On China's Legislation Of Non-discrimination In Employment And Occupation

For China, on the legislation of non-discrimination in employment and occupation,there are only some articles scattered in The Labor Law of China, Women's Rights andInterests Protection Act of China and Chinese with Disabilities Act, rather than speciallegislations or systematic laws and regulations. Moreover, the available articles in theselaws are characterized by too general, too narrow on the application scope, lack ofrelieving procedures and so on. On the other side, the reality of the society tells us thatthere is much discrimination beside everyone of us and many people's rights are seriouslyviolated. In the last two years, there happened a series of cases which have exerted aneffect all around the country. Hence the current laws and regulations are more criticizedand there is an increasingly strong call on special legislation on discrimination inemployment and occupation. However, the serious facts stated above did not lead the theory circle of labor law inChina into putting enough emphasis on this problem. Based on an opinion of negativerights, most scholars hold that the available laws and regulations are enough to eliminatediscrimination in China and the reason why discriminations still exist is because the lawsand regulations are not well put into enforcement. At the same time, there is little researchfocused on the legislation of non-discrimination. Therefore, to have a research on thefactors behind all the facts mentioned above, analyze the faults of the available theory aswell as laws and regulations and then bring forward a detailed resolution for all theseproblems is supposed to be of great significance. This dissertation is composed of four parts. The first chapter compares the opinions of the scholars with the facts in the society.Generally speaking, China's scholars of labor law are optimistic to employment andoccupation discrimination in China. The basic opinion of them is that the available lawsand regulations is enough to eliminate discrimination while the fact is that the problem ofdiscrimination is really serious. This obvious contrast shows two facts: firstly, the theorycircle has some misunderstanding on discrimination in employment and occupation;secondly, the current legislation can not meet the needs to eliminate discrimination andshall be re-formulated. The second chapter focuses on an analysis of the reason why discrimination becomesmore and more serious in China. In this part, beginning with the research on the people'sright behind eliminating discrimination, that is, equal labor right, the author draws aconclusion that the fundamental reason why discrimination in employment and occupationbecomes increasingly serious is because equal labor right is looked on as negative right. Itis just with the guide of the opinion of negative right that the current legislation is alsonegative and thus characterized by too general, too narrow on the application scope, lackof relieving process and so on. And this kind of negative legislation directly leads to thefailure of eliminating discrimination in the area of employment and occupation. The third chapter is about the adjustment from negative right to positive right of theperspective of concerning theory. This chapter emphasizes in the analysis of the definitionand characteristics of positive right. The author also discusses on the necessity of this kindof adjustment from four points of view, that is the essence of equal labor right, the historyof the development of equal labor right, the weaker status of the laborers and the need torestrict the freedom in hiring workers of the company. The last chapter concerns with the formulation of legal system. With an introductionof the experiences of the foreign countries, the author holds that the non-discriminationlegislation of China should focuses on three aspects: substantial content, subject units andjudicial procedures. Moreover, the author also recognizes that eliminatin...