论我国劳动争议仲裁制度的反思与重构——基于域外的比较

On Reflection and Reconstruction of China's Labor Dispute Arbitration System—Based on Comparison with Foreign Practice

随着我国经济体制市场化改革浪潮的不断推进,劳动关系已突破原有的传统形态,无论在主体、内容等方面均发生着显著的变化。作为替代性纠纷解决形态之一的劳动争议仲裁制度,是处理劳动争议的一种重要方式,但现有的劳动争议解决机制存在的多重弊端已成为制约劳动纠纷化解的瓶颈。虽然新的《劳动争议调解仲裁法》更加注重发挥劳动争议调解和劳动仲裁的作用,但劳动争议仲裁的程序前置、强制性、行政化特点并未得以革新,仍是劳动仲裁机制功效发挥不力的根源性阻障。通过比较国外劳动仲裁制度的中立、独立地位,借鉴其制度特色,探索适合我国的劳动仲裁之路,理清裁审关系,建立有效的仲裁与诉讼的衔接机制,可以推进我国劳动争议仲裁的去行政化、去诉讼化改革的步伐。

With the advancement of China＇ s reform of market - oriented economic system, labor relationship are changing greatly, transcending the traditional form, no matter in such aspects as subject and content. As one of the forms of alternative dispute resolution, labor dispute arbitration system is an important pattern of handling labor dispute, but some disadvantages of the existing labor dispute resolution mechanism have become bottlenecks of restricting resolution of labor disputes. Although new Law on labor Dispute Mediation and Arbitration focuses more characteristics of labor dispute arbitration on playing the role such as procedure of labor dispute mediation and arbitration, the preposition, compulsoriness and administerization have not been reformed, which are still the obstacles to preventing labor arbitration mechanism from working effectively. We shall explore the road of labor arbitration tailored to China＇ s national conditions, sort out the relationship between arbitration and trial, and establish effective cohesion mechanism of arbitration and litigation in order to promote the reform of de - administration and de - litigation, by using systematic features of foreign labor arbitration system such as neutral and independent status for reference.