Validity And Intensification Of Labor Dispute Mediation Agreement

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Legal effect refers to both the effectiveness of normative legal documents and the effectiveness of non-standard legal documents.

The validity of normative legal documents refers to the level and scope of validity of law, in which the scope or scope of application of law is legally binding on people and things that are universal.

The validity of non-standard legal documents refers to the legal effect of contracts, judgments, rulings, administrative decisions, etc., and has specific legal binding force on specific persons and events.

Legal effect is legally binding or compulsory, including the effectiveness of normative legal documents and non-standard legal documents.

The validity of normative legal documents refers to the level and scope of validity of law. The former such as the constitution is higher than the law and the law is higher than the administrative laws and regulations. The new law formulated by the same department is superior to the old law, especially superior to the general law.

The latter is the effective scope or application scope of the law, mainly the time, space and object scope of the law, which is legally binding on the universality of people and things.

The validity of non-standard legal documents refers to the legal effect of contracts, judgments, rulings, administrative decisions, etc., and has specific legal binding force on specific persons and events.

According to the different legal effects, the effectiveness of non-standard documents can be divided into three levels and categories: first, the effectiveness of the agreed non normative documents.

It mainly refers to all kinds of contracts formed by the contract act, which are stipulated by the equal body, without definite power, but have binding force of the contract (binding to the parties), evidence power and indirect enforcement power (which need to be converted into arbitration or litigation by arbitration or litigation). Generally, it is called "legal binding force", "binding force", "effectiveness" or "contract validity".

The two is the effectiveness of public non normative documents.

It includes the specific administrative act, arbitration action, court decision behavior and so on.

It is made by the public power or the main body of social power unilaterally, which has the power of determination (RES judicata or fixed force), legal binding force (binding on the parties and public institutions), execution basis and direct enforcement power, and the law is generally referred to as "legal effect".

The three is to agree on the effectiveness of the mixed non normative documents.

It is mainly a Notarial Creditor's right instrument with compulsory execution and a judicial mediation agreement. It is affirming by the equal body agreement and the special public power body (notarial institution or court). It does not have the definite power, but has the binding force of law (binding on the parties and public institutions), the execution basis and the direct enforcement power.

Generally, it is called "the creditor's right instrument that the notary organ gives the enforcement effect according to law" or "the judicial mediation agreement".

In order to solve labor disputes in a timely and efficient manner, we must adhere to the principle of "focusing on Mediation" and define the labor contract effectiveness of labor dispute mediation agreement in the form of "departmental rules". It is very necessary and urgent to unify the labor dispute mediation and arbitration institutions' legal application on this issue.

The labor dispute mediation agreement is obviously a non-standard legal document.

Theoretically speaking, the mediation agreement is a new arrangement made by the laborers and the employing units on the rights and obligations involved in the labor disputes. It is a consistent expression of the opposite meaning and has the salient features of the legal acts of both sides, so fundamentally speaking, it belongs to the two sides' juristic act, that is, the civil contract act, and the relevant provisions of the general principles of civil law and the contract law are applicable.

As long as it is in conformity with the elements of the contract (the main body is qualified, the intention is true, the content is legal, etc.), it has the validity of the contract. It applies both the invalidation and revocation of the contract, as well as the rescission system of the contract. It has the power of evidence, indirect enforcement and litigious.

Furthermore, the labor dispute mediation agreement is mainly about the arrangement of labor rights and obligations related to labor disputes, so in the final analysis, it is a consensus in labor relations. It is a labor law act of both sides. It should apply the relevant provisions of the labor contract law, so long as it is in line with the effective elements of the labor contract, it should have "labor contract effectiveness", which not only applies to the labor contract invalid system, but also applies to the rescission system of the labor contract.

At the applicable level, according to the principle of special superiority over general principles, when the three stipulates are inconsistent, the labor contract law should be applied first, the contract law should be applied again, and the general principles of civil law should be applied finally.

In addition, because the labor dispute mediation agreement is generally formed by the three mediation organizations, such as the "enterprise labor dispute mediation committee, the grass-roots people's mediation organization established in accordance with the law, the establishment of a labor dispute mediation function organization" and other three mediation organizations established under the "labor dispute mediation and Arbitration Law", it has a certain public institution identification color, and its evidence is more effective. Therefore, its contract effectiveness and labor contract effectiveness are stronger, but it is still the validity of the contract and does not have the enforcement power.

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From the point of view of practice, the "three low" phenomenon of labor dispute mediation is very prominent because of its weak foundation, low mediation application rate, low success rate and low rate of agreement implementation.

The existence of these problems is fundamentally due to the low credibility of the labor dispute mediation organizations, the reluctance of the workers to apply for mediation by the labor dispute mediation organizations, the unbelief that the labor dispute mediation organizations can fairly mediate, and do not attach importance to the mediation agreement reached by the labor dispute mediation organization.

Among them, the nature of labor dispute mediation agreement is not clear, which is one of the most important reasons, and has become a major obstacle to promoting labor dispute mediation and changing the weak position of labor dispute mediation.

In order to solve labor disputes in a timely and efficient way, we must truly adhere to the principle of "focusing on Mediation" and promote the great development of labor dispute mediation. It is very necessary and urgent to clarify the labor contract effectiveness of labor dispute mediation agreement in the form of "departmental rules" and to harmonization the application of law on this issue by the labor dispute mediation and arbitration institutions.

On the one hand, this is in line with the power of legal interpretation.

Because there are many understandings about the "binding force" provisions in the labor dispute mediation and arbitration law, if it is only in the form of "departmental rules", it is not illegal to make a practical administrative interpretation.

On the other hand, strengthening the effectiveness of mediation agreement is the general trend. It can not only be consistent with the relevant provisions of the judicial organs, improve the convergence of trial and adjudication, but also fundamentally promote the effective implementation of labor dispute mediation.

Although the labor dispute mediation agreement has the effect of labor contract and no direct enforcement power in essence, the parties can choose to enhance their effectiveness according to the specific circumstances, so that they can have the enforcement power. This is a major innovation of the current mediation system.

Within the existing legal framework, we should further strengthen the effectiveness of mediation agreements and make them mandatory. There are mainly three ways: judicial confirmation, arbitration replacement and notarization.

The labor dispute mediation agreement has the effect of the labor contract, that is to say, it only has indirect execution power. How can we further strengthen the effectiveness of the mediation agreement and make it have the enforcement power? Within the existing legal framework, there are mainly three ways:

First, judicial confirmation.

The parties concerned may jointly apply for the enforcement effect of the conciliation agreement by the people's court in accordance with the relevant provisions of judicial confirmation.

The two is arbitration replacement.

The two parties jointly apply for the Arbitration Commission to prepare the arbitration mediation agreement according to the mediation agreement.

After an agreement has been reached through mediation by the labor dispute mediation organization, the parties concerned may jointly apply to the Arbitration Commission for the replacement of the arbitration mediation agreement. The mediation organization shall submit the replacement application together with the mediation agreement to the Arbitration Commission for examination, and the Arbitration Commission shall produce an arbitration mediation agreement to serve the parties concerned, and the arbitration mediation agreement shall be legally effective after the parties have signed the agreement.

The three is notarization.

The parties concerned may apply jointly to the notarization organ for the enforcement effect of the conciliation agreement with the content of payment in accordance with the relevant provisions of the notarization law.

It should be pointed out that the enhancement of the effectiveness of the above-mentioned labor dispute mediation agreement is the "compulsory execution" voluntarily chosen by the parties.

That is to say, the labor dispute mediation agreement has the effect of labor contract in nature, and has no direct enforcement power. However, the parties can choose to enhance their effectiveness according to the specific circumstances, so that they can have the enforcement power. This is a major innovation of the current mediation system.