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China’s Labour Inspection Sanction system and Judiciary

Explore the governance structure, legal basis, and procedures of China's labour inspection sanction system and its relationship with the judiciary. Analyze the challenges and options for improving this system.

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China’s Labour Inspection Sanction system and Judiciary

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  1. China’s Labour Inspection Sanction system and Judiciary Mr. Lu Yulin Deputy Director-General International Cooperation Department Ministry of Human Resources And Social security, P.R. China

  2. Background • Labour inspection sanction system • Relations between labour inspection system and judiciary • Challenges and options Outline

  3. Governance structure: 4 level governments • Legislation: Constitution, laws, administrative regulations, rules, local regulations • General and specialized inspection: MOHRSS, SAWS, MOH, AQSIQ • Labour and social security inspection • (shortened as labour inspection) : Ⅰ. Background 1 • Inspectorates: 2391; inspectors: 23000. (2010)

  4. Ⅰ. Background 2 Article 18 of the Regulations on Labour and Social Security Inspection (2004) (1) Make the administrative penalty decision where administrative penalty shall be executed in accordance with the law; (2) Make the order of correction or other appropriate administrative disposal decision where correction shall be made; (3) Withdraw the record where the case is minor and correction has been made. Where the case is beyond the scope of labour and social security inspection, the case shall be transferred to the relevant department; where there is suspected involvement in crime, the case shall be transferred to the judicial authority.

  5. II. Labour Inspection Sanction 1

  6. 1. Legal basis of labour inspection sanction • Labour Law (1995) • Labour Contract Law(2008) • Employment Promotion Law (2008) • Social Insurance Law (2011) • Regulations on Labour and Social Security Inspection(2004) • Other departmental provisions and local legislations II. Labour Inspection Sanction 2

  7. 2. Case dealing procedures • Place a case on the file: 5 days to start and within 2 years span; • Investigate and inspect: 2 persons and ID presented; To be completed within 60 working days (30 days extension upon approval) • Penalties and sanctions: within 15 work days; • Execution: decisions to be executed as prescribed and compulsory execution within 180 calendar days. II. Labour Inspection Sanction 3

  8. II. Labour Inspection Sanction 4 3. Procedures of labour inspection penalties A. General procedures > Collect evidences through investigation and inquiry >> Exam the result (by the head of the Dohrss), where the case is important and complicated or serious penalty to be imposed, collective discussion shall be held >>> Inform the party concerned of the facts, course and legal basis of the penalty to be imposed and his rights >>>> Hear the statement and explanation of the party concerned

  9. 3. Procedures of labour inspection penalties (Cont.) B. Hearing procedures Open hearing will be held where the case is important and complicated or serious penalty been imposed and if the party is so request C. Simple procedures Where the case is simple or small amount of fine is imposed, simple procedures (on-the-spot disposal procedures) could be applied II. Labour Inspection Sanction 5

  10. 4. Types of labour inspection penalties: >>> Warning (minor cases); >>> Fine, the Administrative Penalty Law(2009); >>> Confiscation of illegal gains; >>> Production or business suspension injunction or temporary detention or revocation of certificates or business licenses. II. Labour Inspection Sanction 6

  11. 5. Order for correction or administrative disposal • Order for correction • Labour inspection administrative disposal e.g. orders for payment of wages, economic compensation and damages • Not a penalty II. Labour Inspection Sanction 7

  12. 6. Administrative remedy for labour inspection penalty • Open hearing (as above mentioned) • Administrative reconsiderations >>administrative remedy Administrative Reconsideration Law (1999) >> internal supervision >> by the legal affairs department of the corresponding government or the legal affairs divisions of the Dohrss II. Labour Inspection Sanction 8

  13. 8. Principles of labour inspection sanction • Statutory power and procedures; • Openness and fairness; • Separation of investigation and disposal , and fine imposing and collection (by banks); • The same illegal act shall not be given a penalty for more than once ; • Reasonably using discretion; • Combing education with punishment; and etc. II. Labour Inspection Sanction 9

  14. III. Labour Inspection and Judiciary 1

  15. 1. Labour inspection and judiciary supervision • Legal basis : Administrative Penalty Law(2009), Administrative Litigation Law (1990) and Regulations on Labour Inspections(2004) • Filed by the party concerned • Heard by the court • Verdicts: upheld, discharge or reverse the labour inspection decision III. Labour Inspection and Judiciary 2

  16. 2. labour inspection and judiciary compulsory execution • Legal basis: Administrative Compulsory Law (2011) • Applied by the LI in the name of the Dohrss • Procedures: >> prior exhortation (10 days before); >> desk review by the court; >> appeal in case of dismiss; >> compulsory execution. III. labourInspection and Judiciary 3

  17. 3. Labour inspection and criminal justice • Legal basis : Provisions on Transferring of Suspected Criminal Cases from Administrative Enforcement Agencies (the State Council,2001) • Major cases transferred from the LI: >> defraud Job-seekers of their money; >> obtain social insurance benefits by fraud; >> refuse to pay wages; >> forced labour & child labour. III. labourInspection and Judiciary 4

  18. IV. Challenges and Options 1

  19. IV. Challenges and Options 2 1. Challenges in the labour inspection itself • Legislation problems : > non-operable provisions > lack of coercive measures e.g. property preservation, bank account freezing • Pressures from strict procedural and time limit requirements by administrative laws (administrative nonfeasance, i.e. administrative failure to act ) • Inadequate institutional capacity (heavy workload and limited resources and skills)

  20. IV. Challenges and Options 3 • Challenges in the labour Inspection System itself (cont.) Increasing work load and limited resources: • New laws and regulations; • Extended scope: covering 44.7 million establishments and 780 million working population (2009). • Workload ( 2010) >> Routine visit: 1.73 million visits >> Desk review: covering 1.77 million establishments >> Accepting reports and complaints: 3,360,000 cases >> Special inspections: 3time (2010) • Inadequate staff: 1:30000

  21. IV. Challenges and Options 4 2. Challenges in the cooperation between China’s labour Inspection System and judiciary • Regular joint-action mechanism has not yet been established nationally (case by case); • Underdeveloped inter-agency coordination (legislation, case discussion, enforcement); • Lack of adequate staffs equipped with labour law knowledge in judiciary agencies. ( complexity of labour law and policies)

  22. IV. Challenges and Options 5 3. Options • Establish regular cooperation mechanism: >> joint action; >> jointly issued documents; >> inter-agency agreement; >> information sharing (through “2N”system). • Carry out joint workshops or trainings: >> where draft new laws or make amendments; >> Case study; and etc. • Strengthen the labor inspection's function of legislation implementation feed-back.

  23. Thank you for your attention. If you have any inquiries, please contact me at : Luyulin@mohrss.gov.cn

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