中國의 集團的 勞動紛爭 處理制度 (Collective Labor Dispute Resolution System in China)

서지정보

· 발행기관 : 한국경영법률학회
· 수록지 정보 : 경영법률 / 24권 / 1호 / 431 ~ 492페이지
· 저자명 : 노병호

초록

As the Chapter 10 in 「the Labor Law of the People's Republic of China」ruled the matters of labor dispute resolution in 1994, the labor dispute resolution system has been formed based on the structure of negotiation, mediation, arbitration and lawsuit.
However, the regulations of the labor law were not specific and precise enough. In order to complement/clarify them and also protect laborers' rights and interests, the labor contract law and 「labor dispute mediation/arbitration law」 were established.
The collective labor relationship in China is regulated by 「the Labor Union Law of the People's Republic of China」(It is called the Labor Union Law below.). Established in 1950, it was largely amended in 1992 when it started to be changed to market economy system by reform and opening, and then it has been modified in 2001 to date. Basically, 「the Labor dispute mediation/arbitration Law」 rules not only disputes regarding individual labor relationship, but also collective labor disputes.
Contrary to European countries, the current labor relationship law in China mainly rules individual laborers' disputes, not collective disputes. As the types of dispute action are superficially enumerated, it has neither rules related to resolution methods of collective labor disputes, nor rules regarding laborers' right to strike.
In China, a labor dispute is understood as a conflict over rights and duties of labor relationship between the persons directly concerned. However, in China, there is no stipulated regulation about definition of what collective labor disputes mean. According to 「the Labor Mediation/Arbitration Law」, in case when more than ten laborers or jointly apply for the labor dispute occurred, they can participate in mediation/arbitration or lawsuit action after selecting a representative (Article 7). However, this regulation cannot be viewed as a regulation about definition of collective labor disputes. Understanding such collective labor disputes with more than ten laborers as a collection of individual labor disputes, it is based on a premise in which it is handled in the same procedures of individual labor disputes through the representative, so that this regulation is not about ruling special handling procedures of collective labor disputes.
The collective labor disputes in China can be divided into one by more than ten laborers, one in the process of collective contract conclusion, and one regarding executing collective contract. Though there are additional regulations of labor disputes in the process of collective contract conclusion and the one regarding executing collective contract, generally, they are handled under mediation, arbitration, and lawsuit regarding individual labor disputes.
In order to protect laborers' rights and interests and also to solve problems suggested in the process of handling labor disputes in China, there have been various reforms such as expanding the range of labor dispute by establishing the labor dispute arbitration law, extending the application period for arbitration, rapid arbitration procedure, selecting the system in which a case is completed only by a one arbitration, for some cases, rational allocation of the burden of proof and making arbitration cost free. Still, there are tasks that should be solved in regard of handling collective labor disputes. For example, they could include reforming labor union, securing independent status of labor arbitration committee and labor arbitration organization, improving arbitrators' qualification and increasing the number of personnel, and modifying definitional regulations for solving collective labor disputes.

영어초록

As the Chapter 10 in 「the Labor Law of the People's Republic of China」ruled the matters of labor dispute resolution in 1994, the labor dispute resolution system has been formed based on the structure of negotiation, mediation, arbitration and lawsuit.
However, the regulations of the labor law were not specific and precise enough. In order to complement/clarify them and also protect laborers' rights and interests, the labor contract law and 「labor dispute mediation/arbitration law」 were established.
The collective labor relationship in China is regulated by 「the Labor Union Law of the People's Republic of China」(It is called the Labor Union Law below.). Established in 1950, it was largely amended in 1992 when it started to be changed to market economy system by reform and opening, and then it has been modified in 2001 to date. Basically, 「the Labor dispute mediation/arbitration Law」 rules not only disputes regarding individual labor relationship, but also collective labor disputes.
Contrary to European countries, the current labor relationship law in China mainly rules individual laborers' disputes, not collective disputes. As the types of dispute action are superficially enumerated, it has neither rules related to resolution methods of collective labor disputes, nor rules regarding laborers' right to strike.
In China, a labor dispute is understood as a conflict over rights and duties of labor relationship between the persons directly concerned. However, in China, there is no stipulated regulation about definition of what collective labor disputes mean. According to 「the Labor Mediation/Arbitration Law」, in case when more than ten laborers or jointly apply for the labor dispute occurred, they can participate in mediation/arbitration or lawsuit action after selecting a representative (Article 7). However, this regulation cannot be viewed as a regulation about definition of collective labor disputes. Understanding such collective labor disputes with more than ten laborers as a collection of individual labor disputes, it is based on a premise in which it is handled in the same procedures of individual labor disputes through the representative, so that this regulation is not about ruling special handling procedures of collective labor disputes.
The collective labor disputes in China can be divided into one by more than ten laborers, one in the process of collective contract conclusion, and one regarding executing collective contract. Though there are additional regulations of labor disputes in the process of collective contract conclusion and the one regarding executing collective contract, generally, they are handled under mediation, arbitration, and lawsuit regarding individual labor disputes.
In order to protect laborers' rights and interests and also to solve problems suggested in the process of handling labor disputes in China, there have been various reforms such as expanding the range of labor dispute by establishing the labor dispute arbitration law, extending the application period for arbitration, rapid arbitration procedure, selecting the system in which a case is completed only by a one arbitration, for some cases, rational allocation of the burden of proof and making arbitration cost free. Still, there are tasks that should be solved in regard of handling collective labor disputes. For example, they could include reforming labor union, securing independent status of labor arbitration committee and labor arbitration organization, improving arbitrators' qualification and increasing the number of personnel, and modifying definitional regulations for solving collective labor disputes.

참고자료

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