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【裁判要旨】程序法与实体法的不同之处在于程序法可以溯及既往,但其溯及既往的对象必须是审理中的案件。劳动争议调解仲裁法属于程序法,其程序性规范调整的是劳动争议案件的各项审理活动,而不是双方之间发生的劳动争议这一事实本身。劳动合同法实施后,用人单位与劳动者解除劳动合同的行为理应受劳动合同法的调整,如果用人单位在解除或终止劳动合同时未依法向劳动者支付经济补偿金,应由劳动行政部门依法做出处理。
The essence of the referee The difference between the procedural law and the substantive law is that the procedural law can be traced back to its past, but its retroactive object must be the case under trial. The Labor Dispute Mediation and Arbitration Law belongs to the procedural law, and its procedural norms regulate all the trial activities in labor dispute cases, not the fact of the labor disputes that occurred between the two parties. After the implementation of the labor contract law, the employer and the worker shall terminate the labor contract and should be subject to the adjustment of the labor contract law. If the employer fails to pay the laborers economic compensation according to law when the employer releases or terminates the labor contract, the labor administrative department shall, according to law Make a deal.