China’s Legal System for Prohibiting Child Labor

　　(Ⅰ)

　　How to extend necessary special protection to minors is a widely concerned major issue in the labor legislation of all countries. As different countries have different legal provisions for the minimum age of adults, they ashcake different definitions of child labor Even a same country may have different definitions of child labor because of having different legal provisions for the minimum age of adults in different periods of time. According to the International Labor Organization's conventions and proposals concerning child labor, child labor can be explained in the broad sense or in the narrow sense. In the narrow sense, child labor refers to minors employed under the permitted minimum age for admission to employment. ILO Convention No. 138 Concerning Minimum Age for Admission to Employment provides that the minimum age for admission to employment or work within members that have ratified the convention shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than15 years; and that members whose economy and educational facilities are insufficiently developed may, after consultation with the organizations of employers and workers concerned, where such exist, initially specify a minimum age of 14 years. This means that according to this ILO convention, minors under the age of 14 admitted to employment are called child workers. In the broad sense, child labor refers to minors admitted to employment, including both minors prohibited from employment and minors permitted to have employment. According to both ILO Convention No.77 Concerning Medical Examination of Young Persons (Industry) and ILO Convention No. 78 Concerning Medical Examination of Young Persons(Nonindustrial Occupations) and other conventions of the ILO, children and young persons under 18 years of age shall not be admitted to employment or work in industrial or nonindustrial occupations unless they have been found fit for the work in question by a thorough medical examination. When admitted to employment, such children and young person’s permitted to have employment also belong to the scope of child labor. The employment of such child labor is not prohibited, but is subject to stringent restrictions in terms of medical examination, working conditions, etc.

　　(Ⅱ)

　　Before the founding of the People’s Republic of China in 1949, enterprises under the rule of the Kuomintang(Nationalist Party) government massively employed child labor. Feature report Bao shengong (Slave Labor) written by Xia Yan is a portrayal true to the life of child labor employed by then Chinese enterprises. In initial years following the founding of the People’s Republic of China, because of years of wars, the Chinese economy was depressed, the national strength was weak and people were living a very hard life. Under such a circumstance, the State was unable to generalize the nine-year compulsory education. Therefore, the State did not make legal provision prohibiting the employment of child labor. Instead, the State provided for requirements for labor protection concerning minors that were more stringent than those concerning adults. In those years, there existed a vast number of private enterprises in China, which were employing many minors under the age of16. Along with the revival of the national economy, and the completion of the nationalization of private enterprises, the labor system at Chinese enterprises was gradually brought under regulation. Meanwhile, both the education of technical training schools and the nine-year compulsory education became generalized. The livelihood of the working class was greatly improved. As a result, the employment of child labor became something rare. From the mid1960s to 1978 when China adopted the policy of economic restructuring and opening up, there was virtually no private economy in China. During this period, the employment of workers on the part of State run enterprises was under strict control by the government’s labor administrative authorities, and the employment of child labor was totally eliminated in China.

　　Since China adopted the policy of economic restructuring and opening up, there have occurred many forms of ownership in China. Such employers as private enterprises and microeconomic organizations have mushroomed in the country. A small number of employers are not well regulated in employment. Some private enterprises and microeconomic organizations, particularly illegally run economic organizations that have not been registered with competent authorities for industry and commerce, are employing child labor in violation of law. The Chinese government has attached great importance to this problem, and has instructed the competent legislative, law enforcement and supervision and control authorities to establish and improve a legal system for prohibiting the employment of child labor.

　　Since the beginning of the 1990s,China has enacted a series of legal regulations concerning the prohibition of child labor. The National People's Congress China’s top legislature enacted the Law of the People's Republic of China on the Protection of Minors in1991, and the Labor Law of the People’s Republic of China in 1994. The State Council the highest governing body in China promulgated the first set of Regulations on Prohibiting the Employment of Child Labor in 1991, and started to formulate a new set of Regulations on Prohibiting the Employment of Child Labor in 2001. The newly formulated Regulations on Prohibiting the Employment of Child Labor was promulgated on October 1, 2002 and went into effect on December 1, 2002. The newly formulated Regulations on Prohibiting the Employment of Child Labor (hereinafter referred to as “the new Regulations”) has taken into account lessons in the enforcement of legal provisions for prohibiting the employment of child labor in China over the past more than 10 years, and has drawn on relevant provisions of international conventions and successful experience of foreign countries in this respect. In light of the reality that there have occurred some problems in the prohibition of child labor in China over recent years the new Regulations has made provisions meant to further improve China ‘legal system for prohibiting the employment of child labor. Moreover, China ha, ,ratified ILO conventions concerning child labor, including the Convention the Rights of the Child, ILO Convention No. 138 Concerning Minimum Age for Admission to Employment and ILO Convention 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor. In supervision over law enforcement concerning the prohibition of child labor, the Chinese government adopts many forms of measures to investigate and punish those held responsible for the employment of child labor. It has defined the investigation of and punishment for the employment of child labor as part of the routine work of supervision over law enforcement concerning the prohibition of child labor. In light of their local realities, the labor insurance administrative authorities in all the Chinese regions regularly launch law enforcement supervision activities to investigate and punish acts of employing child labor. The promulgation and enforcement of the series of laws and regulations concerning the prohibition of child labor and the launch of law enforcement supervision activities to investigate and punish acts of employing child labor signify that a legal system for prohibiting the employment of child labor has been established in China, and that this system is being improved gradually.

　　(Ⅲ)

　　China's legal system for prohibiting the employment of child labor mainly include the following provisions:

　　1. Provisions for minimum age for admission to employment:

　　China has ratified ILO Convention No. 138 Concerning Minimum Age forAdmission to Employment and otherILO conventions. In reality, the Chinese law has relevant legal provisions that are more stringent than corresponding provisions of the ILO. Clause I in Article 28 of the Law of the People's Republic of China on the Protection of Minors provides: “No organizations or individuals may employ minors under the age of 16.” Clause I in Article 15 of the Labor Law of the People's Republic of China provides: “Employers shall be prohibited from employing minors under the age of 16.” Article 2 of the previous Regulations on Prohibiting the Employment of Child Labor promulgated by the State Council in 1991provided: “Child workers refer to minors or children under the age of 16 who have established a labor relationship with a unit or individual and who are engaged in work to earn economic income or who are self-employed.” Although the new Regulations does not have a definition about child workers, it explicitly provides: “No State organs, social organizations, enterprises, public institutions, privately run non-business institutions and small industrial or commercial businesses may employ minors under the age of 16. (Employment of minors under the age of 16 is hereinafter referred to as employment of child labor.) It also provides: “No minors under the age of 16 may run an individual operation.” According to these legal provisions, the minimum age for admission to employment provided for by Chinese law is 16 years, one year older than the minimum age for admission to employed prescribed by the ILO.

　　2. Provisions for establishing the system for restricting (not prohibiting)the employment of minors between the ages of 16 and 18:

　　Like relevant international conventions, Chinese law provides that child workers prohibited from employment in China shall be minors who have not reached the statutory minimum age for admission to employment. Clause 1in Article l 1 of the General Principles of Civil Law of the People's Republic of China provides: “Citizens who have reached the age of 18 or older shall be adults.” That's to say, citizens under the age of 18 are minors in China. Clause 2in Article 1 l of the General Principles of Civil Law provides: “Citizens aged between 16 and 18 whose source of income for living is mainly their own come from work shall be viewed as persons with complete civil capacity.” This provision means that minors between the ages of 16 and 18 are allowed to work in China. This part of the working population is referred to as underage labor in China. Relevant Chinese laws and regulations have made strict provisions for the types of work, jobs, labor intensity, labor protection, working conditions and physical examination for the employment of underage workers. The Law of the People's Republic of China on the Protection of Minors provides:“For any organizations or individuals employing minors between the ages of16 and 18 in compliance with relevant legal provisions of the State, they shall implement relevant regulations of the State on the types of work, work hours, labor intensity, labor protection measures, etc, and may not engage them in excessively heavy, toxic or harmful work or dangerous operations” The Labor Law of the People's Republic of China provides: “The State shall extend special labor protection to female workers and underage workers.” It also provides that employers “may not engage underage workers in mining, down hole, toxic or harmful work, labor of the fourth degree physical labor intensity prescribed by the State and other types of labor prohibited;” and that “Employers shall extend regular physical examinations to check the health of underage workers.”

　　3. Provisions for strict regulation of acts of employment:

　　Under the system of a centrally planned economy practiced in China for decades, employers, in employing personnel, must apply to competent labor administrative authorities for employment permission. In reviewing applications for employment permission, competent labor administrative authorities would check the age of the persons to be employed. Through the adoption of such administrative means, China effectively prevented any employment of minors under the age of 16. However, along with the gradual establishment of the system of a socialist market economy and the reform of the labor law and labor administration systems in China over recent years, the employment of personnel and establishment of labor relations have become independent acts between employers and employees. To meet such new changes, the new Regulations provides: “In employing personnel, employers must check the identity card of the people to be employed. They may not employ any minors under the age of 16. Employers shall properly maintain the records of registration for employment and identity verification.” According to the new Regulations, employers failing to implement such legal provisions shall bear relevant legal responsibility.

　　4. Provisions for severe punishment for employment of child labor:

　　The previous Regulations on Prohibiting the Employment of Child Labor promulgated in 1991, while prohibiting the employment of minors under the age of 16, provided that employer sound to have employed minors under the age of 16 would receive such forms of administrative punishment as warning, imposition of finds and even revocation of the business license. On the basis of the administrative punishment prescribed by its predecessor, the new Regulations extends the scope of punishment and provides for more severe forms of punishment. Article 6 of the new Regulations provides: “For any employers employing child labor, the relevant labor insurance administrative authorities shall punish them by imposing fines at a rate of 5,000 Yuan (600 U.S. dollars) for employing every person per month. For any employers employing child labor at work sites with poisonous materials, they shall be punishable with the imposition of fines at rates prescribed by the new Regulations on Labor Protection at Work Sites With Poisonous Materials, or shall be punishable with the imposition of fines at the high end of the rate of 5,000 Yuan(600 U.S. dollars) for employing every person per month.” It provides that where employers fail to honor an order given by relevant labor insurance administrative authorities to make correction with a prescribed time limit, and do not deliver the child workers to their parents or other guardians within the time limit, the labor insurance administrative authorities shall punish them by imposing fines at a rate of 10,000 Yuan(1,200 U.S. dollars) for employing every person per month, and that the relevant administrative authorities for industry and commerce shall revoke the business license of the employers concerned, or the relevant civil administrative authorities shall cancel the registration of the employers concerned as privatelyrunnon business institutions. The new Regulations also provides that for any institutions or individuals recommending minors under the age of 16 for jobs, the relevant labor insurance administrative authorities shall punish them by imposing fines at a rate of 5,000 Yuan (600U.S. dollars) for recommending every person per month; and that for employment agencies recommending minors under the age of 16 for jobs, the relevant labor insurance administrative authorities shall revoke their license for employment agency.

　　5. Provisions for the imposition of liability on employers that cause occupational diseases, injury or death of child workers:

　　The employment of child labor is a lawbreaking act. If employers cause occupational diseases, injury or death of child workers in the process of employing child labor, they will be liable to make compensation. The previous Regulations on Prohibiting the Employment of Child Labor promulgated in 1991authorized provincial level governments to formulate standards governing compensation for the death or disability of child workers. As a result, different Chinese regions had different standards for compensation. Some regions provided for excessively low standards for compensation, harming the legitimate rights and interests of child workers who are disabled or die in the process of employment. Besides, such a provision is not conducive to effectively stopping employers from employing child labor. Therefore, the new Regulations provides for unifying the standards for compensation. Article 10 of the new Regulations provides that where child workers are disabled or die, the employers concerned shall extend a lump sum compensation to the lineal relatives of each disabled or dead child worker, computable in accordance with the standards of the State for insurance against injuries at work, which are generally higher than the standards previously formulated by local government authorities.

　　(Translated by Liao Zhenyun)

　　Appendix

　　Regulations on Prohibiting the Employment of Child Labor

　　(Adopted at the 63rd Executive Meeting of the State Council on September 18, 2002, and effective as of December 1, 2002)

　　Article 1 With a view to protecting the physical and intellectual integrity of minors, promoting the implementation of the compulsory education system, and safeguarding the legitimate rights and interests of minors, this set of Regulations has been enacted in accordance with the Constitution, the Labor Law and the Law on the Protection of Minors.

　　Article 2 No State organs, social organizations, enterprises, public institutions, privately run non-business institutions and small industrial or commercial businesses(hereinafter referred to as employers on a collective basis)may employ minors under the age of 16. (Employment of minors under the age of 16 is hereinafter referred to as employment of child labor.)

　　No institutions or individuals may recommend minors who under the age of 16 for jobs.

　　No minors under the age of 16 may run an individual operation.

　　Article 3 The parents or other guardians of minors under the age of 16 shall protect the physical and intellectual integrity of the minors, guarantee their right to receive compulsory education, and may not permit illegal employment of them by employers.

　　Where the parents or other guardians of minors under the age of 16 have permitted illegal employment of them by employers, the local township level or town level People’s Government, sub district government office, villagers' committee and neighborhood committee concerned shall criticize and educate the parents or other guardians.

　　Article 4 In employing personnel, employers must check the identity card of the people to be employed. They may not employ any minors under the age of 16. Employers shall properly maintain the records of registration for employment and identity verification.

　　Article 5 The labor insurance administrative authorities of the People's Governments at the county level or higher shall be in charge of supervising and inspecting the enforcement of this set of Regulations.

　　The administrative authorities for public security, industry and commerce, education, public health, etc of the People’s Governments at the county level or higher shall supervise and inspect the enforcement of this set of Regulations within their jurisdiction, and shall cooperate with the labor insurance administrative authorities in conducting supervision and inspection.

　　Such mass organizations as trade unions, Communist Youth League committees and women's federations shall safeguard the legitimate rights and interests of minors in accordance with law.

　　Where any institutions or individuals discover a case of employment of child labor, they shall have the right to report it to the relevant labor insurance administrative authorities at the county level or higher.

　　Article 6 For any employers employing child labor, the relevant labor insurance administrative authorities shall punish them by imposing fines at a rate of 5,000 Yuan for employing every person per month. For any employers employing child labor at work sites with poisonous materials, they shall be punishable with the imposition of fines at rates prescribed by the Regulations on Labor Protection at Work Sites With Poisonous Materials, or shall be punishable with the imposition of fines at the high end of the rate of 5,000 Yuan for employing every person per month. The relevant labor insurance administrative authorities shall concurrently order the employers concerned to return the child workers to their original place of abode and deliver them to their parents or other guardians within a prescribed time limit, and the expenses of travel, board and lodging that arise shall be payable fully by the employers concerned.

　　Where employers fail to honor an order given by relevant labor insurance administrative authorities to make correction with a time limit in accordance with the foregoing clause, and do not deliver the child workers to their parents or other guardians within the time limit, the labor insurance administrative authorities shall punish them by imposing finest a rate of 10,000 Yuan for employing every person per month, payable as of the date of ordering them to make correction. Meanwhile, the relevant administrative authorities for industry and commerce shall revoke the business license of the employers concerned, or the relevant civil administrative authorities shall cancel the registration of the employers concerned as privately run no business institutions. Where the employers concerned are State organs or public institutions, the State organs or public institutions concerned shall punish the persons directly in charge and other persons directly responsible by giving them administrative or disciplinary sanctions of demotion or removal from office.

　　Article 7 For any institutions or individuals recommending minors under the age of 16 for jobs, the relevant labor insurance administrative authorities shall punish them by imposing fines at a rate of 5,000 Yuan for recommending every person per month. For employment agencies recommending minors under the age of 16 for jobs, the relevant labor insurance administrative authorities shall revoke their license for employment agency.

　　Article 8 For employers that have failed to properly maintain records of registration for employment in violation of Article 4 of this set of Regulations, or that are found to have fabricated records of registration for employment, the relevant labor insurance administrative authorities shall punish them by imposing a fine of 10,000 Yuan.

　　Article 9 For employers that do not have a business license, that have been deprived of the business license, or that have not been registered in accordance with law, if they are found to have employed child labor or have recommended minors for jobs, they shall be punishable with the imposition of fines twice the amount prescribed by Articles 6, 7 or 8.Besides, such illegal employers shall be outlawed by competent administrative authorities.

　　Article 10 Where child workers become ill or are injured, the employers concerned shall send them to medical institutions for treatment, and shall pay for all the medical and living expenses during the period of medical treatment.

　　Where child workers are disabled or die, the relevant administrative authorities for industry and commerce shall revoke the business license of the employers concerned, or the relevant civil administrative authorities shall cancel the registration of the employers concerned as privately run no business institutions. Where the employers concerned are State organs or public institutions, the State organs or public institutions concerned shall punish the persons directly in charge and other persons directly responsible by giving them administrative or disciplinary sanctions of demotion or removal from office. Besides, the employers concerned shall also extend a lump sum compensation to the lineal relatives of each disabled or dead child worker, computable in accordance with the standards of the State for insurance against injuries at work.

　　Article 11 Whoever abducts children to work as child workers, forces child workers to work or engage child workers in high rise operations, down hole operations, radioactive operations, highly toxic operations, flammable operations, explosive operations or labor of the fourth degree physical labor intensity prescribed by the State, employs child workers under the age of 14 or causes the death or serious injury or disability of child workers shall investigated to establish criminal responsibility in accordance with charges of the crime of child abduction, the crime of forcing people to work or other crimes provided for by the Criminal Law.

　　Article 12 For functionaries of State administrative authorities who have committed any of the following acts, they shall be given an administrative sanction of recording a major demerit or demotion in accordance with law; where an act is a serious offense, they shall be given an administrative sanction of removal from office or expulsion in accordance with law; and where an act constitutes a crime, they shall be investigated to establish criminal responsibility in accordance with charges of the crime of abuse of power, the crime of dereliction of duty or other crimes provided for by the Criminal Law:

　　(1) Functionaries with competent government authorities including labor insurance administrative authorities discover the employment of child labor in their work of supervision and inspection against the employment of child labor, but do not stop the employment of child labor, do not order a correction and do not investigate and punish those responsible;

　　(2) People's Police with public security authorities issue identity cards in violation of relevant rules or record a false birth date on identity cards; or

　　(3) Functionaries with administrative authorities for industry and commerce discover that an applicant is a minor under the age of 16, but still issue him with a business license for running individual operation.

　　Article 13 With the consent of parents or other guardians, literary and art institutions and sports institutions can admit minors under the age of 16 as specialized literary and art workers or athletes. The institutions concerned shall guarantee the physical and intellectual integrity of the minors under the age of 16 who are admitted, and shall guarantee their right to receive compulsory education. The labor insurance administrative authorities under the State Council shall, jointly with the cultural and sports administrative authorities under the State Council, enact regulations on the admission by literary and art institutions and sports institutions of minors under the age of 16 as specialized literary and art workers or athletes.

　　The organization by schools and other educational institutions as well as vocational training institutions of minors under the age of 16 for work of educational practice or work of vocational or job training in accordance with relevant regulations of the State that will not negatively influence the personal safety or the physical or intellectual integrity of the minors concerned does not belong to the employment of child labor

　　Article 14 This set of Regulations shall be effective as of December 1, 2002, and the Regulations on Prohibiting the Employment of Child Labor promulgated by the State Council on April 15, 1991 shall be repealed at the same time．