Author | Lawyer Liu Qiusu
Source | Labor Law Works World (ID:ldfxtx), reproduced with authorization.
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The hit drama The Bottom Line, starring Jin Dong, Cheng Yi and Cai Wenjing, plays Fiona Fang, president of the filing court of Xingcheng District People's Court in New South Wales, Zhou Yi 'an, post judge of the People's First Court, and the Supreme People's Court cadre (post assistant) respectively. Directed by the Supreme People's Court, Propaganda Department of Hunan Provincial Committee of the Communist Party of China, Hunan Radio and Television Bureau, and supervised by the Supreme People's Court Information Bureau and the Supreme People's Court Filing Court, the play shows the good image of people's judges in the new era, spreads the voice of China ruled by law, and presents the brilliant achievements of judicial reform of people's courts since the 18th National Congress.
In terms of bottom line, there are many unexpected employment cases, which are rare in previous series. For example, Luo Youyou, a female anchor who died suddenly, had a labor dispute with Xinnan Kababa Culture Media Co., Ltd., Li Fangning, a female salesman of Yingshengding Finance Company, had a sexual harassment compensation dispute with Zhi Peng, a gay man, and Mo Mo, a female secretary, had a sexual harassment compensation dispute with Huafu Wood Company, a former company.
As a professional lawyer of labor law, a part-time labor arbitrator and a former labor judge, to be honest, I am really not interested in legal series without labor law; When it comes to labor law, I often analyze and screen it from a professional perspective.
I watched the first episode of the hit drama "The Bottom Line" 10 this time. As a court worker with 19 years' experience, I think it is definitely worth seeing on the whole. But from a rigorous point of view, mistakes and serious injuries have occurred in some places. For example, for the abbreviation of the Supreme People's Court, Fiona Fang said both the Supreme Law and the Supreme Court; The organ disciplinary Committee should be the organ party Committee, and the people's court and the people's court have been mixed up many times; Ye Xin helped one party in many cases and even refused to correct it after being warned. In the labor dispute cases in the play, the specific performance is as follows:
In the case of labor dispute between Luo Youyou and Xinnan Kabakaba Culture Media Co., Ltd. (Kabakaba Company), female anchor Luo Youyou died suddenly during the live broadcast. Luo Youyou's parents, Luo Huiguo and Chen Suli, thought it was a labor relationship, and her daughter's sudden death was a work-related injury. After the labor arbitration, they brought a lawsuit to the people's court.
Claim: 1. The judgment confirmed that there was a labor relationship between the plaintiff Luo Huiguo and Chen Suli's daughter Luo Youyou and the defendant Xinnan Kaba Culture Media Co., Ltd.2.. It ordered Xinnan Kababa Culture Media Co., Ltd. to compensate the plaintiff for funeral subsidies, support relatives' pensions and one-time work death subsidies totaling 6,543,800,000. Three. Ordered to stop using the Weibo account involved. The legal costs of this case shall be borne by the defendant.
Judgment of first instance: 1. Confirmed that Luo Huiguo, the plaintiff, and Luo Youyou, the daughter of Chen Suli, had a labor relationship with the defendant Xinnan Kababa Culture Media Co., Ltd. from July 20 19 10 to May 4, 2002; 2. Restrict Xinnan Kababa Culture Media Co., Ltd. from paying the plaintiffs Luo Huiguo and Chen Suli a total of one million yuan in funeral subsidies, relatives' support pensions and one-time work death subsidies within ten days from the effective date of this judgment; 3. Limited New South Kababa Culture Media Co., Ltd. immediately stopped using the Weibo account involved; Other claims of plaintiffs Luo Huiguo and Chen Suli were rejected. The case acceptance fee of this case 10 yuan shall be borne by the defendant xinnan kababa culture media co., ltd.
1. It is wrong for the court to directly judge the company to bear the liability for compensation for work-related injuries without recognizing Luo Youyou's work-related injuries.
If the party concerned fails to identify the work-related injury, the people's court has no right to order the employer to bear the compensation liability for the treatment of work-related injury insurance. The people's court has no right to determine work-related injuries in civil trials. Work-related injuries should be recognized by the human and social departments and belong to specific administrative acts. If the employer and the employee are dissatisfied, they may apply for administrative reconsideration or bring a lawsuit to the people's court. In the play, the court of first instance ruled that the employer was liable for compensation for work-related injury insurance benefits without Luo Youyou's work-related injury identification, which violated legal procedures. This step is too big. The correct way is that the parties apply for work-related injury identification with an effective judgment confirming labor relations. If the employer fails to apply for administrative reconsideration or bring a lawsuit to the people's court after the identification of work-related injuries, or ultimately supports the identification of work-related injuries, the parties may claim the loss of work-related injury insurance benefits from the employer through labor arbitration and litigation procedures.
2. The pension for dependent relatives should be supported on a monthly basis, and the court should not award a one-time compensation.
Paragraph 2 of Article 39 of the Regulations on Work-related Injury Insurance stipulates that the pension for dependent relatives shall be paid according to a certain proportion of the wages of relatives who died before their death and were unable to work and provided their main source of livelihood. The standard is: spouse 40%, other relatives 30%, widowed elderly or orphans 10%. The total approved pension of dependent relatives should not be higher than the salary of employees who died at work. The specific scope of supporting relatives shall be stipulated by the administrative department of social insurance of the State Council. In the play, the court of first instance did not order the company to pay the pension for supporting relatives on a monthly basis, which violated the provisions of the Industrial Injury Insurance Ordinance.
3. The suspension of the use of Weibo's account involved in the case does not belong to the scope of acceptance of labor dispute cases, and the court shall reject it and inform it to sue separately.
Labor dispute is to solve disputes arising from labor disputes between employers and workers, including disputes arising from the confirmation of labor relations; Disputes arising from the conclusion, performance, alteration, dissolution and termination of labor contracts; Disputes arising from delisting, dismissal, resignation and resignation; Disputes arising from working hours, rest and vacation, welfare, training and labor protection; Disputes arising from labor remuneration, work-related injury medical expenses, economic compensation or compensation, etc. The use of Weibo's account is obviously not within the scope of accepting labor dispute cases. The parties shall file a civil lawsuit separately.
4. If all the plaintiff's claims are supported, the court shall not reject other claims.
We can see that in the play, the court of first instance supported all the plaintiff's claims (the plaintiff's lawyer made it clear that there were four claims and the court supported them all). However, in the play, the court of first instance finally rejected other claims, which was really a bit inexplicable and superfluous. At the same time, it is still the time to judge. Where the word "four" is missing, it shall be amended as: "Four. Reject the other claims of the plaintiffs Luo Huiguo and Chen Suli." (Of course, it should be deleted. )
5. When the court pronounced the sentence, it was wrong that "Luo Youyou died suddenly during the anchor, because he died on business".
First of all, in "Being killed in the line of duty", public should be changed to work, that is, being killed in the line of duty. Death in the line of duty often refers to the death of a person with civil servant status while performing official duties. Work-related death mainly refers to the death of employees on their way to and from work due to work reasons, or violence in performing their duties, or traffic accidents and other accidents that are not their main responsibility.
Secondly, this case is not a work-related injury death. The anchor Luo Youyou died of sudden illness during his work, which was recognized as a work-related injury according to Article 15 of the Regulations on Work-related Injury Insurance.
6. The assistant judge reminded the lawyer that the practice of collecting evidence was not neutral enough.
In order to help one party, Ye Xin went to the company to "apply" for evidence, and reminded the plaintiff's lawyer before the court whether there was an access card in Luo Youyou's belongings. Later, Fiona Fang even said that Ye Xin was "good". The lawyer punched in to testify when he appeared in court, and finally the court confirmed the labor relationship.
Li Fangning, the exposed female salesman of Yingshengding Financial Company, sued Quan Zhipeng for sexual harassment because her male colleague touched her back and demanded a public apology.
7. Li Fangning, accompanied by her mother, went to the court to withdraw the lawsuit.
Ye Xin, the assistant judge, called Li Fangning, the plaintiff, from the mediation room to another room and asked him whether he voluntarily withdrew the lawsuit. He also repeatedly persuaded Li Fangning not to drop the lawsuit. Isn't Li Fangning worried about her mother's suicide at this time? Does Ye Xin really not consider the real reason why Li Fangning quit? To put it bluntly, if Li Fangning's mother really committed suicide because her daughter didn't drop the lawsuit, who would the board hit? You can't be divorced from reality just because it's a series. I don't know if you've heard that the judge laughs like he dropped the charges. This is because under the pressure of more people and fewer cases, the judge wants to mediate the case and hopes that the parties will withdraw the lawsuit. In this case, although Li Fangning came to go through the formalities of leaving the court under the threat of her mother's suicide, as an adult, it was also a voluntary act in law, and the court should not interfere with her withdrawal. In addition, the scene where Ye Xin took off the judge's uniform and let Li Fangning put it on was not serious.
Three witnesses should wait outside the court, but it is not appropriate to break into the court to testify after watching the live broadcast.
It is the most basic requirement for witnesses to testify that they cannot attend the trial. However, the case in the play was broadcast live on the Internet, resulting in all three witnesses having participated in the trial. In this case, the validity of witness testimony should be in doubt. It is irregular and imprecise for judges to let them testify without even asking questions, which should be corrected.
9. The court should stop the improper words of witnesses when testifying.
Ni Liang, a witness provided by the defendant, said that Li Fangning was disorderly, and one of the plaintiff's witnesses said that Quan Zhipeng was not a good thing. It is inappropriate for the judge not to stop these subjective judgments and testimonies suspected of insulting people.
Momo, the female secretary, and Hua Fu Wood Company, the former company.
10. Economic compensation or compensation?
In the mediation of the labor dispute between Momo and Huafu Wood Company, the judge initially stated that Momo's claim was to ask for economic compensation of 3 million yuan to terminate the labor contract and add new jobs, but it was later turned into a claim for compensation. This should be caused by confusing the two legal concepts of economic compensation and compensation. Economic compensation is mainly applicable to cases where the laborer is forced to unilaterally terminate the labor contract, the employer proposes to terminate the labor contract through consultation, economic layoffs, the laborer is sick or injured at work, and the objective situation on which the labor contract was concluded has changed significantly. In this case, the employer terminates the labor contract, that is, the employer dismisses the employee mentioned in the play. That is to say, if the employer's behavior is legal, it does not need to pay any fees to the employee. If it is illegal, it must pay the employee compensation for illegally terminating the labor contract. But the play uses the wrong legal terminology.