A Study on the Chinese Labor Law from the Perspective of International Core Labor Standards

TAKING WORKERS’ FUNDAMENTAL RIGHTS SERIOUSLY: A STUDY ON THE CHINESE LABOR LAW FROM THE PERSPECTIVE OF INTERNATIONAL CORE LABOR STANDARDS QIU YANG (LL.B (Fudan University); LL.M (National University of Singapore)) A THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY FACULTY OF LAW NATIONAL UNIVERSITY OF SINGAPORE 2008 DEDICATION This thesis is dedicated to my loving parents. Without their knowledge, wisdom and support, I will not have the courage to strive and realize my dreams! ii ACKNOWLEDGEMENT This thesis is the end of my long journey from January 2004 in obtaining my doctoral degree in law. Fortunately, I am not really a lonely traveler. There are some people who made my journey easier and happier. I would like to take this opportunity to express my gratitude to them. The first person that I wish to express my deep and sincere gratitude to is my supervisor Prof Simon Tay. His wide knowledge, valuable guidance and diligent supervision have been of great value for me and have helped build a solid basis for the present thesis. Although Prof Tay often had a quite busy schedule, it was never a problem for him to arrange a meeting and talking over my research problems. Really appreciate your kindness. I also hope to express my deep appreciation to National University of Singapore (NUS) for awarding me a Research Scholarship and providing me an environment conducive to my research. I would also like to acknowledge the support of several special individuals, who helped me by encouraging me, giving me friendship and helping me build my confidence when I was still seeking the way. They are Prof Li and her husband Prof Tan, Mr. Hoh Chin Chai, Mr. Bernard Lui, Dr. Saw Lily, Dr. Ang Kang Teng and my beloved friends Chen Huiwen, Ang Lijin, Xu Hong, Lin Lin, Tan Lili, Xin Yu, Shao Yu, Jin Xuan, Jenny Xu and Zhou Xiaolei. In addition, the discussion with my fellow PHD student Mr. Liu Huijun has contributed substantially to this work. I would like to take this opportunity to show my appreciation for the fruitful exchange of ideas and companionship which helped ease the stress from the research. iii Of course, my work will not be fulfilled without my special someone Mr. Edwin Goh and my family’s encouragement and understanding which brightened my long and lonely journey. I am thankful to God who has been my source of strength and who has never failed me for His endless love. I also wish to thank pastor Xie and my bible study group members from Fishman of Christ Church for their payers. In the end, I would like to thank the following professors and staff from NUS law faculty from whom I used to ask help, Prof Tan Cheng Han, Prof Alan Tan, Prof Teo Keang Sood, Prof Victor Ramraj, and Ms. Normah and Ms Chin Yee and many others. Thank you for your support. Once again, thank you all! iv TABLE OF CONTENTS TABLE OF ABBREVIATIONS X SUMMARY XII CHAPTER 1: INTRODUCTION 1 1.1 The Value of This Research 1 1.2 Methodologies Adopted in The Study 5 1.3 Main Research Questions and Thesis in Summary 8 A. Four Main Research Questions 8 B. Contents of the Volume 9 CHAPTER 2: WHY ARE INTERNATIONAL CORE LABOR STANDARDS VALUABLE TO CONTEMPORARY CHINA? 14 2.1 Overview on International Core Labor Standards 14 A. Declaring the Core 14 B. Human Rights and the Core 20 2.2 Background Information of China 21 A. Socialist China and Its Economic Development 21 B. Transformation Inside China and Its Impact on Labor Relevant Issues 26 C. China and the Core 30 i. China’s Ratification Status of the ILO Fundamental Conventions 30 ii. The Necessity for China to Ratify the Core Conventions 31 a. An Implicit Call from the 1998 ILO Declaration 32 b. The Core Provides An Internationally Recognized Guidance on How to Reform the Relevant Chinese Labor Legislation 33 c. Ratification per se Will Influence the Domestic Practices to Move towards the Expectations Provided by the Core 33 2.3 Introduction to the Chinese Legal System and the Chinese labor law 36 A. Introduction to the Chinese Legal System 36 i. Overview 36 ii. Lawmaking in China 38 a. National Level 38 b. Local Level 39 c. The Hierarchy of the Chinese Legislation 40 iii. Legal Institutions 40 a. Court System in China 40 b. The People’s Procuratorate System in China 41 B. Introduction to the Chinese Labor Law 41 v i. Historical Review on the Chinese Labor Law and Relevant Policy Changes within Socialist China 41 ii. Overview on the Current Chinese Labor Legislation 44 2.4 Conclusion on Chapter Two 45 CHAPTER 3: FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING: A STUDY ON THE RELEVANT CHINESE LABOR LAW UNDER THE FRAMEWORK OF ILO FUNDAMENTAL CONVENTIONS NO. 87 AND NO. 98 47 3.1 International Labor Standards Relating to Freedom of Association and Collective Bargaining 47 A. The Value of Worker’s Right on Freedom of Association and Collective Bargaining 47 B. Introduction to ILO Convention No. 87 49 C. Introduction to ILO Convention No. 98 52 3.2 Freedom of Association in China Vs. International Core Labor Standards on Freedom of Association 54 A. Brief Introduction to the Law and Practice regarding the freedom of Association in China 54 B. Dual Role of the Chinese Trade Union 58 i. Trade Union’s Role under the Present Chinese Trade Union Law 58 ii. Emergence of the Conflicting Interests between the State and Workers 60 iii. What Shall Be the Genuine Mission for Trade Union in Today’s China in Terms of Convention No. 87 & No. 98? 63 C. Reorientation of the Chinese Trade Union 66 i. The Relationship Between Chinese Trade Union and CCP: A Historical Review 66 ii. Depoliticizing Chinese Trade Union 69 a. Dilemma of Trade Union in Transitional Period 69 b. Ideal Model: Independent Trade Union 70 c. Realistic Model: Bottom Up Approach 79 D. Conclusion on Part 3.2 91 3.3 Right to Collective Bargaining in China 93 A. General Legislation on Collective Bargaining in China 93 B. The Efficacy of the Legislation with Regard to Collective Bargaining 96 C. Elements Critical to Improve the Efficacy of the Collective Bargaining System in China 97 i. Independence of the Chinese Trade Union 97 ii. In the Absence of A Trade Union in The Work Place, Who Is Going to Represent The Workers to Negotiate A Collective Contract With Employers? 98 iii. Right To Strike -- A Necessary “Evil” in Today’s China 103 a. Value of Right to Strike On Collective Bargaining 103 b. Is There A Right To Strike in China? 104 c. Rethinking the Value of Right to Strike and How to Appropriately Regulate This Right in the Context of the Contemporary Chinese Society 115 D. Conclusion on Part 3.3 129 3.4 Concluding Remarks on Chapter Three 130 vi CHAPTER 4: FORCED OR COMPULSORY LABOR IN CHINA VERSUS ILO CONVENTION NO. 29 AND NO. 105 131 4.1 General International Law on Forced Labor 131 A. Under the Treaty Regime 131 B. Under Customary International Law (CIL) 140 4.2 Forced Labor in China: Three Types of Forced Labor 142 A. The First Type of Forced Labor -- Normal Workers as Its Subjects 142 i. Introduction to the First Type of Forced Labor and Relevant Legislation in China 142 ii. How to Deal with the Ineffective Implementation of Legislation against Forced Labor in China 144 a. Judicial Independence 144 b. Professionalization of Judges and the Issue of Corruption 146 c. Conclusion 147 B. The Second Type of Forced Labor: Convicted Labor Reform System (Laogai ) 148 i. Re-visit the ILO Convention No. 29 & 105 148 ii. Introduction to the Chinese Convicted Labor Reform System ( Laogai ) 148 iii. Different Stories on the Chinese Convicted Labor Reform System 152 iv. Critical Evaluation of the “Different Story”: 155 v. Concluding Remarks 161 C. The Third Type of Forced Labor in China: Reeducation Through Labor (RTL) System in China ( Laojiao ) 161 i. RTL System in China 161 a. Major Legislation in Charge of the Chinese RTL System 162 b. Historical Review of RTL System and Its Development 165 ii. Evaluating RTL in Terms of International Core Labor Standards 171 iii. How to Fill the Gap between the Chinese RTL System and the ILO Fundamental Conventions at the Legislative Level? 175 a. Commitment to Rule of Law (ROL) with Reservation -- Ideal Level 175 b. Suggestions on the Future Development of the Chinese RTL System 185 iv. Concluding Remarks 190 4.3 Conclusion on Chapter Four 191 CHAPTER 5: STUDYING CHILD LABOR IN CHINA FROM THE PERSPECTIVE OF RELEVANT INTERNATIONAL CORE LABOR STANDARDS 194 5.1 What is Child Labor? 194 A. General Definition of Child and Child Labor in Accordance with International Law 194 B. Distinguishing Acceptable and Unacceptable Child Labor 195 C. The Evil Nature of Child Labor 197 i. Physical Harm 197 ii. Psychological Harm 198 iii. Developmental Harm 199 iv. Harm to Society 199 5.2 Introduction to International Law against Child Labor 200 5.3 Child Labor in China -- Rearing Its Ugly Head Again 203 A. Historical Review on the Issue of Child Labor in China 203 vii i. Child Labor in the Early Twentieth Century’s China 203 ii. Child Labor in the Socialist China 206 B. The Reasons for Child Labor in China: Poverty -- the Root Cause? 212 5.4 Regulation against Child Labor in China 218 A. Constitution 218 B. Labor Law 218 C. Compulsory Education Law 219 D.

Load more