我国劳动争议纠纷解决机制的缺陷与对策

我国现行的劳动争议纠纷解决机制可以归结为“一裁两审”的单轨制模式。该模式在历史上曾经起过积极的作用，但随着社会主义市场经济的进一步深化和我国加入WTO，劳动争议纠纷解决机制存在的缺陷越来越受到人们的关注。面对这种现状，我国劳动争议纠纷解决机制的改革和完善显得十分必要。     

The standard of living of widows: Inventories as an indicator of the economic situation of widows

This article examines the standard of living of widows in two rural areas, South West Finland and Central Sweden, in the eighteenth and nineteenth century and among first generation migrants to Stockholm between 1680 and 1750. The principal sources used are the inventories of a person's possessions that were taken after their death, supplemented in the case of the rural populations by retirement contracts (which were not used by urban populations in the Nordic countries). Wealth is measured in three ways: examination of the type and value of the property listed in the inventory, calculating what goods might be purchased with a given inheritance, and a comparison of the inventories of widows with those of married women and with men. A range of factors, it was discovered, determined how much property a widow might own at her death. These factors included her age and whether there were children entitled to a share of the family's property but also the impact of inheritance law which awarded widows a larger share of marital property in towns than in the countryside and included the house which in rural areas was considered to belong to the family and not to any one individual. Analysis of this evidence suggests that the widows of farmers were likely to be economically secure due to the provisions in their retirement contracts which provided them with housing, food and care until their death. The situation of the widows of the landless was considerably more precarious. Some might even have nothing to inherit from their husbands.     

要物合同的意义探源

要物合同在罗马法中是一个非常重要的概念,近现代民法理论因以合同客体区分各种合同,弃它不用了.但即使它现在不再以法律制度的面貌出现,其类型仍大部分保留在了近代以来的民法典之中,且与前述理论所主张的合意是合同的唯一构成要件形成悖反.为理解近现代理论为何还保留具体的要物合同,最好回到其源头求得其真意.     

试论WTO与我国人权法制建设

WTO将给我国人权法制建设带来深远的影响 ,为了更好地与WTO全面接轨 ,人权立法应注重平等权 ,程序性权利及劳动标准等方面的应对策略。     

劳动抗辩权初论

劳动抗辩权是指劳动者享有的在劳动关系运行过程中拒绝用人单位的劳动请求或劳动指示的权利，在性质上属自力救济权。我国对劳动指示权抗辩的直接法律规定主要在劳动保护法中，不过在劳动立法中却没有针对劳动请求权抗辩的规定，《合同法》可以提供此种法律依据。实践中，劳动抗辩权行使会遇到一些障碍，应有针对性地予以克服。劳动抗辩权是保护劳动者生命健康权的最佳方式，具有效率高且成本低的优势，其行使效果表现为暂停提供劳动，但一旦抗辩事由消失则劳动关系又恢复到正常状态。     

Public Sector Restructuring and Democracy: The State,Labour and Trade Unions in India

This article looks at the ways in which marketisation reforms affect the empowerment, ideological universes and functioning limits of popular institutions. Under what circumstances do left-leaning trade unions accept job cuts and wage freezes? What are the boundaries of consent and dissent? Case studies of three public sector companies in Bangalore city in the southern state of Karnataka, India, indicate that labour rationalisation has occurred with trade union acquiescence and support. However, as yet there is no broad institutional framework to handle social security, rehabilitation and redeployment of displaced workers. Public sector workforce reduction is taking place in a general economic context where there has been little growth of employment in the organised manufacturing sector. Beneath unions' apparent acquiescence to rationalisation processes, there are critical areas of dissent. Dissent, however, has not manifested itself in a critical alternative to the state's rationalisation policies. Changing party-union relations, and shifts in the internal dynamics of unions affecting choice of leaders, union aspirations and ideologies - underwritten by the broader economic changes wrought by the marketisation process - partially explain the inability of the labour movement to shape a definitive challenge to the marketisation process.     

British Gas v Accenture: Round one

British Gas is currently seeking to recover around £220 m from Accenture in respect of Accenture's design and build of a new billing system. Two judgments on preliminary issues in the litigation were handed down in November 2009. This article provides the background to the dispute and then examines three areas considered in the judgments which are of general interest to practitioners. First, the article considers the issue of breach and the extent to which aggregation of breaches and a forward looking approach to their consequence may assist in determining their materiality. Secondly, the article considers the nature of notices of breach given under IT contracts. Finally, the article looks at issues of allocation of certain categories of loss to the two different limbs of Hadley v Baxendale, and as a result their potential recoverability.     

Case comment: BSkyB v. EDS [2010] EWHC 86 (TCC) case no: HT-06-311 26.01.2010

The Technology and Construction Court has issued its long-awaited decision in the epic court battle between BSkyB and EDS. Mr Justice Ramsey found that EDS had fraudulently induced Sky into a £54 million contract for a new customer relationship management (CRM) system. Since judgment was given, EDS has been ordered to pay Sky £270 million in damages and interest.     

Labour protest in China’s private sector: responses to Chinese communism with capitalist characteristics

Abstract

Building on existing studies of worker activism in formerly communist states, this paper examines the context, nature and consequences of labour protest in China’s private sector – highlighting the specific features that have emerged from China’s unique ‘communist’ political regime and partially privatized economy. As private enterprises have grown in China, private sector worker protests have been common. Three key factors have shaped this activism: (i) a disjuncture between benevolent and protective national laws and the lived experience of workers; (ii) fluctuations in the labour market; and (iii) generational shifts and learning among workers, employers and political authorities. The interplay of these factors has led protesting private sector workers to focus their ire on their employers and on occasion local political authorities, while viewing national political leaders as sources of worker support. These dynamics have had both positive and negative consequences for private sector workers and political authorities. Making comparisons with other authoritarian and communist states, this study adds to current understandings of how specific economic and political configurations engender particular characteristics of labour activism – and how these change over time.     

Anatomy of a massacre: the roots of heightened labour militancy in South Africa’s platinum belt

Abstract

On 16 August 2012, a protracted strike at a platinum mine in Marikana, South Africa, culminated in the killing of 34 mineworkers by local security forces. Some viewed this tragedy through the lens of South Africa’s apartheid past, recalling such events as the Sharpeville massacre of 1960. Others saw this episode as the latest cycle of angry protest and violent repression stemming from heightened inequality and poverty under global capitalism. This paper explores a set of institutional factors that occupy the middle ground between these two narratives about the massacre at Marikana. At the national level, despite progressive labour regulations and a long-standing alliance between the leading trade union (COSATU) and the ruling African National Congress, institutional channels for social dialogue and collective bargaining were less effective than expected given COSATU's inability to criticize policies focused on business-led growth at the expense of the social protection of workers. At the sectoral level, gigantic platinum companies faced with falling commodity prices sought to limit losses by planning retrenchments and limiting wage increases, triggering repeated and sometimes violent wildcat strikes, especially when workers’ grievances were set aside by local representatives of the COSATU-affiliated National Union of Mineworkers. The argument may be seen as a labour-focused variant of Huntington’s ‘gap hypothesis’: workers’ militancy has grown as existing institutional frameworks for ensuring labour peace have failed to effectively channel the frustrations of workers most in need of social protection.