中国 劳动法의 새로운 倾向

Abstract

China's legislature, the Standing Committee of the National People's Congress, passed a sweeping new labour law in June, 2007 that strengthened protections for workers across its booming economy, rejecting pleas from foreign investors who argued the measure would reduce China's appeal as a low-wage, business-friendly industrial base. This is the biggest change in Chinese labour law in the reform and opening period since the opening of the Baboo Curtain. It gives better legal protection to the vast majority of workers than the old system. The new Labour Contract Law(LCL), which became effective on January 1, 2008, also enhances the role of the Communist Party's monopoly union and gives more weight to the collective agreement system than earlier. The law is the latest step by President Hu Jintao to increase worker protections in a society that has emphasized rapid, capitalist-style economic growth over enforcing labour laws or ensuring an equitable distribution of wealth. The law requires employers to provide written contracts to their workers and employees can claim double salary for months worked without a contract for up to 12 months’ salary. It restricts the use of temporary workers and helps give more employees long-term job security. It also moves China closer to European-style labour regulations that emphasize fixed- and open-term employment contracts enforceable by law. It requires that employees with short-term contracts become full-time employees after a short-term contract is renewed twice. The LCL gives the union more active role, and it has demanded greater representation in private Chinese and foreign-invested companies. The new law also greatly limits the use of term contracts and probationary periods, previously popular ways to skirt China's existing labour law regime. Probationary periods are permitted, but the length is limited based on the term of the employment contract, with an absolute maximum set at six months. Furthermore, an employee can only be subject to a single probationary period by a single employer. Wages during the probationary period must also be no less than 80% of the contract wage. The LCL also clarifies requirements for employee non-compete agreements and a failure to abide by those renders the non-compete ineffective. Only senior management and other employees with access to critical trade secrets can be required to enter into non-competition agreements. Employers who fail to abide by the LCL face administrative fines, awards of double wages and liability for actual damages. More importantly, virtually every violation of the law gives the employee the right to sue the employer for penalties and damages in the local employment arbitration bureau or in the local people's courts. As part of this power shift [from employer to employee], the new law allows employees to sue and seek damages from their employers. This new law gives the individual worker and the worker’s union the right to go to court to independently enforce their rights. Chinese workers are increasingly aware of their rights, and they’re likely to take full advantage of this law to vigorously enforce them. An employer can terminate an employee without cause but must pay the employee double severance. Severance equals one month’s pay per year of service. With the implementation of the LCL the Chinese labour law makes a progress toward the general rules recognized by the global standard, but it remains mostly in the field of the individual labour contract. In this regard, the provisions of the LCL relating to the collective contract is a suggestion for the future development of the Chinese labour law. With the Employment Promotion Law and the Labour Dispute Settlement Law, which became effective in 2008 too, the LCL has got the position of the triangle of the modern Chinese labour law. After the implementation of the Social Insurance Law, which is now in debate, we would like to imagine the full picture of the Chinese labour law system.