Research On The System For Handling Labour Disputes Between The Employer And The Employee Of Nanjing National Government

The labour dispute between the employer and the employee has become a social phenomenom in the Western countries since the Industrialization. With the development of both capitalism and labour movement, countries all over the world gradually established a system in order to solve the contradictions becoming increasingly acute and to coordinate the relationship between the employer and the employee.After the Opium War in China, with the inburst of foreign capital, the development of the Westernization Movement and the growth of national capitalism, industry rose gradually and the capitalists at home and abroad set up numerous factories in the big commercial ports, from which the conflict between the labour and the management emerged. After the May 4th Movement, the working class in China awoke, initiating the movements for themselves from self-motion. Till the May 30th Movement, the Chinese workers'movements, changing from the national movements to the labour movements, reached an unprecedented climax and the strike movements all over China occurred frequently. Under such background, all social sectors had a growing demand for labour legislative since 1920s. But until the establishment of Nanjing National Government, extensive labour legislation was really started. As the most important law for handling disputes between the employers and the employees, The Law on Conciliation and Arbitration of Labour Disputes between Employers and Employees was promulgated, and initiated its course full of twists and turns.This thesis, in the perspective of Shanghai, reveals the process from formation, transformation to failure of the system for handling labour disputes between the two parties of Nanjing National Government.The first chapter mainly introduces the background of the system. Industrialization in Shanghai had started since its transformation into a commercial port. Through the development for a few decades from the end of Qing Dynasty to the early period of the Republic of China, Shanghai had already become the economic center of China and a industrial metropolis, because of which the capitals and labour force highly centralized here, the contradiction between the employer and the employee became increasingly acute, labour movements upsurged and the strikes happened in Shanghai accounted for half of the total amount occurred nationwide. At that time, without relative legal system, labour disputes were solved in non-statutory ways by the governmental and non-governmental organizations. In order to satisfy the immediate needs, various industrial and commercial groups tried to establish an institution to solve labour disputes, but without legal support, their attempt was in vain. Meanwhile, Chinese Labour Combination Secretariat led by Chinese Communist Party promoted a large-scale nationwide campaign for labour legislation, which forced Beijing National Government to promulgate such small amount labour legislations as The Provisional General Principles of Factory. Above was the background on which the system was based.Chapter Two mainly introduces the origin and the preview of the system. Labour legislation was closely related to the labour policy. With the course of Northern Expedition, Kuomintang changed their labour policies from more radical ones to more moderate ones. In order to solve the severe labour disputes in the reality, Guangzhou National Government enacted several original labour regulations which provided reference for the labour legislation in Shanghai and other places such as The Statute on Arbitration of Labour Disputes between Employers and Employees. Soon after the Northern Expeditionary Army arrived in Shanghai, Chiang Kai Shek launched April 12th Incident and put down the labour movements by force, which broke the foregone pattern between the employer and the employee. Several days later, Chiang Kai Shek promulgated The Ordinance of Regulation between the Employer and the Employee based on which a series of rules were enacted in Shanghai to solve the labour disputes, thus a provisional system was set up. Though this system did not reach its expected effect, certain experience and lessons were also obtained. It was the origin of the system in Shanghai.Chapter Three, Four and Five mainly reveal the process how the system was formed and implemented. This ten years was not only the golden age for the economic growth of the Republic of China, but also the major period of Nanjing National Government to enact and implement a series of labour legislations and other abundance relative local codes and regulations of Shanghai. These three chapters with comparatively more contents are the emphases of this thesis, so they are divided into three parts, the first two of which are about the legislation and the third part concerned the enforcement of the relative laws.In the early 1928, not long after the establishement of Nanjing National Government, labour disputes all over the country became increasingly acute, same as the reaction from all walks of life, which made it necessary to enact relative legislations. In February 1928, the Central Political Conference of Kuomindang decided to draft Provisional Rules of Arbitration on Labour Disputes which, later through several deliberations, repetitions, discussions and revisions, was named The Law on Conciliation and Arbitration of Labour Disputes between Employers and Employees eventually and was promulgated in 9th June,1928. This law was used to solve the disputes arising from the maintenance or the change of the conditions for employment, which could also be called the disputes of interests. It was a compulsory arbitration settlement which means that the administrative department in charge, to some extent, had power to put the disputes into arbitration without the consent of the interested parties and the results of the arbitration had the legal force of constraint as soon as they were made. During the time of mediation and arbitration, neither the employer nor the employee could stop doing business or strike. In 1930, after revised, this law adopted voluntary arbitration, in which way without the application of the parties involved, the disputes could not be arbitrated and the parties not satisfying with the results could bring them into litigation. In 1932, with the change of the social situation, this law was revised again and resumed compulsory arbitration while Nanjing National Government enacted The Labour Union Law, The Factory Law and so on. These laws did not directly solve the labour disputes but were the substantial lagal basis for handling the disputes and the important measures to eliminate the conflicts.In the process of the implementation of The Law on Conciliation and Arbitration of Labour Disputes between Employers and Employees, the Administrative Department, the Industrial and Commercial Department, the Justice Department and several other departments in the National Government made a series of judicial interpretations of this law based on the doubtful points put forward by the provincial or the municipal governments. Shanghai Municipal Government also enacted several local rules such as The Implementing Regulations for handling this law according to local conditions to adapte and complement the law and to make it more adaptable and practical.Shanghai established a more complete system handling labour disputes at that time, which was mainly composed of mediation committee, arbitration committee and the Bureau of Society in the Shanghai Municipal Government. According to the local regulations of Shanghai, cases which could be solved by The Law on Conciliation and Arbitration of Labour Disputes between Employers and Employees should be handled through mediation or arbitration, while others should be settled by the Bureau of Society. From 1928 to 1937, the amount and the severity of the labour disputes happened in Shanghai constantly went down every year after the occurrence of the climax happened in 1928, which meant that the system had reached certain achievements. But the number of the cases which were solved through mediation or arbitration came down every year and the results also had some changes that labour lost the lawsuit increasingly while capital were more likely to win. Also, the amount and the severity rebounded in the later half of 1936. All these showed that the occurrence and the resolution of the labour disputes depended mainly on the social, political and economic environment. The current situation and the defect of the system itself made it existed in name only. After the analysis of an important case in the history, the labour disputes in Sanyou Industrial Corporation in Shanghai, the defects and the embarrassed situation which the system encountered were more obvious.Chapter Six mainly introduces how the system went into decline. Not long after the victory of the War of Resistance, labour disputes occurred again and could hardly stop. No matter it was the strikes and lockouts or the labour disputes, its severity was far beyond its prewar level. Only in the year of 1946, the amount and the severity of the labour disputes happened in Shanghai reached its climax since the year of 1928 and the labour disputes were more closely related to social, political and economic situation. Under such condition, the National Government promulgated a series of special rules such as The Regulation of Labour Disputes in the Time of Suppression the Rebellion and established a special institution to solve labour disputes in order to keep down the conflicts between the employer and the employee, which put aside The Law on Conciliation and Arbitration of Labour Disputes between Employers and Employees and made the system absolutely exist in name only.In Chapter Seven, there are several monographic studies on the system handling the labour disputes. The first study is on the nationalization of the system. At that time, there were two kinds of systems in the world, one is the voluntary arbitration represented by the United Kingdom, and the other is the compulsory one represented by New Zealand. The system carried out by Nanjing National Government deliberated over the systems of other countries and considered the national conditions, but vacillated between the compulsory and the voluntary style, and eventually it chose the compulsory one which was with the feature of both compulsory one and voluntary one. The second study discusses about the fundamental reasons for the failure of the system carried out by Nanjing National Government. In the old China, a semifeudal and semicolonial country, especially in Shanghai, a city mixed with various kind of cultures, the practice of the system lacked solid political, economic and legal foundations and declined along with the steps of Kuomintang's losing the political power. In a social environment lacking legal resources, any efforts trying to build an ideal legal system was destined to fail. In the third study, the author analyses the enlightenment that the system left to the current structure solving labour disputes. Since liberation, this system of the People's Republic of China had a period of blank. After China's reform and opening up to the outside world, we rebuilt a system handling labour disputes, but the scope of application of this system was disputes of rights, which means it only solved the disputes arose from legal provisions or contractual agreements. This was just on the opposite side of the disputes of interests provided in The Law on Conciliation and Arbitration of Labour Disputes between Employers and Employess of Nanjing National Government. With the development of the market economy, the disputes of interests represented by collective bargaining and collective contract appear continuously, but when solving such kind of disputes, we always encounter the embarrassment of deficiency of the legal system. So, whether the opportunity to establish a system handling the disputes of interests has arrived and how to build a perfect system are the questions that we have to face up to and cannot escape.