The Perfection of the Prescription System of Labor Dispute Arbitration in China

Li Jimin

（Qingdao University,Faculty of Law,Qingdao 266600）

Abstract:The labor dispute arbitration is an important tool for workers to protect their rights and interests.The prescription system of labor dispute arbitration is vital to the settlement of labor dispute cases.Through studying the relevant legislation of labor dispute arbitration in China,it is found that there are many flaws with the prescription system of labor dispute arbitration in China.Relevant legislation should be perfected to clarify the starting point,period,suspension and interruption of the prescription of labor dispute arbitration,and the scope of application of the special prescription.

Key words:Labor disputes;Arbitration prescription;System perfection

1 Introduction

The labor disputes between workers and employers are inevitable,only by properly handling labor disputes can workers and employers get along harmoniously.The labor dispute arbitration is an important method for handling labor disputes,and a necessary procedure for the parties of labor disputes to bring a lawsuit to the court.Therefore,the prescription system for labor dispute arbitration is extremely significant.However,Chinese labor dispute arbitration prescription system is not without flaws,this article will put forward corresponding suggestions for the problems existing in Chinese labor dispute arbitration prescription system,aiming to promote the proper handling of labor disputes,and maintain social harmony and stability.

2 An Overview of the Prescription of Labor Dispute Arbitration

2.1 The Concept and Characteristics

The prescription of labor dispute arbitration refers to a legal system in which the parties who resolve disputes through arbitration procedures may not be able to protect their rights and interests if they do not actively file an application for labor arbitration during the prescription period of arbitration.The prescription of labor dispute arbitration is a kind of prescription of civil law,which is characterized by:

First,the prescription of labor dispute arbitration is statutory.This is mainly reflected in the fact that the starting point,period,suspension and interruption of the labor dispute arbitration prescription are clearly stipulated by the law.

Second,the prescription system of labor dispute arbitration is mandatory,which is demonstrated by the fact that the parties of a labor dispute can neither agree to exclude the application of the prescription,nor can they agree to change the arbitration prescription.

Third,the prescription of labor dispute arbitration is exclusive,which means the prescription of labor dispute arbitration only applies to labor disputes,and does not apply to other civil disputes.

2.2 The Legislation Situation in China

Article 82 of the “Labor Law of the People's Republic of China”that was implemented in 1995 established for the first time the prescription period for labor dispute arbitration as 60 days,and the starting point of the prescription period is “the day when the labor dispute takes place”,which initially established the prescription system for labor dispute arbitration.

Article 3 of the “Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (1)” (hereinafter referred to as the “Judicial Interpretation (1)”) implemented in 2001 stipulates that when the parties of a labor dispute do not involves force majeure or other legitimate reasons,when the time limit for labor dispute arbitration is exceeded,the people's court shall dismiss the litigation request.

Article 1 of the “Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (2)” (hereinafter referred to as “Judicial Interpretation(2)”) implemented in 2006 stipulates what is considered as the “date of labor dispute”,expands the scope of the starting point of the prescription of labor dispute arbitration;Article 2 stipulates that wages arrears disputes are not subject to the prescription of the prescription period of labor dispute arbitration;Articles 12 and 13 specify the suspension and interruption of the prescription of labor dispute arbitration.

Article 27 of the “Labor Dispute Mediation and Arbitration Law of the People's Republic of China” implemented in 2008 extended the prescription period to one year;altered the starting point to “the day when the parties knew or should have known that their rights were infringed”;Special arbitration statutes,but the labor relations is terminated,should be submitted within one year from the date of termination of the labor relations.

Articles 27 and 28 of the 2017 “Labor and Personnel Dispute Arbitration Case Handling Rules” respectively provide more detailed regulations on the suspension of labor dispute arbitration statutes.The above provisions constitute the prescription of labor dispute arbitration in China,which plays a major role in resolving labor disputes and safeguarding the legitimate rights and interests of workers,but there are still many problems in the application process.

3 Problems Existing in Chinese Labor Dispute Arbitration Prescription System

3.1 The Starting Point of the Arbitration Prescription is Not Clear

According to Article 27 of the “Labor Dispute Mediation and Arbitration Law”,the starting point of Chinese labor dispute arbitration prescription is “the party knows or should know the date on which his rights are infringed”,but it is not clear how to interpret the starting point.

First,it is not clear in practice how the term “know or should know” should be determined.If the parties to a labor dispute do not have evidence as to when the labor dispute occurs,both parties may dispute the starting point,and it is difficult for the labor arbitration institution or the people's court to determine when it is “know or should know”.Secondly,laborers are in a disadvantaged position in labor relations compared to employers.This unequal status makes workers in many cases unable to obtain effective information,and even do not know under what circumstances their rights and interests are violated.Therefore,it is not appropriate for the starting point of labor dispute arbitration prescription such as double wages,work-related injury compensation and annual leave wages to be “the day when the parties knew or should have known their rights were violated”.

Based on this,academic circles have disputed the starting point of invalidation of labor dispute arbitration in China.In particular,the starting point for special labor disputes during the duration of the labor relations differs in practice according to local standards.For example,the starting point for disputes over the payment of annual leave wages is considered by the Jiangsu Higher People's Court from January 1 of the following year of the leave period.The Beijing Higher People's Court held that the calculation should start on December 31 of the second year.Jilin,Xingtai and Shenzhen maintain that the calculation should start on January 1 of the third year.

3.2 The Arbitration Prescription is Shorter

According to Article 27 of the “Labor Dispute Mediation and Arbitration Law”,the time limit for labor dispute arbitration in China is one year.Compared with the 60 days stipulated in the original “Labor Law”,the one-year prescription period has been extended,but in some cases the legal rights of workers cannot be protected.For example,during the duration of the labor relations,the employee will not apply to the labor arbitration institution for arbitration in a timely manner after knowing that his rights and interests have been infringed under pressure from the employer.In this case,the prescription period for labor dispute arbitration is 1 year,which is obviously shorter.

In addition,the “Civil Code of the People's Republic of China”(hereinafter referred to as the “Civil Code”) stipulates that the time limit for litigation is three years.The prescription period for labor dispute arbitration is a special civil law prescription period,but the prescription period is only one year,which is obviously shorter.Many scholars believe that the prescription of labor dispute arbitration should be extended,but there are still disputes over how long it should be extended.

3.3 Provisions on Suspension and Interruption of Arbitration Prescription are Imperfect

According to Article 27 of the “Labor Dispute Mediation and Arbitration Law”,the statutory circumstances for the suspension of the prescription on labor dispute arbitration in China are that one party claims rights to the other party,requests relief from the relevant authorities,and the other party agrees to perform its obligations.The statutory circumstance of suspension of the arbitration prescription is force majeure or other legitimate reasons.The 2017 “Rules for Handling Cases” made clearer provisions on the statutory circumstances for the suspension and suspension of labor dispute arbitration,clarifying that “claiming rights from the opposing party” can be negotiated,applying for mediation.But there are still some problems:

First,there is no provision for the distribution of the burden of proof for the interruption of the issue.When the laborer and the employer claim rights to the parties through negotiation,the effect of the arbitration shall be interrupted at this time.However,if the employer does not recognize the cause of the interruption,but the worker has no evidence to prove it,the legitimate rights and interests of the worker will be severely damaged.

Second,the scope of “relevant departments” is relatively limited.In practice,many workers lack legal knowledge and have no idea which department they should complain to.

Third,it is not clear how the “other justified reasons” in the grounds for the suspension of the arbitration prescription of labor disputes should be interpreted.This in practice incurs discrepant judgments of the same case,which impedes the settlement of labor disputes.

3.4 The Scope of the Special Arbitration Prescription is Not Clear

According to Article 27 of the “Labor Dispute Mediation and Arbitration Law”,the special arbitration prescription of labor disputes is exclusively applicable to “disputes due to arrears of labor remuneration”.However,there are disputes in the practice of whether the underpayment of wages is arrears of labor remuneration and disputes about the scope of labor remuneration.In practice,judges have different standards for determining labor remuneration.Some judges believe that the other double wage recovered in double wages is labor remuneration,while some judges believe that the other double wage recovered in double wages is a kind of punitive damages are not labor remuneration.

4 Suggestions on Improving Chinese Labor Dispute Arbitration Prescription System

4.1 The Starting Point of the Arbitration Prescription Should be Determined According to the Circumstances

There is a debate in the academic circles about the starting point of the prescription of labor dispute arbitration.Some scholars support that“knowing or should know the date when their rights are infringed” is the most appropriate starting for the prescription of labor dispute arbitration.Some scholars believe that the starting should be the “date of labor dispute”,and also others suggest that the starting should be revised as “the date of the end of labor relations”.

Regarding the above viewpoints,the author believes that it is not appropriate to set the arbitration prescription starting point as “the day when labor disputes occur”.This is mainly due to the unequal status of workers and employers.Workers are in a disadvantaged position,and even if the worker knows the date of the labor dispute,he or she had already missed the prescription due to the pressure of the employer during the labor relations.It is also inappropriate to set the starting point of the arbitration prescription as the “date of the end of labor relations”.

All in all,the author believes that the starting point should continue to be “knowing or should know the date on which his rights were infringed”.However,labor disputes arising during the duration of the labor relations should be determined by law based on specific circumstances,such as the annual leave wages.The starting point is unified from January 1 of the following year of the year in which the vacation is due,and the arbitration prescription for double wages shall be unified as the date on which the employer and the supplementary labor contract are concluded,or the two parties have entered into an indefinite labor contract.Furthermore,laws should be issued to clarify the criteria for determining“know or should know”.

4.2 The Arbitration Prescription Period is Extended to Two Years

There are two views on how long the term of labor dispute arbitration should be extended:some scholars advocate extending it to three years,while others suggest two years.In this regard,the author believes that the prescription period of labor dispute arbitration should be extended to two years.The main reasons are as follows:

First,the 2017 Civil Code extended the prescription period to three years.The prescription of labor dispute arbitration is one of the prescription in civil law and is formulated to resolve labor disputes and protect the legitimate rights and interests of workers.However,it is not appropriate to extend the arbitration prescription period to three years.The prerequisite of labor dispute arbitration procedures is to simplify the procedures.If the prescription period is extended to three years,it will not be conducive to the preservation of evidence,which will hinder the efficient and rapid resolution of labor disputes.

Second,the “Interim Provisions on Wage Payment” requires that the minimum time for keeping wage files is two years,and the “Labor Inspection and Security Regulations” stipulates the labor inspection prosecution period as two years.If the labor dispute arbitration prescription is set to two years,it will better facilitate the arbitration prescription and complement other laws and regulations.

Third,extending the arbitration prescription period to two years will be more advantageous to workers in safeguarding their legitimate rights and interests,and at the same time,it will contribute to the preservation of evidence due to the long period.In summary,it is more appropriate to extend the prescription period for labor dispute arbitration to two years.

4.3 Improve the Provisions on the Suspension and Interruption of the Arbitration Prescription

The improvement of the provisions on the suspension and suspension of labor dispute arbitration prescription should start from the following aspects:

First,the statutory reasons for the suspension of labor dispute arbitration prescription should be more detailed,and the specific circumstances of “other legitimate reasons” should be clarified.It's recommended to refer to the Article 194 of the Civil Code.

Second,it is stipulated that if the prescription of labor dispute arbitration is interrupted due to negotiations between the parties of the labor dispute,the employer shall bear the burden of proof of whether the negotiation has been conducted,so as to protect the rights and interests of workers.

Finally,in response to one of the reasons for the suspension of labor dispute arbitration prescription,“request for relief from relevant departments”,the scope of “relevant departments”should be expanded to facilitate workers' rights protection.In summary,legislation should be passed to further revise the provisions on the suspension and interruption of labor dispute arbitration prescription.

4.4 Clarify the Scope of Application of the Special Arbitration Prescription

To clarify the scope of application of the special arbitration prescription,the scope of labor remuneration should first be clarified.For example,it is not clear whether special labor disputes such as annual leave wages,double wages,and overtime wages are labor remuneration.It should be clarified that the annual leave remuneration is a kind of welfare compensation and has a compensatory nature and not an actual reward for labor.It is clear that the double wage paid in the double wage has the nature of punitive damages and does not belong to labor remuneration.Overtime wages are the same as wages,which are the rewards for workers who provide the employer with the basic physical or mental work.

Second,the meaning of “arrears of labor remuneration”should be clarified.It is clarified that whether the employer is in arrears of all labor remuneration or part of the labor remuneration,it constitutes a wage arrears for the worker,and it is all “arrears of labor remuneration”.The emergence of the phenomenon that it is impossible to freely and equally claim rights to the employer during the existence of the relations,which essentially protects the rights and interests of workers.

Finally,the scope of application of the special arbitration prescription should be appropriately expanded to protect the legitimate rights and interests of workers.For example,it is stipulated that special arbitration statutes apply to labor disputes such as annual leave wage payment and double wage payment that occur during the duration of the labor relations.Prevent workers from not being able to maintain their rights and interests on an equal basis during the duration of the labor relations.

5 Conclusion

The labor dispute arbitration prescription system enables the parties to labor disputes to exercise their rights in a timely manner,and prevents evidence from being annihilated due to a long duration of time,which can effectively improve the efficiency of labor dispute handling.Therefore,prescription system of labor dispute arbitration should be improved constantly .