- Labor Law in China
The year 1990 marked the culmination of over ten years of far-reaching reforms in the People's Republic of China that set the stage for the emergence of a "socialist market economy" and laid the early groundwork for China's formal entry into the global marketplace with its accession to the World Trade Organization a little over a decade later. Yet the crackdown following the Tiananmen demonstrations of 1989 left in its wake serious questions about the future of the legal-reform initiatives that had accompanied and undergirded the economic reforms. It was in this context that Hilary Josephs first published her seminal treatise on Chinese labor law, highlighting an often-overlooked aspect of China's legal landscape that, Josephs argued, is not only critical to the long-term success of China's economic reforms but also reflects deeper policy debates about the proper role for the state in labor and employment relations in the reform era.
Now, in the second edition, Josephs expands her earlier work in light of the passage of China's first national Labor Law in 1994, which forms the legal foundation of labor and employment relations across China, and new regulations on labor-dispute resolution, collective contracts, trade-union activity, and intellectual property rights. The revised edition largely follows the topical structure of the first, focusing on contract employment and the labor-dispute resolution system, two core areas of China's labor and employment-law regime. In addition, Josephs adds two new chapters, one covering collective contracts and trade unions and the other, intellectual property in the employment context. The text also includes a sizeable appendix with full-text translations of the primary labor laws and regulations, a sample employment contract, representative cases, and international labor conventions that are referenced in the text. In an area of Chinese law where [End Page 130]primary source materials in English are relatively rare, these materials provide a useful point of reference.
In her opening chapter on the labor-contract system, Josephs observes that despite the sweeping legal and structural changes targeting labor and employment since the 1980s, the shift to contract-based employment has not yet succeeded in working a fundamental transformation in China's employment system. This theme is echoed in the later chapters reviewing dispute resolution and China's hard-line stance on independent unions. Rather than outlining the primary labor-contract legislation as in the first edition, the new edition provides instead a broad overview of each of the major stages of the legal evolution of the contract system, from a policy statement by the Ministry of Personnel in 1983, through a series of contract employment regulations issued in 1986, and finally to the Labor Law of 1994, which confirmed the contract system as the basis of labor relations in China. Although this survey is less useful for readers interested in the details of recent labor-contract legislation under the Labor Law, the wider lens Josephs uses allows her to show how the transition of contracts from administrative directives to the centerpiece of primary national legislation exemplifies the typical lawmaking process in China, a progression that moves from creating policies for experimentation purposes toward broader experience and then to translating that experience into law. Josephs also updates her previous discussion of the gap between central initiatives and local implementation and includes revised illustrations from the implementation of the contract system in Beijing, Shanghai, Shenzhen, and Guangzhou. As these examples demonstrate, the legacy of pre-reform employment patterns remains, with continued restrictions on terminations and layoffs, heavy social-welfare obligations imposed on employers, and the continued dominance of state-owned enterprises in China's overall economic agenda.
The other core chapter of the second edition focuses on labor-dispute resolution. As labor relationships in China have increasingly been subjected to the pressures of the emerging market economy, the arbitration of labor disputes has increased exponentially. Yet these trends represent only a small surge amid the rising tide of...