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Anonymous users2024-02-06The labor arbitration procedure, I simply summarize it into five procedures: application, acceptance, mediation, and award. 1.
Application. Within one year from the date on which a party knows or should know that its rights have been infringed, it may apply to the labor dispute arbitration commission for arbitration. 2.
Accept. Within five days from the date of receipt of the arbitration application, if the labor dispute arbitration commission finds that it meets the conditions for acceptance, it shall accept it and notify the applicant; Where it is found that the requirements for acceptance are not met, the applicant shall be notified in writing not to accept the application and the reasons shall be explained. 3.
**。In the course of the arbitration, the parties will conduct the explicit request of the claimant, the respondent's reply, the arbitral tribunal's investigation of the facts, the presentation of evidence by both parties, debate, and the presentation of final opinions. 4.
Conciliation. The arbitral tribunal shall mediate before making an award. If an agreement is reached through mediation, the arbitral tribunal will prepare a mediation statement.
5.Verdict. If the mediation fails or one of the parties repents before the mediation is served, the arbitral tribunal will make an award in a timely manner.
Legal basis: Article 27 of the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes [Limitation for Arbitration] The limitation period for applying for arbitration of labor disputes is one year. The limitation period for arbitration shall be calculated from the date on which the parties knew or should have known that their rights had been infringed. The statute of limitations for arbitration provided for in the preceding paragraph shall be interrupted when one of the parties claims rights against the other party, or requests rights and remedies from the relevant authorities, or the other party agrees to perform its obligations.
From the time of interruption, the arbitration limitation period is recalculated.
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Anonymous users2024-02-05The respondent may file a counterclaim during the defense period, and the arbitration commission shall decide whether to accept the counterclaim and notify the respondent within five days from the date of receipt of the respondent's counterclaim. If it decides to accept the application, the arbitration commission may combine the counterclaim and the application.
Legal basis: Rules for the Arbitration of Labor and Personnel Disputes.
Article 36 The respondent may file a counterclaim during the defence period, and the arbitration commission shall decide whether to accept the counterclaim and notify the respondent within five days from the date of receipt of the respondent's counterclaim.
If it decides to accept the application, the arbitration commission may combine the counterclaim and the application.
If the counterclaim shall be separately applied for arbitration, the arbitration commission shall inform the respondent in writing that it shall apply for arbitration separately; If the counterclaim is not subject to acceptance under these Rules, the arbitration commission shall issue a notice of inadmissibility to the respondent.
If the respondent files a counterclaim against the claimant after the expiration of the time limit for reply, it shall separately apply for arbitration.
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Anonymous users2024-02-041. Definitions and Characteristics.
The so-called counterclaim in a labor arbitration lawsuit refers to an independent counterclaim filed by the respondent to the claimant or the defendant in the litigation against the plaintiff in the labor arbitration or litigation procedure that has already begun, with the purpose of offsetting or annexing the arbitration claim of the claimant or the plaintiff in the lawsuit. The counterclaim of a labor arbitration lawsuit has the following three characteristics:
1) The proposer of the counterclaim is the respondent of the arbitration or the defendant of the lawsuit, and the object of the counterclaim is the claimant of the arbitration or the plaintiff of the lawsuit.
2) The existence of the counterclaim must be a prerequisite for the filing of the counterclaim, without which the counterclaim would not be possible.
3) The purpose of the counterclaim is to annex or offset the arbitration claim filed by the claimant or the claim filed by the plaintiff.
It is precisely on the basis of the above-mentioned characteristics of the counterclaim that the law provides that the present claim and the counterclaim may be tried together. In addition, the counterclaim is also independent, and if the lawsuit is withdrawn after the counterclaim is filed, it will not affect the continuation of the trial of the counterclaim. If there is no withdrawal of the lawsuit, the lawsuit and the counterclaim shall be joined.
II. The Role of the Counterclaim.
The existence of counterclaims as a legal system has its rationality and positive effects, which are manifested in the following aspects:
1) Since the counterclaim can be tried together with the current lawsuit, judicial resources are saved and trial efficiency is improved;
2) Since the counterclaim can be tried together with the present lawsuit, it is more conducive to ascertaining the facts and distinguishing between right and wrong;
3) Since the counterclaim can annex or offset the claim, the successful filing of the counterclaim can enable the counterclaimant to take the initiative.
Due to the above functions, in practice, as long as the conditions for initiating a counterclaim are met, a counterclaim should be filed as far as possible.
3. The filing of a counterclaim is closed.
The following conditions must be met for the filing of a counterclaim in a labor arbitration lawsuit:
1) It must be filed by the respondent of the arbitration lawsuit or the defendant of the lawsuit against the claimant of the arbitration lawsuit or the plaintiff of the lawsuit, respectively, and the subject must be qualified and accurate.
2) It must be filed after the case is accepted and before the end of the hearing debate, and if the case is filed after the conclusion of the hearing debate, the arbitral tribunal or the tribunal shall inform the initiator to file a separate case.
3) It must be filed within the statute of limitations, and the retrospective leniency in arbitration is 60 days from the date of the dispute, and the statute of limitations is 2 years from the date of the dispute, and the counterclaim filed beyond the statute of limitations will be rejected or dismissed.
4) The counterclaim of the lawsuit must be premised on the counterclaim of the arbitration, and if the counterclaim is not filed in time at the time of arbitration, the counterclaim of the lawsuit will not be accepted.
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