Article 4 of the Labor Contract Law lays down the right of the Staff and Workers＇ Representative Congress （SWRC） to deliberate on the formulation of （intra-enterprise） work regulations, but this has become a ＂s...Article 4 of the Labor Contract Law lays down the right of the Staff and Workers＇ Representative Congress （SWRC） to deliberate on the formulation of （intra-enterprise） work regulations, but this has become a ＂soft＂ law in judicial practice. The judicial criteria for judging the validity of work regulations are in essence determined by the judge＇s judgment on their reasonableness. As an important embodiment of Chinese politics, economics and culture, the transformation of the SWRC that accompanied the market economy has not negated its value as an indigenous traditional resource. The SWRC does not just enjoy deliberative rights in the formation of regulations, as clearly specified in constitutional law, but also has rights under the law in local legislation and practice. Hence the system of work regulations is neither a unilateral decision on the part of management nor a contract, but rather an autonomous norm developed through the SWRC mechanism. Given the mandatory nature of Article 4 of the Labor Contract Law, regulations will only be valid after they havegone through a democratic process. The further development of the theory of normative system formation should endow the SWRC with greater rights and integrate it smoothly with the collective contract system to standardize collective labor relations.展开更多
The Labor Contract Law classifies collective contracts as special labor contracts, ignoring the fundamental differences between collective contracts and labor contracts. This has plunged it into jurisprudential obstac...The Labor Contract Law classifies collective contracts as special labor contracts, ignoring the fundamental differences between collective contracts and labor contracts. This has plunged it into jurisprudential obstacles and institutional difficulties. In terms of the main entities, efficacy, dispute settlement mechanisms, etc. collective contracts have their own institutional characteristics. They should be incorporated into the legislative framework for collective labor relations in future legislation, and should link up with trade unions, collective consultation and collective dispute settlement to form a complete system of collective labor law.展开更多
文摘Article 4 of the Labor Contract Law lays down the right of the Staff and Workers＇ Representative Congress （SWRC） to deliberate on the formulation of （intra-enterprise） work regulations, but this has become a ＂soft＂ law in judicial practice. The judicial criteria for judging the validity of work regulations are in essence determined by the judge＇s judgment on their reasonableness. As an important embodiment of Chinese politics, economics and culture, the transformation of the SWRC that accompanied the market economy has not negated its value as an indigenous traditional resource. The SWRC does not just enjoy deliberative rights in the formation of regulations, as clearly specified in constitutional law, but also has rights under the law in local legislation and practice. Hence the system of work regulations is neither a unilateral decision on the part of management nor a contract, but rather an autonomous norm developed through the SWRC mechanism. Given the mandatory nature of Article 4 of the Labor Contract Law, regulations will only be valid after they havegone through a democratic process. The further development of the theory of normative system formation should endow the SWRC with greater rights and integrate it smoothly with the collective contract system to standardize collective labor relations.
基金the 57th batch of funding projects(No.2015M570067)supported by the China Postdoctoral Science Fund
文摘The Labor Contract Law classifies collective contracts as special labor contracts, ignoring the fundamental differences between collective contracts and labor contracts. This has plunged it into jurisprudential obstacles and institutional difficulties. In terms of the main entities, efficacy, dispute settlement mechanisms, etc. collective contracts have their own institutional characteristics. They should be incorporated into the legislative framework for collective labor relations in future legislation, and should link up with trade unions, collective consultation and collective dispute settlement to form a complete system of collective labor law.
