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Interpretation (III) of the Supreme People's Court of Several Issues on the Application of Law in the Trial of Labor Dispute Cases [Effective]
最高人民法院关于审理劳动争议案件适用法律若干问题的解释(三) [现行有效]
【法宝引证码】

 

Announcement of the Supreme People's Court
The Interpretation (III) of the Supreme People's Court of Several Issues on the Application of Law in the Trial of Labor Dispute Cases, which was adopted at the 1,489th session of the Judicial Committee of the Supreme People's Court on July 12, 2010, is hereby promulgated and shall come into force on September 14, 2010.
September 13, 2010
Interpretation (III) of the Supreme People's Court of Several Issues on the Application of Law in the Trial of Labor Dispute Cases
(Interpretation No.12 [2010] of the Supreme People's Court)
To correctly try labor dispute cases, this Interpretation is made in accordance with the Labor Law of the People's Republic of China, the Labor Contract Law of the People's Republic of China (hereinafter referred to as the “Labor Contract Law”), the Labor Dispute Mediation and Arbitration Law of the People's Republic of China (hereinafter referred to as the “Mediation and Arbitration Law”), the Civil Procedure Law of the People's Republic of China and other relevant laws and in light of the civil trial practice.
 

最高人民法院公告


最高人民法院《关于审理劳动争议案件适用法律若干问题的解释(三)》已于2010年7月12日由最高人民法院审判委员会第1489次会议通过,现予公布,自2010年9月14日起施行。
二○一○年九月十三日
最高人民法院关于审理劳动争议案件适用法律若干问题的解释(三)
(法释〔2010〕12号)
为正确审理劳动争议案件,根据《中华人民共和国劳动法》、《中华人民共和国劳动合同法》、《中华人民共和国劳动争议调解仲裁法》、《中华人民共和国民事诉讼法》等相关法律规定,结合民事审判实践,特作如下解释。

Article 1 Where an employee requires his employer to compensate him for losses on the ground that he cannot enjoy social insurance treatments because his employer fails to conduct the social insurance formalities for him and the social insurance agency cannot make up such formalities, the people's court shall accept a case on such a dispute.
   第一条 劳动者以用人单位未为其办理社会保险手续,且社会保险经办机构不能补办导致其无法享受社会保险待遇为由,要求用人单位赔偿损失而发生争议的,人民法院应予受理。
Article 2 The people's court shall accept a case on any dispute arising from the self-restructuring of an enterprise.
   第二条 因企业自主进行改制引发的争议,人民法院应予受理。
Article 3 Where an employee brings an action in the people's court according to Article 85 of the Labor Contract Law to claim compensation or additional compensation from his employer, the people's court shall accept such a case.
   第三条 劳动者依据劳动合同法八十五条规定,向人民法院提起诉讼,要求用人单位支付加付赔偿金的,人民法院应予受理。
Article 4 Where any dispute arises between an employee and his employer which fails to obtain a business license, has forfeited its business license or continues business operation after its business license expires, the employer or its capital contributor shall be the party concerned.
   第四条 劳动者与未办理营业执照、营业执照被吊销或者营业期限届满仍继续经营的用人单位发生争议的,应当将用人单位或者其出资人列为当事人。
Article 5 Where an employer which fails to obtain a business license, has forfeited its business license or continues business operation after its business license expires borrows another person's business license for its business operation in the form of affiliation, etc., the employer and the lender of the business license shall be the parties concerned.
   第五条 未办理营业执照、营业执照被吊销或者营业期限届满仍继续经营的用人单位,以挂靠等方式借用他人营业执照经营的,应当将用人单位和营业执照出借方列为当事人。
Article 6 Where a party brings an action in the people's court pursuant to law against an arbitral award rendered by the labor and personnel dispute arbitration committee, and the people's court deems upon examination that any party which must jointly participate in the arbitration was absent according to the arbitral award, it shall add the absent party as a party to the action pursuant to law.
Where the added party shall assume any liability, the people's court shall deal with it concurrently.
   第六条 当事人不服劳动人事争议仲裁委员会作出的仲裁裁决,依法向人民法院提起诉讼,人民法院审查认为仲裁裁决遗漏了必须共同参加仲裁的当事人的,应当依法追加遗漏的人为诉讼当事人。
被追加的当事人应当承担责任的,人民法院应当一并处理。
Article 7 Where any employment dispute arises between an employer and an employee who has already enjoyed pension insurance treatments or received pensions pursuant to law when he is employed by the employer, and either party brings an action in the people's court, the people's court shall deal with it as a service dispute.
   第七条 用人单位与其招用的已经依法享受养老保险待遇或领取退休金的人员发生用工争议,向人民法院提起诉讼的,人民法院应当按劳务关系处理。
Article 8 Where an employee of an enterprise who is on leave with pay suspension, has retired under the statutory age of retirement, is removed from post or waiting for a post or is on a long leave due to the enterprise's operational cessation of production brings an action in the people's court pursuant to law for a dispute with his new employer, the people's court shall deal with it as a labor dispute.
......
   第八条 企业停薪留职人员、未达到法定退休年龄的内退人员、下岗待岗人员以及企业经营性停产放长假人员,因与新的用人单位发生用工争议,依法向人民法院提起诉讼的,人民法院应当按劳动关系处理。
......

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