|
international law论文-国际法英文论文，Doing Business in China: The Latest Challenges
MINTZ LEVIN
COHN FERRIS
GLOVSKY AND
POPEO PC
Boston
Washington
Reston
New York
Stamford
Los Angeles
London
Yee Wah Chin
Senior Counsel
Federal
(202) 434-7419
[email protected]
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
701 Pennsylvania
Avenue, N.W.
Washington, D.C. 20004
T +1 202-434-7300
F +1 202-434-7400
Yee Wah is Senior Counsel in the Washington, D.C. office, practicing in the
Federal Section. She has extensive experience in antitrust matters, in addition
to commercial litigation and transactional counseling.
Yee Wah has been involved with global antitrust and competition-related
matters for multi-billion dollar companies. She provides antitrust counseling
and analysis on all transactions, including acquisitions, divestitures and joint
ventures, and antitrust advice on relations with competitors, suppliers and
customers, as well as on licenses and distribution relationships.
In addition, Yee Wah has represented clients in litigation, including antitrust,
securities, commodities, intellectual property, contracts, insurance coverage,
constitutional, consumer protection, bankruptcy and trusts and estates
disputes. She has also represented clients with regard to tender offers,
acquisition agreements, patent and technology licensing, R&D collaborations
and trademark licenses.
Prior to joining the firm, Yee Wah was a partner at two New York City law
firms where she was responsible for providing advice on regulatory
compliance, marketing and all matters with potential antitrust exposure. She
was also antitrust counsel in the law department of a Fortune 200 company.
Yee Wah is admitted to practice in New York and the District of Columbia. She
earned her S.B. from the Massachusetts Institute of Technology, and was
awarded her J.D. from Columbia University Law School. She is an active bar
association leader and frequent writer and speaker on antitrust subjects. Yee
Wah is the Co-Chair of the 2005 Spring Meeting of the ABA Section of
International Law, and a member of the Section's Council. She is the immediate
past Co-Chair of the International Antitrust Law Committee of the ABA
Section of International Law, and the author of the chapter “Antitrust Issues in
the United States,” in A Practitioner’s Guide to the Acquisition of Companies in
the United States (City & Financial Publishing 2002). Yee Wah served on the
ABA task forces that drafted the 2003 and 2005 ABA Comments on the
proposed Anti-Monopoly Law of the People's Republic of China and the 2004#p#分页标题#e#
and 2005 ABA Section of International Law Comments to the Antitrust
Modernization Commission. She also participated in drafting the ABA
Comments on the European Commission Technology Transfer Block
Exemption in 2002 and 2003, and testified regarding those Comments at the
Joint Federal Trade Commission/ Department of Justice Hearings on
Competition and Intellectual Property Law and Policy in the Knowledge-Based
Economy in 2002. She is regular speaker at the Practising Law Institute on
antitrust issues in intellectual property. Yee Wah is a member of the OECD
Advisory Group on China Investment Policies and the U.S. Chamber of
Commerce China Industrial Policy Steering Committee.
Elizabeth Chien-Hale
钱德纯律師
学历 (Education):
LL.M. (“With Distinction”), Georgetown University Law Center, Washington DC, 1997
Concentration in international and comparative law
JD, University of Hawaii School of Law, Honolulu, HI, 1994
Articles Editor, University of Hawaii Law Review
Founding member of the Pacific Asia Law Journal
MA, University of California, Berkeley, CA, 1989
Concentration in artificial intelligence/computational linguistics
BSME, University of California, Berkeley, CA, 1983
Member of member of Pi Tau Sigma
专长 (Specialization):
Intellectual property law, international law
经历 (Experience):
Ms. Chien-Hale is a U.S. attorney specializing in patent and other forms of intellectual
property protection in the United States and abroad. She is also the founder of an
information-based non-profit organization Institute for Intellectual Property in Asia.
Prior to consulting, she headed the patent practice at Baker & McKenzie’s Hong Kong
office. She also worked for other law firms in Silicon Valley including Wilson Sonsini
Goodrich & Rosati, and Fish & Richardson.
Ms. Chien-Hale has substantial technical knowledge in a variety of electrical and electromechanical
arts, having drafted and prosecuted patent applications in telecommunication,
software, wireless and Internet-enabled devices, language-based data processing,
semiconductor processing and computer-related mechanical devices. She was also
involved in a number of intellectual property litigation cases, including cases in the
International Trade Commission and the U.S. District Court, relating to patent
infringements and trade secrets violation.
Ms. Chien-Hale has lectured and written, in both English and Chinese, on the topics of
international intellectual property protection and the Chinese constitutional structure. She
was a research scholar at the College of Law of the Peking University and taught at the
graduate school of the Chinese Academy of Social Sciences in 1995. She is a registered
patent attorney before the U.S. Patent and Trademark Office, and is licensed to practice in#p#分页标题#e#
the states of California, Hawaii, and the District of Columbia. She is also admitted to the
Bar of the U.S. Supreme Court. Her name has been included in the Who’s Who in
America, Who’s Who in American Law, and Who’s Who in American Women
Ms. Chien-Hale is also an active participant in the professional organizations. For the
American Bar Association, she currently co-chairs the Committee on International Patent
Treaties and Laws for the Intellectual Property Law Section, and co-chairs the Joint Task
Force between the Intellectual Property Law Section and the International Law Section
on PRC Intellectual Property Laws Amendments. She is also a co-chair of the
Intellectual Property Law Interest Group and the vice-chair of the Pacific Rim Interest
Group of the American Society of International Law.
Greg S. Slater, Senior Trade Counsel at Intel Corporation, provides legal and policy
advice on regulatory and trade issues affecting the Company’s products and
manufacturing sites worldwide. Mr. Slater also is responsible for the negotiation of all
the government agreements related to Intel’s multi billion dollar factory investments
located in various countries across the world.
Prior to joining Intel in 1997, Mr. Slater was in private practice at Steptoe & Johnson and
then at Latham & Watkins in Washington, D.C. While at those law firms, he engaged in
privatization work sponsored by the World Bank and specialized in administrative law
and environmental, health and safety by handling U.S. and international regulatory issues
for a number of Fortune 500 companies. Mr. Slater began his law career as a clerk for
former Chief Judge Albert Engel on the U.S. Court of Appeals, 6th Circuit, after
graduating summa cum laude from the J. Reuben Clark Law School at Brigham Young
University.
H. Stephen Harris, Jr., a partner with Alston & Bird, is Chair of the firm's
Antitrust Practice Group. Steve has litigated numerous complex cases in federal
courts throughout the United States, including the defense of numerous publiclyheld
corporations in civil and criminal antitrust matters, including class actions
and multidistrict litigation. He has also represented numerous U.S. and non-U.S.
companies before antitrust agencies of the U.S. and other jurisdictions, including
the European Commission's DG COMP, the Japan Fair Trade Commission, and
the antitrust agencies of Brazil. Steve has arbitrated complex commercial
disputes under the rules of the International Chamber of Commerce (ICC), the
Japan Commercial Arbitration Association (JCAA), and the American Arbitration
Association (AAA). Steve received a J.D. from Columbia University School of
Law in 1982, where he was a Harlan Fiske Stone Scholar and certified with
honors by the Parker School of Foreign and Comparative Law. Steve received#p#分页标题#e#
an A.B., magna cum laude, from Cornell University in 1977, where he was a
Cornell University College Scholar of the College of Arts & Sciences. Steve is
admitted to the bars of the District of Columbia, Georgia, and New York. He
currently serves as a member of the Council of the American Bar Association's
Section of Antitrust Law, and a member of the Antitrust Committee of the
International Bar Association. Steve is co-author and Editor-in-Chief of the two
volume treatise, Competition Laws Outside the United States, published by the
ABA, and the author of the U.S. chapter in International Agency & Distribution
Law, published by the Center for International Law. Steve has been selected for
listing in The International Who’s Who of Competition Lawyers (antitrust), The
Best Lawyers in America (litigation and antitrust), and Chambers USA: America’s
Leading Business Lawyers (antitrust).
ATL01/12229207v1
HE ZHONGLIN
Judge of the Supreme People's Court (SPC) of the People’s Republic
of China:
Staff member since 1991, and appointed as a judge of the Intellectual
Property Division of the SPC in 1999.
Dealt with assorted intellectual property civil cases and partially
administrative cases, particularly patent and technology contract cases.
Member of the Judicial Interpretations Panel of the Contract Law of the
SPC, drafted out the Judicial Interpretations on Implementation of the
Contract Law with regard to Technology Contracts, and also wrote the
draft of the Judicial Interpretations on Criteria of Adjudicating upon
Patent Infringement.
Legal researcher of many important IPR research programs, e.g.,
Criminal Law Protection on IPRs, Compensation on Copyright
Infringements, and Improvement on the Judicial Protection Mechanism of
IPRs.
Education:
Juris Doctor candidate (IP law), China Academy of Social Science
(CASS, 2004)
Master of Arts (MA) in International & Comparative Legal Studies (IP
Law), School of Oriental and African Studies (SOAS), University of
London (UL, 2002)
Master of Laws, Peking University (PKU, 2000)
LL.B, China University of Politics & Law (CUPL, 1991).
Works:
Co-author or co-editor of books, e.g., Cases & Commentary on the
Contract Law, Judicial Guidelines & Reference for Intellectual Property
Trials.
Articles have been published in legal journals, e.g., People’s Judicature
(Ren Min Si Fa), National Judges College Law Journal (Fa Lv Shi Yong),
Intellectual Property（Zhi Shi Chan Quan），and Intellectual Property
Review of Spain.
1
Lectures and Speeches:
Giving regular lectures in the National Judges College (for senior IPR
judges’ training programs since 1999) and irregular lectures in local
Judges Colleges, universities and institutes#p#分页标题#e#
English lectures in:
University of Cambridge (2002), School of Oriental and African Studies
of the University of London (2002), Peking University (2003 - 2005)
English speeches:
Week-speeches on Intellectual Property Training Program for Vietnamese
Judges organized by USAID STAR-Vietnam (United State Agency for
International Development, Support for Trade Acceleration
Project-Vietnam, March 6-12, 2005, Bangkok）
Luncheon Speech on the ITL Forum: Patent Procurement, Licensing and
Litigation in China (Institute for Law and Technology, the Centre for
American and International Law, January 20, 2006, San Francisco)
Other Professional Activities:
Standing Director & Deputy Secretary-General of the China Intellectual
Property Society (CIPS)
Founder-Director of the United Kingdom Chinese Law Association
(UKCLA, 2001)
Contracts:
Address: No.27, Dongjiaominxiang, Beijing 100745, P. R. China
Email: [email protected]
2
Profiles > Faculty > Ronald C. Brown
Ronald C. Brown
BS, University of Toledo, 1965; JD, University of Toledo, 1968;
LLM, University of Michigan, 1970.
Formerly Professor of Law on the Faculty of William and Mary
School of Law, Professor Brown joined the faculty at Hawai'i in
1981 and has served as Associate Dean and as Director of the
Pacific-Asian Legal Studies Program. Presently, Professor
Brown also serves as the University's Director of the Center for
Chinese Studies. His experience includes working as an attorney
with the National Labor Relations Board, representing
management and labor in labor relations matters, acting as
private impartial arbitrator in labor-management disputes and
serving as state-appointed public fact-finder in Hawai'i public
sector disputes. Professor Brown's teaching specialties include
labor and employment law, employment discrimination law,
arbitration, Chinese law and Asia-Pacific comparative labor law.
He has authored numerous articles and recently published a book
entitled Understanding Chinese Courts and Legal Process: Law with Chinese
Characteristics. Professor Brown has worked in China under the USIA's professional-inresidence
program, has served as a Consultant with the World Bank, and has lectured
throughout Asia on comparative labor law topics. He has taught Comparative Labor Law
at Beijing University Law School and currently serves as a foreign advisor to BEIDA on
graduate law programs. He conducts legal exchange and international training programs
for Chinese lawyers, judges, law drafters, and prosecutors under arrangements with the
key government legal agencies. In 2004-2005, Professor Brown was in China as a
Fulbright Distinguished Scholar, teaching at both Peking University Law School and
Tsinghua University Law School.
Ronald C. Brown#p#分页标题#e#
Professor of Law
2515 Dole St.
Honolulu, HI 96822
Office 241
(808) 956-6549
[email protected]
Teaching Areas:
Chinese Law, Employment Discrimination Law, Labor Law, Employment Law, USChina
Comparative Labor Law
Recent and Forthcoming Publications:
Understanding Chinese Courts and Legal Process: Law with Chinese Characteristics
(Kluwer).
China's Collective Contract Provisions: Can Collective Negotiations Embody Collective
Bargaining? 16 Duke Journal of Comparative and International Law 35 (2005).
China's Employment Discrimination Laws During Economic Transition, 19.2 Columbia
J. of Asian Law 361 (2006).
U.S.-China Labor Mediation and Arbitration Compared, __ American L. Rev. __ (2006).
CHINA’S EMPLOYMENT
DISCRIMINATION LAWS DURING
ECONOMIC TRANSITION
RONALD C. BROWN∗
I. INTRODUCTION .............................................................................. 362
II. CHINA’S CURRENT CONDITIONS AFFECTING HUMAN
RESOURCES MANAGEMENT ..................................................... 363
A. ECONOMIC TRANSITION TO A SOCIALIST MARKET ECONOMY...... 363
B. HUMAN RIGHTS MANAGEMENT PRACTICES IN CHINA .................. 365
1. Regulation of Labor Market Management .............................. 365
2. Workplace Discrimination: Anecdotal Glimpses .................... 371
III. CHINA’S ANTI-DISCRIMINATION LAWS................................. 386
A. LAWS PROVIDING “PROTECTED STATUS”...................................... 386
1. The 1994 Labor Law ............................................................... 387
2. Other Anti-Discrimination Laws ............................................. 390
3. Local Government Discrimination Bans ................................. 401
B. LAW AND HRM PRACTICES ........................................................... 402
1. Recruitment ............................................................................. 402
2. Employment and Termination ................................................. 408
C. ENFORCEMENT ............................................................................... 410
1. Administrative Process ............................................................ 410
2. Proving Discrimination............................................................ 413
3. Remedies ................................................................................. 415
4. External Incentives .................................................................. 419
IV. CONCLUSION................................................................................... 420
A. CHALLENGES TO REMEDYING EMPLOYMENT DISCRIMINATION ... 421
B. CLARIFYING CHINA’S ANTI-DISCRIMINATION LAWS.................... 423
1. “Protected Classes” of Workers............................................... 424#p#分页标题#e#
2. “Labor Disputes” and Legislative Rights of “Applicants” ...... 425
∗ Professor of Law, University of Hawaii Law School; Director, Center for Chinese Studies,
University of Hawaii; 2004-2005 Fulbright Distinguished Lecturer, Peking University Law School
and Tsinghua University Law School.
362 COLUMBIA JOURNAL OF ASIAN LAW [19:2
3. Enhancing Enforcement: Remedies as
Deterrent and Incentive ........................................................... 426
I. INTRODUCTION
While working as a consultant to the World Bank on China’s
labor legislation in 1996, I was waiting outside the gate of the Ministry of
Labor, when I noticed a job advertisement posted on a pole. It read,
Seeking an office clerk. Female, decent height and
appearance. All five facial organs must be in the right
place (wu guan duan zheng).1
In 2005, job advertisements with identical facial requirements are
widely seen. That, of course, is but one frank articulation of what many
employers around the world take note of in the employment hiring
process. Other factors in considering applicants and employees in China
may include sex, ethnicity, social origin, health, disability, age, or migrant
status, some of which are considerations prohibited by Chinese labor
laws.2
This article describes the current status of the above factors as
used in human resource management (HRM) practices during China’s
current economic transition, and further examines China’s existing antidiscrimination
labor legislation. Some comparative references are made
to labor standards under International Labor Organization (ILO)
Conventions and U.S. legislative approaches. This article further
suggests areas for legal reform to both clarify coverage and enhance
enforcement and remedies, which would in turn arrest some of the more
1 Though the Chinese disagree on which organs constitute the “five sense organs,” they have been
defined as “ears, eyes, lips, nose, and tongue,” and mean “regular features; pleasant-looking face
with the five organs in normal shape and position.” THE ABC ENGLISH-CHINESE COMPREHENSIVE
DICTIONARY 1004 (John DeFrancis et al. eds., 2003).
2 See Jing Tao, Gender Discrimination in the Chinese Labor Market is Severe (Apr. 12, 2005)
(unpublished manuscript, on file with author); 酒店招工听口音, 未聘用只因方言不地道 [Hotel
Rejected Job Applicant For Speaking Tongue-Tied Dialect], 北京青年报[BEIJING YOUTH DAILY],
Feb. 11, 2004, at 6, available at http://edu.sina.com.cn/l/2004-02-12/60863.html [hereinafter
Tongue-Tied Dialect]; 尚水, 就业歧视案例聚焦 [Shang Shui, Cases on Employment
Discrimination], 人民日报[PEOPLE’S DAILY], June 15, 2005, at 15, available at http://legal.people.
com.cn/GB/42731/3469925.html [hereinafter Shang Shui]; 炒掉百名乙肝患者惹纠纷 [Dispute#p#分页标题#e#
Arises When Employer Fired Hundreds of Hepatitis B Carriers], 信息时报[INFO. CHRON.], Apr. 1,
2004, at D03 [hereinafter Dispute Arises].
2006] CHINA’S EMPLOYMENT DISCRIMINATION 363
pernicious illegal hiring and employment practices currently found in
China’s HRM.
In addition to obtaining justice for the victims of improper HRM
practices, there are several underlying inquiries for China to consider.
These include (1) the social and economic costs and consequences
resulting from a failure to address issues of employment discrimination,
inequality, and impediments to equal employment opportunity, and (2)
whether there is sufficient national commitment to simultaneously seek
alternatives to end these problems, while balancing and advancing
economic development interests.
II. CHINA’S CURRENT CONDITIONS AFFECTING HUMAN
RESOURCES MANAGEMENT
A. Economic Transition to a Socialist Market Economy
In the late 1980s, the economic developments following the Four
Modernizations of 1979 produced workplaces that were increasingly
regulated by labor contracts, displacing the “iron-rice bowl” model of
earlier years.3 The transition to a socialist market economy in the 1990s
coincided with a growing assumption of managerial control for
employers.4 Due to market forces, employers were forced to maximize
profits if they hoped to survive without government subsidies of the
former planned economy, and lawmakers responded by allowing greater
employer autonomy. This liberalization of employee management tended
to result in employers cutting labor costs, and, all too frequently, ignoring
labor laws. This trend was particularly prevalent among employers
outside of the state-owned enterprise (SOE) system.
This market transition has had both positive and negative
economic consequences. One bright side has been phenomenal economic
growth and development for the country as a whole; however, a dark side
has been its impact on individual workers, including layoffs,
unemployment, and emerging wage disparities. These disparities are
found in dramatic wage level differences between urban and rural
workers as well as between regions—especially between the Special
3 Jaeyoun Won, Withering Away of the Iron Rice Bowl? The Reemployment Project of Post-Socialist
China, 39 STUD. IN COMP. INT’L DEV. 71, 71 (2004). See also Randall Peerenboom, Globalization,
Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in the
People's Republic of China, 19 BERKELEY J. INT'L L. 161, 208 (2001).
4 Victor Nee & Yang Cao, Market Transition and the Firm: Institutional Change and Income
Inequality in Urban China, 1 MGMT. & ORG. REV. 23 (2005). See also Jonathan P. Hiatt &
Deborah Greenfield, The Importance of Core Labor Rights in World Development, 26 MICH. J.#p#分页标题#e#
INT'L L. 39, 40 (2004).
364 COLUMBIA JOURNAL OF ASIAN LAW [19:2
Economic Zones (SEZs) in the coastal areas and the non-SEZs in the
Western inland provinces.5 Large wage disparities also exist, as they do
in many countries, between management officers and workers. 6
According to former World Bank President Wolfenson, these wage gaps
are increasing at an alarming rate, and he warns that history suggests such
gaps could lead to social unrest and protests.7
These economic disparities in China’s labor force affect certain
cohorts of workers more than others, both as a result of socio-economic
factors and because of illegal discrimination. This discrimination occurs
primarily against women, migrant workers, national ethnic minorities,
and workers perceived to have health problems or disabilities. For
example, women in China working at urban jobs earn only about 70% of
what men make for similar work, and female executive and senior
professionals earn about 58% and 68% of their male counterparts,
respectively. Further, professional fields are generally comprised of only
about 20% women, and female doctors earn about 63% of the amount
earned by male doctors.8
Women are not alone in their fight against employment
discrimination. Another group of citizens affected by the China’s
economic transition is its “floating population” of some 100 to 150
million migrant workers moving from poor rural areas to developed urban
areas seeking better job opportunities.9 Recently, much attention has
5 See generally Bjorn Gustafsson & Li Shi, The Anatomy of Rising Earnings Inequality in Urban
China, 29 J. COMP. ECON. 118 (2001). See also Cliff Waldman, The Labor Market in Post-Reform
China: History, Evidence, and Implications, 39 BUS. ECON. 50, 54-56 (2004).
6 国务院发展研究中心[The Development Research Center of the State Council], 中国企业人力资
源管理调查报告 [Report of Chinese Enterprises on Human Resource Management] (2004), cited
in老总员工收入差距最大超50 倍 [Manager Earns Fifty Times More than Staff], 广州日报
[GUANGZHOU DAILY] , Apr. 25, 2004, at A2, available at http://gzdaily.dayoo.com/gb/content/
2004-04/25/content_1517025.htm.
7 David Murphy, The Dangers of Too Much Success, 167 FAR E. ECON. REV. 28, 28-29 (2004). The
Chinese Government has taken notice of the increase in mass protests. It is reported that Zhou
Yongkang, the Public Security Chief and State Councilor, stated that the "'rising conflicts among
the people' had been triggered by domestic economic factors, the behaviour of cadres, and by a lack
of justice" with the number of mass protests increasing from about "10,000 in 1994 to more than
74,000 last year [2004]". Shi Ting, Acceptance of Rights Replacing Reflex Fear of Protests, S.#p#分页标题#e#
CHINA MORNING POST, July 7, 2005, at 1.
8 Margaret Maurer-Fazio & James Hughes, The Effect of Institutional Change on the Labor Market
Outcomes of Chinese Women: Traditional Values vs. Market Forces (1999) (unpublished paper),
cited in Elizabeth Brainerd, Women in Transition: Changes in Gender Wage Differentials in
Eastern Europe and the Former Soviet Union, 54 IND. & LAB. REL. REV. 138, 162 (2000). In the
U.S. the figure for relative wage disparity is 76% for blacks versus whites, and 64% for Hispanic
women. Id. at 146 (2000).
9 China’s Floating Population Exceeded 10% of Total Population, 中国新闻网 [CHINANEWS.CN],
Jan. 6, 2005, at http://www.chinanews.cn/news/2004/2005-01-06/772.shtml.
2006] CHINA’S EMPLOYMENT DISCRIMINATION 365
been given to their plight, as millions either go unpaid or are grossly
underpaid—in violation of labor laws—and are otherwise discriminated
against because of their migrant status.
Health discrimination for those with hepatitis B is another
common area of employment discrimination in China. It has been
reported that “up to 120 million Chinese people, a number equivalent to
the total population of France and Britain combined, are thought to be
carriers of the disease.” 10 It is also reported that some twenty-two
diseases, such as severe heart disease and high blood pressure, disqualify
people from being hired for public office. 11 There are also nearly one
million HIV/AIDS carriers in China against whom employers also
discriminate.12
Lastly, China has roughly 100 million citizens it classifies as
ethnic minorities, 13 whose economic status is often lower than other
Chinese. When they seek to migrate outside of their communities for
better jobs, they face possible discrimination not only for their minority
status, but also for their social status as rural citizens.14
B. Human Rights Management Practices in China
1. Regulation of Labor Market Management
As China relaxed its socialist planned economy and moved
toward a free market, the systems of government placement and
allocation of personnel from colleges and elsewhere were modified,
10 Liang Chao, Law Drafted to Fight Hep B Discrimination, CHINA DAILY, Aug. 11, 2004, at
http://www.china.org.cn/english/government/103598.htm.
11 Id.
12 Hong Kong Liaison Office of the International Trade Union, HIV/AIDS in China: A Workers
Issue, http://www.ihlo.org/LRC/SW/001004b.html (last visited Feb. 27, 2006).
13 中共中央统一战线工作部 [The United Front Work Department of CPC Central Committee], 中
国民族的基本特点 [Basic Characteristics of Chinese Nationalities], http://www.zytzb.org.cn/
ssmz/ziliao/ssmz12.htm (last visited Feb. 1, 2006).
14 Due to economic pressure, ethnical minorities from the remote countryside are migrating to big#p#分页标题#e#
cities to look for employment opportunities. This group of workers can be classified as both
minorities and migrants. It is likely they face further discrimination based on their status as
migrants, in addition to their ethnicity. For a general discussion, see 新疆区统计局 [Xinjiang
Bureau of Statistics], 转移农村劳动力是解决新疆“三农”问题的根本出路 [To Transfer Peasant
Labor Is The Fundamental Solution to Xinjiang’s Three Main Problems In Villages], 中国统计信
息网 [CHINA STAT. INFO.WEB], Aug. 31, 2005, http://www.stats.gov.cn/was40/
detail?record=286&channelid=33728.
366 COLUMBIA JOURNAL OF ASIAN LAW [19:2
giving way to current hiring practices based largely on self-selection.15
With the demise of the “iron-rice bowl,” children no longer “inherited”
their parents’ factory job, and workers no longer enjoyed job security; and
with that trend came the new practice of HRM, consisting of recruitment,
hiring, employment, and termination.16 The Chinese labor force soon
discovered that employment decisions were not always based on merit or
even political color (i.e. Chinese Communist Party membership). In
2005, employment discrimination under this new system of employer
autonomy came to the point where even a delegate to the National
People’s Congress (NPC) proclaimed,
A law on fair employment is an urgent need in China . . . .
A harmonious society should give adequate space to
talents competing on an equal footing and developing . . .
their capability to the full . . . waste of any human
resources does not facilitate economic and social
development.17
The current HRM hiring route is multi-faceted, and usually
involves advertising for positions (rather than having labor supplied
through labor bureaus), word of mouth, use of labor supply brokers
(including labor bureaus and employment agencies), and posting notices
on walls and the Internet. Special rules, however, still apply to foreigninvested
enterprises (FIEs), as will be discussed infra. With the exception
of civil service jobs and jobs needing certain proficiencies, recruitment
15 China's Employment Market Challenged by Two Million Graduates, PEOPLE’S DAILY, Jan. 10,
2003, http://english.people.com.cn/200301/10/eng20030110_109906.shtml. .
16 Won, supra note 3, at 71. See also Mary E. Gallagher, "Time is Money, Efficiency is Life": The
Transformation of Labor Relations in China, 39 STUD. IN COMP. INT’L DEV. 3, 11-44 (Summer
2004). See generally, Ying Zhu and Malcolm Warner, Changing Patterns of Human Resource
Management in Contemporary China: WTO Accession and Enterprise Responses, 35 INDUS. REL. J.
311, 311-28 (2004).
17 Deputy Wang Yuan’an from Tai’an City in East China’s Shandong Province, cited from NPC#p#分页标题#e#
Deputy Proposes Law against Employment Discrimination, 人民网 [PEOPLE’S DAILY ONLINE],
Mar. 4, 2005, http://english.people.com.cn/200503/04/eng20050304_175554.html. For other calls
for legislation, see 凌锋, 反对就业歧视, 法律不应沉默 [Ling Feng, Law Shall Not Be Silent
Against Employment Discrimination], 法制日报 [LEGAL DAILY], June 20, 2005, at 5. As of July
2005, there is consideration on an Employment Promotion Law that may contain anti-discrimination
provisions. 就业促进法[Employment Promotion Law] (Tentative Draft 2005) (P.R.C.) (on file
with author) [hereinafter Employment Promotion Law Draft].
2006] CHINA’S EMPLOYMENT DISCRIMINATION 367
does not usually require testing.18 Employment and working conditions
are usually governed by the employer and its rules, with the employer
authorized to make evaluative decisions. Both, however, are limited
somewhat by labor laws, labor contracts, and collective contracts. 19
Dismissals and other labor disputes are regulated by statutes and
generally are resolved intra-enterprise by mediation or by resort to
government labor arbitration commissions and tribunals, with de novo
review provided by the courts.20
In 2000, the Ministry of Labor and Social Security (MOLSS)
sought to regularize and bring more order to labor market management by
issuing its Regulations on Labor Market Management (hereinafter Labor
Market Regulations).21 Its stated purpose is to protect the legal interests
of employees and employers, to develop and standardize the labor market,
and to promote employment.22 The Labor Market Regulations apply to
the laborer’s job application and work, the employer’s recruiting process,
and to the “career introduction activities” of job centers. 23 The
Regulations are administered by the labor bureaus above the county
level.24
18 See 中华人民共和国公务员法 [Civil Service Law] arts. 21-32 (promulgated by the Standing
Comm. Nat’l People’s Cong., Apr. 27, 2005, effective Jan. 1, 2006) (P.R.C.), available at
http://www.chinacourt.org/flwk/show1.php?file_id=101410. See Robert Taylor, China’s Human
Resource Management Strategies: The Role of Enterprise and Government, 4 ASIAN BUS. &
MGMT. 5, 11-18 (2005).
Commercial services are available in China for pre-employment screening. See, e.g., Inquest Pre
Employment Screening Service, at http://www.inquestscreening.com/international_asia.asp (last
visited Feb. 28, 2006).
19 中华人民共和国劳动法 [Labor Law ] art. 19(2) (promulgated by Standing Comm. Nat’l
People’s Cong., July 5, 1994, effective Jan. 1, 1995) (P.R.C.), available at http://www.
chinacourt.org/flwk/show1.php?file_id=20195; 集体合同规定 [Provisions on Collective Contract]
art. 8 (promulgated by the Ministry of Labor and Social Security, Jan. 20, 2004, effective May 1,#p#分页标题#e#
2004) (P.R.C.), available at http://www.chinacourt.org/flwk/show1.php?file_id=91497.
20 劳动部关于实行劳动合同制度若干问题的规定 [Regulation of the Ministry of Labor on
Institution of Labor Contract System] art. 14 (promulgated by the Ministry of Labor, Oct. 31, 1996,
effective Oct. 31, 1996) (P.R.C.), available at http://www.chinacourt.org/flwk/show1.php?
file_id=26814; 浅谈民商仲裁与劳动仲裁的司法监督 [Some Opinions on the Judicial Review of
Commercial Arbitration and Labor Arbitration], 中国劳动[CHINA LABOR], May 2003, at 25
[hereinafter Some Opinions].
21 劳动力市场管理规定 [Regulations on Labor Market Management] (promulgated by the Ministry
of Labor and Social Security, Dec. 8, 2000, effective Dec. 8, 2000) (P.R.C.), available at
http://www.chinacourt.org/flwk/show1.php?file_id=36355 [hereinafter Regulations on Labor
Market Management].
22 Id. art. 1.
23 Id. art. 2.
24 Id. art. 4. The hired person also must register with the Labor Bureau within 30 days of being
hired. Id.
368 COLUMBIA JOURNAL OF ASIAN LAW [19:2
The regulations relating to recruitment25 provide for “public and
fair competition,”26 and states that employers can acquire employees in
numerous ways, including the use of job centers and advertising in the
mass media. 27 Interestingly, Article 9 requires employers placing ads for
vacancies in the mass media to first obtain the approval of the local labor
security administrative authorities. 28 The Regulations also prohibit a
number of well-documented employer abuses, including charging the
hired person a deposit fee or holding worker documents such as identity
papers.29
The most significant provision in Labor Market Regulations is
Article 11, which bans employment discrimination in recruitment. It
reads: “[w]hile hiring a person, the employer shall not refuse to hire or
enhance the hiring standard on the basis of gender, nationality, race, or
religion, except those provided by state laws concerning unsuitable types
of work or positions.”30
The Labor Market Regulations also cover “career
recommendation organs,” or employment services and agencies, both
non-profit and for-profit.31 Article 21 is of significance, as it prohibits
career recommendation agencies from certain activities including
“recommending jobs prevented by laws and regulations”.32 This would
seem to ban recommendation of a job advertised by an employer as “for
men only,” where there is no legal basis for a sex-specific limitation.33
Sanctions for violations of these regulations provide for general
fines of ¥1,000 (for violations of Article 10 or 14), and fines ranging from
¥10,000 to ¥30,000 for a violation of several enumerated articles,#p#分页标题#e#
including Article 21. 34 Penalties may also include revocation of the
25 Id. arts. 7-14.
26 Id. art. 7.
27 Id. art. 8. These ways include (1) entrusting a job center; (2) participating in labor exchanging
activities; (3) publishing advertisements for employers in mass media; (4) recruiting on the Internet;
and (5) other means stipulated by laws and regulations. Id.
28 Id. art. 9.
29 Id. art. 10(4)-(5).
30 Id. art. 11.
31 Id. arts. 15-25.
32 Id. art. 21.
33 See 中华人民共和国广告法 [Advertisements Law] art. 7(7) (promulgated by the Standing
Comm. of the Nat’l People’s Cong., Oct. 27, 1994, effective Feb. 1, 1995), 1994 全国人民代表大
会常务委员会公报[STANDING COMM. NAT'L PEOPLE'S CONG. GAZ.] (P.R.C.), available at
http://www.chinacourt.org/flwk/show1.php?file_id=20976 (banning discriminatory advertising by
stipulating the ad shall not contain any racial, ethnic, gender, or religious discrimination language).
34 The Regulations on Labor Market Management, supra note 21, at arts. 34-38. Article 10 prohibits
false information etc., and article 14 requires registration of employees. Id. arts. 10, 14.
2006] CHINA’S EMPLOYMENT DISCRIMINATION 369
employer’s business license.35 Of greatest significance, however, is the
absence of sanction for violations of Article 11 prohibitions on
employment discrimination.
In 2001, the Ministry of Personnel and the State Administration
for Industry and Commerce issued the Rules on the Administration of
Human Resources Markets (hereinafter Rules on HRM).36 These rules
apply to the administration of labor agency services, including the general
hiring activities of employers and the treatment of individual job
applications.37 Article 3 mandates that “human resource market activities
must abide by the laws, regulations, and policies of this country, persist in
the principles of openness, equality, competition, and selection of the best
. . . .”38
The agencies are required to have the “capacity to independently
bear civil liabilities; and sanctions are provided for violations, ranging
from ¥10,000 to ¥30,000. 39 Of greatest significance is Article 39, which
provides
Any employing unit that, in violation of these Rules,
refuses to recruit talents or heightens the qualifications
for these talents by such reason as nationality, sex, and
religion or recruits personnel who should not be
recruited . . . shall be ordered to make corrections by
the administrative department in charge of personnel of
the people’s government . . . if the circumstances are
serious, there shall be imposed a fine of less than
¥10,000.40
FIEs 41 have special requirements that apply to all employees,
including expatriates and personnel from Taiwan, Hong Kong, and#p#分页标题#e#
35 Id. art. 37.
36人才市场管理规定 [Rules on the Administration of Human Resources Market] (promulgated by
the Ministry of Personnel, Sept. 11, 2001, effective Oct. 1, 2001, revised Mar. 22, 2005) (P.R.C),
available at http://www.chinacourt.org/flwk/show1.php?file_id=101542.
37 Id. art. 2.
38 Id. art. 3.
39 Id. arts. 6(4) and 35.
40 Id. art. 39 (emphasis added).
41 These include China-foreign joint equity ventures, China-foreign cooperative ventures, wholly
foreign-owned enterprises, and China-foreign joint stock limited companies. 外商投资企业劳动管
理规定 [Provisions on the Labor Administration in Enterprises with Foreign Investment] art. 2
(promulgated by the Ministry of Labor & the Ministry of Foreign Trade & Econ. Coop., Aug. 11,
1994, effective Aug. 11, 1994), 14 P.R.C. LAWS & REGS V-05-00-303, available at
http://www.chinacourt.org/flwk/show1.php?file_id=20454 .
370 COLUMBIA JOURNAL OF ASIAN LAW [19:2
Macao.42 Additionally, there are special rules on the employment of
foreigners in China, including the requirement that their employer must
obtain employment permission.43
Since Chinese labor laws apply to FIE employees,44 many FIEs
have developed a practice whereby foreign employees sign employment
contracts that stipulate that the law of the enterprises’ home country will
govern. 45 In 2003, new provisions were issued regulating the
management of intermediary employment agencies servicing FIEs. 46
These provisions require any FIE using intermediary services to conduct
its “activities through a specialized job intermediary agency jointly
established with a Chinese company, enterprise or other economic
organization for offering job intermediary services.”47 These agencies are
authorized to collect data about the employment market, provide job
recommendations, conduct recruitment activities, job testing and
appraising, and provide training courses. 48 They must abide by “the
principles of voluntary participation, equity and good faith.” 49 Sanctions
are outlined, ranging from fines of ¥10,000 to ¥30,000, to loss of business
license.50
Other HRM policies for FIEs fall under the 1994 Regulations.
For recruitment, FIEs, including representative offices, are allowed to use
the labor services of an intermediary agency to hire Chinese employees.51
These policies also regulate wage equities between Chinese and foreign
personnel and embrace the requirement of equal pay for equal work.52
42 劳动部关于贯彻外商投资企业劳动管理规定有关问题的复函 [Reply of the Ministry of Labor
on Relevant Issues Regarding the Implementation of Provisions on Labor Administration in
Enterprises with Foreign Investment] art. 1 (promulgated by the Ministry of Labor, July 14, 1995,#p#分页标题#e#
effective July 14,1995) (P.R.C), available at http://www.chinacourt.org/flwkshow1.php?file_id
=23070.
43 外国人在中国就业管理规定 [Regulations on the Management of Employment of Foreigners in
China], art. 5 (promulgated by the Ministry of Labor and Pub. Sec., Jan. 22, 1996, effective May 1,
1996) (P.R.C.), available at http://www.chinacourt.org/flwk/show1.php?file_id=24485 (available
by subscription only).
44 Jeremy B. Fox et al., Beyond the Image of Foreign Direct Investment in China: Where Ethics
Meets Public Relations, 56 J. BUS. ETHICS 317, 317 (2005).
45 More Foreign Employees Working in Shanghai, CHINA STAFF, Jan. 2005, at 34.
46 中外合资人才中介机构管理暂行规定 [Interim Provisions Concerning the Management of
指导essay Chinese-foreign Joint Job Intermediary Agencies] (promulgated by the Ministry of Personnel, the
Ministry of Commerce and State Administration for Industry & Commerce, Sept. 4, 2003, effective
Nov. 11, 2003) (P.R.C.), available at http://www.chinacourt.org/flwk/show1.php?file_id=89004.
47 Id. art. 3. Wholly foreign-owned job intermediary agencies are prohibited. Id.
48 Id. art. 11.
49 Id. art. 12.
50 Id. arts. 16-18.
|
