我国劳动争议处理法律机制研究

发布时间：2018-07-04 12:36

本文选题：劳动争议 + 非诉讼模式　；参考：《南昌大学》2010年硕士论文

【摘要】：劳动争议是劳动者与用人单位之间所发生的争议,劳动者与用人单位之间的劳动关系是非常普遍基本的社会关系,各国都十分重视对劳动争议的处理,出台了一系列的法律对劳动争议的处理予以保障,对劳动争议处理法律制度的研究也成为法学界的重要课题,理论研究的成果反过来又促进了立法的完善,2007年被称为我国的劳动立法年,出台了一系列劳动法律法规,其中的《中华人民共和国劳动争议仲裁调解法》从2008年起实施,更是从立法层面上对劳动争议仲裁和劳动争议调解作了很大的改进,通过构建社会化的调解网络、赋予劳动争议调解协议法律效力、去除劳动争议仲裁委员会的行政化色彩、规定特定情况下实行一裁终局以及一些案件的举证责任由用人单位来承担等来达到提高解决劳动争议效果的目的。但该法实施两年来,在实践中也突出地暴露出一些问题,严重地影响劳动争议的处理效果,违背了改革的初衷。笔者认为我国实行的协商、调解、先裁后审的劳动争议处理法律机制既有非诉讼模式又有诉讼模式,适应劳动争议处理的需要,每种争议处理程序都有其优势所在,但由于各种原因,导致了协商、调解、仲裁、诉讼四种程序各自的优势没有能够充分地发挥,造成了司法实践中劳动争议处理程序极为复杂的局面,劳动者的维权之路十分艰难,因此,完善我国的劳动争议处理法律机制,笔者认为关键是如何把握各种处理模式之间的关系以及去除弊端完善其制度,笔者以消除各种模式的弊端,使得各种争议处理程序有效衔接为视角从催化自主协商机制,做实协商；改革调解制度,充分发挥调解在劳动争议处理中的长处；强化仲裁协议的法律效力,使得仲裁与诉讼衔接顺畅；改革劳动争议诉讼程序等方面提出了完善我国劳动争议处理法律机制的思考。提出构建适合我国国情、劳动关系特征,能够实现多元化模式有效结合是我国劳动争议处理法律机制的最佳选择。完善劳动争议处理法律机制,是贯彻社会主义法治理念,实现法治的法律效果与社会效果统一的要求,对促进和谐社会建设具有积极意义。
[Abstract]:Labor dispute is a dispute between laborer and employer. The labor relationship between laborer and employing unit is a very common basic social relationship. All countries attach great importance to the handling of labor dispute. A series of laws have been issued to protect the handling of labor disputes, and the research on the legal system of handling labor disputes has also become an important subject in the legal circle. In turn, the results of theoretical research have promoted the perfection of legislation. In 2007, it was called the Labor legislation year of our country, and issued a series of labor laws and regulations, among which, the Labor dispute Arbitration Mediation Law of the people's Republic of China has been implemented since 2008. From the legislative level, the labor dispute arbitration and labor dispute mediation have been greatly improved. Through the construction of a socialized mediation network, the legal effect of the labor dispute mediation agreement has been given, and the administrative color of the labor dispute arbitration committee has been removed. In order to achieve the purpose of improving the effect of resolving labor disputes, it is stipulated that the burden of proof in some cases is to be borne by the employing unit under certain circumstances. However, since the law was put into practice for two years, some problems have been exposed in practice, which have seriously affected the effect of labor dispute resolution and violated the original intention of the reform. The author thinks that the legal mechanism of labor dispute settlement which is implemented in our country is not only non-litigation mode but also litigation mode, which meets the needs of labor dispute resolution, and each kind of dispute handling procedure has its own advantages. However, due to various reasons, the advantages of the four procedures of consultation, mediation, arbitration and litigation have not been brought into full play, resulting in a very complicated situation of labor dispute handling procedures in judicial practice. Therefore, to perfect the legal mechanism of labor dispute handling in our country, the author thinks that the key is how to grasp the relationship between all kinds of handling modes and how to remove the disadvantages and improve the system. In order to eliminate the malpractice of various modes and make the effective connection of various dispute handling procedures as the visual angle from the perspective of catalytic independent negotiation mechanism, the author makes the actual negotiation, reform the mediation system, and give full play to the advantages of mediation in labor dispute handling. Strengthen the legal effect of arbitration agreement, make arbitration and litigation link smoothly, reform the procedure of labor dispute litigation, and put forward the thought of perfecting the legal mechanism of labor dispute handling in our country. It is suggested that it is the best choice for the legal mechanism of labor dispute processing in China to construct the effective combination of diversified modes and the characteristics of labor relations suitable for China's national conditions. Perfecting the legal mechanism of handling labor disputes is the requirement of carrying out the idea of socialist rule of law and realizing the unity of legal effect and social effect of rule of law. It is of positive significance to promote the construction of harmonious society.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.5

【引证文献】