Chinese Labour Law

Inhaltsverzeichnis

1. Frontmatter

2. Chapter 1. Basic Theory of Labour Law

   Yan Wang

   Abstract

   Sources of Chinese labour law are various and complex and may be easily understood from substantive and procedural perspectives. Understanding the characteristics of Chinese labour law helps to grasp it in an overall way. It is necessary to understand the scope of Chinese labour law from its subject matter’s perspective, and its subject matter should be understood in a broad sense, that is, a labour relationship and other social relationships closely related to a labour relationship. Protection of labourers’ rights, respect for autonomy in management and construction of harmonious labour relationships are the three fundamental principles that should be followed in understanding and applying Chinese labour law. Chinese labour law is a comparative independent branch of legal science. With the coming into force of the Civil Code of the People’s Republic of China (the Civil Code), it is more evident that Chinese labour law overlaps with Chinese civil law.

3. Chapter 2. Labour Relationships

   Yan Wang

   Abstract

   The concept of a labour relationship is the cornerstone of labour law, which defines the scope of application of labour law. The labour legal relationship is the mixture of equality and subordination and mandatoriness and autonomy and keeping it in mind may help to understand the reasoning behind the civil decisions involving labour disputes. The elements of a labour legal relationship include subjects, the subject matter and contents, that is, the rights and obligations of both parties. Identifying a labour relationship is the starting point of solving a labour dispute, and the establishment of a labour relationship should be judged in accordance with the Notice of Establishment of Labour Relationships, although it may seem insufficient today. Labour relationships in the context of the gig economy are more complex, which poses some challenges to the traditional approach to identifying the establishment of a labour relationship.

4. Chapter 3. Labour Contracts

   Yan Wang

   Abstract

   A labour contract is an agreement that establishes the labour relationship between a labourer and an employing unit and defines the rights and obligations of respective parties, which serves as the prima facie evidence that there exists the labour relationship and the basis on which a court judge makes a decision.

5. Chapter 4. Labour Dispatch

   Yan Wang

   Abstract

   Dispatch labour is an atypical employment relationship that involves three parties: a labour dispatch unit, a dispatched labourer and a labour-user unit. Accordingly, it tends to give rise to complicated legal issues. Labour dispatch applies only to temporary, auxiliary and substitute vacancies. The relationship between the labour dispatch unit and the dispatched labourer is subject to labour law, while the relationship between the labour dispatch unit and the labour-user unit is subject to civil law.

6. Chapter 5. Outsourcing

   Yan Wang

   Abstract

   Outsourcing is the delegation of noncore operations or jobs from internal production to an external entity. Human resource outsourcing and manufacturing outsourcing are common forms of outsourcing. Labour dispatch in disguise of human resources outsourcing is not allowed, which will give rise to legal liabilities under labour law. Most of the courts tend to judge the nature of outsourcing from the perspectives of the exercise of management power, the payment of service fees, and the party paying such fees.

7. Chapter 6. Employment of Foreigner Workers in China

   Yan Wang

   Abstract

   The employment of foreigner workers is subject to strict regulation. A work permit is necessary for the employment of foreigner workers. Unlawful employment of foreigner workers gives rise to strict administrative liabilities, and foreigner workers in unlawful employment cannot be protected by labour law. Eligible foreign workers may be subject to labour law and civil law, and they are entitled to social insurance benefits.

8. Chapter 7. Employment of Seafarers

   Yan Wang

   Abstract

   Seafarers play an important role in international trade and maritime transportation. The occupational security of seafarers is of the utmost importance and includes insurance, workplace security, paid annual leave and repatriation. The Maritime Labour Convention, 2006, known as the “seafarers’ bills of rights”, provides seafarers with extensive protection. China revised the Regulations of Seafarers of the PRC several times to align with the Maritime Labour Convention, 2006. It is unique that several types of seafarers’ claims are subject to maritime liens. The model format for seafarer employment agreements released by the International Labour Organisation and the standard contracts released by the China Maritime Arbitration Commission (CMAC) are introduced. Common practical issues related to the employment of seafarers are also discussed.

9. Chapter 8. Work-Related Injury Insurance

   Yan Wang

   Abstract

   Work-related injury insurance, the main part of social insurance, always gives rise to practical problems. Identifying work-related injuries is the first and most important thing, which is a tedious and sometimes lengthy process. The types of work-related injuries include statutory work-related injuries and presumed work-related injuries. The application of criteria for work-related injuries is complex. It is generally accepted that the three elements related to work, that is, working hours, a place of work and arising out of employment, are determinants for work-related injuries. In some special cases, a labour relationship is not a prerequisite to work-related injuries. Some practical issues are discussed.

10. Chapter 9. Legal Liabilities

    Yan Wang

    Abstract

    Legal liabilities under labour law vary and tend to overlap with those under civil law, administrative law and criminal law. The principles of the Civil Code should be limited in some circumstances. Tort liability and liability for breach of contract are common forms of civil liability. The Administrative Penalty Law sets out the types of administrative penalty, and the Labour Contract Law of 2012 and other administrative laws related to labour contracts also provide administrative liabilities. Common criminal offences in the course of employment are also introduced.

11. Chapter 10. Labour Dispute Settlement

    Yan Wang

    Abstract

    Labour disputes arise out of labour relationships and are the object of labour dispute settlement. In China, the forms of labour dispute settlement are consultation, mediation, labour arbitration and labour dispute litigation. The four forms are integrated, among which consultation and mediation are optional and labour arbitration is compulsory and is a procedural prerequisite to labour dispute litigation. The harmonious labour relationship depends on effective and efficient labour dispute settlement. Limitations in the Civil Code and the Labour Dispute Mediation and Arbitration Law are introduced. The practical issues are also discussed.

12. Backmatter