international law论文-国际法英文论文，Doing Business in China: The Latest ChallengesMINTZ LEVINCOHN FERRISGLOVSKY ANDPOPEO PCBostonWashingtonRestonNew YorkStamfordLos AngelesLondonYee Wah ChinSenior CounselFederal(202) [email protected], Levin, Cohn, Ferris,Glovsky and Popeo, P.C.701 PennsylvaniaAvenue, N.W.Washington, D.C. 20004T +1 202-434-7300F +1 202-434-7400Yee Wah is Senior Counsel in the Washington, D.C. office, practicing in theFederal Section. She has extensive experience in antitrust matters, in additionto commercial litigation and transactional counseling.Yee Wah has been involved with global antitrust and competition-relatedmatters for multi-billion dollar companies. She provides antitrust counselingand analysis on all transactions, including acquisitions, divestitures and jointventures, and antitrust advice on relations with competitors, suppliers andcustomers, as well as on licenses and distribution relationships.In addition, Yee Wah has represented clients in litigation, including antitrust,securities, commodities, intellectual property, contracts, insurance coverage,constitutional, consumer protection, bankruptcy and trusts and estatesdisputes. She has also represented clients with regard to tender offers,acquisition agreements, patent and technology licensing, R&D collaborationsand trademark licenses.Prior to joining the firm, Yee Wah was a partner at two New York City lawfirms where she was responsible for providing advice on regulatorycompliance, marketing and all matters with potential antitrust exposure. Shewas also antitrust counsel in the law department of a Fortune 200 company.Yee Wah is admitted to practice in New York and the District of Columbia. Sheearned her S.B. from the Massachusetts Institute of Technology, and wasawarded her J.D. from Columbia University Law School. She is an active barassociation leader and frequent writer and speaker on antitrust subjects. YeeWah is the Co-Chair of the 2005 Spring Meeting of the ABA Section ofInternational Law, and a member of the Section’s Council. She is the immediatepast Co-Chair of the International Antitrust Law Committee of the ABASection of International Law, and the author of the chapter “Antitrust Issues inthe United States,” in A Practitioner’s Guide to the Acquisition of Companies inthe United States (City & Financial Publishing 2002). Yee Wah served on theABA task forces that drafted the 2003 and 2005 ABA Comments on theproposed Anti-Monopoly Law of the People’s Republic of China and the 2004#p#分页标题#e#and 2005 ABA Section of International Law Comments to the AntitrustModernization Commission. She also participated in drafting the ABAComments on the European Commission Technology Transfer BlockExemption in 2002 and 2003, and testified regarding those Comments at theJoint Federal Trade Commission/ Department of Justice Hearings onCompetition and Intellectual Property Law and Policy in the Knowledge-BasedEconomy in 2002. She is regular speaker at the Practising Law Institute onantitrust issues in intellectual property. Yee Wah is a member of the OECDAdvisory Group on China Investment Policies and the U.S. Chamber ofCommerce China Industrial Policy Steering Committee.Elizabeth Chien-Hale钱德纯律師学历 (Education):LL.M. (“With Distinction”), Georgetown University Law Center, Washington DC, 1997Concentration in international and comparative lawJD, University of Hawaii School of Law, Honolulu, HI, 1994Articles Editor, University of Hawaii Law ReviewFounding member of the Pacific Asia Law JournalMA, University of California, Berkeley, CA, 1989Concentration in artificial intelligence/computational linguisticsBSME, University of California, Berkeley, CA, 1983Member of member of Pi Tau Sigma专长 (Specialization):Intellectual property law, international law经历 (Experience):Ms. Chien-Hale is a U.S. attorney specializing in patent and other forms of intellectualproperty protection in the United States and abroad. She is also the founder of aninformation-based non-profit organization Institute for Intellectual Property in Asia.Prior to consulting, she headed the patent practice at Baker & McKenzie’s Hong Kongoffice. She also worked for other law firms in Silicon Valley including Wilson SonsiniGoodrich & Rosati, and Fish & Richardson.Ms. Chien-Hale has substantial technical knowledge in a variety of electrical and electromechanicalarts, having drafted and prosecuted patent applications in telecommunication,software, wireless and Internet-enabled devices, language-based data processing,semiconductor processing and computer-related mechanical devices. She was alsoinvolved in a number of intellectual property litigation cases, including cases in theInternational Trade Commission and the U.S. District Court, relating to patentinfringements and trade secrets violation.Ms. Chien-Hale has lectured and written, in both English and Chinese, on the topics ofinternational intellectual property protection and the Chinese constitutional structure. Shewas a research scholar at the College of Law of the Peking University and taught at thegraduate school of the Chinese Academy of Social Sciences in 1995. She is a registeredpatent attorney before the U.S. Patent and Trademark Office, and is licensed to practice in#p#分页标题#e#the states of California, Hawaii, and the District of Columbia. She is also admitted to theBar of the U.S. Supreme Court. Her name has been included in the Who’s Who inAmerica, Who’s Who in American Law, and Who’s Who in American WomenMs. Chien-Hale is also an active participant in the professional organizations. For theAmerican Bar Association, she currently co-chairs the Committee on International PatentTreaties and Laws for the Intellectual Property Law Section, and co-chairs the Joint TaskForce between the Intellectual Property Law Section and the International Law Sectionon PRC Intellectual Property Laws Amendments. She is also a co-chair of theIntellectual Property Law Interest Group and the vice-chair of the Pacific Rim InterestGroup of the American Society of International Law.Greg S. Slater, Senior Trade Counsel at Intel Corporation, provides legal and policyadvice on regulatory and trade issues affecting the Company’s products andmanufacturing sites worldwide. Mr. Slater also is responsible for the negotiation of allthe government agreements related to Intel’s multi billion dollar factory investmentslocated in various countries across the world.Prior to joining Intel in 1997, Mr. Slater was in private practice at Steptoe & Johnson andthen at Latham & Watkins in Washington, D.C. While at those law firms, he engaged inprivatization work sponsored by the World Bank and specialized in administrative lawand environmental, health and safety by handling U.S. and international regulatory issuesfor a number of Fortune 500 companies. Mr. Slater began his law career as a clerk forformer Chief Judge Albert Engel on the U.S. Court of Appeals, 6th Circuit, aftergraduating summa cum laude from the J. Reuben Clark Law School at Brigham YoungUniversity.H. Stephen Harris, Jr., a partner with Alston & Bird, is Chair of the firm’sAntitrust Practice Group. Steve has litigated numerous complex cases in federalcourts throughout the United States, including the defense of numerous publiclyheldcorporations in civil and criminal antitrust matters, including class actionsand multidistrict litigation. He has also represented numerous U.S. and non-U.S.companies before antitrust agencies of the U.S. and other jurisdictions, includingthe European Commission’s DG COMP, the Japan Fair Trade Commission, andthe antitrust agencies of Brazil. Steve has arbitrated complex commercialdisputes under the rules of the International Chamber of Commerce (ICC), theJapan Commercial Arbitration Association (JCAA), and the American ArbitrationAssociation (AAA). Steve received a J.D. from Columbia University School ofLaw in 1982, where he was a Harlan Fiske Stone Scholar and certified withhonors by the Parker School of Foreign and Comparative Law. Steve received#p#分页标题#e#an A.B., magna cum laude, from Cornell University in 1977, where he was aCornell University College Scholar of the College of Arts & Sciences. Steve isadmitted to the bars of the District of Columbia, Georgia, and New York. Hecurrently serves as a member of the Council of the American Bar Association’sSection of Antitrust Law, and a member of the Antitrust Committee of theInternational Bar Association. Steve is co-author and Editor-in-Chief of the twovolume treatise, Competition Laws Outside the United States, published by theABA, and the author of the U.S. chapter in International Agency & DistributionLaw, published by the Center for International Law. Steve has been selected forlisting in The International Who’s Who of Competition Lawyers (antitrust), TheBest Lawyers in America (litigation and antitrust), and Chambers USA: America’sLeading Business Lawyers (antitrust).ATL01/12229207v1HE ZHONGLINJudge of the Supreme People’s Court (SPC) of the People’s Republicof China:Staff member since 1991, and appointed as a judge of the IntellectualProperty Division of the SPC in 1999.Dealt with assorted intellectual property civil cases and partiallyadministrative cases, particularly patent and technology contract cases.Member of the Judicial Interpretations Panel of the Contract Law of theSPC, drafted out the Judicial Interpretations on Implementation of theContract Law with regard to Technology Contracts, and also wrote thedraft of the Judicial Interpretations on Criteria of Adjudicating uponPatent Infringement.Legal researcher of many important IPR research programs, e.g.,Criminal Law Protection on IPRs, Compensation on CopyrightInfringements, and Improvement on the Judicial Protection Mechanism ofIPRs.Education:Juris Doctor candidate (IP law), China Academy of Social Science(CASS, 2004)Master of Arts (MA) in International & Comparative Legal Studies (IPLaw), School of Oriental and African Studies (SOAS), University ofLondon (UL, 2002)Master of Laws, Peking University (PKU, 2000)LL.B, China University of Politics & Law (CUPL, 1991).Works:Co-author or co-editor of books, e.g., Cases & Commentary on theContract Law, Judicial Guidelines & Reference for Intellectual PropertyTrials.Articles have been published in legal journals, e.g., People’s Judicature(Ren Min Si Fa), National Judges College Law Journal (Fa Lv Shi Yong),Intellectual Property（Zhi Shi Chan Quan），and Intellectual PropertyReview of Spain.1Lectures and Speeches:Giving regular lectures in the National Judges College (for senior IPRjudges’ training programs since 1999) and irregular lectures in localJudges Colleges, universities and institutes#p#分页标题#e#English lectures in:University of Cambridge (2002), School of Oriental and African Studiesof the University of London (2002), Peking University (2003 – 2005)English speeches:Week-speeches on Intellectual Property Training Program for VietnameseJudges organized by USAID STAR-Vietnam (United State Agency forInternational Development, Support for Trade AccelerationProject-Vietnam, March 6-12, 2005, Bangkok）Luncheon Speech on the ITL Forum: Patent Procurement, Licensing andLitigation in China (Institute for Law and Technology, the Centre forAmerican and International Law, January 20, 2006, San Francisco)Other Professional Activities:Standing Director & Deputy Secretary-General of the China IntellectualProperty Society (CIPS)Founder-Director of the United Kingdom Chinese Law Association(UKCLA, 2001)Contracts:Address: No.27, Dongjiaominxiang, Beijing 100745, P. R. ChinaEmail: [email protected] > Faculty > Ronald C. BrownRonald C. BrownBS, University of Toledo, 1965; JD, University of Toledo, 1968;LLM, University of Michigan, 1970.Formerly Professor of Law on the Faculty of William and MarySchool of Law, Professor Brown joined the faculty at Hawai’i in1981 and has served as Associate Dean and as Director of thePacific-Asian Legal Studies Program. Presently, ProfessorBrown also serves as the University’s Director of the Center forChinese Studies. His experience includes working as an attorneywith the National Labor Relations Board, representingmanagement and labor in labor relations matters, acting asprivate impartial arbitrator in labor-management disputes andserving as state-appointed public fact-finder in Hawai’i publicsector disputes. Professor Brown’s teaching specialties includelabor and employment law, employment discrimination law,arbitration, Chinese law and Asia-Pacific comparative labor law.He has authored numerous articles and recently published a bookentitled Understanding Chinese Courts and Legal Process: Law with ChineseCharacteristics. Professor Brown has worked in China under the USIA’s professional-inresidenceprogram, has served as a Consultant with the World Bank, and has lecturedthroughout Asia on comparative labor law topics. He has taught Comparative Labor Lawat Beijing University Law School and currently serves as a foreign advisor to BEIDA ongraduate law programs. He conducts legal exchange and international training programsfor Chinese lawyers, judges, law drafters, and prosecutors under arrangements with thekey government legal agencies. In 2004-2005, Professor Brown was in China as aFulbright Distinguished Scholar, teaching at both Peking University Law School andTsinghua University Law School.Ronald C. Brown#p#分页标题#e#Professor of Law2515 Dole St.Honolulu, HI 96822Office 241(808) [email protected] Areas:Chinese Law, Employment Discrimination Law, Labor Law, Employment Law, USChinaComparative Labor LawRecent and Forthcoming Publications:Understanding Chinese Courts and Legal Process: Law with Chinese Characteristics(Kluwer).China’s Collective Contract Provisions: Can Collective Negotiations Embody CollectiveBargaining? 16 Duke Journal of Comparative and International Law 35 (2005).China’s Employment Discrimination Laws During Economic Transition, 19.2 ColumbiaJ. of Asian Law 361 (2006).U.S.-China Labor Mediation and Arbitration Compared, __ American L. Rev. __ (2006).CHINA’S EMPLOYMENTDISCRIMINATION LAWS DURINGECONOMIC TRANSITIONRONALD C. BROWN∗I. INTRODUCTION …………………………………………………………………… 362II. CHINA’S CURRENT CONDITIONS AFFECTING HUMANRESOURCES MANAGEMENT …………………………………………….. 363A. ECONOMIC TRANSITION TO A SOCIALIST MARKET ECONOMY…… 363B. HUMAN RIGHTS MANAGEMENT PRACTICES IN CHINA ……………… 3651. Regulation of Labor Market Management ………………………… 3652. Workplace Discrimination: Anecdotal Glimpses ……………….. 371III. CHINA’S ANTI-DISCRIMINATION LAWS…………………………… 386A. LAWS PROVIDING “PROTECTED STATUS”……………………………….. 3861. The 1994 Labor Law ……………………………………………………… 3872. Other Anti-Discrimination Laws ……………………………………… 3903. Local Government Discrimination Bans …………………………… 401B. LAW AND HRM PRACTICES ………………………………………………….. 4021. Recruitment ………………………………………………………………….. 4022. Employment and Termination …………………………………………. 408C. ENFORCEMENT ……………………………………………………………………. 4101. Administrative Process …………………………………………………… 4102. Proving Discrimination…………………………………………………… 4133. Remedies ……………………………………………………………………… 4154. External Incentives ………………………………………………………… 419IV. CONCLUSION……………………………………………………………………….. 420A. CHALLENGES TO REMEDYING EMPLOYMENT DISCRIMINATION … 421B. CLARIFYING CHINA’S ANTI-DISCRIMINATION LAWS……………….. 4231. “Protected Classes” of Workers……………………………………….. 424#p#分页标题#e#2. “Labor Disputes” and Legislative Rights of “Applicants” …… 425∗ Professor of Law, University of Hawaii Law School; Director, Center for Chinese Studies,University of Hawaii; 2004-2005 Fulbright Distinguished Lecturer, Peking University Law Schooland Tsinghua University Law School.362 COLUMBIA JOURNAL OF ASIAN LAW [19:23. Enhancing Enforcement: Remedies asDeterrent and Incentive ………………………………………………….. 426I. INTRODUCTIONWhile working as a consultant to the World Bank on China’slabor legislation in 1996, I was waiting outside the gate of the Ministry ofLabor, when I noticed a job advertisement posted on a pole. It read,Seeking an office clerk. Female, decent height andappearance. All five facial organs must be in the rightplace (wu guan duan zheng).1In 2005, job advertisements with identical facial requirements arewidely seen. That, of course, is but one frank articulation of what manyemployers around the world take note of in the employment hiringprocess. Other factors in considering applicants and employees in Chinamay include sex, ethnicity, social origin, health, disability, age, or migrantstatus, some of which are considerations prohibited by Chinese laborlaws.2This article describes the current status of the above factors asused in human resource management (HRM) practices during China’scurrent economic transition, and further examines China’s existing antidiscriminationlabor legislation. Some comparative references are madeto labor standards under International Labor Organization (ILO)Conventions and U.S. legislative approaches. This article furthersuggests areas for legal reform to both clarify coverage and enhanceenforcement and remedies, which would in turn arrest some of the more1 Though the Chinese disagree on which organs constitute the “five sense organs,” they have beendefined as “ears, eyes, lips, nose, and tongue,” and mean “regular features; pleasant-looking facewith the five organs in normal shape and position.” THE ABC ENGLISH-CHINESE COMPREHENSIVEDICTIONARY 1004 (John DeFrancis et al. eds., 2003).2 See Jing Tao, Gender Discrimination in the Chinese Labor Market is Severe (Apr. 12, 2005)(unpublished manuscript, on file with author); 酒店招工听口音, 未聘用只因方言不地道 [HotelRejected Job Applicant For Speaking Tongue-Tied Dialect], 北京青年报[BEIJING YOUTH DAILY],Feb. 11, 2004, at 6, available at http://edu.sina.com.cn/l/2004-02-12/60863.html [hereinafterTongue-Tied Dialect]; 尚水, 就业歧视案例聚焦 [Shang Shui, Cases on EmploymentDiscrimination], 人民日报[PEOPLE’S DAILY], June 15, 2005, at 15, available at http://legal.people.com.cn/GB/42731/3469925.html [hereinafter Shang Shui]; 炒掉百名乙肝患者惹纠纷 [Dispute#p#分页标题#e#Arises When Employer Fired Hundreds of Hepatitis B Carriers], 信息时报[INFO. CHRON.], Apr. 1,2004, at D03 [hereinafter Dispute Arises].2006] CHINA’S EMPLOYMENT DISCRIMINATION 363pernicious illegal hiring and employment practices currently found inChina’s HRM.In addition to obtaining justice for the victims of improper HRMpractices, there are several underlying inquiries for China to consider.These include (1) the social and economic costs and consequencesresulting from a failure to address issues of employment discrimination,inequality, and impediments to equal employment opportunity, and (2)whether there is sufficient national commitment to simultaneously seekalternatives to end these problems, while balancing and advancingeconomic development interests.II. CHINA’S CURRENT CONDITIONS AFFECTING HUMANRESOURCES MANAGEMENTA. Economic Transition to a Socialist Market EconomyIn the late 1980s, the economic developments following the FourModernizations of 1979 produced workplaces that were increasinglyregulated by labor contracts, displacing the “iron-rice bowl” model ofearlier years.3 The transition to a socialist market economy in the 1990scoincided with a growing assumption of managerial control foremployers.4 Due to market forces, employers were forced to maximizeprofits if they hoped to survive without government subsidies of theformer planned economy, and lawmakers responded by allowing greateremployer autonomy. This liberalization of employee management tendedto result in employers cutting labor costs, and, all too frequently, ignoringlabor laws. This trend was particularly prevalent among employersoutside of the state-owned enterprise (SOE) system.This market transition has had both positive and negativeeconomic consequences. One bright side has been phenomenal economicgrowth and development for the country as a whole; however, a dark sidehas been its impact on individual workers, including layoffs,unemployment, and emerging wage disparities. These disparities arefound in dramatic wage level differences between urban and ruralworkers as well as between regions—especially between the Special3 Jaeyoun Won, Withering Away of the Iron Rice Bowl? The Reemployment Project of Post-SocialistChina, 39 STUD. IN COMP. INT’L DEV. 71, 71 (2004). See also Randall Peerenboom, Globalization,Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in thePeople’s Republic of China, 19 BERKELEY J. INT’L L. 161, 208 (2001).4 Victor Nee & Yang Cao, Market Transition and the Firm: Institutional Change and IncomeInequality in Urban China, 1 MGMT. & ORG. REV. 23 (2005). See also Jonathan P. Hiatt &Deborah Greenfield, The Importance of Core Labor Rights in World Development, 26 MICH. J.#p#分页标题#e#INT’L L. 39, 40 (2004).364 COLUMBIA JOURNAL OF ASIAN LAW [19:2Economic Zones (SEZs) in the coastal areas and the non-SEZs in theWestern inland provinces.5 Large wage disparities also exist, as they doin many countries, between management officers and workers. 6According to former World Bank President Wolfenson, these wage gapsare increasing at an alarming rate, and he warns that history suggests suchgaps could lead to social unrest and protests.7These economic disparities in China’s labor force affect certaincohorts of workers more than others, both as a result of socio-economicfactors and because of illegal discrimination. This discrimination occursprimarily against women, migrant workers, national ethnic minorities,and workers perceived to have health problems or disabilities. Forexample, women in China working at urban jobs earn only about 70% ofwhat men make for similar work, and female executive and seniorprofessionals earn about 58% and 68% of their male counterparts,respectively. Further, professional fields are generally comprised of onlyabout 20% women, and female doctors earn about 63% of the amountearned by male doctors.8Women are not alone in their fight against employmentdiscrimination. Another group of citizens affected by the China’seconomic transition is its “floating population” of some 100 to 150million migrant workers moving from poor rural areas to developed urbanareas seeking better job opportunities.9 Recently, much attention has5 See generally Bjorn Gustafsson & Li Shi, The Anatomy of Rising Earnings Inequality in UrbanChina, 29 J. COMP. ECON. 118 (2001). See also Cliff Waldman, The Labor Market in Post-ReformChina: History, Evidence, and Implications, 39 BUS. ECON. 50, 54-56 (2004).6 国务院发展研究中心[The Development Research Center of the State Council], 中国企业人力资源管理调查报告 [Report of Chinese Enterprises on Human Resource Management] (2004), citedin老总员工收入差距最大超50 倍 [Manager Earns Fifty Times More than Staff], 广州日报[GUANGZHOU DAILY] , Apr. 25, 2004, at A2, available at http://gzdaily.dayoo.com/gb/content/2004-04/25/content_1517025.htm.7 David Murphy, The Dangers of Too Much Success, 167 FAR E. ECON. REV. 28, 28-29 (2004). TheChinese Government has taken notice of the increase in mass protests. It is reported that ZhouYongkang, the Public Security Chief and State Councilor, stated that the "’rising conflicts amongthe people’ had been triggered by domestic economic factors, the behaviour of cadres, and by a lackof justice" with the number of mass protests increasing from about "10,000 in 1994 to more than74,000 last year ". Shi Ting, Acceptance of Rights Replacing Reflex Fear of Protests, S.#p#分页标题#e#CHINA MORNING POST, July 7, 2005, at 1.8 Margaret Maurer-Fazio & James Hughes, The Effect of Institutional Change on the Labor MarketOutcomes of Chinese Women: Traditional Values vs. Market Forces (1999) (unpublished paper),cited in Elizabeth Brainerd, Women in Transition: Changes in Gender Wage Differentials inEastern Europe and the Former Soviet Union, 54 IND. & LAB. REL. REV. 138, 162 (2000). In theU.S. the figure for relative wage disparity is 76% for blacks versus whites, and 64% for Hispanicwomen. Id. at 146 (2000).9 China’s Floating Population Exceeded 10% of Total Population, 中国新闻网 [CHINANEWS.CN],Jan. 6, 2005, at http://www.chinanews.cn/news/2004/2005-01-06/772.shtml.2006] CHINA’S EMPLOYMENT DISCRIMINATION 365been given to their plight, as millions either go unpaid or are grosslyunderpaid—in violation of labor laws—and are otherwise discriminatedagainst because of their migrant status.Health discrimination for those with hepatitis B is anothercommon area of employment discrimination in China. It has beenreported that “up to 120 million Chinese people, a number equivalent tothe total population of France and Britain combined, are thought to becarriers of the disease.” 10 It is also reported that some twenty-twodiseases, such as severe heart disease and high blood pressure, disqualifypeople from being hired for public office. 11 There are also nearly onemillion HIV/AIDS carriers in China against whom employers alsodiscriminate.12Lastly, China has roughly 100 million citizens it classifies asethnic minorities, 13 whose economic status is often lower than otherChinese. When they seek to migrate outside of their communities forbetter jobs, they face possible discrimination not only for their minoritystatus, but also for their social status as rural citizens.14B. Human Rights Management Practices in China1. Regulation of Labor Market ManagementAs China relaxed its socialist planned economy and movedtoward a free market, the systems of government placement andallocation of personnel from colleges and elsewhere were modified,10 Liang Chao, Law Drafted to Fight Hep B Discrimination, CHINA DAILY, Aug. 11, 2004, athttp://www.china.org.cn/english/government/103598.htm.11 Id.12 Hong Kong Liaison Office of the International Trade Union, HIV/AIDS in China: A WorkersIssue, http://www.ihlo.org/LRC/SW/001004b.html (last visited Feb. 27, 2006).13 中共中央统一战线工作部 [The United Front Work Department of CPC Central Committee], 中国民族的基本特点 [Basic Characteristics of Chinese Nationalities], http://www.zytzb.org.cn/ssmz/ziliao/ssmz12.htm (last visited Feb. 1, 2006).14 Due to economic pressure, ethnical minorities from the remote countryside are migrating to big#p#分页标题#e#cities to look for employment opportunities. This group of workers can be classified as bothminorities and migrants. It is likely they face further discrimination based on their status asmigrants, in addition to their ethnicity. For a general discussion, see 新疆区统计局 [XinjiangBureau of Statistics], 转移农村劳动力是解决新疆“三农”问题的根本出路 [To Transfer PeasantLabor Is The Fundamental Solution to Xinjiang’s Three Main Problems In Villages], 中国统计信息网 [CHINA STAT. INFO.WEB], Aug. 31, 2005, http://www.stats.gov.cn/was40/detail?record=286&channelid=33728.366 COLUMBIA JOURNAL OF ASIAN LAW [19:2giving way to current hiring practices based largely on self-selection.15With the demise of the “iron-rice bowl,” children no longer “inherited”their parents’ factory job, and workers no longer enjoyed job security; andwith that trend came the new practice of HRM, consisting of recruitment,hiring, employment, and termination.16 The Chinese labor force soondiscovered that employment decisions were not always based on merit oreven political color (i.e. Chinese Communist Party membership). In2005, employment discrimination under this new system of employerautonomy came to the point where even a delegate to the NationalPeople’s Congress (NPC) proclaimed,A law on fair employment is an urgent need in China . . . .A harmonious society should give adequate space totalents competing on an equal footing and developing . . .their capability to the full . . . waste of any humanresources does not facilitate economic and socialdevelopment.17The current HRM hiring route is multi-faceted, and usuallyinvolves advertising for positions (rather than having labor suppliedthrough labor bureaus), word of mouth, use of labor supply brokers(including labor bureaus and employment agencies), and posting noticeson walls and the Internet. Special rules, however, still apply to foreigninvestedenterprises (FIEs), as will be discussed infra. With the exceptionof civil service jobs and jobs needing certain proficiencies, recruitment15 China’s Employment Market Challenged by Two Million Graduates, PEOPLE’S DAILY, Jan. 10,2003, http://english.people.com.cn/200301/10/eng20030110_109906.shtml. .16 Won, supra note 3, at 71. See also Mary E. Gallagher, "Time is Money, Efficiency is Life": TheTransformation of Labor Relations in China, 39 STUD. IN COMP. INT’L DEV. 3, 11-44 (Summer2004). See generally, Ying Zhu and Malcolm Warner, Changing Patterns of Human ResourceManagement in Contemporary China: WTO Accession and Enterprise Responses, 35 INDUS. REL. J.311, 311-28 (2004).17 Deputy Wang Yuan’an from Tai’an City in East China’s Shandong Province, cited from NPC#p#分页标题#e#Deputy Proposes Law against Employment Discrimination, 人民网 [PEOPLE’S DAILY ONLINE],Mar. 4, 2005, http://english.people.com.cn/200503/04/eng20050304_175554.html. For other callsfor legislation, see 凌锋, 反对就业歧视, 法律不应沉默 [Ling Feng, Law Shall Not Be SilentAgainst Employment Discrimination], 法制日报 [LEGAL DAILY], June 20, 2005, at 5. As of July2005, there is consideration on an Employment Promotion Law that may contain anti-discriminationprovisions. 就业促进法[Employment Promotion Law] (Tentative Draft 2005) (P.R.C.) (on filewith author) [hereinafter Employment Promotion Law Draft].2006] CHINA’S EMPLOYMENT DISCRIMINATION 367does not usually require testing.18 Employment and working conditionsare usually governed by the employer and its rules, with the employerauthorized to make evaluative decisions. Both, however, are limitedsomewhat by labor laws, labor contracts, and collective contracts. 19Dismissals and other labor disputes are regulated by statutes andgenerally are resolved intra-enterprise by mediation or by resort togovernment labor arbitration commissions and tribunals, with de novoreview provided by the courts.20In 2000, the Ministry of Labor and Social Security (MOLSS)sought to regularize and bring more order to labor market management byissuing its Regulations on Labor Market Management (hereinafter LaborMarket Regulations).21 Its stated purpose is to protect the legal interestsof employees and employers, to develop and standardize the labor market,and to promote employment.22 The Labor Market Regulations apply tothe laborer’s job application and work, the employer’s recruiting process,and to the “career introduction activities” of job centers. 23 TheRegulations are administered by the labor bureaus above the countylevel.2418 See 中华人民共和国公务员法 [Civil Service Law] arts. 21-32 (promulgated by the StandingComm. Nat’l People’s Cong., Apr. 27, 2005, effective Jan. 1, 2006) (P.R.C.), available athttp://www.chinacourt.org/flwk/show1.php?file_id=101410. See Robert Taylor, China’s HumanResource Management Strategies: The Role of Enterprise and Government, 4 ASIAN BUS. &MGMT. 5, 11-18 (2005).Commercial services are available in China for pre-employment screening. See, e.g., Inquest PreEmployment Screening Service, at http://www.inquestscreening.com/international_asia.asp (lastvisited Feb. 28, 2006).19 中华人民共和国劳动法 [Labor Law ] art. 19(2) (promulgated by Standing Comm. Nat’lPeople’s Cong., July 5, 1994, effective Jan. 1, 1995) (P.R.C.), available at http://www.chinacourt.org/flwk/show1.php?file_id=20195; 集体合同规定 [Provisions on Collective Contract]art. 8 (promulgated by the Ministry of Labor and Social Security, Jan. 20, 2004, effective May 1,#p#分页标题#e#2004) (P.R.C.), available at http://www.chinacourt.org/flwk/show1.php?file_id=91497.20 劳动部关于实行劳动合同制度若干问题的规定 [Regulation of the Ministry of Labor onInstitution of Labor Contract System] art. 14 (promulgated by the Ministry of Labor, Oct. 31, 1996,effective Oct. 31, 1996) (P.R.C.), available at http://www.chinacourt.org/flwk/show1.php?file_id=26814; 浅谈民商仲裁与劳动仲裁的司法监督 [Some Opinions on the Judicial Review ofCommercial Arbitration and Labor Arbitration], 中国劳动[CHINA LABOR], May 2003, at 25[hereinafter Some Opinions].21 劳动力市场管理规定 [Regulations on Labor Market Management] (promulgated by the Ministryof Labor and Social Security, Dec. 8, 2000, effective Dec. 8, 2000) (P.R.C.), available athttp://www.chinacourt.org/flwk/show1.php?file_id=36355 [hereinafter Regulations on LaborMarket Management].22 Id. art. 1.23 Id. art. 2.24 Id. art. 4. The hired person also must register with the Labor Bureau within 30 days of beinghired. Id.368 COLUMBIA JOURNAL OF ASIAN LAW [19:2The regulations relating to recruitment25 provide for “public andfair competition,”26 and states that employers can acquire employees innumerous ways, including the use of job centers and advertising in themass media. 27 Interestingly, Article 9 requires employers placing ads forvacancies in the mass media to first obtain the approval of the local laborsecurity administrative authorities. 28 The Regulations also prohibit anumber of well-documented employer abuses, including charging thehired person a deposit fee or holding worker documents such as identitypapers.29The most significant provision in Labor Market Regulations isArticle 11, which bans employment discrimination in recruitment. Itreads: “[w]hile hiring a person, the employer shall not refuse to hire orenhance the hiring standard on the basis of gender, nationality, race, orreligion, except those provided by state laws concerning unsuitable typesof work or positions.”30The Labor Market Regulations also cover “careerrecommendation organs,” or employment services and agencies, bothnon-profit and for-profit.31 Article 21 is of significance, as it prohibitscareer recommendation agencies from certain activities including“recommending jobs prevented by laws and regulations”.32 This wouldseem to ban recommendation of a job advertised by an employer as “formen only,” where there is no legal basis for a sex-specific limitation.33Sanctions for violations of these regulations provide for generalfines of ¥1,000 (for violations of Article 10 or 14), and fines ranging from¥10,000 to ¥30,000 for a violation of several enumerated articles,#p#分页标题#e#including Article 21. 34 Penalties may also include revocation of the25 Id. arts. 7-14.26 Id. art. 7.27 Id. art. 8. These ways include (1) entrusting a job center; (2) participating in labor exchangingactivities; (3) publishing advertisements for employers in mass media; (4) recruiting on the Internet;and (5) other means stipulated by laws and regulations. Id.28 Id. art. 9.29 Id. art. 10(4)-(5).30 Id. art. 11.31 Id. arts. 15-25.32 Id. art. 21.33 See 中华人民共和国广告法 [Advertisements Law] art. 7(7) (promulgated by the StandingComm. of the Nat’l People’s Cong., Oct. 27, 1994, effective Feb. 1, 1995), 1994 全国人民代表大会常务委员会公报[STANDING COMM. NAT’L PEOPLE’S CONG. GAZ.] (P.R.C.), available athttp://www.chinacourt.org/flwk/show1.php?file_id=20976 (banning discriminatory advertising bystipulating the ad shall not contain any racial, ethnic, gender, or religious discrimination language).34 The Regulations on Labor Market Management, supra note 21, at arts. 34-38. Article 10 prohibitsfalse information etc., and article 14 requires registration of employees. Id. arts. 10, 14.2006] CHINA’S EMPLOYMENT DISCRIMINATION 369employer’s business license.35 Of greatest significance, however, is theabsence of sanction for violations of Article 11 prohibitions onemployment discrimination.In 2001, the Ministry of Personnel and the State Administrationfor Industry and Commerce issued the Rules on the Administration ofHuman Resources Markets (hereinafter Rules on HRM).36 These rulesapply to the administration of labor agency services, including the generalhiring activities of employers and the treatment of individual jobapplications.37 Article 3 mandates that “human resource market activitiesmust abide by the laws, regulations, and policies of this country, persist inthe principles of openness, equality, competition, and selection of the best. . . .”38The agencies are required to have the “capacity to independentlybear civil liabilities; and sanctions are provided for violations, rangingfrom ¥10,000 to ¥30,000. 39 Of greatest significance is Article 39, whichprovidesAny employing unit that, in violation of these Rules,refuses to recruit talents or heightens the qualificationsfor these talents by such reason as nationality, sex, andreligion or recruits personnel who should not berecruited . . . shall be ordered to make corrections bythe administrative department in charge of personnel ofthe people’s government . . . if the circumstances areserious, there shall be imposed a fine of less than¥10,000.40FIEs 41 have special requirements that apply to all employees,including expatriates and personnel from Taiwan, Hong Kong, and#p#分页标题#e#35 Id. art. 37.36人才市场管理规定 [Rules on the Administration of Human Resources Market] (promulgated bythe Ministry of Personnel, Sept. 11, 2001, effective Oct. 1, 2001, revised Mar. 22, 2005) (P.R.C),available at http://www.chinacourt.org/flwk/show1.php?file_id=101542.37 Id. art. 2.38 Id. art. 3.39 Id. arts. 6(4) and 35.40 Id. art. 39 (emphasis added).41 These include China-foreign joint equity ventures, China-foreign cooperative ventures, whollyforeign-owned enterprises, and China-foreign joint stock limited companies. 外商投资企业劳动管理规定 [Provisions on the Labor Administration in Enterprises with Foreign Investment] art. 2(promulgated by the Ministry of Labor & the Ministry of Foreign Trade & Econ. Coop., Aug. 11,1994, effective Aug. 11, 1994), 14 P.R.C. LAWS & REGS V-05-00-303, available athttp://www.chinacourt.org/flwk/show1.php?file_id=20454 .370 COLUMBIA JOURNAL OF ASIAN LAW [19:2Macao.42 Additionally, there are special rules on the employment offoreigners in China, including the requirement that their employer mustobtain employment permission.43Since Chinese labor laws apply to FIE employees,44 many FIEshave developed a practice whereby foreign employees sign employmentcontracts that stipulate that the law of the enterprises’ home country willgovern. 45 In 2003, new provisions were issued regulating themanagement of intermediary employment agencies servicing FIEs. 46These provisions require any FIE using intermediary services to conductits “activities through a specialized job intermediary agency jointlyestablished with a Chinese company, enterprise or other economicorganization for offering job intermediary services.”47 These agencies areauthorized to collect data about the employment market, provide jobrecommendations, conduct recruitment activities, job testing andappraising, and provide training courses. 48 They must abide by “theprinciples of voluntary participation, equity and good faith.” 49 Sanctionsare outlined, ranging from fines of ¥10,000 to ¥30,000, to loss of businesslicense.50Other HRM policies for FIEs fall under the 1994 Regulations.For recruitment, FIEs, including representative offices, are allowed to usethe labor services of an intermediary agency to hire Chinese employees.51These policies also regulate wage equities between Chinese and foreignpersonnel and embrace the requirement of equal pay for equal work.5242 劳动部关于贯彻外商投资企业劳动管理规定有关问题的复函 [Reply of the Ministry of Laboron Relevant Issues Regarding the Implementation of Provisions on Labor Administration inEnterprises with Foreign Investment] art. 1 (promulgated by the Ministry of Labor, July 14, 1995,#p#分页标题#e#effective July 14,1995) (P.R.C), available at http://www.chinacourt.org/flwkshow1.php?file_id=23070.43 外国人在中国就业管理规定 [Regulations on the Management of Employment of Foreigners inChina], art. 5 (promulgated by the Ministry of Labor and Pub. Sec., Jan. 22, 1996, effective May 1,1996) (P.R.C.), available at http://www.chinacourt.org/flwk/show1.php?file_id=24485 (availableby subscription only).44 Jeremy B. Fox et al., Beyond the Image of Foreign Direct Investment in China: Where EthicsMeets Public Relations, 56 J. BUS. ETHICS 317, 317 (2005).45 More Foreign Employees Working in Shanghai, CHINA STAFF, Jan. 2005, at 34.46 中外合资人才中介机构管理暂行规定 [Interim Provisions Concerning the Management of指导essay Chinese-foreign Joint Job Intermediary Agencies] (promulgated by the Ministry of Personnel, theMinistry of Commerce and State Administration for Industry & Commerce, Sept. 4, 2003, effectiveNov. 11, 2003) (P.R.C.), available at http://www.chinacourt.org/flwk/show1.php?file_id=89004.47 Id. art. 3. Wholly foreign-owned job intermediary agencies are prohibited. Id.48 Id. art. 11.49 Id. art. 12.50 Id. arts. 16-18.