"Active judiciary": Judicial dismantling of workers' collective action in China

China Journal

Volumn , Issue 67, 2012, Pages 87-108

  Chen, Feng ^a   Xu, Xin ^b  

^a HONG KONG BAPTIST UNIVERSITY   (Hong Kong)

^b BEIJING INSTITUTE OF TECHNOLOGY   (China)

Author keywords

[No Author keywords available]

Indexed keywords

POWER RELATIONS; WORKER POLICING;

CHINA;

EID: 84863247965     PISSN: 13249347     EISSN: None     Source Type: Journal    
DOI: 10.1086/665741     Document Type: Article

References (61)

1. Anita Chan, "Strikes in China's Export Industries in Comparative Perspective", The China Journal, No. 65 (January 2011), pp. 27-51.
2. Mary Gallagher, "Use the Law as Your Weapon: Institutional Change and Legal Mobilization in China", in Neil Diamant, Stanley Lubman and Kevin O'Brien, Engaging the Law in China: State, Society, and Possibilities for Justice (Stanford: Stanford University Press, 2005).
3. Mary Gallagher, "Mobilizing the Law in China: 'Informed Disenchantment' and the Development of Legal Consciousness", Law and Society Review, Vol. 40, No. 4 (December 2006), pp. 783-816.
4. Feng Chen, "Legal Mobilization by Trade Unions: The Case of Shanghai", The China Journal, No. 52 (July 2004), pp. 27-45.
5. W. A. Firestone, "Alternative Arguments for Generalization from Data as Applied to Qualitative Research", Educational Researcher, Vol. 22 (1993), pp. 16-23.
6. "Laodong zhengyian juzheng, Dongguan fayuan keneng chengwei quanguo zuimang fayuan" (Labor Disputes Soared and the Courts in Dongguan Are Likely to Become the Busiest Courts in China), http://news.sina.com.cn/c/2008-12-04/104316782360.shtml, accessed 15 May 2010.
7. Stanley Lubman, "Bird in a Cage: Chinese Law Reform in Twenty Years", Northwest Journal of Law and Business (Spring 2000), pp. 383-423.
8. Peter Solomon, "Authoritarian Legality and Informal Practices: Judges, Lawyers and the State in Russia and China", Communist and Post-Communist Studies, Vol. 43 (2010), pp. 351-362.
9. Peter Solomon, "Courts and Judges in Authoritarian Regimes", World Politics, Vol. 60 (October 2007), pp. 122-145.
10. Pitman Potter, "The Chinese Legal System: Continuing Commitment to the Primacy of State Power", The China Quarterly, No. 159 (September 1999), pp. 673-683.
11. Erik Herron and Kirk Randazzo, "The Relationship Between Independence and Judicial Review in Post-Communist Courts", The Journal of Politics, Vol. 65, No. 2 (May 2003), pp. 422-438.
12. Neal Tate, "Authoritarianism and the Functions of Courts: A Time Series Analysis of the Philippine Supreme Courts, 1961-1987", Law and Society Review, Vol. 27, No. 4 (1993), p. 707.
13. Peter Solomon, "Courts and Judges in Authoritarian Regimes".
14. Sida Liu, "Beyond Global Convergence: Conflicts of Legitimacy in Chinese Lower Courts", Law and Society Inquiry, Vol. 31, No. 1 (2006), pp. 75-106.
15. Neil Diamant, Stanley Lubman and Kevin O'Brien, Engaging the Law in China.
16. Feng Chen, "Individual Rights and Collective Rights: Labor's Predicament in China", Communist and Post-Communist Studies, Vol. 40 (2007), pp. 59-79.
17. The State Council promulgated the Provisional Regulations on the Handling of Enterprise Labor Disputes in State Enterprises in 1987, setting up the three-part procedural structure for labor dispute resolution: mediation, arbitration and lawsuit. Note.
18. Virginia Harper Ho, Labor Dispute Resolution in China: Implications for Labor Rights and Legal Reform (Berkeley: Institute of East Asian Studies, University of California, 2003), p. 38.
19. Interview, Dongguan, 11 December 2009.
20. Mary Gallagher, "Use the Law as Your Weapon".
21. Charles Tilly defines a contentious gathering as "an occasion in which ten or more persons outside the government gather in the same place and make a visible claim which, if realized, would affect the interests of some specific person(s) or group(s) outside their own members" (From Mobilization to Revolution [New York: McGraw-Hill Publishing Company, 1978]), p. 275. Note.
22. Kevin O'Brien (ed.), Popular Protest in China (Cambridge MA: Harvard University Press, 2008).
23. Song Deyong, "Weihu shehui wending shi fayuan de zhengzhi zeren" (Maintaining Social Stability is the Courts' Political Responsibility), http://www.chinacourt.org/public/detail.php?id=11242&k_author=, accessed 15 May 2010.
24. Guo Guangdong, "Fangzhi nengdong sifa biancheng sifa mangdong de zhouxiubu" (Preventing Active Judiciary from Becoming Arbitrary Judiciary), http://www.chinareform.net/2010/0510/16575.html, accessed 15 May 2010.
25. Guo Guangdong, "Fangzhi nengdong sifa biancheng sifa mangdong de zhouxiubu".
26. Wu Yingzi, "Shenme shi nengdong sifa, weishenme yao nengdong sifa" (What Is Active Judiciary and Why Is It Needed?), http://www.gmw.cn/01gmrb/2010-05/13/content_1119469_3.htm, accessed 15 May 2010.
27. He Xin and Su Yang, "Street as Courtroom: State Accommodation of Labor Protest in South China", Law and Society Review, Vol. 44, No. 1 (2010), pp. 157-184.
28. Chen Si, Xu Xin, Chen Kui and Cheng Chunhua, An Investigative Report of Labor Disputes in Dongguan, unpublished document, 2006.
29. Dongguan ribao (Dongguan Daily), 8 January 2009.
30. Chen Si, Xu Xin, Chen Kui and Cheng Chunhua, An Investigative Report of Labor Disputes in Dongguan.
31. Virginia Harper Ho, Labor Dispute Resolution in China.
32. Bill Taylor, Chang Kai and Li Qi, Industrial Relations in China (Cheltenham: Edward Elgar, 2003), pp. 155-181.
33. For the specific causes of labor conflicts in export industries in the Guangdong area.
34. Anita Chan, "Strikes in China's Export Industries in Comparative Perspective", The China Journal, No. 65 (January 2011), pp. 27-52.
35. "Shijie gongchang zhibian: fengbao zhixia you duoshao Dongguan gongchang daoxia" (The Change of the World Factory: How Many Enterprises Closed in Dongguan?), http://rent.dg.soufun.com/rent/news/2174284_5.htm, accessed 15 May 2010.
36. "Guangdong Dongguanshi shizhang: qiye daobi busuan duo, caiyuan xianxiang jiao yanzhong" (The Mayor of Dongguan: Not Many Enterprises Bankrupted, But Layoff Was Serious), http://money.163.com/09/0310/08/541IKO0G00252G50.html, accessed 15 May 2010.
37. The Labor Contract Law offers workers greater employment security and income protection. It encourages them to use the courts and trade unions to press their claims. The law has, however, also evoked a sharp reaction from many employers, who have sought to circumvent its purposes in various ways. Note.
38. Haiyan Wang, Richard Appelbaum, Francesca Degiuli and Nelson Lichtenstein, "China's New Labor Contract Law: Is China Moving Towards Increased Power for Workers?", Third World Quarterly, Vol. 30, No. 3 (2009), pp. 485-501.
39. Sean Cooney, Sarah Biddulph, Li Kungang and Ying Zhu, "China's New Labor Contract Law: Responding to the Growing Complexity of Labor Relations in the PRC", UNSW Law Journal, Vol. 30, No. 3 (2009), pp. 786-801.
40. Jovita Wang, "Article 14 of China's New Labor Contract Law: Using Open-Term Contracts To Appropriately Balance Worker Protection and Employer Flexibility", Pacific Rim Law and Policy Journal, Vol. 18, No. 2 (2009), pp. 433-462.
41. Arbitration premiums prior to the new regulations were based on the number of people involved: 20 yuan for a case involving 3 people, 30 yuan for 4-9 people, and 50 yuan for more than 10 people. Note.
42. http://china.findlaw.cn/info/laodong/laodongzhengyidongtai/66939.html, accessed 5 November 2011.
43. He Xin and Su Yang, "Street as Courtroom".
44. Qianfan Zhang, "The People's Court in Transition: The Prospects of Chinese Judicial Reform", Journal of Contemporary China, Vol. 12, No. 34 (2003), pp. 69-101.
45. He Xin and Su Yang, "Street as Courtroom".
46. For a summary of opposing views on this issue.
47. Guo Guangdong, "Fangzhi nengdong sifa biancheng sifa mangdong de zhouxiubu".
48. For an analysis of China's pre-reform mediation system.
49. J. A. Cohen, "Chinese Mediation on the Eve of Modernization", California Law Review, Vol. 54 (1960), pp. 1201-1226.
50. James Wall, "Mediation in the People's Republic of China", in M. Afzalur Rahim (ed.), Theory and Research in Conflict Management (New York: Praeger, 1990), pp. 109-119.
51. Stanley Lubman, "Bird in a Cage".
52. "Nan Ying zai quanguo shehui zhian zonghe zhili gongzuo huiyi shang de fayan" (Nan Ying's Speech to the National Work Meeting on the Comprehensive Governance of Social Order), http://www.court.gov.cn/xwzx/fyxw/zgrmfyxw/201006/t20100622_6263.htm, accessed 10 August 2010.
53. In China's labor dispute resolution system, mediation is the first phase, followed by arbitration and litigation, but mediation here differs from judicial mediation. It refers to an enterprise-based mechanism directed by trade unions. This mechanism, however, has lost its effectiveness, as labor disputes became so complicated in content and scope that the enterprise-level mediation committees could no longer cope with them. Workers' distrust of trade unions also turned them away from mediation committees at workplaces. For a discussion on the role of such non-judicial mediation in labor disputes. Note.
54. Mary Gallagher, "Use the Law as Your Weapon".
55. Aaron Halegua, "Getting Paid: Processing the Labor Disputes of China's Migrant Workers", Berkeley Journal of International Law, Vol. 26, No. 1 (2008), pp. 256-332.
56. Interview, Dongguan, 11 December 2009.
57. The case is provided by the First People's Court at Dongguan.
58. He Xin and Su Yang, "Street as Courtroom".
59. Feng Chen, "Union Power in China: Sources, Operation, and Constraints", Modern China, Vol. 35, No. 6 (November 2009), pp. 662-689.
60. Feng Chen, "Between the State and Labor: The Conflict of Chinese Trade Unions' Double Identity", The China Quarterly, No. 176 (September 2003), pp. 1006-1028.
61. Willy Lam, "The Party Squeezes China's Judiciary", Asia Times Online, http://www.atimes.com/atimes/China/JG10Ad01.html, accessed 12 March 2011.