Hilary K. Josephs. Labor Law in China
Ho, Virginia E. Harper, China Review International
Hilary K. Josephs. Labor Law in China. Second edition. Huntington, NY: Juris Publishing, 2003. xiv, 216 pp. Hardcover $85.00, ISBN 1-57823-133-7.
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 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 labor conflict across China. In light of these developments, one of the more valuable contributions of Josephs' chapter on labor-dispute resolution is her recognition that labor conflict is as much a form of "interest articulation" that gives voice to China's workers as it is a catalyst for formal legal action. As a result, she devotes some attention to the role of media coverage, public protest, and direct appeals to management and government authorities, which now intersect with labor mediation, arbitration, and litigation to mediate labor conflict and give force to labor rights. Like the discussion of labor contracts, this chapter parts course from the earlier edition, which gave considerable attention to an analysis of the law governing the labor-dispute resolution procedure. The three-stage mediation, arbitration, and litigation process under the Labor Law merits little more than a cursory background paragraph. The most space is reserved for a review of several reported cases brought from labor arbitration to the courts since the mid-1990s that illustrate several of the persistent challenges confronting labor-dispute resolution. Yet perhaps because of the limitations of the reported cases she draws on, Josephs' analysis ends without any clear conclusions, touching on barriers to labor-dispute resolution such as lack of legal counsel, then on the tensions between labor law and civil-code labor-dispute resolution, and finally on efforts to stretch the range of permissible damages in labor-dispute cases.
The remaining chapters of the book are new to the second edition and focus on aspects of the legal framework that have emerged only since the early 1990s. While they add essential content to a book designed to cover Chinese labor law as a whole, both the section on collective contracts and unions and the discussion of intellectual property law are quite short--only about eight pages each--leaving little room to flesh out a review of the primary laws in each area with an assessment of "the law in practice" or to connect these chapters to the book's overall thesis about the path of labor-law reform. For example, the chapter on collective contracts opens with an excellent synopsis of China's stance toward freedom of association and collective bargaining with reference to international labor and human rights law. Like most observers, Josephs is doubtful "that the rights of free association and collective bargaining will take root in China in the foreseeable future," a pessimism justified by China's formal exceptions made to its ratification of the International Covenant on Economic, Social, and Cultural Rights in 2001, which were designed to preserve the monopoly of China's social union, the ACFTU, and its failure to loosen restrictions on independent unions in the 2001 revisions of the Trade Union Law. Josephs also mentions briefly China's record in suppressing independent union activity. Yet more space devoted to this topic might have allowed for greater coverage of the revised Trade Union Law, collective contract regulations, or the ongoing debates within China about the proper role of the union and the status of the right to strike, all of which would have strengthened the work and tied in well with Josephs' earlier analysis of the larger policy questions shaping Chinese labor law.
The chapter on intellectual-property law is similarly intended as a general overview to a rapidly changing and increasingly complex area of Chinese law as it affects the workplace. After tracing the emergence of an intellectual-property regime in China, the chapter centers on the key elements of the Unfair Competition Law of 1993. The text provides a practical analysis of how the courts have approached claims for damages for infringement of trade secrets and other intellectual-property rights by employees under the UCL, and concludes with a review of additional criminal sanctions available for violations of intellectual-property rights under the 1997 amendments to China's Criminal Law. However, this chapter, too, brushes over areas of obvious interest to many readers, such as the availability of administrative sanctions to compel cessation of infringement, and the current options for employers looking to minimize the risk of infringement despite the notorious weakness of existing protections under Chinese law. Nonetheless, the chapter is a welcome addition to the new edition and succeeds in providing an entree into a body of law that complements China's labor and employment reforms.
On the whole, the second edition lacks some of the substantive depth of the first edition. This is in part a necessary result of the broader coverage of the revised edition, and in part because of a heavier reliance on legislation, reported-case compilations, and secondary research than in the first edition, which drew extensively on field research. With a conclusion subtitled "continuity and change," this edition could also have gone further to draw out an important argument made implicitly throughout--that despite the sweeping changes that China has made on the legislative front, the challenges the state faces in ordering the labor-related aspects of its economic agenda and the numerous barriers to implementation of existing labor rights confronting China's workers are not all that different from those of the early 1990s when the first edition was published. Yet, like the first edition, the new Labor Law in China demonstrates admirably why labor and employment law, a little-noted area of China's legal regime and comparative-legal scholarship generally, deserves greater attention as a microcosm of the economic, social, and political challenges confronting China in the new century and as a unique intersection of diverse bodies of law that has direct and widespread impact across one of the largest labor forces in the world. As a current introduction to an area of the Chinese legal system that is of growing interest to comparative scholars, policy makers, and China's global trading partners alike, Josephs' revised edition is an effective and much-needed contribution that is likely to remain an authority in the field for some time to come.
Virginia E. Harper Ho
Virginia E. Harper Ho, who holds a J.D. degree from Harvard Law School, is a practicing attorney specializing in international transactions and Chinese law at Baker & Daniels, Indianapolis.…
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Publication information: Article title: Hilary K. Josephs. Labor Law in China. Contributors: Ho, Virginia E. Harper - Author. Journal title: China Review International. Volume: 12. Issue: 1 Publication date: Spring 2005. Page number: 130+. © 2007 University of Hawaii Press. COPYRIGHT 2005 Gale Group.