China’s Legal System. Editor: Pan Guoping and Ma Limin. The Sinopedia Series Singapore: Cengage Learning, 2011.
Legal Protection of the Workers’ Rights
Since 1978, economic and social development have gave rise to all areas of social legislations, such as the Labor Law, Social Protection Law, Social Security Law, Medical Treatment and Health Law, and Environmental Law. The social legislative system was continuously improved and the philosophies of administration in law and the legal safeguard of rights were implemented. In addition, mandatory laws and the rule of law had manifested in society, and the social rights of citizens were gaining increasing acceptance, recognition, and protection.
During the 30 years of reform and opening up, China experienced rapid economic growth and her citizens’ quality of life significantly improved, creating the “Chinese miracle” that drew worldwide attention. When discussing this topic, many people would first mention that China’s abundant labor resources provide a competitive advantage. Protecting the rights and interests of workers through legislations is an important component of the practice of rule of law in society. In the era of a planned economy, state-owned enterprise and other units operated in the administration mode, but legislation in this area was relatively bare. After the establishment of the market economy in the 1990s, rapid economic development and continually increasing numbers of foreign-invested and private enterprises added much diversity and complexity to labor relations. In order to resolve the problems arising from this issue, in 1994, the legislature passed the Labor Law that also established a labor legal system.
The law covered
- Employment promotion;
- Labor contracts;
- Working hours;
- Rest days and vacation;
- Labor safety and health;
- Special protection for female workers and minors;
- Vocational training;
- Social insurance and welfare;
- Labor disputes; and
- Supervision and inspection.
The relevant departments had successively promulgated laws, regulations, and rules, which were combined with the Labor Law to play an important role in labor relations and the protection of workers’ rights.
In recent years, the legislation of labor law has developed rapidly. In 2007, three important labor laws were passed: the Law on Labor Contracts, the Law on the Promotion of Employment, and the Law on Labor Dispute Mediation and Arbitration. The Law on Labor Contracts was drafted based on the experience of foreign countries, and it takes into consideration the specific situation regarding China’s labor relations, while taking into account the imbalance in status and strength of workers and employers. While the legislation was built on the basis of protecting the interests of both parties, it also establishes the legislative principle that favors workers and provides a range of policies for protecting workers’ rights. The Law on the Promotion of Employment uses a strategy of a “responsible government” to clarify the government’s responsibility in promoting employment, regulation of professional intermediaries, and express prohibition of any form of discrimination in employment. The Law on Labor Dispute Mediation and Arbitration promotes the sound and rapid settlement of labor disputes. These important laws all implement a legislative principle favorable to workers, which further improves China’s labor laws.
Surveys have shown that more than 100 million of China’s population are hepatitis B carriers. As many people lacked understanding on how this disease is spread, hepatitis B patients and carriers have long been discriminated against in education, employment, and many other areas. According to specific provisions in the Law on the Promotion of Employment, Employment Services and Employment Management Regulations, and many other laws and regulations promulgated in recent years, the Ministry of Health recently announced that China will implement relevant policies to explicitly protect hepatitis B carriers from discrimination in education and employment.
Article 19 of the Employment Services and Employment Management Regulations states: “except for work prohibited by the national laws, administrative regulations, and health administration departments under the State Council’s rule, if applicants are pathogenic hepatitis B carriers, hepatitis B virus serological indicators shall not be forcibly used as an employment criterion.” Article 68 stipulates that if the employer fails to comply and takes the hepatitis B virus serological indicators as a criterion for employment, the labor security administrative department will deem it incorrect and can impose a penalty of no more than RMB 1,000, and the employer has to pay compensation for damages to the relevant party.
In addition to these laws and regulations, existing labor laws in force also include Regulations on Paid Annual Leave on Workers, Regulations on Labor Security Supervision, Regulations on Work-related Injury Insurances, Regulations on Unemployment Insurance, Provisional Regulations on Collection and Payment of Social Insurance Premiums, Provisional Measures on Maternity Insurance for Workers, and other laws and regulations. All of these, including the Labor Law, the Law on Labor Contracts, and the Law on the Promotion of Employment, combine to form the framework of the labor legal system, which regulates and promotes employment, rationally defines the rights and obligations of employers and workers, safeguards the legitimate rights and interests of workers, and ensure that workers can enjoy the necessary assistance for retirement pension, unemployment, illness, injury, and maternity cases.
The Labor Law is an important component of the legal system. It plays an important role in adjusting and building stable and harmonious labor relations by protecting workers’ rights, improving the development of the market economy, and promoting coordinated and sustainable economic and social development. According to official statistics, since the implementation of the Labor Law, there are more than 100 labor-related national laws, regulations, rules, and judicial interpretations that protect workers’ rights and interests. Since then, the importance of the Labor Law as a new legal department has become more publicly recognized.
Development of the Social Security Law
Since the late 1970s, the social insurance system was the heart of the social security system. It has experienced major changes. For example, the rule of law in key areas of social insurance, such as endowment insurance, medical insurance, unemployment insurance, work injury insurance, and maternity insurance have been improved.
In April 1979, the State Council made a decision to gradually revive the domestic insurance business, followed by the slow recovery and reconstruction of China’s insurance system. In the early 1990s, after the establishment of China’s socialist market economy structure, the insurance system experienced further development and improvements. Accordingly, relevant laws and regulations were also promulgated and implemented.
In 1995, the Insurance Law was passed, which provided the basic structure of the insurance law and regulations system. Subsequently, the China Insurance Regulatory Commission and its agencies were formed to promote insurance legislation. A series of relevant regulations were issued, such as Provisions on Supervision and the Management of Insurance, Regulations on the Administration of Insurance Companies, Regulations on Insurance Agents, Regulations on Foreign Insurance Companies, Regulations on Insurance Credit Rating, Regulations on Reinsurance Companies, and so on. In order to meet the new market environment and rapid development of the insurance industry, China revised and promulgated a new Insurance Law in 2002.
So far, there are more than 110 insurance companies that include 43 foreign insurance companies. Initially, these companies formed institutional arrangements with different property rights and multiple modes of organization. China’s insurance industry is undergoing a gradual transition to a new model under the joint promotion of the government and the market, hence the role of the legal system in the insurance industry is increasingly evident.
A system has been established in which the state, enterprises, and individual workers share the responsibility for endowment insurance payments in a system of endowment insurance funds and multi-level endowment insurance, which promotes the gradual socialization of endowment insurance. The basic medical insurance system is also being gradually improved. In 1999, the State Council issued the Regulations on Unemployment Insurance, which marked a new stage in the development of the unemployment insurance system. Similarly, work injury insurance has entered a new phase of standardization and systematization. In 2003, the State Council passed work injury insurance regulations, which was China’s first specialized regulation on standard work injury insurance. In 1988, the State Council issued the Regulations on the Labor Protection of Female Workers, which expanded the scope of maternity insurance from SOEs to all domestic enterprises. In December 1994, the Ministry of Labor issued the Provisional Measures on Maternity Insurance of Workers, which established the maternity insurance model in which maternity insurance funds were implemented via the system.
The Regulations on Pension and Preferential Treatment for Servicemen, Regulations on the Placement of Compulsory Servicemen upon Retirement, and other related regulations were promulgated. These provided preferential treatment for demobilized, injured, and deceased military personnel and their families.
Social welfare is another important component of social security. Since the reform and opening up, the housing and education systems underwent reforms. Low-rent housing systems, affordable housing systems, housing provident fund systems, along with other measures, had been established in the planned economy era. In 1999, the Ministry of Civil Affairs promulgated the Interim Administration Measures on Social Welfare Agencies to change the management of social welfare undertakings from being state-sponsored to being managed by society. Now, a social welfare services system runs endowment services, child welfare agencies, welfare homes for rural households, and other similar services. Children’s welfare has also seen significant progress in China. After the 2008 Great Wenchuan Earthquake, the Ministry of Civil Affairs developed the Opinions on Aid and Resettlement for the “Three Destitute” of Wenchuan Earthquake in Sichuan Province, making every effort to resolve the resettlement and livelihood security of the earthquake victims.
Through the development of Regulations on Minimum Subsistence Allowance for Urban Residents, Regulations on the Subsistence of Rural Welfare Homes, and other laws and regulations, basic subsistence is provided to the urban poor as well as rural farmers who are unable to work, have no income, no support, or maintenance. In September 1999, the State Council promulgated the Regulations on Minimum Subsistence Allowance for Urban Residents to establish a minimum living standard for the urban poor. By the end of 2008, 23.348 million urban residents received a minimum subsistence allowance, along with a total of RMB 39.34 billion being disbursed to these residents. In rural areas, the social security system, including peasant endowment insurance, new rural cooperative medical care, rural minimum subsistence allowance system, and so on, was being established and improved. The rural minimum subsistence allowance system has now been widely established throughout the country. At the end of 2008, 43.055 million people in rural areas received a minimum subsistence allowance of a total of RMB 22.87 billion. In circumstances where the social insurance system is less comprehensive, the minimum subsistence allowance system has played a positive role in social security, creating a stable living environment.
Strengthening of Legal Protection for Special Groups
Social security law is an important component of social law. Since 1978, priority has been given to the protection of the elderly, women, minors, the disabled, and other special groups. A series of laws and regulations have been promulgated that forms a relatively comprehensive social protection legislation system.
According to official statistics, the NPC and its standing committee, the State Council, and related departments, have promulgated more than 200 laws, regulations, rules, and other policies concerning the protection of the rights and interests of the elderly. The contents include social security for the elderly, elderly benefits and services, elderly health care, elderly culture and education, elderly industries, and many other categories. Apart from the constitution and the Law on the Guarantee of the Rights and Interests of the Elderly, there are some important laws relating to the protection of elderly rights and interests, such as the Criminal Law, General Principles of Civil Law, Marriage Law, Succession Law, Law on Punishments in Public Order and Security Administration, among others.
From a legislative viewpoint, China’s greatest achievement in the legal protection of women is the Law on the Guarantee of the Rights and Interests of Women, promulgated in 1992. This law contains systematic and comprehensive provisions, such as the protection of women’s rights and the promotion of gender equality. The constitution is used as a base and the Law on the Guarantee of the Rights and Interests of Women is the main legal instrument, in addition to a number of laws, administrative regulations, local rules, and regulations. At the same time, the State Council has promulgated a number of special laws to protect women’s rights, such as the Regulations on the Health and Work of Women and Children in 1986, Regulations on Labor Protection of Female Workers in 1988, Regulations on the Prohibition of Certain Employment for Female Workers in 1990, and so on. In 2005, the Law on the Guarantee of the Rights and Interests of Women was revised, and had further improved the legal protection of women’s rights and interests.
Much progress has been made in the legislation on the protection of minors. In the 1990s, the legislation on the protection of minors made rapid progress. The most important legislation of this period was the Law on the Protection of Minors in 1991 as well as the Law on the Prevention of Crimes Committed by Minors in 1999. In addition, the State Council also promulgated a series of special laws and regulations, including the Regulations on the Management of Kindergartens in 1990, the Rules on the Prohibition of Child Labor in 1991, Law on Public Work Providing Special Protection for Minors in 1994, Interim Measures for the Education of Migrants’ Children in 1998, among others. In the Constitution, Criminal Law, Adoption Law, Marriage Law, General Principles of Civil Law, and other laws, there are also a large number of special provisions concerning the protection of minors. The Provisions on Handling Juvenile Criminal Cases issued by the Supreme People’s Court, the Law on Compulsory Education, and the rules it implemented are also an important part of the legal system for the protection of minors.
After the Law on the Protection of Minors was promulgated, some specialized laws such as the Labor Law, the Advertising Law, the Prison Law, the Law on Vocational Education, the Basic Law for the Macau Special Administrative Region, the Partnership Law, among others, increased or revised their provisions on the special protection of minors.
China also actively participated in the drafting and development of The Rights of the Child during its United Nations (UN) Convention. On August 29, 1990, China formally ratified the convention.
In the enforcement of the protection of minors, all levels of government have achieved significant achievements in terms of the prevention of juvenile delinquency, organizing workshops on minors’ legal education, relief for school dropouts, implementing juvenile delinquency community correction, and so on. In order to protect the rights and interests of minors in accordance with the law, the people’s courts have built more than 3,000 juvenile courts. The judicial authorities have also played an important role in fighting illegal and criminal activities such as the employment of child labor, child trafficking, child abuse, and other infringements on the personal rights of minors.
In 1990, China passed the Law on the Protection of the Disabled and amended it in 2008. This law provides systematic and comprehensive provisions for the protection of the rights and interests of disabled persons. Currently, there are regulations for the protection of the disabled in the Constitution, the Criminal Law, the Criminal Procedural Law, the General Principles of the Civil Law, the Law on Vocational Education, the Law on Civil Servants, the Law on Road Traffic Safety, the Law on Administrative Licensing, the Law on the Guarantee of the Rights and Interests of Women, and other laws.
The State Council and relevant ministries have promulgated a series of special laws and regulations on the protection of the disabled, such as the Regulations on the Education of the Disabled in 1994, the Interim Provisions of Employment Security Funds for the Management of the Disabled in 1995, the Interim Provisions for Exemption from the Import of Special Purpose Articles for the Disabled in 1997, the Opinions on Further Improving the Employment of the Disabled in 1999, Design Codes on Accessibility of Urban Roads and Buildings in 2001, and so on. After the latter law was released, building accessible environments in China has entered the stage of legislative promotion, and has increased rapidly. For example, during the preparations for the Beijing Olympic Games and the Paralympics, the construction of barrier-free facilities in Beijing was almost on par with the total sum of money spent on such facilities in the past 20 years. However, there are still some problems in building barrier-free facilities, such as inadequate supervision and management. The Regulations on Accessible Buildings is currently being drafted in order to further improve the legal protection of the disabled.
In February 2007, the State Council promulgated the Regulation on the Employment of the Disabled, in order to promote the employment of the disabled and protect the labor rights of the disabled. The council also designated May 20 as the Day to Help Our Disabled Citizens. In March 2007, Wang Guangya, China’s Permanent Representative to the UN, Ambassador Extraordinary, and Plenipotentiary signed the Convention on the Rights of Persons with Disabilities. In June 2008, China ratified the above-mentioned convention, which took effect on August 31, 2008. This step further improved the legal system with regards to the protection of the disabled in China.
All levels of the judiciary played an important role in combating the rights and interest infringements of the disabled, in the process of providing better protection for the rights of the disabled.
Development of Medical and Health Care Law
The close relationship between the medical sector and citizens’ mental and physical health is evident. The central government has always attached great importance to the development of the law in medical and health care areas. In particular, after 1978, medical sectors have achieved rapid development, which satisfied the people’s growing needs for medicine and health care. Meanwhile, the legislation on medicine and health care shows considerable progress. Since the late 1970s, the judiciary has enacted and amended 13 health care laws, 50 health care-related regulations, and 240 health administrative regulations, resulting in an almost complete medicine and health care legal framework. However, compared with other aspects, the rule of law in medicine and health care is relatively slow compared to other developed countries. The country’s top legislature is attempting to develop the basic medicine and health care law in a timely manner in order to promote the institutionalization and standardization of basic medical and health care services.
Many laws concerning public health have been established, such as the Law on the Prevention and Control of Solid Waste Pollution, the Law on the Prevention and Control of Ambient Noise Pollution, the Law on the Promotion of Pollution-free Production, the Law on the Prevention and Control of Radioactive Pollution, the Law on the Quality and Safety of Agricultural Products, the Law on the Protection of Minors, and so on. The Supreme People’s Courts, Supreme People’s Procuratorates, and other judicial authorities also issued a number of judicial interpretations concerning medicine and health care.
Since the reform and opening up, China has also ratified a series of international treaties on medicine and health care. The Standing Committee of the NPC has approved China’s membership in the Single Convention on Narcotic Drugs (1961) in 1985 (amended by the Protocol Amending the Single Convention on Narcotic Drugs, 1961), the Convention on Psychotropic Substances (1971). She has ratified the Convention on the Minimum Age for Admission to Employment in 1988, ratified the UN Convention on the Prohibition of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances in 1989, ratified the International Convention on Economic, Social, and Cultural Rights in 2001, ratified the Framework Convention on Tobacco Control in 2005, and ratified the Convention Concerning Occupational Safety, Health, and the Working Environment in 2006.
In the 1980s, a market-and business-oriented service model for health care was selected. This model revealed the flow of health care resources to large cities and major hospitals. It also highlighted the fact that primary health care resources were scarce and drug costs were increasing rapidly, along with other social problems. The government paid a great deal of attention to these problems. On April 6, 2009, after three years of preparation and several drafts, the Opinions of the CPC Central Committee and the State Council on Deepening the Medical and Health Care System’s Reform was released. A new medical reform program was implemented as a result.
The new program considered universal access to basic health care as a fundamental right and resulted in the principle that the reform program’s design, health care system’s establishment, and the service system’s construction should consider public welfare. This categorized the health care system as a public product for universal access. China would gradually establish universal coverage of the basic medical security system, including workers in closed, bankrupt, and high-risk enterprises, university students, staff of non-public economic organizations, and the self-employed under health insurance coverage, achieving full coverage of health insurance for the first time. This legal initiative was a first in China’s history; a major event in her implementation of the rule of law. This medical reform program emphasized governmental responsibility in a socialist market economy.
Legal Protection of the Environment and Natural Resources
In the 1960s and 1970s, environmental pollution and resources protection became a concern in the international community. Western countries gradually improved their environmental laws and regulations. At that time, China became aware of the importance of environmental protection in the political and economic arena. Promulgated in 1978, the constitution provides that “the State should protect the environment and natural resources, prevent pollution, and other public hazards.” Since 1978, the establishment of the rule of law related to the environment and natural resources developed rapidly. Resource conservation and environmental protection was established as a basic national policy. The legal system was designed around the environment and natural resource protection, environmental legislation, environmental law enforcement, environmental justice, environmental law, environmental activism, and environment legal supervision have continuously been improved and have seen much achievements in other aspects.
In 1979, the Law on Environmental Protection (Draft) was adopted. This was China’s first environmental protection law. A series of important systems were established through this law, which also required the establishment of environmental protection agencies. The enactment of the law marked the entrance of environmental protection work into a phase of standardization and legalization. In 1989, based on the implementation experience and lessons learned from the Law on Environmental Protection (Draft), the Law on Environmental Protection was formally promulgated and implemented. The construction of China’s environmental legal system began to move in a systematic manner. In this period, the Law on the Conservation of Water and Topsoil, the Law on the Prevention and Control of Ambient Noise Pollution, the Law on the Prevention and Control of Solid Waste Pollution, the Law on the Prevention and Control of Atmospheric Pollution, the Law on the Protection of the Maritime Environment, the Forestry Law, the Grassland Law, the Law on the Protection of Wildlife, the Agriculture Law, and other environmental laws were formulated and revised in a timely manner in accordance with changes in national conditions.
Since the implementation of the strategy of rule of law in 1999, China accelerated the development of her environmental legislation. It also formulated:
- The Law on the Assessment of Environmental Effects;
- The Law on the Promotion of Pollution-free Production;
- The Law on the Prevention and Control of Radioactive Pollution;
- The Law on the Prevention and Control of Desertification;
- The Law on the Conservation of Energy Resources;
- The Law on Renewable Energy;
- The Regulations on Scenic Spots and Historical Sites; and other laws and regulations.
In addition, it revised the Law on the Prevention and Control of Solid Waste Pollution, the Law on the Protection of Maritime Environment, the Water Bodies Law, the Law on Land Administration, and many other previously implemented environmental laws. It enacted the Opinions of the State Council on Speeding up the Development of a Cyclic Economy, the Circular of the State Council Concerning Resource-Saving Activities, the Comprehensive Working Program on Energy Saving and Emission Elimination. China’s National Climate Change Program, among other policy documents, was also enacted.
In 2008, the Cyclic Economy Promotion Law was promulgated, providing the most basic legal protection for the establishment of a natural resourcesaving and environmentally friendly society. In 2009, the Sea Island Protection Law of the People’s Republic of China was established. In addition, the Natural Protection Land Law and other laws also underwent preparation.
With the continuous systematization of environmental laws, the environmental concept of the rule of law has experienced major changes. Increasing emphasis has been placed on the role of the legal protection of the environment and natural resources, based on economic and social development, as well as environmental protection needs. Basic principles and guidelines of environmental protection have been constantly adjusted and tweaked. Importance is not only attached to legislation, but attention is also paid to the enforcement and supervision of the law. For example, in 2008, the NPC revised the Law on the Prevention and Control of Water Pollution, legalized ecological compensation, strengthened the constraints on local governments, and gave the environmental protection department the right to decide a deadline for governance.
In recent years, the standard of proposals and motions reflecting the environmental issues presented at the NPC and two sessions of the CPPCC has been increasing. Democratic parties also played a positive role in political participation and discussion. In 2008, the CAPD Central Committee submitted a proposal at the CPPCC national meeting, titled, “Hydropower Development at the Upper Reaches of Yangtze River Must Consider its Ecological Impact,” pointing out the disorder and excessive hydropower development issues at the upper reaches of Yangtze River. This proposal was given great attention by the CPPCC Standing Committee.
For Your Information: Ecological Compensation
Ecological compensation is a public institutional arrangement that aims to adjust the interests present between related parties with conservation and sustainable use of the ecosystem as a purposeful and economic means. Ecological compensation includes the rewards from benefits received from the protection of ecosystems and natural resources, or compensation for losses caused by the destruction of ecosystems and natural resources. To some extent, this concept has the same goals as those serving the ecosystem, as well as ecological benefits.
In addition to the laws on environmental protection, resource conservation, and protection, there are more than 50 administrative regulations on environmental and resource protection, 660 local laws and regulations, departmental rules, and government regulations, and 800 national standards. These laws and regulations jointly constitute an increasingly sophisticated environmental legal system. A sound legal system on environmental impact assessment, pollution control, pollution management, natural resource planning, ownership, licensing, compensation for usage, energy conservation assessment, and other aspects have also been established.
In addition, great importance is attached to international cooperation in the fields of natural resource conservation and environmental protection, as China participates in more than 30 international environmental and resource protection treaties, such as the UN Framework Convention on Climate Change, the Kyoto Protocol, the Convention on Biological Diversity, and the UN Convention to Combat Desertification, at the same time actively fulfilling her treaty obligations.