The Legislation of Right to Strike in China · Web viewFor the regulation about right to strike...

The Legislation of Right to Strike in China

Chang Kai

SuperintendentThe Institute for Labor Relations

Renmin University of China

ProfessorSchool of Labor Relations and Human Resources

Renmin University of ChinaE-mail: [email protected]

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mailto:[email protected]


The Right to Strike is one of the essential parts of basic labor rights. Whether labors in a country can enjoy right to strike or not reflects the integrity of the country’s basic labor rights. Since it concerns not only the assessment of the conditions of labors’ human right, but also the stability of the working class and equilibrium of the whole society, the research of right to strike in China has long been a sensitive area in the study of Chinese Labor Law. Besides, the scarcity of literature and research materials further hinders the advancement of such research. Thus systematic research on right of strike in China is generally unavailable, either among domestic or international academic field.

In the transition to market economy, the conflicts between employees and employers become more acute and intense, and collective actions of the employees including strikes happen more frequently. However, there is no law regarding the right to strike in China. Thus there are no legal rules to justify either the strikes or the settlement of strikes. After China’s entrance into the WTO, the conflicts between employees and employers would become more serious. How to regulate and adjust the labor relations by legal rules and regulations would be one of the tasks that must be accomplished during China’s economic reforms. Also, the legislation of the right to strike is an inevitable component of the framework of labor laws.

In the context of economic globalization, the legislation and actualization of the right to strike is an important way to protect the rights and interests of labors. As the natural extension of labors’ right to work, the right to strike is one of the basic rights of labors in market economy and has been universally recognized by all developed countries. It has positive effects on harmonizing and adjusting labor relations as well as improving the socio-economic development steadily. Therefore, promoting the legislation of right to strike is also a pressing demand of the construction of a legal economy in China.

In this paper I will first explore and analyze the development of the legislation of the right to strike in Chinese history, the general legal characteristics of the right to strike, and the status quo and traits of labor disputes and strikes. Then I will put forward my thoughts of how to consummate the legislation of right to strike in China.

1. Policies on Strike by CCP and Stipulations for Right to Strike in Chinese Constitution

To study the right to strike in China, we should start with the discussion of the existence of strike in socialist states and the policies on strike by Chinese Communist Party ("the party " for short).

Strike has never been a phenomenon that is exclusive in Capitalist states. It can also happen in socialist countries. After the establishment of the People's Republic of China, strikes continuously happen from time to time. There are three peak periods of strikes: the first one happened in 1952, immediately after the establishment of PRC; the second one was from 1956 to 1957, around the time of accomplishing the socialism ownership transformation; the third one has last from the end of 1980s, when the urban economic reforms began, to present.

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Why could strike exist in socialist states? This should be explained by analysis of the social features of strike. As for strike, it has always been linked to politics. It goes without saying that there are political factors that trigger strikes, and the purposes of some strikes are politics oriented. However, strike is essentially one of the instruments for the sake of economic interest. Strictly speaking, strike is one subject of labor relations, which is also the “last” weapon that labors can employ to defend their own interests. The fundamental reason that strikes occur in socialist states is that there are still conflicts and disputes in labor relations. When these conflicts and disputes could not be completely solved through other normal channels, or the methods of labor dispute settlement are not normative, the labors have to resort to strike, which is the highest and “last” way for them to defend their own interest.

As for the necessity and inevitability of strikes in socialist states, theorists of classical Marxism have discussed it specifically. For instance, Lenin thinks that in soviet states the major way of protecting labor interests is through the legal procedures by the help of state institutions, but not by strikes. However it does not mean that strike would never been employed by the labors.1 Lenin makes it clear that strike is not the major tool for labors to defend their interests, however once the labors could not achieve their ends with other means, strike could also be used. It should be noted that here Lenin only points to the state-owned enterprises in Soviet. For private enterprises, Lenin regards that “trade unions should consider to set up their mediation committee, strike fund and mutual-help fund to protect the labor interests and harmonize the labor relations.2 It is quite clear that Lenin deems in private enterprises, the general methods and procedures market economy should be applied to deal with the conflicts and disputes of labor relations: on one hand, the mediation committee should try to mediate the conflicts or disputes; on the other hand the labors should not give up their particular method—strike. Therefore, the trade union should start to raise strike fund and mutual-help fund. Lenin’s idea has important implications for the legislation of right to strike and how to deal with strikes in socialist states.

Mao Zedong also has definite attitude to strikes in China. In 1956, after the accomplishment of socialist ownership transformation, owning to the immaturity of both the economic system and the enterprise management institutions, the conflicts between some enterprises and labors turn to be intensified, which lead to some strikes all over the country. However according to the constitution of that time, people only have the right of demonstration, but no right to strike. Mao says: “we should permit labors to strike, permit them to hold demonstration. Our constitution allows labors to hold demonstration, and I propose we should add one article of freedom of strike when we amend our constitution next time. It will help to harmonize the conflicts among the state, the leader of the enterprise and the labors.”3 Mao expresses this idea shortly after the 8th Congress of Chinese Communist Party. It is an important theory of socialism by CCP. Based on the principle of Leninism, it is a thoughtful idea after in-depth analysis of the strikes in our country. Due to a variety of reasons, the amendment of constitution could only be accomplished 20 years later, and it was until 1975 that could we add Mao’s idea of freedom of strike into the new constitution.

1 Lenin manuscript, Vo4, People’s Publishing House of China, 1977, PP 3112 Selected works of Lenin, Vo4， People’s Publishing House of China, 1973, PP 5833 Mao Zedong, 1956,"speech at second plenum of the 8th Central Committee of Chinese Communist Party", 15th November

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Although in 1950s there is no specific article concerning the right to strike in the constitution, CCP established a relatively systematic set of theories and policies to deal with the problem of strike under the direction of Mao’s idea. The general ideas of the theory and policy were concentrated in Instruction of Dealing with the Strike of Workers and Students issued by the Central Committee of Chinese Communist Party (CC- CCP) in 1957. This is a policy document full of the spirit of socialist democracy and law. This document correctly explores the reasons of strikes in socialist states, the ways to prevent strikes, and the attitudes and principles of solving the problem of strikes by CCP. The major contents of this document are shown below4:

Concerning the reasons of strike: There objectively exist conflicts between the general public and the leaders in socialist society. As leaders separate themselves from the general public and bureaucratism spreads unchecked, the leaders neglect or can not correctly solve problems of people, the conflicts between leaders and the general public would worsen off. Strikes become possible under such circumstances.Though the reasons are partly owing to the general public pursuing too much partial or short-term interest, “bureaucratism and the mistakes in our work are the major reasons that lead to these incidents.” After the All China Federation of Trade Union (ACFTU) conducted large-scale and in-depth survey of workers’ strikes and petitions, they submitted a report to the central government and said that “the occurrence of strikes and petitions is mostly caused by the fact that we are unable to settle the conflicts and disputes between the workers and the administrative institutions timely.”5

Concerning the strategies of strike prevention: “the fundamental strategy is to solve the problems and adjust the relations within socialist society timely." To pursue this end, firstly we should get rid of bureaucratism, solve the urgent problems confronting the general public and improve democracy. Secondly, we should strengthen the education of the general public.

Concerning CCP’s attitude on strike: The basic attitude of the party is not advocating, and making every effort to prevent the occurrence of this kind of incidents. But under some unusual circumstances, if " the bureaucratism of leaders is extremely serious, and the general public almost do not have any democratic rights, therefore the problem can not be solved by normal methods, namely “unity - criticism – unity,” then the general public take unusual actions such as workers’ strike, students' strike, parade and petition, etc. are not only inevitable but also necessary.”

Concerning the principle of dealing with strike: When this kind of incident occurs, the policy of the party is to "permit the general public to do so rather than to prohibit them to do. Because firstly, by doing so the general public have not violated the constitution, so there are not any reasons to prohibit it; secondly, conflicts and disputes can not be solved by prohibiting strikes." Therefore, for the incidents of workers’ and students’ strike, we should not compel the participants to suspend, but rather advise them not to take any illegal actions. If illegal activities do happen, we should take suitable actions to stop or restrict

4 "Instruction on Dealing With Strike of Workers and Students of the Central Committee of Chinese Communist Party ", March 19575 All China Federation of Trade Union，1957, “Report about Staff and Workers' Strike and Petition”, 22nd February.

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them. As for the demands that the general public propose in the incidents, we should treat them as they are put forward under normal conditions, namely, for the reasonable and feasible part, we should accept; for those reasonable but unfeasible to do at present, we should make explanations; and for those unreasonable, we should resist. On one hand, we should not reject their reasonable demands just because they are proposed by strike. Otherwise the factors resulting in strikes would still be there. On the other hand, we should not meet any of their demands that are unreasonable or unfeasible only because of the pressures from general public. After the incident calms down, we should strengthen the construction of democracy on the one hand, and improve the consciousness of general public on the other hand.

The historic experience has proved that CCP can analyze questions and formulate policies with fairly objective and realistic attitude when dealing with strikes. Generally speaking, the policies to pacify the strikes are successful and gain good effects at that time. The policies not only prevent the spread of bureaucratism and improve the consciousness of the general public, but also increase the good reputation and authority of CCP, which helps to build up a good communication channel between CCP and the general public and make them have much closer relations. Moreover, it should also be aware that CCP followed consistent principle in dealing with the strikes over that period of time, and CCP did not take any actions such as “drawing snake out of its hole (yinshechudong)” and “squaring accounts after the autumn harvest (qiuhousuanzhang)” as she did for the intellectuals in fighting against “the Right.” This indicates the trust of CCP on the workers as well as the party’s self-confidence on dealing with such problems.

This is the only document concerning strikes since PRC has been founded. Even after 45 years, the basic spirit of this document still holds. It continues to have meaningful instructions for our understanding the problem of strikes as well as the legislation of right to strike at present.

However, the stipulation of strike has a course of change in the 4 constitutions and needs concrete analysis.

In the four constitutions after PRC founded, there wasn’t regulation about right to strike in the civil rights in the constitution enacted in 1954. The constitution enacted in 1975 was the first one to have regulation of strikes. This constitution stipulates “citizens of PRC have freedom of speech, of communication, of press, of assembly, of association, of parade, of demonstration, and of strike.”6 The constitution in 1978 also stipulates: “citizens of PRC have freedom of speech, of communication, of press, of assembly, of association, of parade, of demonstration, and of strike, and has the right of using ‘daming,’ ‘dafang,’ ‘debate(dabianlun),’ and ‘big character post(dazibao).”7 In September 1980, the third plenum of the fifth National People's Congress passed the resolution case of modifying 45th article of constitution in 1978, and cancelled the original stipulation of “citizens of PRC have the right of using ‘daming,’ ‘dafang,’ ‘debate(dabianlunco),’ and ‘big character post(dazibao).’”, but the regulation about freedom of strike was not cancelled. Until the passing of 1982 constitution, the regulation of “freedom of strike” was cancelled.

6 28th article, Constitution of People's Republic of China, 1975, 7 45th article, Constitution of People's Republic of China, 1978,

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For the regulation about right to strike in the constitutions of our country, some scholars think “freedom of strike stipulated in the constitution passed in 1975 is the product of the “ultra-left” thought, and does not suit to the interest of the development of socialism and the specific characteristics of our country. The enterprises of our country belong to the people…stopping producing after the strike is one kind of destruction to all people's interests including the working class. Some scholars regard that this is the punishment of bureaucracy. It is incorrect. The problem of bureaucracy can be solved by normal ways such as whistleblowing, appeal and indictment, etc, but should not strike.”8 The author thinks it is inappropriate to simplify the stipulation of freedom of strike in constitution as the product of “ultra-Left” thought. This opinion does not take into account the continuity of historical development of the constitutional stipulation of strikes, but considers it as an isolated event. Although the year 1975 is within the age of unchecked spread of “left” thought, CCP’s legislation of strikes did have substantial theoretical foundation and was a product of thoughtful consideration. The effect of anti-bureaucracy by strike has been shown in the incident of the Party’s dealing with the strike in 1957. The fact that freedom of strike could be written into the constitution demonstrates that politically the legislators have a broad vision and open mind. The right to strike, as one of the basic rights of labors, is one aspect of citizen’s socio-economic right, and as one kind of freedom enjoys by citizens, right to strike is also one aspect of a citizen’s socio-political rights. So the legislation of right to strike must be based on the development of the democratic politics in the society. Therefore the fact that right to strike has been written in constitution twice also provides the political foundation for the future legislation of right to strike in our country.

Although right to strike has been written in the constitutions twice in our country, as some scholars say, the meaning of these legislations points more to one kind of “effect of declaration,”9 because both constitutions didn’t specify the subject or the domain of right to strike, neither were they accompany with Implementation Law of Strike which helps to concretely enforce the constitutional stipulation of strikes. So the two stipulations mentioned above do not demonstrate the principal aim of legislation of right to strike, which is to ensure strike as a self-defense weapon of labors when their interests were extremely endangered or encroached on by employers. In the planned economy, the objective of strike legislation is the state-owned enterprise, and such legislation could only serve as a political symbol but could not enforce the law of strike in real social life. Because under the economic pattern of interest integration in state-owned enterprises, normally there should not have a great amount of victims whose interest was encroached on simultaneously, thus the conflicts between labor and capital could not be worsened off too much. And the intense conflicts between labor and capital generally happen in periods of dramatic socio-economic transition. This also should be given particular attention when we conduct research on the history of legislation of strike.

Owning to the cancellation of “freedom of strike” in the constitution passed in 1982, some people think it is illegal to strike in our country, and this view is particularly prevalent outside of China. In fact, this opinion is neither concise nor correct. The so-called “illegal” means “violate the law,” i.e., conduct behaviors that is prohibited by law. Although there

8 Zhang Youyu, 1982,"Several Problems about Revising the Constitution", Article collection on constitution, Qun zhong Publisher, PP 149 Shi Tanjing, 1999,"Analysis on Labor Disputes and Legislation of Strikes of Our Country", Law Research, Vol. 2

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are no legal articles stating that strike is one of the basic citizen’s rights in current laws of our country, there are no rules or regulations against strike, either. According to the general principle of law, a citizen could do anything that is not prohibited by law without any legal punishments10. For instance, the constitution passed in 1954 had no articles concerning right to strike, however, the attitudes on strike by the CC- CCP at that time is “the general public does not violate constitution by strike, and we have no reasons to prohibit them to do so.”11

Thus in China strike does not mean violating law, and in China there is no punishment exerting on strikes. For instance, after the 1980’s, because the conflicts and disputes between labor and capital become more intense, incidents of slow-down while work, strike, and collective appeal over the direct administrative authority (jitishangfang) occurred across enterprises of all kinds of ownership. The general principle of government regarding these incidents is “carefully harmonizing and adjusting their relations, avoiding inappropriate administrative intervention and inappropriate legal involvement.”12

Though strike is not illegal in China, the Chinese law does not advocate or protect the strike. It is mainly shown in the fact that the current constitution, labor law, and trade union law, etc. in our country don’t clearly stipulate strike as the right of employees and trade unions. Its real meaning demonstrates that the state not only does not encourage strikes, but also prevents or avoids the occurrence of strikes by its negative attitudes towards strikes. Since strike isn’t the legal right of trade union or employees, the behavior of strike is not protected by the law, and the state does not undertake the duty of protecting the strike by employees or trade unions. This is mainly shown in that the participants of strike do not enjoy the right of exemption from criminal and civil punishment.

2. The Legal Nature and Characteristics of Right to Strike

When studying the legislation of right to strike, we need to inquire the legal nature and characteristics of right to strike.

Firstly， since morally the legislation of labor law in China is market economy oriented, we regard the right to strike as the right of labor law in market economy.13 Right to strike in the labor law generally refers to the right that labors collectively stop working (and exert pressures on the managers) for the sake of improving their working conditions.

10 Liu Hainian and Li Lin, 2001, Running a State According to Law and the Building of Legal System, Law Publisher of China, PP 8411 "Instructions on Dealing With Strikes of Workers and Students of the Central Committee of Chinese Communist Party ", March 1957.12 Of course, not all this kind of incidents can be dealt with well in various places. For example, some employers accept the worker's condition of returning to work，but dismiss and expel the backbones participating in strike in batches; Some local governors, for protecting investors, think that strike disturbs production order and influence the investment environment, so ask court to deal with the organizer referring to the "Criminal Law " or "public order management regulation ". This method does not accord with the law, regulation, and the law principle of our country.

13 China has built the frame of the labor law of market economy primarily, and the basic legislative value and legislative principle are constructed according to system of labor law of market economy. But at present the system of labor law of China is not still perfect, especially the regulation of basic labor right still is not clear and concrete. The content about the condition of labor legislation of China is in "World economic integration and the labor legislation in China” written by Chang Kai, Research of trade union theory, Vol. 1, 1999

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As one of the basic rights of labors in market economy, the legislative basis of right to strike is that it is the natural extension of labor right. Labor right means labors have the right to choose to work or not to work. Strike is the selection of not working by labors collectively. But the action of choosing not to work could not be done casually. Instead, it should meet the following basic preconditions: first, the implementation of right to strike must be under the condition that employers have encroached on the interest of labors, or the interest of labors will be encroached on, and both sides of labors and employers cannot make compromise by collective bargaining; second, strike must be approved by most of the labors and be conducted by labors collectively.14

Strike is one of major means that the wage earners employ to fight against their employers to defend their interests of immediate concern in market economy. As the major weapon that the working class collectively resists the economic exploitation and political oppression by the capitalist class, strike appeared along with the emergence of the trade union. The struggle of workers by this means was strictly prohibited by the law of the capitalist class at the very beginning. For instance, Britain passed Law of Association Prohibition in 1799, and France passed a law in 1792, etc., both of which declared that assembly, association, and strike are illegal and the violators would be punished. However, with the development of the social movement of the working class, especially the rise of the three social movements of European working class, the workers gained the right to strike step by step in the process of struggling. The earliest law that accepts the right to strike was a British law passed by the Congress in 1824. This law declares the invalidity of the stipulation that prohibited strikes as well as the organization of trade union in 1799. France also lifted the ban of strikes in 1864. Hereafter, other capitalist countries also admitted that labor union possesses right to strike in succession.15 After World War II, right to strike becomes one of the basic citizen's rights and has been universally admitted by the states of market economy.

In most countries, the right to strike is stipulated in the constitution.16 Besides the constitution, in some countries the labor law concretely stipulates the implementation of right to strike. In some countries, though constitutions do not stipulate right to strike, labour

14 Yasueda hideyosgi and Nishimura kenichiro, 1995, Labor Law, yuihikaku, Japanese edition, PP 296 15 Chang Kai and Zhang Derong, 1993, General Research on Trade Union Law, The Central Party School Publishing House, PP 41, 42, and 301.16 For example, Art. 40, Chapter. 1 of The Constitution of the Republic of Italy (1948) provides that "the right to strike shall be exercised to the extent permitted by law. " Ch. 1, S. 2, Art. 28, of the Constitution of Spain (1978) recognizes the right of employees to strike to defend their interests, and provides that the law providing for the exercise of such a right shall specify measures to maintain basic social services." Ch. 2, Art. 5, of the constitutional document of the Kingdom of Sweden, the Government Organization Act (1975) provides that "any trade union, employer and employers association shall have the right to take industrial actions, such as strike and lockout, except as otherwise provided by law or guaranteed by a contract. S. 5, Art. 158, of the Constitution of the Republic of Brazil (1946) provides that "the right to strike shall be recognized and the forms of exercising such a right be stipulated by law." Ch. 3, Art. 28 of the Constitution of Japan (1946) provides that "right of employees to union and the right to collective bargaining and other collective rights to take industrial actions shall be guaranteed. " Ch. 2, Art. 29, of the Constitution of the Republic of Korea (1962) stipulates that "to improve their conditions, workers have the freedom to organize trade unions, the right to collective bargaining and the right to take collective actions.

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law concretely stipulates it.17 No matter being stipulated by constitution or by labor law, right to strike has become one of the socioeconomic rights universally recognized by law in most countries with market economy. That right to strike has been stipulated by law universally in countries with market economy is not only the result of working class struggle, but also the objective requirement of the development of social institutions in market economy. Right to strike has direct positive effects on the stability and development of both society and economy.

The legislation of right to strike is also an important component in international convention. European Social Charter stipulates: “under circumstances of right conflicts, as long as employees and employers abide by the duties that derive from the former collective agreement, employees can enjoy the right of taking collective action, including the right to strike.”18 This is the earliest international document that stipulates right to strike. International Covenant on Economic, Social, and Cultural Rights stipulates: “(Labors) have the right to strike, but they should exercise this right according to the specific law of their country."19 Charter of Fundamental Rights of the European Union passed recently also definitely stipulates: “workers and employers, or the organization of workers and the organization of employers, according to the law of EU or national regulations and conventions, have the right to hold collective bargaining and sign collective contract at the suitable rank. When the conflict of interest cannot be compromised by negotiation, workers have the right to take collective actions including strikes.”20

However, there are not any concrete terms and regulations about right to strike in the nearly 370 conventions, recommendations, and declarations passed by the International Labour Organization (ILO). According to this, some people regard that ILO does not advocate the right to strike. This view is untrue. In theory, in market economy right to strike is inseparable from the right of collective bargaining. To hold collective negotiation is the direct purpose of strike, and the strike is the major means to guarantee the collective bargaining. Without right to strike, the right of collective bargaining is hard to take effect. The right to strike has been implied in the stipulations of the right to organize and the right to collectively bargain in the 98th International labour Convention. In the practical business concerning labors in the ILO, right to strike has been confirmed according to legal precedent. Among the accusations submitted to ILO, cases associated with right to strike

17 Art. 5 of Ch. 1 of the American Labor and Management Relationship Act (1947) provides that "except as otherwise specified in this law, no part of this law shall be interpreted in a way as to interfere, impede or reduce the right to strike, or influence the extent or scope of the right to strike. " The meaning of the word--'strike' includes any strike, other unanimous actions of stoppage of work and slow-down, and other actions of interrupting production held by employees.” Section 1, Chapter 1 of the Labor Law of France (1973) provides that "strikes shall not undermine the employment contract, except that the employees have a serious fault"; " strikes may not be used as the basis for the employer to take discriminatory measures against the employees in remuneration and social benefits". The Trade Union law of Poland stipulates that "the trade union has the right to organize strikes on the basis of the principles of this chapter ". Ch. 2, Art. 14 of the " Law of the Russian Federation on Trade Unions and the Protection of their Rights and Actions" (1995) provides that "a trade union has the right to organize and initiate a strike, gathering, assembly, parade, or demonstration, to organize pickets and take other collective actions to safeguard the social and labor rights and interests of workers according to the law". Art. 7, Ch. 1 of “The Labour Law of the Socialist Republic of Vietnam " ( in 1995 ) stipulates that "employees have the right to organize strikes according to law".18 Art. 6(4), European Social Charter, 1961 19 8th article, International Covenant on Economic, social and culture rights, 1966 20 28th article of 4th chapter, Charter of Fundamental Rights of the European Union, 2000

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are the most common cases. The committee of freedom of association of the executive council of ILO, which is responsible for dealing with this kind of cases, also regards the action of strike in the scope of legal rules and regulations is an important means that workers and their organization defend or improve their socio-economic interests; the action of strike is one right of the labor organization, according to the 87th International Labour Convention.21

As far as the general legal nature is concerned, as one component of civil rights or human rights, right to strike embodies the right of freedom with nature of public right. It is a right stipulated by constitution in democratic states and one content of civil right of freedom, so it is also called right of freedom to strike. The meaning of right to strike, as a right with freedom to take stipulated by constitution, lies in that the behavior of labors’ strike could not be excessively prohibited or restricted by state or other public institutions. Some theorists contend that strike is a kind of right in the hierarchical relations between labors and the state; while in the horizontal relations between labors and their employers, it is an execution action but not a kind of right.22 Contrarily, I argue that because the implementation of strike has made the employer as the concrete object, the employer has the mustn't obligation not to influence the implementation of right to strike. Thus there is a substantial right-obligation relation between labors and their employers.23

This is because, as a labor right, as far as its legal nature is concerned, the right to strike belongs to the category of the social right, which possesses simultaneously the characteristics of public and private rights. The right embodies the labor right to subsistence corresponding with the property rights of employers. The occurrence and implementation of right to strike coexist with the corresponding right of employer. The right corresponding with the right to strike is employers’ right to lockout. Right to strike and right to lockout are called the right of collective action or right of industrial action. This right refers to that both sides of the labor and capital in the labor relations have the right to take collective actions to hinder the normal work of the enterprise by strike or lockout for the sake of exerting pressures on other side to compromise and achieve their own ends24. According to the equal principle between the labor and capital, collective dispute is not the special right of labors, but belongs to both the labor and capital. But this right has more direct effects on labors, so in most cases we refer to the collective action of labors in reality, which includes strike, petition, assembly, and demonstration, etc. in a more narrow sense, it only refers to strike right.25 In practice, the right to strike and right to lockout both take effects in the legal relations between labor and capital.

21 Wang Jiachong, 1991, Outline of International Labor Convention, China Labor and social security publishing House, PP 332. 22 Shi Shangkuan, 1978, Previous Research on Labour Law, Taiwan Zhengda Publisher, PP 248. 23 I have special discussion on the law nature of the basic labor rights and the effect of the state and employers in the course of implementing the right. The detailed content is in my paper “Research on legislation of unfair labor practice”, 2002, Chinese social sciences, Vol. 5, PP73-7424 Takeuchi yoshio and etc., New Dictionary of Jurisprudence, yuihikaku, the 1st year of Heisei, Japanese edition, PP 952. Or Wei Min and Xu Jifeng, 1999, Problem of Labour Relations and Labor Disputse, Taiwan National Open University Publisher, PP 29525 For example, Constitution of Japan stipulates: " guarantee the right to organize of labors, the right to collectively negotiate and other right of collective actions. " Constitution of Republic of Korea also stipulates:" for improving labor conditions, workers have rights to organize trade union freely, collectively negotiate and collective action. " right of collective action " here chiefly refers to the right to strike.

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To confirm the right to strike is in fact to confirm the legitimacy of strike. To strike legally or the legitimacy of strike generally must meets the following preconditions:

The strike must be organized by the trade union, because the right to strike is an important component of right to organize, and the means of guaranteeing the collective bargaining.26 The right to strike is based on labors’ right to organize, and the implementation of right to strike should be carried on by trade unions. The subject of right to strike, similar to the right of bargaining, is enjoyed by labors through trade unions. Labor is the substantial subject while the trade union is the symbolic subject. In the implementation of right to strike, the association between labors and trade union is much closer than their association in bargaining, which is because in bargaining the trade union can join by itself and it does not necessarily require the participation of labors, however for strikes, the labors must participate in the action by themselves and the trade union could only serve as an organizer. Labors and trade unions must cooperate together to achieve the goal of strikes. Otherwise, the right to strike could not be implemented. In those countries that the legislation of the basic labor rights is fairly perfect, those strikes that are not led by trade unions, but spontaneously organized by labors themselves, and non-organized strikes are called “wildcat strike.”27 In fact, the “wildcat strike” damages the right to organize and abuses the right of dispute as well as harms the right of other labors, thus does not meet the basic qualifications of legal strikes, and is not protected by law.28 Here “not protected by law” mainly means that this kind of strike does not have the qualification of exemption from criminal and civil punishment.

The purpose of a strike must aim at concluding a collective contract. The legislation of strikes in many countries clearly stipulates that the legal strike must aim at signing terms that can be stipulated by a collective contract. The basic effect of strike is to exert pressures on the other side and to urge them to sign a collective contract in order to harmonize labor relations. After the collective contract takes effect, both parties of the contract have the duty of keep peace. Thus, if labors initiate a strike over the contents that have already been agreed upon in the collective contract, the strike is illegal. Only those strikes that points to conflicts or disputes outside the range of the collective contract or unsolved in the contract could possibly be valid. If there are disputes during collective bargaining, a new collective contract may be signed if the disputes could be solved by negotiation and both sides could compromise and make agreement. Otherwise the labors may pursue their ends by strike. However, political strike does not aim at signing a collective contract. It has some demands toward the institutions of the state. Therefore most states regard such kind of strike illegal.29

Strike must guarantee the stabilization and the safety of the social and economic order.

26 Right to organize has two kinds of understandings ----In narrow sense, the right to organize only indicates the right that worker organize trade union, and in broad sense the right to organize still includes right to bargain and right to strike besides the right to organize. Please refer to Takeuchi yoshio and etc., New Dictionary of Jurisprudence, yuihikaku, the 1st year of Heisei, Japanese edition, PP 952.27 Wei Min and Xu Jifeng, 1999, Problem of Labour Relations and Labor Disputes, Taiwan National Open University Publisher, PP 288. 28 Numata inejiro and etc., Code on labor law incident, Labor shunposha, December 1979 , Japanese edition, PP 966. 29 Hang Yueqin, 1994, Theories on Labour Law, the Institute for Labor Research at Taiwan National Chengzhi University, PP 343.

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So when strikes probably influence the social interest, legislations of strikes in many countries have many confinements to it. These confinements include:

(1) The confinement of occupations. It mainly stipulates the government officials, employees of the state-owned enterprises, and other employees that work in the public sectors should not hold or participate in industrial actions, such as strikes, slow-down and sit-in strike (jingzuo). People disobeying it will suffer the administrative sanction of removing from office or dismissal, and people seriously violating it will take criminal responsibility. But arguement still exists in academic circles as for rationality of this confinement.30 (2) The confinement of trades. It chiefly restricts strikes in the trade of public utility, concerning the national economy, people's livelihood, and national security etc, especially including transportation, post and telecommunications, coal gas, public traffic, medical treatment and war industry etc. Some restrictions is to the critical departments of some trades, for example, in strikes happened in the mine, the departments of generating electricity and ventilating must not participate in so as to guarantee the safety of the mine pit and people that do not participate in strikes. (3) The confinement on types of strikes. Generally, almost laws of each country prohibit political strikes. But whether sympathy strike and joint strike induced because of occupation interests are legal, the regulations of each country are not consistent. And argument exists in scientific principle. Some scholars think as long as the purpose of sympathy strike and joint strike is striving for the same working condition, it is legal; and other scholars think these strikes don’t directly involve in collective contracts of their own department, so they are not legal.31

A legal strike has the advantage of being protected by specific laws, which is mainly shown by the exemption from civil and criminal punishment of legal strikes.

The exemption from civil punishment involves the scope of legal effect of strikes in the private law. During strikes, the labor and employer can not enjoy their rights or fulfill their obligations in the labor contract, which certainly will result in some economic losses of employers. Before the legislation of right to strike, labors have duties to compensate for the employer’s losses. But after the strike is stipulated as a legal action, labors can employ the public right nature of right to strike to refuse the employers’ claim of compensation, and labors need not take duty in private law. I.e., labors don’t need to take the duty stipulated by labor contracts during strikes, according to the law of right to strike. For example, Japanese law clearly stipulates: “when the joint strike or other antagonism action leads to losses, and if it is legal, employers must not claim compensation from trade unions or members of trade unions.”32

There are two reasons why right to strike has such exemption from civil punishment: first, similar to other basic labor rights such as the right to organize and right of collective bargaining, the object of charge in the right to strike is not only limited to the nation, but also includes the third party (Drittwirkung), i.e., it also has legal effect concerning the relation between the private world of labor and capital. Laws admit trade unions and their members to exercise the right in the private law, and protect the right encroached in the

30 Yasueda hideyosgi and Nishimura kenichiro, 1995, Labor Law, yuihikaku, Japanese edition, PP 30631 Shi Tanjing, 2000, "Analysis on Labor Disputes and Legislation of Strikes of China”, Law research, Vol.2 32 8th article in second chapter, Japanese Trade Union Law, 1945.

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private law.33 Second, owing to the characteristics of right to strike itself, namely, existence of this right is in order to restrict the right of capital, to realize the right equity and form the really equal contract relation between the labor and capital, which is consistent with the effort directions of legislation of state and society. Thus, it should be protected.34

Along with the exemption from civil punishment of strike, labors who participate in the strike also lose the right to ask for wage from the employers. But controversies arise regarding whether those workers that do not participate in the strike but could not work normally can ask for wages. Some argue that they should have the right to ask for wage since they could not work just because the abnormal working conditions caused by strike participants. Others contend that they should not ask for wage simply because they do not work.35

The so-called exemption from criminal punishment means the participants need not to take any criminal liabilities if they conduct strike actions legally. Before the legislation of right to strike, workers need to take criminal responsibilities. For example, Law of Association Prohibition enacted in 1799 in Britain intends to prohibit workers organizing any association and strike. If someone violates this regulation, he will be punished. The exemption from criminal punishment of right to strike is mainly for the state, namely, for legal strike, state can not indict strike participants for harming public order, harming the social and economic order, or harassing and coercing the general public, etc. But this doesn’t include the illegal strike.

3. Condition and the Characteristics of Collective Disputes and Strikes in China

Since the reform and open-door policy was carried out, China has experienced the third peak of occurrence of collective disputes and strikes. Different from the first peak of occurrence of strike shortly after the foundation of PRC in the 1950's, this time the period of high occurrence rate of strike has lasted for move than 10 years, and the trend of high occurrence rates still holds. When we make law on strikes in China, we should first analyze and accurately grasp the condition and characteristics of collective dispute and strikes at present in China.

Labors’ collective actions, such as petition, demonstration, assembly, parade, slow-down, stoppage of work and strikes, etc. were formerly regarded as "creating a disturbance." Later, since "creating a disturbance" clearly has derogatory sense, it isn’t used any more. Instead, it is generally called “unexpected incident” or “collective incidents.” The concept of “unexpected incident” or “collective incidents” only is one kind of description of the phenomena. In fact, these incidents are generally collective actions that the labors adopt in order to strive for the economic rights and interests of themselves, so in the standard meaning of law, it is more appropriate to be called “collective dispute action” or “ industrial action”.

33 Sumita kunio, Nishitani hitoshi and Kikuchi takashi, 1992, the 2 nd chapter of teaching materials: collective labor law, yuihikaku, Japanese edition, PP 12534 Shi Shangkuan, 1978, "Previous Research on Lbour Law", Taiwan Zhengda Publisher, PP 251-25235 Yasueda hideyosgi and Nishimura kenichiro, 1995, Labor Law, yuihikaku, Japanese edition, PP 296

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Collective dispute action of labors refers to industrial actions including petition, demonstration, assembly, parade, slow-down, stoppage of work and strike, etc. Strike is only one kind of these collective dispute actions. At present, there is no one kind of official statistical figure or statistical index about strike inside the scope of the whole state. Statistical figures of strikes are generally included the statistical figures of collective dispute. So, study on strikes can only be done according to various local documents and case study provided by related researchers. The collective dispute actions including the strike that occur in recent years in our country have the following characteristics:

Firstly, from the view of the frequency of occurrence and number of participants, they tend to go up continuously. According to the statistics of the Supreme Court of PRC, from 1995 to 1999, cases on labor dispute accepted by courts of all levels across the country increased 26.9% per year on average. Now we are confronted with the peak of high occurrence of labor disputes, and the scope of accepted cases on the labor dispute increases with each passing day, and the main body and content of labor dispute also become more and more complicated.36 Most of cases on labor dispute that courts accept are difficult cases or cases on collective labor dispute. According to the analysis and statistics of experts from the Ministry of Labor and Social Security, the number of strike participants in the 5 years--- from 1990 to 1994 are: 243000 persons, 288600 persons, 268400 persons, 310300 persons and 495600 persons respectively. It had been doubled in 5 years, and the rate of increase is the highest among the 17 states and areas, which have been investigated on.37 Among these strikes, the longest one lasted 40 days, and the largest number of participants is 3900.38

Besides, there have appeared the tendency of joint strike, for example, after 1700 person starting strike in a certain company of Zhuhai city in 1994, the related enterprises nearby also rised in swarms to strike, and the number of participants added up to 4500 shortly.39

According to the Statistical Yearbook of Trade Union, 120190 cases of labor disputes had been accepted till 1999 across the whole country, among which there are 9043 collective dispute cases, accounting for 7.5%. But among the 473957 labors as parties concerned, the number of labors concerning collective disputes is 319241, accounting for 67.3%. These data indicate in the labors involved in the labor disputes, more than 2/3 participated in collective disputes. Secondly, among 319241 labors participating in collective disputes, the staff and workers of state-owned and collective enterprises are 99894 persons, accounting for 31.35%; the other 219347 persons are basically labors from non-public sectors, accounting for 68.7%. These data indicate that among labors participating in collective disputes, more than 2/3 are from non-public enterprises.40

Secondly, from the view of the nature of collective disputes, most are triggered by the

36 The Supreme Court, 2001, "the Explanation about Drafting (the Explanation about Several Problems in Judging Cases of Labor Disputes (Manuscript Soliciting opinions) ", on 14th February37 Task team of the Chinese Institute for Labor Science，1997, “the Reasons and Countermeasures of Paroxysmal Incidents in Labor relations”, appendix 5: “the scales of strikes and struggles in some countries and areas”.38 The federation of trade unions in Fujian province, Novembe1997, “The investigation on the situation of paroxysmal incidents of all staff and workers in Fujian province”39 Task team of the Chinese Institute for Labor Science，1997, the Main Report of Reasons and Countermeasures of Paroxysmal Incidents in Labor relations.

40 the Chinese statistic yearbook of trade union, 2001, China Statistics Press, PP 80-81

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encroachment of the economic interests or basic rights of labors, and such problems remained unsolved for a long time. So the direct purpose of collective disputes is to defend the labors’ economic interests. While the disputes are conducted collectively, there are no claims of any new interest. So essentially they are still kind of right disputes, but not interest disputes.41 In the second quarter of 1996, there were more than 530 cases of strikes or collective appeals owning to the delay of wage payment, accounting for 42.6% of the total incidents. And in the third quarter, the incidents due to the same reason went up to more than 590 cases, or more than 42.6%.42 In 1999, the back pay ranked no.1 among all the reasons triggering strikes. And it became one of the most serious problems that endangered the stability and security of society across the country in 2002.43 In the state-owned or collective enterprises, owing to the inefficiency or bankruptcy of the enterprises themselves as well as policy-related problems, a large quantity of workers did not get enough wages to support themselves even for their basic living expenditures or the lowest living standard. Thus plenty of strikes occurred.44 While in private and foreign-owned enterprises, employers often intentionally reduce workers’ wages, or delay the payment of wages, or even escape without payment of the wages. Furthermore, they often violate the law or rules related to labor by firing workers illegally, forcefully asking for “risky fund” from workers, hitting or physically punishing workers, insulting workers, or restricting the freedom of workers. These are the major reasons that result in collective remonstrance against employers in private and foreign-owned enterprises.

This kind of collective dispute actions generally does not concern collective bargaining or collective contract, and is only for maintaining individual labor right and interest. The direct purpose of dispute actions is to satisfy some concrete demands of labors, but not to adjust or standardize the labor relations or social relations. So although the collective dispute actions often occur, and the conditions of labors can be improved slightly in the short run, the problem embedded in the institutions has not been solved, and the reasons leading to the conflict between the labor and capital have not changed. Thus after a while, the circumstance of strike seems to go back as usually it was.

Moreover, the direct purpose of strikes by labors is to defend their basic labor rights. In these actions, workers especially pay attention to avoid the involvement of political factors. For example, in a petition, workers of certain region in Sichuan province presented the slogan “do not ask for democracy but work” and “we are not rioters”45. These words seem to go to one extreme end a little bit, but from their motivations we can see that they took into account not involvement of political factors. Generally speaking, most labor

41 126th article, Implementary Rule of Labour Relation Law of Britain, 1972, The collective disputes under the market economy generally can be divided into two kinds ------the right dispute and interest dispute, the right dispute occurs centering on the implementation of labor rights that have been stipulated by the law or collective contract, while the interest dispute occurs because labor condition need to be defined or changed. Most of collective disputes in nations with market economies is interest disputes.42 Zhang Ruiling, 1997, "Reason and Countermeasure of Paroxysmal Incidentd in Labor Relations ", Chinese Communication on Labour Law, the secretariat of Chinese institute of labour law ", Vol. 243 Commentator's essay, 2002," Back pay is a Serious Problem Influencing Social Stability ", Workers’ Daily, on 7th February.44 The large-scale worker’s petition occurring in cities such as Daqing, Liaoyang etc. in the northeast of China in spring 2002, is created by the mentioned reasons above.

45 One president of trade union who personally experienced this incident told me this. Speaking of the countermeasure and the situation of workers, this president sighed with emotion.

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dispute actions of China do not have specific political purposes, and are the kind of economic actions that labors intend to safeguard their own rights and interests. In the 4 th

Meeting of 9th the Chinese People's Political Consultative Conference (CPPCC), people from the Committees of Social and Legal Affairs in the National Committee of CPPCC pointed out: “the collective dispute incidents are mainly owning to the conflicts of the economic interest inside the people.”46

Thirdly, from the view of organizing ways of the collective dispute，spontaneity is one of its important characteristics. The so-called "spontaneity" has two implications. One is that the collective action is not plotted by persons or organizations other than the participants, but just the common interest of participants themselves lead to the collective action. Because most reasons leading to collective dispute actions have been accumulated for a long time, when the resentful and the oppressive mood is irritated by some incidents, it tends to induce the action of resistance or struggle. For example, the managers and security personnel of a Taiwanese shoemaking company in Shenzhen frequently punished workers physically and embezzled their wages. Finally more than 3000 workers in this company went to strike. They pounded glass, set fire to rubbish, shouted loudly and demonstrated inside the factory to show their remonstrance.47 The other implication lies in that the strikes are not directed or controlled by organizations. However it does not mean that the incident does not have worker leader or a key figure. Contrarily, in some large-scale collective dispute actions, there are always some core members that are capable of organizing activities, selfless, and prestigious serving as the backbone of the collective dispute. Otherwise we can hardly imagine that the collective action participated by thousands of persons could last tens of days orderly. For example, in a company invested by Japanese in DaLian, the workers complained about low wages for several times, but the employers just neglected those complaints. Finally the workers rose up and they held a strike with more than 6000 participants. After two and a half days, the general department of the company in Japan hurried to declare that they would like to satisfy the workers’ demands, and the workers ended the strike with success. However, even until today nobody beyond the participants knew who were the leaders of this strike.48

4. Collective Disputes and Trade Unions

At present in China, generally speaking, the trade union does not participate in collective dispute actions, which is different from that of states with market economies.

There are two reasons that lead to such circumstances. Firstly, many private and foreign-owned enterprises haven’t established any trade union, and workers have to take actions by themselves. For example, in Shenzhen, more than 90% of collective dispute actions in these enterprises such as slow-down and strike, etc. have nothing to do with the trade union. Secondly, although there are trade unions in some enterprises, they cannot get the trust of workers, since the trade unions cannot safeguard rights and interests of the staff

46 Wang Daming, 2001, " Correctly Dealing With the colony incident ", People’s Daily, on 10th March47 Sha Huanyu, 1997, “Reason and Countermeasure of Paroxysmal Incident in Labor Relations”, Chinese Communication on Labour Law, the secretariat of Chinese Institute for labour law ", Vol.2.48 I once investigated the incident in this company, and some concerned persons said the incident was initiated and organized by some middle-level managers, but they did not know whom on earth.

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and workers very well or are controlled by employers. Thus generally when a strike occurs, workers abandon the trade union and go on by themselves. From the perspective of the trade union, because the law does not authorize them to organize strikes, trade unions are confronted with a dilemma situation when workers apply for strikes. If they stand on the opposite side of workers and oppose or dissuade workers from strikes, they would be criticized as “traitors of workers.” However if they support and lead strikes by standing on the side of workers, they are afraid of violating the rules and are punished by their leaders. Thus trade union can only serve as an “outsider” by mediating between labors and the enterprise managers. But this is not consistent with the requirement that the labor law stipulates neither: " the trade union represents and safeguards the legitimate rights and interests of labors ".49 The fact that most trade unions did nothing in strikes directly influences their image and prestige among workers, which further influences the formation and the adjustment of collective labor relations.

But one trend that needs to be paid attention to is that not all trade unions hide their standpoints when workers strike. A few chairmen of trade unions stand together with workers at crucial moments, and lead workers to struggle against employers with the means of strikes. A good case in point is the strike in Beijing Microfits Precision Electronics Engineering Co., Ltd, a joint-stock company co-invested by China and Singapore in Tongxian county. Because the general manager of this company from Singapore has delayed signing the labor contract and collective contract for a long period of time, and did not provide security facility for workers and led to many injuries, and insulted the workers from time to time, the relations between workers and employers became worse and worse rapidly. In March 1997, the workers requested the trade union to take collective actions to force the company to hold collective bargaining, and claim that if the trade union did not agree with this they would take collective actions by themselves. The president of the company’s trade union got support from the general trade union of the county and accepted the workers request. He decided that the company’s trade union organized the workers to stop working from March 19. During the strike, the trade union distributed To All Workers, which requested all the workers during the strike: (1) must not damage the property of the company. Otherwise the workers should take responsibilities by themselves; ( 2 ) must obey the order of the trade union and assembly at the designed time and place; (3) when will the workers return to work must be decided by the plenary meeting of all workers. Any other organizations or individuals have no right to make the decision. During the strike, both sides of labor and capital carried on arduous bargaining cooperated by the general trade union and bureau of labor in the county. During the bargaining, representative of trade union listed plenty of facts that the employers encroached on workers’ rights and interest, and put forward four conditions to return to work: the company should clearly specify the time of signing collective contract and the individual contract of employment as well as the time of providing security facility; the company should formulate a wage system that suits the current production condition; the general manager of the company from Singapore must make an apology to all workers for his abusing the workers. Under the pressure of strike, the capital side completely accepted all the demands of the workers in the end, and admitted that the primary reason of this strike was caused by themselves and agreed to pay the full wages to workers during the strike, and the company must not find any excuses to

49 Chang Kai, 1988, “Investigation and Analysis of Strike Movement”, Vol1,Corpus on Contemporary Trade Union , Worker's Publishing House of China, PP 56

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revenge and dismiss workers. Both sides also agreed to sign the collective contract within a week after the workers returning back to work. Both labor and capital signed on The Agreement of Returning to Work on the afternoon of March 24th, and all staff and workers formally returned to work the next day. Up to this point, this collective action led by trade unions achieved a complete success.50

This probably is the only case that the trade union led strike and gained success finally in China. Besides the personal character of the president of this trade union, the major factor of success should be owing to the general trade union of the county as a higher level trade union and the concerned departments that dare to support and take responsibilities. This kind of circumstances is very seldom seen across the whole nation. Most trade unions did nothing and accomplished nothing in labors’ strikes, which not only influences the image and prestige of trade union, but also directly hinder the formation and adjustment of collective labor relation. Because if the trade union has no right to strike, the collective bargaining can not be guaranteed, and the right to organize also only exists in name but not in reality. Furthermore, the labor relations would be also short of one kind of restrictive force and means that keep balance.

If the system of labor law is standard, the right to collective dispute of labors should be concretely exercised by the trade union. But because the laws of China do not clearly stipulate that workers or trade unions enjoy the right to strike, while the strike is an inevitable phenomenon, so that the strike of China has the characteristics of “spontaneous” and “disorder”. This kind of spontaneous strike or other spontaneous collective action possesses the nature of “outburst” and “uncontrolled”. Once it is be dealt with suitably. For example, if the government uses force to suppress workers, it would promote conflicts, and change the conflict in the labor relations to the conflict between workers and the government, even to the conflict of the whole society, thus makes it possess political features. From this point of view, evading legislation of right to strike is not the way of solving the problem of strikes, but on the contrary, it would make the conflicts more complicated.

5. Considerations of Improving the Legislation of Right to Strike in China

In China，the occurrence of collective dispute actions, especially strikes, has become a more and more universal socio-economic phenomenon. After China’s entry into the WTO, the upward trend of this action would continue. How to guarantee the right to strike of labors by legislation has been a very urgent task in the labor legislation in China.

50 The federation of trade unions of Beijing Changping county, 1997, "persist in the policy of leading, and definitely safeguard the legal rights and interests of staff and workers according to the law---- the beginning and end that the trade union of Beijing Microfits Precision Electronics Engineering Co., Ltd leads staff and workers to stop work and negotiate with the employer ". I got news soon after the incident occured, and concerned the course of incident. The Chairman of Federation of trade union of Changping county that support the incident----Wang Lu is my friend. After the strike ended, I got this report of the Federation of trade union of Changping county. But some concerned persons warn me: don’t quote this incident in teaching or articles. Although I think that this is a successful case with great meaning that use laws to safeguard the interests of staff and workers, and should be publicized greatly. But for preventing adding trouble to parties, I still abide by promise and hide this valuable material to the box bottom. Now, 5 years has passed away, and the information as historical document should be declassified with the strengthening of system of labor law.

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But some scholars put forward that if not revising the constitution, legislation of strike is short of legal basis. I think this reason does not hold, because not all rights only are written in the constitution, other laws can do the concrete regulations. Those rights written into the constitution indicate they are the citizen’s rights in constitution, and their administrative levels are higher and the scopes of main body are more extensive. But as long as a right is not prohibited by the constitution, other laws still can stipulate it. Compared with the rights stipulated by the constitution, it doesn’t belong to the constitutional right, but is a particular right for a particular group of people.

In fact, at present, implementing the legislation of strike has had the legal basis in China. The Standing Committee of the National People's Congress ratified "International Covenant on Economic, social and culture rights " in February 2001. The 1st article of the 8th section of this Covenant stipulates: “(Labors) have the right to strike, but should exercise this right according to the law of each nation. " In the statement China presented at the same time of ratifying this pact, no special explanation was made to this content, which indicates this international law possessed the forced effect of domestic laws in China. The regulation has dual implications for the legislation of right to strike in our country. Firstly, the regulation that " has the right to strike " can be regarded as the legal basis of legislation of right to strike in China. Secondly, the regulation of “this right should be exercised according to the law of each nation” suggests our country shall have the concrete legal regulation of right to strike.

Right to strike is a basic human right in the Covenant on International Human Rights, and also is the basic content of the right of collective dispute between the labor and capital. This involves with an important content of legislation of strike, namely, the position of right to strike in the system of citizens’ rights in our country. I thinks that the human rights or rights in constitution must be specified, otherwise it would exist in name but not in reality. In our country, the legislation of strike should be brought into the system of labor law, but not restricted as a kind of general human rights or constitutional right. Although the “constitution " in 1975 and the "constitution” in 1978 of our country also stipulate "the freedom of strike," but because there wasn’t more concrete legal regulation, especially had not "labor law" or relevant regulations, the meaning of this kind of constitutional right even more lies in the “declaration” rather than in implementation.51 So in the general meaning, the legislation of right to strike is the need of perfecting human rights or civil rights. In straightforward, it is the need of perfecting basic labor rights, especially the need of perfecting right to organize and right to collective bargaining.

The legislation of right to strike is the important content of labor legislation. In the system of labor law, right to strike is not a single or isolated right, but the organic content of the system of labor rights. Right to strike, the right to organize and the right to collective bargaining jointly form "basic labor rights". These rights are interconnected and take effect mutually. Among them, right to organize is a basic, right to bargain is the core, and right to strike is to guarantee the right to bargain. As the basic content of labor rights to collective dispute, the right to strike is the last and highest struggling means of labors in the dispute

51 Shi Tanjing, “Analysis on labor dispute and the legislation of strike of our country", law research, Vol 2, 2002,

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between the labor and capital.52 As one kind of labor right that helps and defends labors, the effect of strike depends more on "deterrent". As long as labor holds this weapon, which is one kind of pressure and restrictions on employer, it forces the employers to deal with the labor relations more carefully and prudently. The implementation of the right to strike closely relate to the right to collective bargaining. Under normal circumstances, only when the bargaining fails, or the collective contract fails to perform, or the rights and interests of labors have suffered or will suffer encroachment, and cannot be solved by bargaining, labors can implement the right to strike. The direct purpose of strike is signing or performing collective contract or other pact. Strike is the major means that labors restrict employers’ refusing bargaining and non-honest bargaining in the course of collective bargaining. In China, if without the guarantee of the right to collective dispute, especially the right to strike, the system of collective bargaining is very hard to be put into effect. Therefore the legislation of right to strike in China should be combined with the legislation of collective contract. This can not only avoid the vague comment of the legislation of right to strike, but the stipulation of the nature, effect and position of the right to strike will be fairly clear, and the implementation and the restriction of the right would be also more easily regulated.53

So，as one important part of collective labor right，right to strike with other contents of collective labor right should be considered together as a bunch of rights or a whole system of rights to make legislative plan. At the same time, taking into account the equal principle of labor relations, I think if the legislation of right to collective dispute can contain right to strike, it is more in favor of forming one kind of right system of labor dispute. The significance of doing so lies in: firstly, make it clear that right to strike is one part of rights to collective dispute, and is the right exercised in the collective dispute; secondly, correspondingly the employers also enjoy the right to lockout; thirdly, the implementation of the right to collective dispute should follow the procedure that deals with collective disputes.

The legislation of right to strike not only involves the legislative theory, but also involves the opportunity and the condition of the legislation. This mainly involves two concrete conditions:

Firstly， legislation of right to strike must have a corresponding legal environment, especially relatively perfect system of collective contract and labor dispute settlement. The system of collective contract in our country has been built recently, but still is not

52 The labor right to collective dispute also includes right to slow down and right to picket in overseas works on labor legislation or labor law. Task team of the Institute for Chinese Labor Science，1997, Reason and Countermeasure of Paroxysmal Incidents in Labor Relations, appendix 4： "Law System about Industrial Actions in Europe and North America ", Or Wei Min and Xu Jifeng, 1999, Labour Relations and Disputes, Taiwan National Open University Publishing House, PP 286-29153 When the Ministry of Labor and Social Security presided over drafting "collective contract law of People's Republic of China", whether introduce the concept of industrial action and how to define, implement and restrict this right, is a content that experts discussed repeatedly. For example, in Apr 1997, in the seminar on legislation of collective contract presided over by the Ministry of Labor and Social Security and I participated in, “the regulation and decision-making procedure of industrial action, and the means, scope and procedure of state intervening industrial action” is one of items on the agenda.

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standardized. In the systematic design and concrete regulation of procedure of labor dispute in our country, collective disputes with the trade union as the main body were not taken into account. The concerned rules stipulated: “if the dispute occurs between the trade union and the enterprise because of signing the collective contract, they should consider to solve the problem by negotiation; if negotiation doesn’t work, they should submit it to the higher level trade union or the labor administration department of the local government for arbitration,54 namely, the dispute owning to signing the collective contract cannot enter the processing procedure of labor disputes. Yet the disputes due to performing the collective contract could do so according to the concerned regulation. But in “Regulations of the People's Republic of China on labor dispute settlement”, there is no regulation about the processing of dispute of collective contract, even according to the regulation that “enterprise and workers are parties of the case of labor disputes”,55 the trade union of enterprise is not a part in labor disputes, thus it is doubtable whether the case can be accepted. So, the legislation of strike needs the revision and perfection to concerned law and regulations.

Secondly, whether the trade union of enterprise really represents workers’ interest is another condition of legislation of strike. The standard strike should take the trade union on enterprise level as the legal organizer of strike. But at present the trade union of our country, especially the trade unions in non-public enterprises, has not become an organization that really represents labors’ interest and is independent of employers. So whether it can undertake the duty of organizing collective disputes or strike is still not sure. If the trade union enjoying the right of organizing is not willing to or cannot organize strikes, workers cannot hold the spontaneous strike either, because the spontaneous strike that isn’t organized by labor union will be illegal. Under such circumstances, legislation of strike is to restrict workers’ right to strike rather than to offer them right to strike. In the period of “empty shelves” that law evades strike, labors still can go on the spontaneous strike. But after the legislation of strike, the spontaneous strike will be prohibited. So the legislation of strike must be adaptable with the marketization and legalization of the trade union of our country.

The legislation of right to collective dispute or right to strike must make it the basic starting point that guarantees the basic rights and interest of labors, and maintains the stability of the society. We should be aware that legislation of strike leads to prohibiting or restricting strike. According to the realistic circumstances of China, the legislation of strike should take the strategy of being positive and stable, consistent with corresponding laws, and step by step. It should be admitted that the concerned regulation on dealing with strike and slow-down in "trade union law" in 2001 has stepped one stride forward in the process of the legislation of right to strike. This law stipulates: "If stoppage of work and slow-down occur in enterprises and public institutions (shiyedanwei), the trade union should represent staff and workers to negotiate with the enterprise, public institutions or the concerned parties, reflect the opinion and request of the staff and workers, and put forward the opinion of solving the problem. As for the reasonable requirement of staff and workers, enterprises and public institutions (shiyedanwei) should satisfy their demands. The trade union should

54 The Ministry of Labor and Social Security, 39th article in the 8th chapter, Regulation on Collective Contract, 199455 Articles 2,3 in first chapter, Regulations of the People's Republic of China on Settlement of Labor Disputes in Enterprises, 1993.

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cooperate with enterprise and public institutions (shiyedanwei) to recover the production order as soon as possible."56 In spite of not directly using the concept of “strikes” in this regulation, here the so-called “the incident of stoppage of work and slow-down collectively” clearly refers to strikes. The straightforward meaning of this law clause includes: firstly, the incident of stoppage of work and slow-down is protected by the trade union law, which shows after the incident occurs the trade union can represent staff and workers to put forward requirements. And the enterprise and public institutions should solve the reasonable requirements of the staff and workers. Secondly, it make definite that the status of the trade union in the incident was “representing the staff and workers” to participate in dispute processing, and "trade union law" in 1992 stipulates that trade union “and the enterprise administration” jointly deal with the incident. The above regulation further approved the validity of spontaneous strikes of labors, and also makes it clear that the status of the trade union as subject representing the staff and workers to deal with strikes. This regulation fits not only the principle of legislation of right to strike, but also the realistic requirement of legislation of right to strike in our country.

But this regulation of “trade union law” in 2001 is obviously transitional in nature. There are still a big gap between it and the requirement of the legislation of strike under the condition of market economy. In which, for instance, strike is decided by labors but concretely exercised by the trade union, and the implementation of the right to strike should relate to the collective negotiation, etc. Moreover, this kind of regulation about right to strike is only a passive approval rather than active entrustment, and do not clearly stipulate whether the labors or trade union enjoys the right to strike. So we cannot have the detailed rules and regulations that can be taken into effect according to it. To a certain degree, this regulation is still one kind of temporary method with the legal principle. But as for the significance of legislation of the right to strike, as some scholars pointed out: " in fact this is paving the way for recovering the right to strike. "57 The legislation of right to strike of our country should be improved step by step based on this.

As far as the level of legislation is concerned, when the conditions of legislation of right to strike in the national level is still immature, the strike phenomenon that exists in the reality should be protected and normalized by the regional legislation, and also be brought into track of legal system. Some districts have done useful trials and gained good effect. When opportunity is suitable, we can generalize some regional regulations with the universal meaning upward for the national legislation, and clearly stipulate the right to strike as the basic right of labors in the labor law, and further as the basic right of citizens in the constitution.

In the applicable scope of law, we can firstly make the regulation on the strikes in private and foreign-owned enterprises, and clearly stipulate strikes as one kind of rights of staff and workers and trade unions in these enterprises. At the same time, we should make strict regulations on the organizing of strike, personnel participating in strike, the scope and time of strike, strike fund, picket of strike, and the procedure of applying for and ratifying strike, etc. Especially, we should clearly prohibit the political strike, and confine strikes in

56 27th article of 3rd chapter, The Trade Union Law of the People's Republic of China, 2001. 57 Qiao Jian, 2002, "Chinese Staff and Workers on the Foreland of Reform," Ru xin, Lu Xueyi and Li Pelin(ed.) Analysis and Forecast of Social Situation of China, Social Sciences Documentation Publishing House, PP 246

248 Chang Kai


certain extent and scope. After gaining experience from this, we can think of improving the legislation of right to strike in enterprises with other forms of ownerships, such as cooperative system, companies of mixed economy and so on. The legislation of right to strike of the staff and workers of state enterprise is fairly complicated, and need process more cautiously. Some people think in market economy the implementation of the right to strike should not be different according to the different enterprise types. In fact, it is a misunderstanding to equal the national treatment of the enterprise to the means of adjustment of relations between the labor and capital. Even in countries with market economies, the implement of the right to strike is different from the adjustment of labor-capital relations in state-owned and private enterprises.58 Of course, the regulation of the right to strike must be mutually related to "Law of Trade Union Organizing" and "Law of Collective Bargaining" etc, and form a complete system. At the same time, it should be especially think over the marketization reform of trade union and the actual effect of the trade union.

Finally, there is still a point of how to appraise the social consequences of legislation of strike that need explain. Some people are afraid that the legislation of strike will initiate strikes including a large-scale workers and lead to the social instability. Actually, this is one kind of misunderstanding of the legislation of strike. The legislation of strike does not really encourage easy-going strike, but normalize the strike. In our country, the strike phenomenon is one kind of objective existence, and it is caused by the conflicts between the labor and capital. Even if there is no legislation of strike, it is inevitable. But implementing the legislation of strike will make it have law and principles to follow and is easy to deal with. At present, the way that mixes the strike with the collective actions of different features such as parade and demonstration, etc, and generalizes them as “emergent events” only makes the problem more complicated, and increases the difficulty of solving problems. Strike reflects the conflicts between the labor and capital within the enterprise, but the action of parade and demonstration, etc. mainly involves the relation between the general public and the government. The obvious consequence of suppressing strike or not protecting the legal strike is to make the conflicts between the workers and employers become the conflict between the workers and the government. The result is that the government undertakes the duty of employers, which aggravates the instability of society. In market economy, one of the principles that deal with labor conflicts is to make the labor and capital autonomy subjects, and the government does not intervene in their disputes but supervises and coordinates with them outside their relations. From the experience of various countries with market economies, the implementation of the legislation of the right to strike is exactly the effective legal measure to correctly deal with the conflicts between the labor and capital, and effectively brings the effect of government into labor-capital relations, and successfully keeps the stability of socio-economic order in a long run.

First draft finished in the Law School at Beijing University in June 2001Final version finished in the Law School at Kyushu University of Japan in May 2003

58 For example, Japan enacted "Law of Regulating Labor Relation"(1946), as well as " Law on Labor Relations in State-owned enterprises " (1948 ), and the latter prohibits workers and trade unions from taking actions such as slow-down and strike that obstruct normal operation of the enterprise in some state-owned enterprises proscribed by law.

Chang Kai 249

The Legislation of Right to Strike in China · Web viewFor the regulation about right to strike...

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