【作者】 李莉琴；

【导师】 尹力；

【作者基本信息】 北京师范大学 ， 教育学原理， 2008， 硕士

【摘要】 人事争议仲裁是人事争议仲裁机构依据一方当事人的申请、依法居中对属于受理范围的人事争议进行裁断,该裁决对双方当事人都具有约束力,从而解决人事争议的一种法律制度。随着我国人事制度的改革和教师聘任制的逐步推行,公立中小学与教师之间的纠纷日益增多。学校与教师之间存在人事关系,教师聘任纠纷是一种典型的人事争议,故教师聘任纠纷适用人事争议仲裁。但由于人事争议仲裁自身的不完善以及教师聘任纠纷的独特性,并不能很好地发挥其定纷止争的作用。因而,有必要对教师聘任纠纷中的人事争议仲裁制度加以深入研究,以便更好地解决我国现阶段公立中小学与教师之间的人事争议,切实维护教师的合法权益。教师聘任纠纷中的人事争议仲裁制度主要存在两方面的问题,一是制度本身的问题,主要表现为:立法层次低,全国没有统一法规,导致各地受案范围不一致;仲裁机构不健全,仲裁员素质亟待提高;行政干预严重,仲裁机构不独立;裁决执行难;仲裁与诉讼衔接存在问题等。二是在教师聘任纠纷适用中存在的问题,主要表现为:作为后续救济的民事诉讼与学校公权行为特性不能很好地契合;教师聘任合同不规范,极大地影响了裁决的公正性;教师对人事争议仲裁缺乏认识,很多教师不愿意提起仲裁,或者错过申请仲裁的期限。为了切实有效地解决我国现阶段公立中小学与教师之间的人事争议,有必要从以下几方面入手:第一,建立争议发生的预防机制,依法进行人事管理,从源头上减少人事争议,并做好教师聘任合同的规范工作;第二,完善立法,建议由国务院出台《人事争议仲裁条例》;第三,切实解决人事争议仲裁在实践层面存在的问题,即建立健全人事争议仲裁机构、提高仲裁员素质、人事争议仲裁与诉讼有效衔接、解决执行难的问题等。更多还原

【Abstract】 The personnel dispute arbitration is that based on the request of one party , personnel dispute arbitral institutions arbitrate personnel disputes in the scope of admissible by operation of law . The arbitration has binding force on both parties so that this legal system can solve personnel disputes. As the reform of personnel system and gradual implement of teachers employment system, the disputes between teachers and public primary and secondary schools continue to grow. There are personnel relations between schools and teachers. And the dispute of teachers employment is a typical personnel dispute. So the personnel dispute arbitration is applicable in teachers employment disputes. However, the personnel dispute arbitration system, which is being developed for solving personnel disputes, can not play a role well for its imperfect and the speciality of teachers employment disputes. Therefore, it is necessary to deeply study the personnel dispute arbitration system to solve the disputes between teachers and public primary and secondary schools and guarantee the legitimate rights and interests of teachers.The personnel dispute arbitration system in teachers employment disputes has problems on two side. One is the internal problem of arbitration system. It is shown as below. The low legislative level and absence of uniform law lead to inconsistent of the case scope in different regions. Arbitral institutions are not sound and the quality of arbitrators is to be improved. The frequently administrative intervention weaken the independence of arbitral institutions. It is hard to execute the arbitration ruling; there are problems to connect the arbitration and litigation. The other is the applicable problem in teachers employment disputes. It is shown as below. The civil action as succeeding relief can not match well with the speciality of schools’public right activities. The non-standard teachers employment contracts highly affect the impartiality of arbitration. Many teachers are not willing to raise personnel dispute arbitration or often miss the deadline of applying arbitration for they know little about this arbitration system.To effectively solve the personnel disputes between teachers and public primary and secondary schools, it is necessary to work from the following aspects. Firstly, it is necessary to establish a mechanism of preventing disputes, manage personnel issues according to law and normalize the teachers employment contract so as to reduce the amount of personnel disputes from the very beginning. Secondly, it is necessary to improve legislation. Since the reform of personnel system is to be improved and it is involved with broad fields, the relative laws are hardly made now. It is better for the State Council to make the Regulations on Personnel Dispute Arbitration temporarily. Thirdly, it is necessary to effectively solve the problems of personnel dispute arbitration in practical level. That is, for example, to establish and improve arbitral institutions, to improve the quality of arbitrators, to connect the arbitration and litigation and to solve the execution problems.更多还原