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Chapter 587 Nine Steps

"Fourth, the legal remedies are different
Labor disputes arising from labor relations are subject to a special handling mechanism of "one mediation, one arbitration, two trials" and "one mediation, one arbitration".Disputes arising from labor relations are ordinary civil disputes, which shall be handled by ordinary civil procedure.

In judicial practice, the key to the difference between labor relations and labor relations is subordination, which I mentioned earlier.

We can understand it on two levels:
The first level is the personality subordination of employees.

It mainly means that the laborers are controlled to a relatively high degree by the employer. What kind of labor they engage in, what means of labor they use, work content, working time and location, etc., are all controlled by the employer to a relatively high degree, and the extent to which they can independently decide relatively low...

The second level is the organizational subordination of employment

The labor of laborers is incorporated into the production and operation system of the employer.As an integral part of it, workers become members of the labor organization of the employer and undertake the obligations of observing rules and regulations and keeping business secrets as members of the labor organization during labor.Organizational affiliation can make up for the lack of personality affiliation, and absorb some personnel who have high work autonomy and should not be included in the scope of personality affiliation.For example, lawyers to law firms, accountants to accounting firms, internal contractors to enterprises, etc..."

(The above views refer to the 68th series of "Civil Trial Guidance and Reference" compiled by the First Civil Tribunal of the Supreme People's Court, People's Court Press 2017 edition, interested readers can check it out)
Throughout the morning, Wang Chuan's mouth was dry and he refilled the tea on the table several times.However, many executives sitting in the audience didn't appreciate Wang Chuan's affection, and they started to gasp halfway through the speech.On the contrary, the general manager of the legal department, the nephew of the boss, listened with gusto, writing and writing without stopping.

In fact, I don’t blame these executives. Many of them are not well-educated. The company’s main business is logistics and transportation. Many of the executives here are from the grassroots.

What Wang Chuan said is a bible for these executives who are more tired from reading books than unloading trucks on weekdays!
At lunch, Han Zhou was afraid that Wang Chuan would be burdened, so he explained to him the composition of the senior executives.

"Lawyer Wang, don't think too much. The senior executives in our company have different levels of education, and some of them only went to elementary school. I have to explain to them every Monday morning meeting, not to mention what you will do today. professional training." Han Zhou said with a smile.

"Oh, I understand. How about this, I will try to give you an easy-to-understand answer this afternoon." Wang Chuan pondered for a while.

The weather in August was already hot, and the training started at two o'clock in the afternoon. Everyone in the audience looked drowsy and didn't wake up, as if they had been basking in the hot sun for a whole day, and their heads drooped.

At the beginning of the training, several people asked questions, and Wang Chuan answered them one by one, but many people were not interested in such questions.

General manager Wang of the legal department came to his senses and motioned the host to give him the microphone.

"Lawyer Wang, I have a question. Can you tell us how the court handles labor dispute cases? If we understand the key points of the court's trial of such cases, we can also be prepared when responding to lawsuits in the future. .” Manager Wang said.

"I really paid attention to what Mr. Wang said. Zou Bihua, the former vice president of the Shanghai Higher People's Court, summed up a set of ideas for trying labor dispute cases, called the 'Nine Steps of Judgment of Elements'. (Interested readers can check it out. )

Let me introduce these nine steps to you. You can refer to the court's trial method and deduce the current situation of the case.

First Step Fixed Rights Request

That is, to clarify the litigant's claims made by the parties in order to protect their own rights.

1. For the plaintiff, different rights claims correspond to different rights content, constituent elements, burden of proof, limitation of action, etc., which have a major impact.

2. For the defendant, only when the plaintiff's claim is clarified can he respond to the lawsuit and launch a confrontation in a targeted manner.

3. For the court, only when the claim is clarified can it find a legal basis and start the trial.

The second step is to determine the basic specification of the rights request
That is, to find legal norms to support the plaintiff's claim.

1. Legal norms are the basic basis for judges to hear cases. Only when legal norms are determined can the basic framework of case trial be defined and the direction of trial be clarified.

2. Once the legal norms are determined, the elements of the norms can be analyzed and fact investigations can be carried out around the elements.

3. Legal norms are the major premise of logical syllogism and the basis for judicial judgment.

Legal aspects: mainly include the "Labor Law", "Labor Contract Law", "Labor Dispute Mediation and Arbitration Law", "Women's Rights and Interests Protection Law", "Social Insurance Law", "Occupational Disease Prevention Law", etc.

Administrative regulations: mainly include the "Regulations on the Implementation of the Labor Contract Law", "Regulations on Work-related Injury Insurance", "Regulations on Working Hours of Employees", "Special Provisions on Labor Protection of Female Employees", etc.

Local laws and regulations vary from place to place. For example, the "Shanghai Municipal Labor Contract Regulations" has similar provisions in the imperial capital.

Departmental regulations and local government regulations: such as "Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law", "Minimum Wage Regulations", "Implementation Measures for Paid Annual Vacations for Enterprise Employees", etc.There are also judicial interpretations on labor disputes issued by the Supreme Court, which are commonly used in practice.

The third step is to determine the basic norms of the right of defense
That is to find the legal norms on which to support the defense of the defendant.

The defense is the defendant's defense against the plaintiff's right of claim. Whether it is supported by basic norms determines whether the defendant's defense against the plaintiff's claim can have the legal effect of preventing, hindering or even eliminating the right of claim...

The fourth step is the analysis of the constituent elements of the basic norms
That is, according to the logic of legal norms, analyze the basic norms supporting the plaintiff's petition and the defendant's defense reasons, and sort out the constituent elements of the legal provisions.

1. To determine the basis for the claim of liability of the parties, the parties should assert the facts that constitute the basic norms that support their claims or defenses.

2. It is conducive to solving the problem of the distribution of the burden of proof. Generally speaking, the party who claims the existence of rights or legal relationships bears the burden of proof for the essential facts that generate rights or legal relationships, and the party who denies the existence of rights or legal relationships is not responsible for obstructing rights or legal relationships. The burden of proof is on the essential facts of the legal relationship.

3. It is beneficial for judges to sort out the focus of disputes. The sorting of the focus of disputes should take the elements of legal norms as the unit...

The fifth step is to search for litigation claims

That is to examine whether the litigation claims of all parties corresponding to the constituent elements of their respective basic norms are complete and reasonable. "

(End of this chapter)