Legislative Necessity Research And System Design Of Chinese Right To Strike

Strike is a product of the market economy, the right to strike under the market economy is the basic rights of labors. The economic base determines the superstructure, with the establishment of market economy system, labor conflicts were simmering, collective labor disputes and strikes phenomena intensified. Currently, the right to strike and the legal syetem of strike has not been difinitely difined yet , leading to increasingly serious labor conflict in passive condition and without law to depend on. Whether from the Government's management level, or from protecting the works's reasonable interests, it is necessary to confront the lack of legislation syetem in stirke right. This is also consistent with the current background of building a harmonious socialist society.From an international perspective, with the gradual establishment of market economy and further deepening of economic globalization, China plays more and more important role in international affairs. China have signed"Economic, Social and Cultural Rights" and "Civil and Political Rights" in October 1997 and October 1998 , which the United Nations passed in 1966.There is a very important right among them---right to strike. China, as one of the most influential counties in today's international community , must fulfill international obligations to legislate strike right as soon as possible.There are many reasons in lack of legal system in the right to strike in our state, the most important factor is not clear understanding the nature of the legal right to strike. This thesis tries to elaborate the syetem design of our strike right in China in four aspects, the Chinese strike facts, the situations and characteristics of chinese strike , comparative legislation home and abroad in strike right and the Chinese le gislative mode selection of the right to strike. Learning from foreign experiences, combined with China's current situation, the anthor innovates the following ideas: to build chinese syetem of strike right be fore the level of legislation, specifically in the level of labor law and union law, and to suspend the level of the constitution. The thesis consists six parts.The part one, the preface reveals the practical significance of the topic, mainly concludes the strike phenomena that occurred in China in recent years through related data to explain the practical significance of right to strike.Part two discourses the concept of strike and the right to strike. Based on the scholar's academic research, studies partly creatively and introduces the concept of the right to strike and strike and new exploration of legal characteristics in strike right.Part three mainly expounds the legislative comparison of domestic and international right to strike, mainly compares the western countries'right to strike and international treaties with Chinese right to strike in legislative level, puts forward foreign strike right legislation which went through three processes : ban limited recognitiongene rally recognized, sums up two foreign legislation modes: the mode of Constitutional Law plu lower norm and the mode of the direct provisions in lower norm, by comparison, obtaines the due to lack of the right to strike. That is not to clearly understand the legal nature of the right to strike.The fourth part demonstrates the necessity of our right to strike. It analyzes the phenomena of the current situations and characteristics of the strike and gains that our need for legislation is reflected in three aspects: it is the need to solve the current strike wave and promote social harmony; it is the need to balance the labor status and protect works's interests; it is the need to reduce the executive and judicial cost; it is the need to better labor law system and adapt to international treaties.Part five analyzes the selective legislation patten of our right to strike. By inheritance and criticism of legislation and postponing the legislation, from shall-be area angle, it proposes that our strike right should be formulated in lower norm including labor law and union law, and postponed in consitutional law.Part six expounds our legislative sytstem design of right to strike, principally in labor law and union law levels. Labor law increases work- s'speech and debate clause in strike, and illuminates that the right to organize strike belongs to trade union, makes restricted regulations in condition, purpose, procedure, exemption of strike. Trade Union Law mainly stresses the independence of the design.