Juridification in Chinese Labour Law: a cautionary tale of remuneration disputes
| Published date | 07 October 2019 |
| DOI | https://doi.org/10.1108/ER-10-2018-0281 |
| Date | 07 October 2019 |
| Pages | 1273-1287 |
| Author | Dong Yan |
| Subject Matter | Hr & organizational behaviour,Industrial/labour relations,Employment law |
Juridification in Chinese
Labour Law: a cautionary tale
of remuneration disputes
Dong Yan
School of Law, Beijing Foreign Studies University, Beijing, China
Abstract
Purpose –The purpose of this paper is to examine the post-enactment status of China’s Labour Contract
Law and Labour Dispute Mediation and Arbitration Law, focusing on the dramatic rise in remuneration
litigation amidst much criticism of weak or ineffective implementation of these laws.
Design/methodology/approach –This paper deploys both quantitative and qualitative analysis methods
to investigate the features of remuneration litigation. Remuneration judgments by Beijing People’s Courts
from 1 January 2014 to 31 December 2017 provide the primary empirical data. The intrinsic features of
remuneration disputes are investigated to delineate subcategories of claims. Several judges were also
interviewed to further explore the nature of remuneration disputes.
Findings –Four types of remuneration claims were identified: regular wage, minimum wage, overtime and
others (including subsidies and welfare). Examination of these four types, especially how they are processed
until concluded by court adjudication, provides a fuller picture of the post-enactment status of these laws and
yields objective and rational findings. To explain the continuing steady rise in the volume of remuneration
claims, as more workers have knowledge of their rights and access to the courts, this study identifies an
increase in the number of factually complicated cases (e.g. overtime claims) and abmiguity in the relevant law,
leaving some remuneration disputes difficult, if not impossible, to adjudicate. Conversely, the study also finds
significant positive trends following these laws’enactment, particularly a reduction in straightforward cases,
such as disputes concerning non-payment of wages/minimum wages, on which the law is clear. It is evidently
imperative to improve the clarity of the current laws through further legislation, as the most appropriate next
step in China’s juridification process of developing its own rule of Labour Law.
Research limitations/implications –This study is purposely limited to examining remuneration
litigation in Beijing’s courts from 2014 to 2017, which is representative of the national trend of dramatically
rising remuneration disputes, and thus provides valuable insights. Future studies should cover a wider
geographic territory and other categories of labour disputes to provide an even more comprehensive picture
of the challenges and potential solutions.
Practical implications –By understanding the driving factors of rising labour remuneration disputes, the
legislature, workers and employers can act accordingly to curb labour conflicts. The growing complexity and
technicality of remuneration litigation indicates that the pressing need of labour juridification is to deploy a
subtle, comprehensive method to improve legal clarity and judicial professionalism.
Originality/value –This study uniquely divides the types of remuneration litigation in Beijing, adopting
methods and yielding findings absent from the prior literature. Both the progress and challenges in China’s
rule of Labour Law process are reflected in this work, together with public policy and theoretical implications
for further study.
Keywords China, Labour Law, Juridfication, Remuneration disputes
Paper type Research paper
1. Introduction
With the world’s largest population of over 1.3bn, China has significant pressure to keep
every working-age citizen employed. Even more daunting is its task of keeping workers safe
and protected in the workplace. In 2008, China undertook a major labour reform designed to
protect workers’rights and interests. It promulgated the Labour Contract Law (LCL) and the
Labour Dispute Mediation and Arbitration Law (LDMAL), which grant significant rights
and safeguards to workers, requiring employers to provide a written employment contract
and giving aggrieved workers a channel and forum to adjudicate labour disputes.
Since the passage of the LCL and LDMAL, China’scourtshaveexperiencedanoverwhelming
volume of labour dispute litigation. Indeed, the LCL and LDMAL have brought workers
Employee Relations: The
International Journal
Vol. 41 No. 6, 2019
pp. 1273-1287
© Emerald PublishingLimited
0142-5455
DOI 10.1108/ER-10-2018-0281
Received 30 October 2018
Revised 12 December 2018
Accepted 19 December 2018
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/0142-5455.htm
1273
Juridification
in Chinese
Labour Law
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