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Since the founding of new socialistic state China, the legislative work was mainly carried out after the Chinese economic reform in 1978. In other words, the market economic order was introduced into...
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Since the founding of new socialistic state China, the legislative work was mainly carried out after the Chinese economic reform in 1978. In other words, the market economic order was introduced into the
Chinese economy, and the legislation needed for labor relations was carried out since 1978. To be exact, labor legislation began after the enactment of the law of the trade union in 1992. And subsequently on January 1, 1995, the unified labor law, 《Labor Law of the people''s Republic of China》, was implemented with a relatively short history. In addition, compared with the Korean capitalistic legal system, there are differences in legal terms as well as unique socialistic characteristics.
For the subjects of the research, this study takes the law of labor relations in China, the appearance of labor relations, the types of labor disputes, and the laws to resolve labor disputes. At the same time, it studies the advantages and disadvantages of China’s labor relations legal system by comparing it with Korean legal system and discusses the possibility of introducing it in Korea.
First of all, this study collected, translated, and examined all constitutions, labor laws and regulations formulated since the founding of the new China. Although the history of China’s labor laws and regulations is not long, it has a very complex nature because of the diversity of the enacting organizations. This study refers to China’s labor laws and regulations by relying on the official network of the Chinese government and the records of the Chinese labor codes.
The second chapter examines the legislation of labor laws and the achievements of the labor organizations and movements before the New China. Especially it discusses the legislative processes of labor laws which resulted from the changes of socialistic constitution and subsequently investigates the legal system of labor relations under the current socialist constitution.
On the whole, up to the 1982 constitution of China, there is no clear stipulation about the basic labor rights such as the right of organization, the right of group negotiation and the right of group action in all socialist Chinese constitutions. In addition, since the working class is the main force of the state, the Constitution (Article 42) emphasizes not only the right to work, but also the obligation. This basis is that the laborers are the main class of the state, and socialism is the stable national system under Article 1 of the Constitution, which cannot be abandoned. Therefore, China does not anticipate conflicting labor-management relations that can arise in the capitalist society. And since the working class is the main force of the state, the constitution(Article 42) has the characteristics in which not only the right to work but also the obligation to work are sacredly emphasized.
In addition, since the Chinese economic reform, workers have been sacrificed in the process of highly rapid economic growth, the protection of the legal rights and interests of the workers have been emphasized for a harmonious society since 2004, and various labor-related legislation has been promoted. In particular, China is also focusing on protecting workers'' rights and interests in order to achieve a unique and harmonious labor relations.
The third chapter studies the changes of employment system before and after the transition to the socialistic market economic order. And it also investigates the legislation of labor contract, the characteristics of legal system of labor contract and other related problems.
The Chinese government implemented the labor contract system on a pilot basis in cities from 1982 and expanded to the whole country in 1986, and actively promoted the written labor contract. In order to legislate labor relations, the labor law has been first implemented in 1995, furthermore promoting the labor contract system. However, according to the 2004 survey, less than 20% of all contracts were concluded in writing and thus the workers’ rights were insufficiently protected. Accordingly, in 2008, the Labor Contract Law was enacted, making it mandatory to provide a labor contract in writing and strengthening the protection of workers'' rights and interests.
The fourth chapter examines the types of collective labor relations in China. The evolution, functions and characteristics of the Chinese Trade Union are studied. Then, as the workers'' participation system is controlled by the Chinese Trade Union, the workers'' Congress is studied.
It is the historical fact that the Chinese Trade Union (official name, All-China Federation of Trade Unions) has played the role of an cooperative partner of the Communist Party of China (CPC) and Chinese government in the process of establishing a socialist regime. On the other hand, the role of the Chinese labor union was fortunately expanded to include the duty of protecting workers'' rights and interests in the socialist market economy system. The significance of the existence of the Chinese trade union is characterized by the link and the connection between the CPC and the masses of workers.
In Chinese companies, there is an employee representative conference system, in which all employees participate as a socialist-specific crowd autonomy system. This system so called workers'' Congress has spread nationwide since 1957, when the planned economy was completed. This institution is a system that guarantees democratic participation in business management, and can contribute to the growth of companies and the protection of workers'' rights. And in terms of actual operation, the labor union in companies is leading but the labor union is under the guidance of the Communist Party Committee, so the level of trust of workers is not high. However, it is expected that this system will be further strengthened by emphasizing the role of this workers’Congress at the 2019 National Congress of the CPC.
The fifth chapter studies the legal system and the evolution of collective bargaining in China by examining the object and the procedure of collective bargaining and the legal system of settling disputes about collective bargaining. Finally the legal system of collective negotiation in China is compared with that of Korea.
In China, collective bargaining was re-implemented in the process of transitioning from a planned economy to a market economy, and most of them are top-down negotiations led by the government. In addition, it is characterized by the fact that a trade union or an employee representative elected by a higher-level trade union conducts collective bargaining with the employer. The Chinese collective contract regulation is a fairly reasonable legal system as it has detailed regulations on the targets and procedures of negotiations, reporting and examination systems, and effectiveness, etc. Unfortunately, when collective bargaining is broken, there is no legislation related to mediation systems for settling labor dispute and industrial actions like in Korean labor legislations.
The sixth chapter studies the types of labor disputes unique to the socialistic market economic system and the legal system of resolving labor disputes. In this process, it compares and evaluates the labor dispute settlement system of Korea, and reevaluates the advantages and characteristics of China''s legal system.
China''s 《Labor Dispute Mediation Arbitration Law》 only stipulates procedures for disputes regarding workers’rights, such as dismissal, and does not stipulate disputes regarding profits resulting from the breakdown of collective bargaining. In addition, labor disputes in China must go through an arbitration procedure before filing a lawsuit. The prescription for arbitration is one year. In general, compared to the Korean system, the labor dispute resolution system in China is characterized for its consideration of the protection of workers’rights and the balance of powers between workers and their counterparts. It is recommended that the labor dispute resolution systems of both China and Korea be developed by complementing the favorable system between each other.
Finally, this study evaluates the advantages and characteristics of the labor relations legal system in China, and discusses the possibility of introducing it into Korean legislation.
Legislation on socially demanded labor relations often conflicts with interests among the parties involved, and legislation that is biased for only one side does not result in favorable results for both parties. In China''s legislation, the basic work is supervised by the Central Committee of the CPC, and legislation is promoted through a long-term review process. The legislative process goes through a discussion period in which the whole people participate, and after enactment, it is not frequently amended in favor of legal stability. These points are also worth to be considered in Korean legislation. In China, it is also worth to consider adding the function of the Korean Labor Commission''s mediation procedure dispute resolution to the function of the Labor Dispute Arbitration Commission.
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