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“Active Judiciary”: Judicial Dismantling Of Workers’ Collective

Action In China

Article  in  The China Journal · January 2012

DOI: 10.1086/665741

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 “ACTIVE JUDICIARY”: JUDICIAL DISMANTLING OF
WORKERS’ COLLECTIVE ACTION IN CHINA

Feng Chen and Xin Xu

The market-driven economic transformation in China has made the rule of law
increasingly important in labor relations. In the past three decades, the state has
actively legislated on labor issues, passing three major laws: the Labor Law in
1994, the Trade Union Law in 2002 and the Labor Contract Law in 2008. These
have laid down the legal foundation for labor relations, not only by defining
workers’ rights, but also by stipulating procedures for labor disputes. Procedural
systematization and the promulgation of labor laws have raised workers’ awareness
of their legal rights, resulting in an exponential growth in labor disputes. This has
brought courts to the forefront of labor dispute resolution.
Scholars have focused on the role of the judicial process in settling labor
disputes. They have examined how legal procedures have opened up new
opportunities for workers to air their grievances and press for redress, and how legal
and institutional changes have shaped legal mobilization.1 Laws have been viewed as
“weapons” allowing discontented workers—mainly as individual litigators—to seek
justice,2 or giving trade unions a role in legal aid,3 while the courts process workers’
individual claims. Nevertheless, the courts do not encounter only individual labor
disputes. The past two decades have witnessed a growing number of collective labor

Financial support for this research was provided by the Research Council of Hong Kong
Government and Faculty Research Grants of Hong Kong Baptist University. Feng Chen is
grateful to Huang Yanhao, Zou Chen and Tang Mengxiao who provided research assistance.
We would like to thank the editors of The China Journal and two anonymous reviewers for
their helpful comments on the manuscript.
1
See, for example, Anita Chan, “Strikes in China’s Export Industries in Comparative
Perspective”, The China Journal, No. 65 (January 2011), pp. 27-51.
2
Mary Gallagher, “Use the Law as Your Weapon: Institutional Change and Legal Mobilization
in China”, in Neil Diamant, Stanley Lubman and Kevin O’Brien, Engaging the Law in
China: State, Society, and Possibilities for Justice (Stanford: Stanford University Press,
2005), and “Mobilizing the Law in China: ‘Informed Disenchantment’ and the Development
of Legal Consciousness”, Law and Society Review, Vol. 40, No. 4 (December 2006), pp.
783-816.
3
Feng Chen, “Legal Mobilization by Trade Unions: The Case of Shanghai”, The China
Journal, No. 52 (July 2004), pp. 27-45.

THE CHINA JOURNAL, NO. 67, JANUARY 2012

88 THE CHINA JOURNAL, No. 67

disputes that have been brought before them, and they are increasingly instrumental
in defusing and settling workers’ collective action.
This study seeks to understand the courts’ role in and approach to labor conflict
resolution. It argues that what the courts have done is characterized by their dual
attempts to be proactive in pursuing fair and legally justifiable results for individual
workers, on the one hand, and to contain workers’ collective action, on the other. In
other words, the courts’ sympathy for workers’ legal rights is often entwined with or
overshadowed by their political concern over workers’ potential for collective action.
This paper will explore how the courts have balanced judicial professionalism and
the need to serve the state’s political goals.
“Judicial professionalism” here refers to judges’ strict commitment to labor
laws in their handling of dispute cases. It strengthens the courts’ pro-worker position,
as Chinese labor laws are largely favorable to workers’ individual legal rights,
while it is employers who are often responsible for breaches of law. Judicial
professionalism accounts to a large extent for the more pro-worker stance of the
courts in dispute resolution compared to the labor bureaucracies, which are often
entangled with business and have economic concerns.
On the other hand, as a subordinate constituent of the state apparatus, the courts
have to take the state’s priority of maintaining social stability seriously and are
actually required to prevent and defuse workers’ collective actions, perceived by the
state as a threat to social order. The courts’ effort to balance these goals has led to
some unique judicial practices. “Extrajudicial involvement” refers to the courts’
collaboration with bureaucratic agencies to defuse workers’ collective action on the
spot. Judicial mediation, a quasi-judicial practice, is a flexible and less-structured
process allowing judges to use various “unconventional” means, such as “divide
and rule”, persuasion and intimidation to seek plaintiffs’ withdrawal from lawsuits,
or to strike a compromise and ensure a legally binding agreement between disputing
parties. In the formal judicial process, the courts split collective disputes cases into
individual ones, so that group grievances can be addressed on an individual basis
and the escalation of collective contention can be averted.
This paper will examine the causes of these judicial practices, their mechanisms
and their implications for the judicial system, as well as for labor movements in
China. The paper will also argue that the courts’ role in defusing workers’ collective
action is enhanced by the nature and forms of workers’ collective protests. As their
actions are largely spontaneous and unorganized, workers are largely unable to make
well-defined collective claims in a coordinated way. In other words, the courts
typically face collective actions that lack solidarity, rather than organized labor
capable of bargaining and utilizing collective power. This allows the courts
considerable room for maneuver to divide workers and dissolve collective disputes.
Splitting collective disputes into individual cases has been accepted by the
unorganized groups of workers as a standard method of dispute resolution.
The research is a case study based on data collected from both group and
individual interviews conducted in 2009 and 2011 with more than a dozen judges
and a few court officials in Dongguan ( ) in Guangdong Province. Background
 “ACTIVE JUDICIARY” 89

information is also derived from court documents, case files and media reports.
Methodologically, the case study is used to pursue analytic generalization.4 While
judicial intervention in collective labor disputes has been practiced widely in China,
especially in the Pearl River Delta region, the courts in Dongguan constitute an ideal
site for field studies. The city is famous for its booming Foreign Direct Investment
(FDI) and private economy, but it has also witnessed tense labor conflicts.
Overwhelmed by the soaring number of labor disputes cases, especially after the
financial crisis in 2008, the courts in Dongguan were once said to be the “busiest”
in the country.5 They were typical of grass-roots courts in the Pearl River Delta
region which had struggled with various ways to settle collective disputes.

The Courts and Collective Labor Disputes in China

China’s legal reforms since the 1980s have advanced “the rule of law” in the country
and significantly elevated the role of courts in society.6 However, critics justifiably
question whether the rule of law espoused by the government is possible, as courts
and judges remain fully embedded in the state apparatus.7 Solomon identifies
four common patterns of judicial power and independence in authoritarian regimes:
1) politically marginal courts; 2) fragmented judicial systems; 3) relatively
independent courts having meaningful jurisdiction; and 4) formally independent
and empowered courts but with informal practices to ensure that judges do not rule
against the interests of the regime.8 Chinese courts obviously fall into the first type:
they are characterized by a lack of independence and multiple lines of dependence on
political and administrative authorities. They have to submit to the will of the political
power rather than to the laws dealing with politically relevant cases. A number
of high-profile cases tried in the past few years, involving political dissidents or
rights activists, indicate that courts are showing a “continuing commitment to the
primacy of state power”9 and remain a “politically biased actor”.10 However,

4
W. A. Firestone, “Alternative Arguments for Generalization from Data as Applied to
Qualitative Research”, Educational Researcher, Vol. 22 (1993), pp. 16-23.
5
“Laodong zhengyian juzheng, Dongguan fayuan keneng chengwei quanguo zuimang
fayuan” (Labor Disputes Soared and the Courts in Dongguan Are Likely to Become the
Busiest Courts in China), http://news.sina.com.cn/c/2008-12-04/104316782360.shtml,
accessed 15 May 2010.
6
Stanley Lubman, “Bird in a Cage: Chinese Law Reform in Twenty Years”, Northwest
Journal of Law and Business (Spring 2000), pp. 383-423.
7
Peter Solomon, “Authoritarian Legality and Informal Practices: Judges, Lawyers and the State
in Russia and China”, Communist and Post-Communist Studies, Vol. 43 (2010), pp.
351-62.
8
Peter Solomon, “Courts and Judges in Authoritarian Regimes”, World Politics, Vol. 60
(October 2007), pp. 122-45.
9
Pitman Potter, “The Chinese Legal System: Continuing Commitment to the Primacy of
State Power”, The China Quarterly, No. 159 (September 1999), pp. 673-83.
90 THE CHINA JOURNAL, No. 67

as Tate maintains, even in putatively authoritarian regimes the courts may be left to
operate independently and impartially to resolve some disputes which do not affect
the core political interests of the regime.11 Students of the Chinese legal system
point out that China’s growing involvement in the world economy has encouraged
both adjustments in particular areas of law and elements of legal and judicial reform
aimed at making courts rational and professional in the Western sense.12 The state’s
emphasis on the rule of law has nurtured legal professionalism as well as
empowering citizens to “fight the power”.13
However, this paper argues that making a clear-cut distinction between
“politically relevant” and ordinary cases is very difficult in the Chinese context.
Ordinary cases can become “politically relevant”. Some cases may not be
politically charged with regard to the issues involved but can be perceived as
politically sensitive once they trigger collective protests: from the point of view of
the government, they might affect social stability. Thus, courts have to be cautious,
so that ordinary cases will be handled in ways that contain collective impulses.
Labor disputes are examples of such cases.
Labor dispute settlement is an arena in which courts enjoy a considerable
degree of independence, on the one hand, and face political pressure for containing
workers’ collective action, on the other. Since the market reform, significant
progress has been made in labor legislation. The Labor Law of 1995 and the Labor
Contract Law of 2008 stipulate laborers’ legal rights with regard to contracts, work
hours, wages, overtime compensation, safety, training, and insurance and benefits,
although collective rights (the rights to organize and strike) are excluded.14 Even
by international standards, Chinese labor laws’ coverage of individual rights is
comprehensive and, indeed, impressive. Given that employers’ infringement of
workers’ legal rights is the cause of a large proportion of labor disputes, judges’
commitment to laws can often produce decisions in favor of workers; compared
with labor bureaucracies, courts seem to be relatively independent and impartial
when handling dispute cases. For example, while the labor arbitration commission,
the principal administrative agency responsible for dispute settlements,

10
Erik Herron and Kirk Randazzo, “The Relationship Between Independence and Judicial
Review in Post-Communist Courts”, The Journal of Politics, Vol. 65, No. 2 (May 2003),
pp. 422-38.
11
Neal Tate, “Authoritarianism and the Functions of Courts: A Time Series Analysis of the
Philippine Supreme Courts, 1961–1987”, Law and Society Review, Vol. 27, No. 4 (1993),
p. 707.
12
Peter Solomon, “Courts and Judges in Authoritarian Regimes”; Sida Liu, “Beyond Global
Convergence: Conflicts of Legitimacy in Chinese Lower Courts”, Law and Society Inquiry,
Vol. 31, No. 1 (2006), pp. 75-106.
13
Neil Diamant, Stanley Lubman and Kevin O’Brien, Engaging the Law in China.
14
Feng Chen, “Individual Rights and Collective Rights: Labor’s Predicament in China”,
Communist and Post-Communist Studies, Vol. 40 (2007), pp. 59-79.
 “ACTIVE JUDICIARY” 91

hears numerous cases,15 as an organ of the labor bureau with close ties to enterprises
its position tends to be constrained by the government’s economic concerns,
especially with regard to the investment environment. Although the commission has
delivered awards to workers, the latter often view the amount as inadequate and
question the commission’s impartiality. However, the courts can remain impartial
on specific disputed issues, as they are institutionally set apart from bureaucratic
agencies with considerable economic concerns. Also, as expected by the public as
well as nurtured by growing judicial professionalism, judges have developed a sense
that the judiciary is “the last line of defense for social justice”,16 and are willing to
commit to labor laws. The state’s general orientation towards providing workers
with legal protection for their individual rights encourages as well as justifies
judges’ sympathy toward workers, as employers’ wrongdoing is often obvious.
Thus, it is not uncommon for workers to bring their arbitrated cases to the courts,
with the expectation that judges will grant them higher compensations than the
amount of the arbitral awards.
When the courts side with workers on legal cases, however, they have grave
political concerns over the possibility that disputes might lead to “mass incidents”
(qunti shijian ). Most labor disputes over legal rights are individually
based, and workers could seek legal redress as individuals for their grievances.17
However, as rights infringements, such as arrears of wages and overtime payments,
are often factory-wide, they often engender “contentious gatherings”18 of workers;
these gatherings are likely to escalate into unrest and, moreover, to harbor elements
that might generate new dynamics of labor action. A government that has made
maintaining stability its paramount goal is alert to labor agitation as well as to
other forms of popular protest,19 and views these as factors “destabilizing” to the
social order.
As an integral part of the Party-state apparatus, the courts have been required
to play a significant role in conflict resolution. In response to the regime’s
political priority, the Supreme People’s Court (SPC) issued directives to the lower
branches of the judiciary emphasizing the critical role of the courts in maintaining

15
The State Council promulgated the Provisional Regulations on the Handling of Enterprise
Labor Disputes in State Enterprises in 1987, setting up the three-part procedural structure
for labor dispute resolution: mediation, arbitration and lawsuit. See Virginia Harper Ho,
Labor Dispute Resolution in China: Implications for Labor Rights and Legal Reform
(Berkeley: Institute of East Asian Studies, University of California, 2003), p. 38.
16
Interview, Dongguan, 11 December 2009.
17
Mary Gallagher, “Use the Law as Your Weapon”.
18
Charles Tilly defines a contentious gathering as “an occasion in which ten or more persons
outside the government gather in the same place and make a visible claim which, if
realized, would affect the interests of some specific person(s) or group(s) outside their own
members” (From Mobilization to Revolution [New York: McGraw-Hill Publishing
Company, 1978]), p. 275.
19
See Kevin O’Brien (ed.), Popular Protest in China (Cambridge MA: Harvard University
Press, 2008).
92 THE CHINA JOURNAL, No. 67

social stability. As Shen Deyong ( ), the Deputy Chief Justice of the SPC,
asserted in 2002: “Maintaining social stability is a political responsibility of the
courts”,20 and this has indeed come to epitomize the dominant judicial discourse in
recent years. The concept of an “Active Judiciary” (nengdong sifa ) has
been promoted by the Chief Justice of the SPC, Wang Shengjun ( ), since
2009. He emphasized that the courts have an important political mission, and must
serve the fundamental task and goal of the Party by intervening actively in conflict
resolution. 21 The concept was developed to justify a more proactive social and
political role for the courts, especially in maintaining social order. As a high official
of the SPC further explained, the courts should not simply stand by with their arms
folded amid increasing social conflicts and wait until disputes are brought before
them.22 One Chinese legal scholar has explained active judiciary as follows:
The courts should not confine themselves to the narrow role of adjudication.
They should do whatever is conducive to preventing and defusing disputes.
Setting up preventive mechanisms and providing judicial advice for the
decision-making of the Party and the government are all important parts of
judicial work. Judges should be “social engineers” rather than passive
adjudicators who simply act by following the rules.23
Given that labor conflicts are seen as one of the major destabilizing forces in
China, the SPC has paid special attention to them. Although the Chinese
Constitution does not grant workers the right to strike, there is no law that forbids
their collective action. In a few cases, worker leaders have been prosecuted by
courts under the criminal law or dealt with by the bureau of public security.
Nevertheless, the courts’ general approach to workers’ collective actions is to
defuse rather than penalize them so that further confrontation can be averted.
Some circulars issued by the SPC have been directed specifically at the issue of
how to handle collective labor disputes. A circular issued in June 2002, Fully
Exercising the Duty of Adjudication and Feasibly Safeguarding the Stability of
Enterprises and Society, makes clear that preventing and settling collective labor
conflicts is an important task of the courts:
Recently, workers’ gatherings and group petitions have occurred repeatedly in
some places and have seriously affected the order of production and social

20
Song Deyong, “Weihu shehui wending shi fayuan de zhengzhi zeren” (Maintaining Social
Stability is the Courts’ Political Responsibility), http://www.chinacourt.org/public/
detail.php?id=11242&k_author=, accessed 15 May 2010.
21
Guo Guangdong, “Fangzhi nengdong sifa biancheng sifa mangdong de zhouxiubu”
(Preventing Active Judiciary from Becoming Arbitrary Judiciary), http://www.chinareform.net/
2010/0510/16575.html, accessed 15 May 2010.
22
Guo Guangdong, “Fangzhi nengdong sifa biancheng sifa mangdong de zhouxiubu”.
23
Wu Yingzi, “Shenme shi nengdong sifa, weishenme yao nengdong sifa” (What Is Active
Judiciary and Why Is It Needed?), http://www.gmw.cn/01gmrb/2010-05/13/
content_1119469_3.htm, accessed 15 May 2010.
 “ACTIVE JUDICIARY” 93

stability ... It is worth noting that conflicts of interests within enterprises have
increasingly made their way, through various forms of litigation, to the
people’s courts at different levels. Labor disputes have attracted widespread
social attention and, if handled improperly, can easily lead to group incidents.
Thus, it is an important task of the courts to exercise fully the duty of
adjudication, cope properly with various contradictions and disputes, protect
the normal order of production and legitimate rights and interests, and maintain
social stability.
In January 2009, when the global financial crisis hit China causing factory
closures and labor conflicts, the SPC issued a circular entitled Guidelines for the
Trial of Labor Dispute Cases under the Current Situation. In this circular, the
SPC demanded that courts at various levels should facilitate social stability and
harmony, as well as social and economic development, by using mediation and
conciliation as much as possible. The circular particularly required the speedy
mediation and adjudication of cases involving wage arrears and unpaid overtime
fees, which had become the major issues of contention during the financial crisis.
The political pressure to maintain stability has produced two patterns of
judicial practices aimed at preventing and defusing workers’ collective action.
First, the courts have collaborated with local Party organizations, bureaucratic
agencies, public security bureaus, trade unions, law firms and township authorities
to resolve collective labor disputes. Judges have been sent to protest spots
immediately following the outbreak of a collective dispute, to provide workers
with legal advice and to channel disputes expeditiously into legal proceedings. The
proactive role of the courts outside the courtroom has been vividly depicted by
some scholars as a “street as courtroom” phenomenon.24 In this process, the courts’
role goes beyond their conventional scope and methods and is integrated into the
larger process of conflict management steered by local authorities. Judicial
functions become mixed with that of other government agencies to dissipate
workers’ collective action quickly.
Second, the courts do not simply adjudicate collective dispute cases; they deal
with them in a way that will weaken or eliminate any “destabilizing factors”
contained within them. This orientation is reflected in both judicial mediation and
adjudication. Judicial mediation can be viewed as quasi-judicial, as it is a flexible
and loosely structured process in which judges seek dispute resolutions through a
variety of means. Sometimes, a divide-and-rule strategy is used to lure some workers
into withdrawing first, which might then shake the resolve of the other workers.
Agreements reached through judicial mediation are binding on all parties. If a
collective case has to go through the formal judicial process (adjudication), the
courts break it down into a series of individual cases, based on the number of
people involved. For instance, in a collective dispute involving 100 workers, the
court will split it into 100 separate individual dispute cases, and channel

24
He Xin and Su Yang, “Street as Courtroom: State Accommodation of Labor Protest in
South China”, Law and Society Review, Vol. 44, No. 1 (2010), pp. 157-84.
94 THE CHINA JOURNAL, No. 67

disgruntled workers, as private plaintiffs, into either the mediation process or

adjudication. Cases involving multiple plaintiffs against the same defendant are
treated as “series cases” (xilie anjian ). The individualization of
collective disputes serves to atomize the participants in contentious gatherings,
thus preventing their action from escalating.
In the following sections, our analysis first describes collective labor disputes in
Dongguan and then examines the courts’ response to them through extrajudicial,
quasi-judicial and formal judicial processes. It demonstrates that, through these
processes, the courts in Dongguan have been instrumental in controlling and
dismantling workers’ collective action.

Collective Labor Disputes in Dongguan

In the past 20 years or so, Dongguan has achieved 22 per cent annual growth, thanks
to its booming private and foreign sectors, and in economic development is
currently ranked 12th among Chinese cities. However, market-driven growth has its
dark side. Official sources indicate that, in recent years, there have been more than
40,000 labor dispute cases per year in Dongguan; the actual number could be much
higher. The number of labor dispute cases handled by courts in Dongguan has
increased significantly as a percentage of the national total: 0.92 per cent in 2001,
1.28 per cent in 2004, 3.22 per cent in 2005 and 5 per cent in 2006.25 Labor disputes
rose sharply in the city in 2008, when China’s coastal economy was hit severely by
the world financial crisis. According to official statistics, the courts at the municipal
and township levels processed 23,044 labor dispute cases that year, an increase of
159.18 per cent compared to the number of cases in 2007.26
The statistics may be deceptive, as they register all disputes as individual cases.
The high number actually conceals a large proportion of collective cases which had
been split into individual ones and registered as such. For example, in 2006, 65
collective disputes were tried by one civil tribunal in Dongguan as 672 individual
cases.27 Even more striking, in 2009 one of the three courts in the city turned
39 collective disputes, involving groups of from 10 to 988 people, into 4,167
individual cases. Thus, the unprecedentedly high rate of individual dispute cases in
the Pearl River region in the past few years is attributable to this tactic of splitting a
number of collective protests into individual legal cases.
Multiple factors lead to collective and individual disputes. 28 However, the
drastic increase in collective labor disputes in the past couple of years in Dongguan

25
Chen Si, Xu Xin, Chen Kui and Cheng Chunhua, An Investigative Report of Labor
Disputes in Dongguan, unpublished document, 2006.
26
Dongguan ribao (Dongguan Daily), 8 January 2009.
27
Chen Si, Xu Xin, Chen Kui and Cheng Chunhua, An Investigative Report of Labor Disputes
in Dongguan.
28
Virginia Harper Ho, Labor Dispute Resolution in China. Also see Bill Taylor, Chang Kai
and Li Qi, Industrial Relations in China (Cheltenham: Edward Elgar, 2003), pp. 155-81.
 “ACTIVE JUDICIARY” 95

can mostly be attributed to default overtime premiums.29 A substantial proportion of

Dongguan’s economy is composed of labor-intensive sectors, which are extremely
vulnerable to an external economic shock. How many factories were actually shut
down during the financial crisis is subject to dispute; the media has suggested that the
number was as high as several thousand, 30 whereas the municipal government
claimed that only 865 enterprises were closed in the first 10 months of 2008, about
100 more than in a normal year.31 However, a sharp reduction in business orders
resulting from the economic recession in the US and other Western nations forced 50
to 60 per cent of enterprises in the city to lay off their employees, to varying extents.
This, in turn, forced laid-off workers to seek economic compensation.
Most of the disputes over overtime compensation were collective in nature, as
the previous “no overtime premium” practice affected every worker. The previous
practice in Dongguan had been that workers’ wages were calculated on a daily basis
without overtime premiums. Having consented to such an arrangement when they
were hired, workers were often not able to demand any overtime compensation if
they decided to quit the factory; indeed, as long as their jobs were stable, most
workers would not seek overtime premiums. Demands for overtime compensation
were promoted by some important legal changes that took place at that time.
The new Labor Contract Law, which came into effect in January 2008,
changed the rules of the game.32 According to the new law, if employers fail to
pay for overtime, workers have the right to economic compensation when they are
laid off or choose to quit. Therefore, a large number of laid-off workers who had
never received overtime premiums pressed their case for financial compensation;

29
For the specific causes of labor conflicts in export industries in the Guangdong area, see
Anita Chan, “Strikes in China’s Export Industries in Comparative Perspective”, The China
Journal, No. 65 (January 2011), pp. 27-52.
30
“Shijie gongchang zhibian: fengbao zhixia you duoshao Dongguan gongchang daoxia”
(The Change of the World Factory: How Many Enterprises Closed in Dongguan?),
http://rent.dg.soufun.com/rent/news/2174284_5.htm, accessed 15 May 2010.
31
“Guangdong Dongguanshi shizhang: qiye daobi busuan duo, caiyuan xianxiang jiao
yanzhong” (The Mayor of Dongguan: Not Many Enterprises Bankrupted, But Layoff Was
Serious), http://money.163.com/09/0310/08/541IKO0G00252G50.html, accessed 15 May
2010.
32
The Labor Contract Law offers workers greater employment security and income protection.
It encourages them to use the courts and trade unions to press their claims. The law has,
however, also evoked a sharp reaction from many employers, who have sought to circumvent
its purposes in various ways. See, for example, Haiyan Wang, Richard Appelbaum, Francesca
Degiuli and Nelson Lichtenstein, “China’s New Labor Contract Law: Is China Moving
Towards Increased Power for Workers?”, Third World Quarterly, Vol. 30, No. 3 (2009), pp.
485-501; Sean Cooney, Sarah Biddulph, Li Kungang and Ying Zhu, “China’s New Labor
Contract Law: Responding to the Growing Complexity of Labor Relations in the PRC”,
UNSW Law Journal, Vol. 30, No. 3 (2009), pp. 786-801; and Jovita Wang, “Article 14 of
China’s New Labor Contract Law: Using Open-Term Contracts To Appropriately Balance
Worker Protection and Employer Flexibility”, Pacific Rim Law and Policy Journal, Vol. 18,
No. 2 (2009), pp. 433-62.
96 THE CHINA JOURNAL, No. 67

a few opportunistic workers even took advantage of the law, deliberately quitting
their jobs in order to claim compensation. Other new legal parameters also
encouraged workers to make claims. A decree of the State Council on legal fees,
effective as of April 2007, reduced the fee for labor dispute cases from 30–50 yuan to
10 yuan per case. Less than eight months later, the Law of Mediation and Arbitration
of Labor Disputes abolished any charge,33 shortened the period for arbitration and
stipulated that the person concerned could take his or her case directly to the court if
the arbitration commissions fail to make decisions within the required time frame.
Demanding financial compensation based on these new laws became a major
motivation of workers’ action, both collective and individual. The President of one
of the courts in Dongguan revealed that 90 per cent of the labor disputes handled by
the courts since 2008 have been about overtime premiums.34
When collective labor disputes occur, extrajudicial means are applied first. The
local government has developed a set of mechanisms that assigns different agencies,
township governments and social organizations to defuse workers’ collective actions.
The courts are one of these agencies35 and are required to provide legal opinion for
the mediation process and the “judicial confirmation” of mediation agreements
reached by the parties to a dispute. However, many more cases cannot be settled in
this process and have to go to the arbitration commissions led by the local
government’s Labor Bureau. Nevertheless, the evidence shows that a large number
of workers are choosing to reject arbitral decisions and to take their cases to the
courts. One of the principal reasons for workers refusing to accept the decisions
made by arbitration commissions in Dongguan has been the monetary difference
between the arbitral awards and what the workers expected to receive. According to
a provincial regulation, the base for calculating economic compensation is supposed
to be 70 per cent of workers’ average monthly wage, but it cannot be lower than the
minimum wage; the common practice adopted by arbitration commissions in
Dongguan, however, has been to take the minimum wage (770 yuan per month) as
the base. Workers whose wages are higher than the minimum wage regard this
method as unfair. The courts, however, tend to be more flexible, and since 2008 have
taken the actual monthly wage as the basis for calculating economic compensation.
Consequently, a flock of arbitrated cases have been brought to the courts.
Moreover, in general, the past record of the relatively higher success rate for
workers in courts than in arbitration (see Figure 1) has also convinced workers
that the courts are more sympathetic to them. While both courts and arbitration
commissions run by the Labor Bureau are part of the local government structure,
the courts enjoy a certain degree of discretionary power in dealing with labor

33
Arbitration premiums prior to the new regulations were based on the number of people
involved: 20 yuan for a case involving 3 people, 30 yuan for 4–9 people, and 50 yuan for
more than 10 people.
34
See http://china.findlaw.cn/info/laodong/laodongzhengyidongtai/66939.html, accessed
5 November 2011.
35
See He Xin and Su Yang, “Street as Courtroom”.
 “ACTIVE JUDICIARY” 97

disputes and, being less concerned with the investment climate, they are also
willing to apply higher labor standards. As a judge told us on 25 March 2011:
The courts and arbitration committees have very different ideas (linian ).
They [the committees] have to be concerned with other factors as well as
workers’ interests and are under pressure from enterprises when making decisions.
We [the courts] are only concerned with laws and workers’ legal rights. Rights are
our starting points.
As the following figure shows, workers have won or partially won more cases
in the courts than in arbitration commissions, and have lost more in arbitration
than in litigation.
Figure 1: Outcome of Arbitrated Cases and Litigation, 1999–2005 (Left
Column: Arbitrated Cases; Right Column: Litigation)

100%

80%

60% Favorable for employers

Compromise
40% Favorable for employees
20%

0%
1999 2000 2001 2002 2003 2004 2005

Sources: Chen Si, Xu Xin, Chen Kui and Cheng Chunhua, An Investigative Report of Labor
Disputes in Dongguan (unpublished document); Chen Si and Xu Xin, “An Investigative
Report of Labor Disputes in Dongguan”, Huazhong falü pinglu (HUST Law Review), Nos. 4,
5 (2009).
It is also important to note the nature and form of workers’ collective action in
Dongguan. Workers’ actions are usually spontaneous and relatively uncoordinated.
Although workers share common concerns and have the same grievances, they are
generally unable to act as a coherent party in claim-making, due to a lack of
organized representation. As elsewhere in the country, workers’ protests in
Dongguan are not organized by trade unions, which either are charged with
responsibility for dissipating protests or simply do not exist in these enterprises.
On many occasions, protesting workers are just an unorganized “crowd”. This
presents the courts with considerable opportunity to divide workers during the
dispute settlement process. Persuading a few workers to accept a deal can easily
weaken the determination of others and persuade them to follow suit. In some
cases, workers’ collective demands for overtime premiums or other forms of
98 THE CHINA JOURNAL, No. 67

economic compensation are represented by lawyers or non-lawyer proxies who

are profit-driven, and the courts can strike deals with them to settle disputes.

Courts in the Extrajudicial Process

In the extrajudicial process, courts collaborate with other government agencies, public
security bureaus, trade unions and community authorities to defuse workers’
collective action. The process is directed and coordinated by local governments, and
the courts are brought in to play a complementary role. They function as the
“lieutenant of the local government”.36 The extrajudicial process allows the courts
to take on new roles and extend their power beyond the courtrooms. The courts play
three roles in the extrajudicial process for collective labor conflicts.
Advisory. When protests break out, judges and court staff are immediately
dispatched to the scene, together with people from other agencies, such as labor
bureaus, bureaus of public security and trade unions. They provide workers with
professional advice on how to find legal channels to redress their grievances so
that the workers can stop their actions in the streets.
Inquisitorial. As Su and He show, court officials often “take the initiative to
collect evidence” on the cases that lead to disputes, or “act promptly on leads
provided by workers”.37
Coercive. In cases triggered by employers absconding because of financial
difficulties, the courts take action to freeze both the absentees’ bank accounts and
their physical assets and to take away their travel documents, to ensure that
workers can eventually receive compensation.
Aspects of all of these forms of intervention are illustrated in these past cases
from judicial proceedings in Dongguan:
In 2004, an owner of an electronics factory in Humen Township absconded
with all of the cash in the company’s account, leaving 1,600 workers unpaid
and debts of several million yuan. Workers began a sit-in protest, and
creditors were about to seize the company’s physical assets. When called
upon by the local Party committee, local court officials and staff rushed to the
scene. They explained the relevant laws to the workers and creditors. In the
meantime, they also discussed possible solutions to the situation with the
local authorities. In the end, they worked out a solution in which the village
committee agreed to advance workers’ salaries, immediately pacifying
workers, and the company’s creditors were persuaded to take their disputes
through the legal process. Court officials and staff, in turn, made an inventory
of the company’s physical assets and froze them.
In October 2006, a trading company located in Humen Township suddenly
went bankrupt and its owner disappeared. Over 2,000 workers were left

36
Qianfan Zhang, “The People’s Court in Transition: The Prospects of Chinese Judicial
Reform”, Journal of Contemporary China, Vol. 12, No. 34 (2003), pp. 69-101.
37
He Xin and Su Yang, “Street as Courtroom”.
 “ACTIVE JUDICIARY” 99

unpaid and the company’s debt was close to one hundred million yuan.
Furious workers and shareholders surrounded the company’s premises,
intending to storm the shop run by the company. The local Party committee
summoned court officials as well as officials from other government
agencies to the scene. After a lengthy talk with the angry protesters, the
court officials persuaded them to seek legal redress. An arrangement was
made under which the workers’ unpaid wages would be covered
temporarily by the owner of the factory premises.
In May 2007, an electronics company in Tangxia Township unexpectedly
declared bankruptcy, leaving 2,000 workers unpaid and debts owed to over
400 suppliers. People quickly gathered in front of the company’s gates and
became involved in clashes with the police, who had been called to the scene
to secure order. Court officials arrived at the scene when the situation was
close to getting out of control. They immediately froze the company’s assets,
ordered all of the locks on the company’s gate to be changed, and asked the
village committee to guard the company’s assets pending further legal action.
As the court officials explained to the protesters, the aim of all of these
measures was to protect the legitimate rights of the workers and stakeholders
by ensuring that they would receive compensation later. With the
implementation of these measures, the protest ended.
It is clear from these cases that the role of the courts in the extrajudicial
process is to secure a quick “clean-up” at the scene of a protest. This is certainly
what local government officials most want to see, as any lasting mass incident can
have negative political implications for them and their careers. Thus, it is fair to
say that the courts are serving the government’s purpose when they engage in
efforts to defuse contentious gatherings of workers. The role of the courts in this
process is unique and, indeed, critical in dissipating crowds of protesting workers.
As judges’ legal opinions are usually regarded as being more credible than those
of officials from other governmental agencies and more persuasive to protesters,
the intervention of the courts at the scene of protests has ensured that many
collective labor protests in the streets have ended up being channeled into the
legal process and resolved in an orderly manner.
However, active judiciary (nengdong sifa), as typically reflected in the actions of
courts prior to the formal judicial procedure, is also contested. Some court officials
tend to be in favor of this approach, arguing that the role of the courts should not be
narrowly defined as adjudicating in courtrooms. Rapid social change requires the
courts to act more aggressively, going beyond their conventional scope of practice.
A judge from Dongguan told us that engagement in the extrajudicial process
gave judges a sense of empowerment, allowing them to increase their influence
by rallying with government agencies. However, some Chinese legal scholars
do not agree. They contend that, although the courts’ participation in the
extrajudicial process is helpful in defusing mass incidents, it could harm the
judicial independence to which the courts claim to adhere. The fusion of judicial
100 THE CHINA JOURNAL, No. 67

and administrative powers departs from the goal of China’s ongoing judicial
reform process.38

Judicial Mediation
Since the founding of the PRC, judicial mediation has been an integral part of China’s
legal system. During the Maoist period, it was emphasized as the primary means of
settling disputes.39 However, legal reform in the past three decades has weakened this
tradition. The current legal discourse seems to assume that “mediation should yield to
adjudication that clearly defines the rights, duties and liabilities of the parties in a
dispute”.40 However, with the drastic increase in social conflicts in recent years, the
courts have begun to re-emphasize the value of mediation and, indeed, to regard it as
a preferable means of resolving various disputes. The Vice President of the SPC, Nan
Ying, made it clear that priority should be given to it when dealing with civil
disputes.41 The purpose and mechanisms of mediation are laid down in the Law on
Civil Procedures: Article 35 defines it as one of the functions of courts, Articles 86
and 87 specify the methods of mediation, and Article 88 stipulates how a mediation
agreement is reached. The mediation of collective labor disputes has basically been
carried out using this framework;42 all labor dispute cases that are channeled into legal
proceedings are first considered for mediation by the court. From the perspective of
the courts, mediation has several advantages with regard to maintaining stability.
It can reduce tension between adversarial parties, as it is undertaken in a closed-door
setting and parties can avoid open confrontation. Open trials, in contrast, attract public
and media attention and heighten antagonism between the parties involved. As some
judges have suggested, a controversial verdict risks arousing more controversy and

38
For a summary of opposing views on this issue, see Guo Guangdong, “Fangzhi nengdong
sifa biancheng sifa mangdong de zhouxiubu”.
39
For an analysis of China’s pre-reform mediation system, see J. A. Cohen, “Chinese Mediation
on the Eve of Modernization”, California Law Review, Vol. 54 (1960), pp. 1201-26, and
James Wall, “Mediation in the People’s Republic of China”, in M. Afzalur Rahim (ed.),
Theory and Research in Conflict Management (New York: Praeger, 1990), pp. 109-19.
40
Stanley Lubman, “Bird in a Cage”.
41
“Nan Ying zai quanguo shehui zhian zonghe zhili gongzuo huiyi shang de fayan” (Nan
Ying’s Speech to the National Work Meeting on the Comprehensive Governance of Social
Order), http://www.court.gov.cn/xwzx/fyxw/zgrmfyxw/201006/t20100622_6263.htm,
accessed 10 August 2010.
42
In China’s labor dispute resolution system, mediation is the first phase, followed by
arbitration and litigation, but mediation here differs from judicial mediation. It refers to an
enterprise-based mechanism directed by trade unions. This mechanism, however, has lost
its effectiveness, as labor disputes became so complicated in content and scope that the
enterprise-level mediation committees could no longer cope with them. Workers’ distrust
of trade unions also turned them away from mediation committees at workplaces. For a
discussion on the role of such non-judicial mediation in labor disputes, see Mary Gallagher,
“Use the Law as Your Weapon”; Aaron Halegua, “Getting Paid: Processing the Labor
Disputes of China’s Migrant Workers”, Berkeley Journal of International Law, Vol. 26,
No. 1 (2008), pp. 256-332.
 “ACTIVE JUDICIARY” 101

being overridden by the superior court.43 Mediation can be a flexible and open-ended
process in which, without much time constraint, judges can try a range of approaches,
from persuasion to intimidation, to find a compromise. Finally, mediation is the
method which best fits the state’s goal of harmonizing society, because it results in a
voluntary, agreed solution. As a mediation decision is binding, judicial mediation is
more enforceable than people’s mediation. A high rate of judicial mediation is also
viewed as an important indicator of good performance by the courts. Our data show
that, in 2009, 23 of 38 collective dispute cases were settled through judicial
mediation, while the rest were adjudicated.
Previous studies have indicated that the rate of successful mediation by the
courts is quite low. The higher percentage of mediated cases in 2009 suggests two
possibilities. The first is that the courts have accelerated their efforts at mediation
in response to the SPC’s call for diversification in the approaches used to resolve
disputes and for a greater use of mediation. Even court administrative staff without
formal legal training have been called on to undertake this work. The second
possibility is that collective disputes may be relatively easier to mediate than
individual ones. Individuals who press their cases in the courts are usually very
determined to fight to the end and less willing to compromise. In series cases, if
the courts are able to sway a few workers, it is likely that many other workers will
follow them.
Case 1: Divide and Rule
Due to financial difficulties, a shoe company was shut down without prior notice in
November 2008 and the owner absconded. All of the workers were laid off; the
local government advanced all of them three months’ salary, which it was expected
would be returned by the company. Having received no compensation, 282 workers
took their case to the arbitration commission. While the commission supported the
workers’ demands, it ruled that compensation should be calculated on the basis of
Dongguan’s minimum wage (770yuan/month). Contending that this was unfair, the
workers refused to accept the commission’s decision and filed the case with the
Second People’s Court. The case was split into 282 individual ones as a series.
To mediate this dispute, the designated judge for this series case approached a few of
the plaintiffs and the lawyer representing all of the workers. He stated that it would
take at least seven months to try the case and that it was very likely that the company
would go bankrupt during the process. If this happened, the case would have to be
dropped and workers would not obtain even the money that the arbitration
commission had awarded them. Second, he argued that there was no guarantee that
the court would change the decision of the arbitration commission and support all of
the workers’ demands. The judge said that, even if the court supported part of the
workers’ demands, the amount of money involved was not going to be significant or
worth a protracted trial. Third, if the workers withdrew the case, they could get the
arbitral awards immediately, which was in their best interests. In this case, the judge

43
Interview, Dongguan, 11 December 2009.
102 THE CHINA JOURNAL, No. 67

successfully played up the likelihood of the company going bankrupt, which

aroused a strong sense of fear and uncertainty among some workers. When a number
of the workers were persuaded that accepting the arbitral award was more rational
than fighting for a higher, but uncertain, level of compensation, the original
collective demand fell apart. The lawyer also accepted the judge’s arguments and
helped to persuade all the other workers to accept the arbitral decision, and the
litigation was dropped.44
Case 2: Voluntary and Enforceable Agreement
Workers in a box-making company in Dongguan started a sit-in protest on 31 October
2009 in relation to inadequate overtime compensation. The local Comprehensive
Governance Center informed the court, which sent a judge and a staff member
there to try to mediate. They called for negotiations between workers’
representatives and the management. Although the management thought that the
workers’ demand was excessive, they demonstrated a willingness to make
concessions, as the company, like many others in the region at the time, faced a
labor shortage. An agreement was reached whereby the company would increase
its overtime premiums from 200 to 1,000 yuan, depending on length of service,
while the workers promised to give up their claim for overtime compensation
prior to 31 October 2009. This agreement was then authorized by the court and
made binding on both parties. Immediately afterwards, the judge and his assistant
collected money from the company and went to talk to the workers at the scene of
the protest. The judge clearly reminded the workers of the consequence of the
agreement that had been reached: “After you get the money, you cannot litigate on
this dispute anymore!” Court officials spent a whole day, from 8 a.m. to 10 p.m.,
getting each of the 900 workers to sign a legally binding document and giving them
their share of the money. As the judge recalled in an interview, the quick
processing of this case was designed to preempt the possibility of workers
attempting to litigate. He stated: “A long delay means trouble”.
Another judge told us:
Many workers get involved in collective cases simply by following other people,
and do not have a strong intention to litigate, so we can target these people and
persuade them to withdraw. When a few people decide to give up litigation and
accept mediation, many people may follow. In particular, when those who
insist on litigation see people who accept mediation getting compensation, they
change their minds.
The role of judicial mediation in containing labor conflict is obvious. From
the perspective of the courts and local governments, judicial mediation is a less
contentious method of labor dispute settlement. However, although judicial
mediation is effective as a means to settle disputes, some legal scholars as well as
judges have worried about its long-term negative impact on the judicial system.

44
The case is provided by the First People’s Court at Dongguan.
 “ACTIVE JUDICIARY” 103

They maintain that mediation is a social mechanism not supposed to be performed

by the courts, as judicial mediation does not have to be carried out in accordance
with laws and its only purpose, as one judge told us, is to get things settled (ba
shiqing gaoding ). The extent to which judicial mediation is carried out
voluntarily can also be questioned. It seems that in some cases workers accept
mediation because they have no other choice. As rather atomized individuals,
workers enjoy little leverage when faced with the courts.

Adjudicating Collective Disputes

Collective labor disputes have multiple causes, but Chinese labor laws do not
indicate clearly the types of collective labor disputes that can be channeled into the
legal process. In reality, as in other countries, only those cases involving rights and
liabilities or rights-based disputes are brought to the courts. Interest-based collective
disputes, such as those caused by the restructuring of state-owned enterprises or
workers’ demands for wages above the legal minimum, are not subject to the
judicial process.
Table 1: Collective Labor Dispute Cases handled by the People’s Court of
Dongguan between 2001 and 2005
Year No. of Cases No. of People
Involved
2001 2 15–49
2002 12 5–50
2003 14 5–53
2004 23 5–39
2005 16 5–31
Source: Figures provided by the People’s Court of Dongguan.
Two types of cases are brought to the courts for adjudication: those which
the judicial mediation process has failed to resolve, and those in which either
the litigants or the defendants have refused to seek judicial mediation. Courts
individualize collective dispute cases and adjudicate them in line with the Law on
Civil Procedures. Article 53 of this law indicates that a joint litigation in which one
party has numerous litigants may be brought by representatives elected by the
litigants of that party. However, collective labor dispute cases are often viewed as
not being proper cases for joint litigation, for a variety of reasons. First, while the
government often expects courts to resolve collective disputes quietly, without
attracting too much public attention, collective labor dispute cases are usually
contentious, and even sensational. They are often a suitable topic for media coverage
and easily catch people’s attention. What also worries the courts is that collective
cases are contagious; they may encourage workers from different enterprises with
shared grievances to come together. The trial of collective dispute cases may
therefore make the courtroom a venue for disgruntled workers to gather and for
tension and contention to breed. The courts also fear that adjudicating controversial
collective cases could turn courts into targets for resentful workers who lose their
cases, which may cause problems that could cost court officials their political careers.
104 THE CHINA JOURNAL, No. 67

If workers succeed in a collective case, this may also encourage similar actions.
Splitting a collective dispute into a number of individual cases can avoid all of these
situations, as it gives the courts more room to maneuver.
Practical difficulties such as the lack of clear rules also discourage the courts
from adjudicating collective cases. Consistent with Article 53 of the Law on Civil
Procedures, the newly passed Labor Dispute Mediation and Arbitration Law
stipulates that “where the party in a labor dispute consists of more than 10 laborers,
and they have a joint request, they may recommend a representative to participate in
mediation, arbitration or litigation activities”. However, no specific procedures have
been laid down with regard to how such cases should be adjudicated. Furthermore,
as some judges told us, a multi-disputant dispute may involve people with diverse
personal situations and hence different claims, especially with regard to the size of
their compensation demands. In the view of the courts, it is not easy to come to an
adjudication as a single case in such circumstances.
Table 2: Mediated and Adjudicated Collective Labor Dispute Cases in 2009
Mediation (Range and No. of People No. of Cases
Involved)
10–20 7
20–30 3
40–50 2
50–60 1
60–70 2
100–200 2
200–300 1
300–400 1
400–500 2
800–900 1
More than 900 1

Adjudication (Range and No. of People No. of Cases

Involved)
10–20 11
20–30 2
30–40 1
90–100 1
Source: Figures provided by the People’s Court of Dongguan.
Table 2 shows all of the collective dispute cases (involving 5 or more people) that
were split into individual ones in the People’s Court of Dongguan during the period
2001–05, with no distinction being made between mediated and adjudicated cases.
The figures above indicate that the cases brought to the court were moderate
in number, although the trend was increasing. The maximum number of people
involved in a single dispute was around 50. However, in 2009 alone, in the midst
of the financial crisis, 38 collective disputes made their way to the court, 15 of
 “ACTIVE JUDICIARY” 105

which were adjudicated (see Table 2). Some cases involved a large number of
people, with one case having 998 plaintiffs.
In one case, a company making wooden articles went bankrupt in December 2008
and all its workers lost their jobs. Subsequently, 177 workers from the company
sought economic compensation. The case was arbitrated, and the decision was that
the company should be responsible for paying compensation, based on the city’s
minimum wage (770 yuan). However, 91 workers whose wages were significantly
higher than the minimum standard refused to accept this arrangement and brought
the case to court, claiming that overtime should be based on a worker’s monthly
wage. The court ruled partially in favor of the workers: it decided that the company
must compensate workers for their overtime after 2008 based on their monthly
wages (as the Labor Contract Law in 2008 stipulates), but that the minimum wage
should remain as the base for calculating pre-2008 overtime. A large number of
similar cases were adjudicated in the same manner. In some cases, all the plaintiffs
were squeezed into the court during the trial, but in others only lawyers or
representatives, as well as a few concerned workers, were present. Every plaintiff
received their own copy of the judgement document with an attachment indicating
the amount of compensation awarded and the method of calculation.
Individualizing collective cases multiplies the number of cases that a court
adjudicates. Although this method seems to increase the workload of judges, it fits
their personal interest as well as the interest of the courts. Under the current
appraisal system, the statistics regarding the cases handled by a court is one of the
crucial indicators of its “effectiveness”. These statistics can directly affect the
ranking of courts and the bonuses and promotions of court officials. As collective
disputes involve more people and entail more time and resources but are only
treated as single cases, judges have a strong incentive to separate them into
individual cases. A common practice is for a court to assign a series case to
different judges in rotation, so that every judge is guaranteed to have the number of
cases that he or she requires for a good evaluation at the end of the year. However,
as some judges noted in interviews, the personal interests of the courts and judges are
not a determining factor in the practice of splitting collective cases into individual
ones; it simply happens that individualizing collective dispute cases benefits the
courts and judges in some ways. However, the incentive structure within the court
system has helped to enhance and sustain this strategy.

Conclusion
The courts of Dongguan have played a major role in handling collective labor
disputes by integrating their judicial professionalism with their political functions.
Judicial professionalism, nurtured by the political emphasis on the “rule of law”,
has enhanced the courts’ commitment to labor laws. The courts’ ability to side with
workers and enforce labor laws has also been attributable to the general nature of
labor disputes cases: they have involved very basic economic claims by individual
workers and have not been politically sensitive, whereas employers’ fault was
obvious. Workers have benefited from the courts’ resolve to enforce labor laws.
106 THE CHINA JOURNAL, No. 67

However, once labor disputes erupt in collective and contentious ways, they turn
into “politically relevant” issues, which might bring trouble for the local government.
The courts have thus had to consider the potential political implications of
collective labor disputes. Their extrajudicial involvement has provided a “pragmatic
solution”45 allowing contentious gatherings of workers to be dealt with on the spot.
The courts’ legal advice and the protestors’ belief in their authority and credentials
can work to defuse collective action.
Judicial mediation has reduced both direct confrontations between parties in
conflict and publicity around collective disputes. To contain workers’ potential for
collective mobilization, the courts have also employed the tactic of individualizing
collective cases. It is hard to predict what would happen if collective disputes were
not individualized in the judicial process, but it would be premature to conclude that
workers’ collective legal fights would necessarily lead to organized mobilization.
However, the government has no desire to take any risks and is eager to adopt
precautionary measures. Individualizing collective dispute cases has defused the
potential for workers to undertake further action that could, in turn, generate
organized movement and collective identity. It has also prevented the
“demonstration effect” of workers’ gatherings encouraging similar actions. It has
further discouraged the organized representation of workers in the settlement
of labor disputes, and limited the influence of labor protests in society at large.
In short, the courts have adjudicated collective cases in a way that has averted any
possibility of labor mobilization. In both extrajudicial involvement and
individualizing collective cases, the courts’ sympathy has remained on the side of
the workers, but they have insisted that they would only handle labor disputes as
individual cases and that collective action must be dismantled.
The proactive role of the courts in the settlement of collective labor disputes is
demanded by the government and serves to ensure social and political order as
defined by government. The courts’ extrajudicial involvement and their tactic of
individualizing collective disputes has not been intended to undermine their
commitment to labor laws, and as a matter of fact, workers as individuals may still
benefit from these processes. However, quickly dissipating workers’ gatherings
through extrajudicial intervention and turning collective disputes into individual
cases has weakened workers’ potential to combine and their capacity to act
collectively. In other words, the courts as state institutions have performed a role in
foreclosing labor movements in China.
The way in which the courts handle collective labor disputes also reflects
features of workers’ collective action in China. Protesting workers gather, but they
are not organized. Official trade unions are unable to represent workers effectively,46

45
He Xin and Su Yang, “Street as Courtroom”.
46
Feng Chen, “Union Power in China: Sources, Operation, and Constraints”, Modern China,
Vol. 35, No. 6 (November 2009), pp. 662-89, and “Between the State and Labor: The
Conflict of Chinese Trade Unions’ Double Identity”, The China Quarterly, No. 176
(September 2003), pp. 1006-28.
 “ACTIVE JUDICIARY” 107

while independent organizing is strictly prohibited. Workers’ lack of organization

deprives them of the capacity to form solidarities, speak in one voice before the
judicial system and sustain the dynamics of collective action, and they are easily split
up by divide-and-rule tactics. The individualization of collective disputes, in turn,
makes the formation of collective identity and consciousness more difficult. In other
words, weak labor and the courts’ interventionist role are mutually reinforcing.
Even though the courts are committed to labor laws and often side with workers
in labor dispute cases, they are far from being able to uphold “judicial
independence”; their engagement with government agencies in coping with
collective labor disputes undermines their institutional autonomy and integrity. In his
recent meeting with the nation’s top judicial and security officials, the Party
General Secretary Hu Jintao gave new orders that the judicial and law enforcement
departments must observe the so-called “three top priorities” (sange zhishang
), meaning that “utmost priority must be given to the Party’s enterprise, the
people’s interests, and the constitution and the law”;47 the order of these three
priorities makes it clear that the Party’s goals and concerns override everything
else. This is the general context in which all Chinese courts, including those in
Dongguan, have found themselves. Judicial independence remains a remote goal.

47
Willy Lam, “The Party Squeezes China’s Judiciary”, Asia Times Online,
http://www.atimes.com/atimes/China/JG10Ad01.html, accessed 12 March 2011.

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