发布文号: SMPG G [2004] No.37
Chapter I General Provisions
Article 1 （Purpose and Basis）
With a view to regulating the settlement of personnel disputes in public institutions, protecting the legitimate rights and interests of both parties to disputes and facilitating the rational mobility of qualified personnel, these Procedures are formulated in accordance with relevant provisions of the State, taking into account the actual circumstances of this Municipality.
Article 2 （Scope of Application）
These Procedures apply to the settlement of disputes （hereinafter referred to as personnel dispute （s）） arising from the establishment, alteration, termination and dissolution of employment relations between public institutions in the administrative area of this Municipality and their employed staff.
Disputes arising from the establishment, alteration, termination and dissolution of employment relations between non-enterprise units run by the local people and social organizations using authorized posts of public institutions on the one hand and their employed staff on the other may be settled according to these Procedures.
These Procedures do not apply to those public institutions that administer personnel in accordance with the state public servant system.
Article 3 （Principles of Settlement）
The settlement of personnel disputes shall be based on facts, taking law as the criterion and following the principles of timeliness, fairness and reasonableness.
Article 4 （Modes of Settlement）
After a personnel dispute arises, the parties may resolve it by resorting to the following modes:
（1） Consultations by themselves;
（2） Applying for mediation;
（3） Applying for arbitration.
If the parties refuse to accept the award of arbitration over a personnel dispute, they may file an action in a people's court according to law.
Chapter II Mediation
Article 5 （Mediation Organizations）
Public institutions may establish mediation commissions for the settlement of personnel disputes. The personnel dispute mediation commission shall be composed of the following personnel:
（1） Representatives of employees elected by the workers and staff congresses or by the general staff meetings;
（2） Legal representatives or their appointed representatives;
（3） Representatives appointed by the trade unions.
The personnel dispute mediation commission shall be chaired by the representative appointed by the trade union, with its administrative office set up in the trade union committee.
Higher departments in charge of the public institution may appoint a special mediation organization to mediate personnel disputes.
Article 6 （Mediation Provisions）
After a personnel dispute arises, if the parties apply for mediation, the personnel dispute mediation commission or the designated special mediation organization （hereinafter referred to as mediation organization（s）） shall urge both parties to reach a mediation agreement voluntarily on the basis of the facts established.
The contents of the mediation agreement may not violate the provisions of laws, rules and regulations.
Article 7 （Mediation Procedure）
When the parties apply to a mediation organization for mediation, the organization shall mediate in a timely manner. If the mediation application is submitted by one party, the organization shall secure the consent of the other party before undertaking mediation.
In the course of mediation, the mediation organization shall hear presentations by both parties and mediate impartially according to relevant provisions.
When an agreement is reached after mediation, the mediation organization shall prepare a written statement of the mediation agreement, which shall go into effect upon signing by both parties; in case mediation fails, the mediation organization shall prepare a written mediation opinion and notify both parties that they may apply to the personnel disputes arbitration commission for arbitration.
The mediation organization shall see that both parties to the personnel dispute implement the mediation agreement.
Article 8 （Time Limit for Mediation）
After the parties apply to a mediation organization for mediation, the mediation organization shall complete the mediation proceeding within 50 days from the date of occurrence of the dispute; if the mediation is not completed by the end of the above time limit, the mediation shall be deemed as a failure.
Chapter III Arbitration
Article 9 （Establishment and Composition of the Arbitration Commission）
Personnel dispute arbitration commissions （hereinafter referred to as arbitration commission（s）） shall be established at the municipal and district/county levels. Arbitration commissions shall be composed of the following personnel:
（1） Representatives of competent personnel administrative departments;
（2） Representatives of the federation of trade unions;
（3） Representatives of other relevant government departments.
The arbitration commission shall be composed of an odd number of members, with the representative of the competent personnel administrative department serving as the chairman.
Article 10 （Administrative Office of the Arbitration Commission）
The arbitration commission shall establish an administrative office under it to handle its day-to-day work, such as accepting cases, serving arbitration documents, file management, arbitration fees collection and management.
The administrative office of the arbitration commission shall be set up in the competent personnel administrative department of the people's government at the same level.
Article 11 （Arbitration Tribunal）
When handling personnel disputes, the arbitration commission shall adopt the arbitration tribunal system. The arbitration tribunal shall be composed of three arbitrators, with an arbitrator appointed by the arbitration commission serving as the chief arbitrator; in a simple case of personnel dispute, the arbitration commission may appoint a single arbitrator as the sole arbitrator.
Article 12 （Arbitrators）
The arbitration commission may appoint officials of relevant government departments, experts, scholars and lawyers as full-time or part-time arbitrators.
In performing their public functions as arbitrators, part-time arbitrators shall enjoy the same rights as full-time arbitrators.
Article 13 （Arbitration Jurisdiction）
Personnel disputes that occur in those public institutions established with the approval of the municipal people's government or its relevant competent departments and the Shanghai-based institutions of central government departments, other provinces and municipalities shall fall within the jurisdiction of the municipal arbitration commission.
Personnel disputes that occur in those public institutions established with the approval of district/county people's governments or their relevant competent departments shall fall within the jurisdiction of the district /county arbitration commissions.
When district/county arbitration commissions differ in their opinions on the jurisdiction over a case, the municipal arbitration commission shall designate its jurisdiction.
Article 14 （Arbitration Application）
Parties shall, within 60 days from the date of occurrence of a personnel dispute, apply in writing to the arbitration commission that has jurisdiction for arbitration.
The arbitration application shall specify the following particulars:
（1） If the claimant or respondent is an individual, his/her name, sex, age, occupation, work unit and address of residence shall be stated; if the claimant or respondent is a unit, the name and address of the unit, and the name and position of its legal representative or the leading person-in-charge shall be stated;
（2） The matters at issue, the facts the application is based and its grounds;
（3） Evidence and its source, the name and the address of residence of the witness（es）.
Article 15 （Acceptance of Arbitration）
The arbitration commission shall make a decision on acceptance or rejection within 7 workdays from the date of receipt of the arbitration application. In case of a rejection decision, the commission shall notify the claimant in writing within 7 workdays from the date of making the decision and give the reasons for the rejection. In case of an acceptance decision, the commission shall notify the claimant in writing within 7 workdays from the date of making the decision and serve the duplicate copy of the arbitration application on the respondent and form an arbitration tribunal.
The respondent shall submit a statement of defense and related evidence within 10 workdays from the date of receiving the duplicate copy of the arbitration application. Failure on the part of the respondent to submit a statement of defense in time or failure to submit defense at all shall not affect the progress of the arbitration proceedings.
Article 16 （Mediation by the Arbitration Tribunal）
In case both parties are willing to accept mediation, the arbitration tribunal, upon establishing the facts and attributing liabilities, shall urge the two parties to reach an agreement voluntarily. The contents of the agreement may not contravene the provisions of laws, rules and regulations.
Where an agreement is reached through mediation, the arbitration tribunal shall prepare a mediation decision. The mediation decision shall take legal effect upon signing receipt by both parties.
In case agreement is not reached through mediation or the parties go back on it before signing receipt of the mediation decision, the arbitration tribunal shall arbitrate without delay.
Article 17 （Modes of Arbitration）
Arbitration shall be conducted by holding hearings. The arbitration tribunal shall notify in writing both parties of the time and place of the hearing, as well as the list of its members 5 workdays before the hearing. Where the parties agree not to hold a hearing, arbitration in writing is also allowed.
Article 18 （Acts Deemed as Withdrawal of Application and Arbitration by Default）
Where a decision is made to hold a hearing for arbitration but the arbitration claimant fails to be present at the hearing without any proper reasons, though he is notified in writing, or leaves the court before the hearing is over without permission of the arbitration tribunal, the application may be regarded as being withdrawn.
Where the respondent fails to be present at the hearing without any proper reasons, though he has been notified in writing, or leaves the court before the hearing is over without permission of the arbitration tribunal, an arbitration by default may be conducted.
Article 19 （Evidence）
The parties shall submit evidence to support their respective claims, unless otherwise provided by the State.
The arbitration tribunal may collect evidence by itself if it deems it necessary.
Only those evidences that have been cross-examined and confirmed may be taken as the basis for establishing the facts.
Article 20 （Debate）
The parties have the right to debate their case in the course of arbitration. At the end of the debate, the chief arbitrator or the sole arbitrator shall seek final opinions of the parties.
Article 21 （Arbitration Award）
In arbitrating cases of personnel disputes, the principle of the minority being subordinate to the majority shall be followed and dissenting opinions shall be recorded accurately. When a majority opinion can not be reached by the arbitration tribunal, an award shall be made according to the chief arbitrator's opinion. The arbitration tribunal or the sole arbitrator shall prepare a written arbitration award within 5 workdays after making the award.
The arbitration award shall state the arbitration claims, facts under dispute, arbitration results and reasons therefor, the allocation of arbitration fees, the time limit to institute legal proceedings with the people's court according to law in case of refusing to accept the arbitration award and the date of the arbitration award. The arbitration award shall be signed by the members of the arbitration tribunal and sealed by the arbitration commission.
Article 22 （Handling of Special Cases）
When handling important or difficult personnel dispute cases, the arbitration tribunal may refer them to the arbitration commission for discussion and decision. The arbitration tribunal shall implement the decision of the arbitration commission.
Article 23 （Time Limit for Closing a Case）
Personnel dispute cases handled by an arbitration tribunal shall be closed within 60 days from the date of forming the arbitration tribunal; where necessary, appropriately deferred closure of complicated cases may be allowed upon the approval of the arbitration commission, provided the deferment does not exceed 30 days.
Article 24 （Authorized Representation）
The parties may authorize one or two persons to participate in the arbitration proceedings on their behalf. In case of authorizing a third party to act as the representative, a power of attorney signed or sealed by the principal shall be submitted to the arbitration commission. The power of attorney shall specify the entrusted matters and the limits of authority.
Article 25 （Challenge of Arbitrators）
An arbitrator shall withdraw and the parties and their representatives also have the right to challenge him, when:
（1） He is a party to the case in question or a family member or close relative of either of the parties or his representatives;
（2） He is a stakeholder in the case;
（3） He is otherwise related to a party to the case or to his representative, so that the impartiality of the arbitration proceedings may be prejudiced.
A challenge put forward by a party or his representative shall state the reason therefor and be submitted before the first hearing. In case the causes for the challenge become known after the first hearing, the challenge may be submitted before the end of the final hearing.
After receiving a challenge, the arbitration commission shall make a decision in writing within 3 workdays from the date of the submission of the challenge.
Chapter IV Legal Liability and Relief
Article 26 （Legal Liability of Parties）
Where a party or any related person does any one of the following acts in the course of arbitration, the arbitration commission may criticize, educate and order him to make corrections. In serious cases involving violations of relevant provisions of"Regulation of the People's Republic of China on Public Security Administration and Imposition of Punishment", the public security department may impose administrative punishments according to law; if the wrongful act constitute a crime, the wrongdoer shall be prosecuted for criminal liability as provided by law:
（1） Interfering with arbitration proceedings;
（2） Providing false information;
（3） Taking reprisals against arbitrators or other working personnel, participants in arbitration or witnesses.
Article 27 （Legal Liability of Arbitrators and Other Working Personnel）
Where an arbitrator or other working personnel engage in malpractice for selfish ends, accept bribes, carry out extortions, abuse power, or infringe upon the legitimate rights and interests of the parties in an arbitration proceeding, the arbitrator shall be disqualified as arbitrator and dismissed by the arbitration commission, while the other working personnel shall be dismissed by the arbitration commission; if the wrongful act constitute a crime, the wrongdoer shall be prosecuted for criminal liability as provided by law.
Article 28 （Litigation and Enforcement）
If a party refuses to accept the award of a personnel dispute arbitration, he may file an action in a people's court according to law within 15 days from the date of receipt of the arbitration award. Where a party does not file an action or implement the arbitration award within the statutory period, the other party may apply to the people's court for enforcement.
Chapter V Supplementary Provisions
Article 29 （Arbitration Fees）
Parties applying for arbitration over personnel disputes shall pay arbitration fees in accordance with relevant provisions.
Article 30 （Effective Date）
These Procedures shall become effective on October 24, 2004. The"Procedures of Shanghai Municipality on the Settlement of Disputes over Employment Contracts of Public Institutions"（SMPG G [2003] No.3） shall be annulled at the same time.
September 24,2004