidence in the event of wage-related disputes. In the event of a wage-related lawsuit, the company shall submit its wage payment records, and under the Arbitration for Labor Dispute Act, it may face adverse litigation consequences.

4. Major points of wage management

(1) the payment of 임금 of the previous king

China's labor law stipulates that the payment cycle must not exceed "one month" and imposes only a monthly payment obligation, and there is no stipulation that wages for the month be paid in the month. Currently, many Chinese companies are paying the wages of their delivery by the beginning and the middle of the month, and some businesses are paying by the end of the month.
The reason is that 1 because many adopt a variable wage system, or performance-based pay system every month, which takes considerable time to keep records of delivery, tallying high performance figures, and settling wages, and a two-month suspension of wages is necessary to control workers’ absent-worker positions and prevent non-payment of company supplies and non-payment of handover.

[Example of Payment Regulations]
The wage payment date is designated in a regular cycle, not fixed dates. For example, from the 5th of every month,
Delivery wages are paid in a period of up to 10 days. Optionally, pay for delivery up to 10 days prior to each month

(2) Response to delayed wage payment

Wages should be paid in full on the appointed day. However, if a private company occurs, such as a bad management, or if it receives consent from the public association or workers, it can be delayed for up to one month. Without consent, a worker may, in accordance with Article 38 of the Labor Contract Act, notify one-sidedly of the cancellation of the contract due to unfair labor practices and request the company to pay economic compensation. Therefore, in the event that wages are delayed due to unavoidable circumstances, the evidence must be preserved in any form after consultation with the employees.

[Case] Labor litigation over payment of deferred wages

Five people, including Yang, are employees of an advertising company in Shanghai. 年8 2008 2008, they submitted a contract to the company in July to cancel the labor contract unilaterally, and applied for labor arbitration to claim economic compensation. At the Labor Arbitration Board, the company has already submitted evidence that it issued a notice to the company's entire staff of 8月10 days, saying, "The company had a civil lawsuit, causing a temporary freeze in company accounts, which would pay employees July wages between 8月20 and 8月28. However, five people, including Yang, admitted that there was such a notice, but insisted that it had nothing to do with the plan.
(Decision on Labor Arbitration)
The company issued a notice to the effect that it would be delayed for about one month due to the reason for the freeze in funds following the lawsuit. The worker pointed out that the company should show reasonable tolerance for the timely payment of temporary wages caused by management difficulties, and that "no delay payment" did not mean the same as "time payment".
Although the company failed to pay wages for July in a timely manner, the company rejected the workers' claims, saying it made utmost efforts to pay wages to the workers.

(3) Handing out wage statement

In general, an entity entrusts wages to a bank in the form of a wage card to pay wages by proxy. The bank's proof of payment is proof that the company paid wages. However, because the bank’s wage transfer evidence only shows the total amount of wages and does not show the composition of wages (basic pay + overtime expenses, etc.), in the event of a labor dispute over pay remuneration, such as overtime costs, an enterprise may face an unproven situation. Therefore, it is necessary for an entity to produce a detailed wage statement and, if cumbersome, obtain an employee’s confirmation and signature.
If it is difficult to get a written wage statement because of the large number of employees, there is also an e-mail delivery method. However, in the event of a labor lawsuit, if the employee denies receiving an e-mail or two, if the contents are denied, electronic data is easy to organize, unless notarized, and without other supporting evidence, it is difficult to adopt it as a basis in court. Thus, although primitive, receiving a written and printed wage statement confirmation is also a sure way to ensure that it is legal.

Wage Table and Wage Statement
The wage table is a table of the wage composition, amount and payment status of the entire employee.
Most companies keep wages a secret, so the payrolls are only used by the HR department for aggregation purposes. Based on the wage table, the wage statement for each employee is printed, and the wage statement records the wage composition, amount, and payment status of the individual, and the signature confirmation by employee is obtained, so the confidentiality of the wage information can be maintained.

(4) Designing wage specifications

Wage statements are the most likely documents to be submitted in the event of a labor action, and can be a useful means to protect the interests of enterprises in the event of a labor dispute if they are well designed to account for various risks in advance.

1 Risk management for overtime expenses
If the employee claims that he or she has failed to receive the overtime fee in the wage statement, instead of making the overtime pay item separately, the company will find it difficult to prove the fact that the overtime payment was made. Therefore, the wage statement must include items for overtime expenses separately, and the items for overtime work must be reconciled to one weekday overtime charge, two weekend overtime fees, three legal holidays, and the employee must be able to verify their signatures to prevent malicious overtime charges from being retroactive.
Currently, the rate of overtime surcharge is unified in China, but the number of overtime expenses varies according to local wage regulations for each province. Some localities (Gwangdongseong) require that only basic wages can be paid as non-regular overtime, and some localities are based on fixed monthly wages under normal working conditions, including basic wages. The question is what items of wages should be used as the basis for calculating overtime.
In general, many companies agree that the basic wage on labor contracts should be paid for overtime. No matter how the local overtime calculation unit is agreed upon, if the basic wage is promised as a calculator (other than the province that defines the total wage, such as Shandong Province, as the number of overtime pay), and if an item of overtime cost is made on the wage statement, the difference in the worst-case scenario of losing the case will be paid only. In this case, it is also effective to specify the number of overtime pay calculators in the category of overtime expenses and obtain an employee's confirmation and signature on the wage statement every month.

Absenteeism and tardiness record and wage statement
The most authoritative evidence to confirm the existence of overtime work is the absenteeism and tardiness record. If the entity fails to submit the absenteeism and tardiness records in the event of a dispute over overtime, the entity is likely to lose. Because it is the entity’s responsibility to manage and preserve the absenteeism and tardiness records, the entity will be held responsible for the unproven nature of the absenteeism and tardiness records.
The absenteeism and tardiness record sheet is required to receive a confirmation signature from the employee before monthly wage payment. However, in the case that it is difficult to obtain an employee's signature in the absenteeism and tardiness record book for various reasons, such as division of business and dispatch of work to other areas, the employee identification should be clearly indicated in the wage statement by referring to the specific absenteeism and tardiness record figures ( absenteeism, request, sick leave, overtime, etc.).

2 Securing evidence of infraction of discipline
In case of violation of discipline, the employee often refuses to sign even if he sends a warning. In this case, it is hard to be recognized if a company notice board is posted or if a human resources officer or boss signs and specifies the situation in a warning letter as a witness, he or she actually goes to court. To prepare for this situation, a good method is to make a "failure violation" item on the wage statement separately, specify the fine or the amount of the wage deduction for the month, and briefly state the facts of the violation in the complaint.
For disciplinary measures not to be penalized, non-exercise and breach of discipline.

Core of the Labor Contract Law - Reparations to the Workers in the Case of management misconduct

To enhance the effectiveness of law enforcement, the Labor Contracts Act simply and clearly stipulated the losses (punishment) that a company would incur in the event of an offence and the benefits (reward) that a worker would gain from it.
It is designed to pay compensation directly to workers if they commit illegal labor activities. This gave workers the opportunity to take "unpaid income" in addition to their wages.
Indeed, since the enforcement of the Labor Contract Act, there have been a number of malicious cases in which workers who have been bitten by some collectivism have been unaware of corporate misconduct in the pursuit of punitive compensation, or have provoked management to file for dismissal.

[The Effects of the Labor Contract Act on Corporate Labor Management]
o Restrictions on the elasticity of employment
- It is difficult to adjust work/wage by obligating labor contract items (work, wages, work place)
- Elastic workforce adjustment due to changes in market and business conditions at any time
o the difficulty of laying off workers
- Difficulty in dismissal if legal cause/evidence/procedure of court proceedings, and burden of double compensation for illegal dismissal
- Increase in staff and costs as evidence is secured and legal procedures are implemented.
o prolonged and rigidity in labor relations;
- the increase in lifetime employment due to prolonged labor contracts and time lapse.
- Difficulty in selection and personnel metabolism of low performers
o Flooding of labour litigation
- Increased malicious lawsuits targeting poor corporate management and loopholes
- Retroactive claims against past unfair treatment are filed at the time of retirement.

the rise of workers' rights

The sense of workers' rights in the labor market was greatly enhanced in 2008 due to the effectuation of the Labor Contract Law, the advancement of higher education, and the rapid improvement of economic standards. Companies are having a hard time managing their labor because workers are quick to grasp labor laws and insist on even the smallest details.
Collective labor disputes such as strikes and sabotage are also taking place in a routine manner, and unless workers flock to the streets and destroy facilities, the Bureau of Labor and Public Security are also avoiding active intervention against the backdrop of the government's policy to protect workers.

[Man]

o Frequent individual and group disputes due to increased awareness of rights
the frequency of labor lawsuits based on labor laws.
Difficulty in flexibly adjusting personnel according to changes in management and market conditions
o 80 and 90後 Decrease in the working spirit of new generation employees
Rising expectations such as working environment, training, and power generation space
Avoid simple work, short-term employment and career advancement
o Changing generations of farmers' workers
Unlike first-generation farmers, we expect the city to be settled (lack of the foundation of life in farming villages).
High education and high level of consumption, sensitive to wage treatment, and equipped with a high sense of rights

3. Current Status and Challenges of Human Resources Management in Korea

Korean companies in China are now facing an uneasy reality. Not only are employees clearly aware of their rights, but they are increasingly weighing and holding on to their rights and rights protection issues, and their needs exceed those of the lowest levels stipulated by the law.
In addition, unlike Koreans, who have low workforce liquidity, narrow job spans and lifetime job expectations, the Chinese value the development of self-carrier over short-term compensation and position at work, and a strong sense of individualism and rights protection, so lax labor management and seniority pay systems like Korea are bound to face major challenges after a few years of initial start-ups.

the limitations of intetation
Even if a loose Korean-style personnel management system is applied in the early days of the start-up of the Chinese corporation, it does not have any major problems. However, when the number of workers increases and the organization grows, Korean-style in-vitro management faces limitations, the phenomenon of over-staffing and post-inflation occurs, and the aging of the organization (aging, real complacency, metabolic congestion, etc.) is likely to occur after more than 10 years of entry. In accordance with the development of the Chinese corporation, if the personnel system is not localized and organized, we have no choice but to encounter a phenomenon where the control of manpower becomes difficult and the administrative efficiency is reduced by the day.