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(Adopted at the 16th Session of the Standing Committee of the
10th Shanghai Municipal People' s Congress on February 8, 1995 Amended
for the
First Time in Accordance with the "Decisions on the Amendment of the 'Regulations
of Shanghai Municipality on the Trade
Union' " Made by the 36th Session of the
Standing Committee of the 10th Shanghai Municipal People' s Congress on May 27,
1997 Amended
for the Second Time in Accordance with the "Decisions on the
Amendment of the 'Regulations of Shanghai Municipality on the Trade
Union' " Made
by the 43rd Session of the Standing Committee of the 11th Shanghai Municipal
People' s Congress on September 24,
2002)
Chapter I General Provisions
Article 1
For the purpose of ensuring the position of the trade union in
the state politics, economy and social life, defining the rights and
duties of
the trade union, and bringing the trade union into play in the cause of the
construction of the socialist modernization,
these Regulations have been
formulated in accordance with the "Constitutions of the People' s Republic of
China" , the "Trade Union
Law of the People' s Republic of China" and other relevant
laws and regulations and in the light of the actual circumstances of
the
Municipality.
Article 2
The enterprises, institutions, organs and trade
unions in the administrative areas of the Municipality shall abide by these
Regulations.
The enterprises and institutions of the Municipality stationed
in other provinces and Municipalities shall also abide by these Regulations
in
handling the relationship with the trade union of their own units or with the
trade union at a higher level.
Article 3
The trade union is the mass
organization of the working class voluntarily organized under the leadership of
the Communist Party
of China, the bridge and link through which the Party keeps
in touch with the staff and workers, the important social pillar of
the state
power, and the representative and the protector of the legitimate rights and
interests of the staff and workers.
Article 4
The trade union shall abide
by the Constitutions and the laws, support the reform and opening up and the
construction of the socialist
modernization, independently and initiatively
carry out its work according to the "Constitution of the Chinese Trade Union" .
The
trade union bears the following responsibilities:
(1) The basic duty of
the trade union is to protect the legitimate rights and interests of the staff
and workers. The trade union
shall, in the process of upholding the overall
interests of the state, represent and uphold the legitimate rights and interests
of the staff and workers.
(2) Organize and educate the staff and workers to
exercise the democratic rights according to law, participate in the
administration
of the state affairs, economic and cultural undertakings and
social affairs, assist the people' s government to carry out the work,
and uphold
the socialist state power.
(3) Mobilize the staff and workers to actively
participate in the construction of socialist spiritual civilization, educate
them
to raise their qualities in ideology and morality, technique and
profession, and science and culture, and establish a team of staff
and workers
with ideal, morality, education, and discipline.
(4) Mobilize and organize
the staff and workers to actively participate in the construction of socialist
economy, and work hard
to fulfill the tasks of production and
profession.
Article 5
The trade union shall, through consultation on the
basis of equality and the system of collective contracts, coordinate the labor
relationship and uphold the labor rights and interests of the staff and workers
in the enterprise.
The trade union shall, in accordance with laws and
regulations and by means of the conference of representatives of the staff and
workers or other forms, organize the staff and workers to participate in the
democratic decision making, democratic management
and democratic supervision of
their own unit.
Article 6
The trade union shall keep close contact with
the staff and workers, listen to and reflect their opinions and demands, take
care
of their living, help the staff and workers to solve difficulties and serve
them heart and soul.
Article 7
The legitimate rights and interests of the
trade union shall be protected by law, and shall not be infringed upon by any
enterprises,
institutions, organs or individual persons.
Chapter II The Trade Union Organization
Article 8
All physical and mental laborers in enterprises, institutions or
organs who have salary income as the main source of living have
the right to
join the trade union organization, and the liberty to quit the trade union
according to law.
Article 9
The organizations of the trade union at all
levels shall be established according to the principle of democratic
centralism.
The Municipality and district/county shall establish the local
federation of trade unions.
The same industry or industries of similar nature
may establish the municipal or district/county industrial trade union.
The
sub-district, township and town shall establish the regional trade
union.
Federation of trade unions at grass-roots level may be established in
the regions of economic development zones, and industry (science
and technology)
park areas, etc., with a higher concentration of enterprises.
Enterprises,
institutions and organs with trade union members of over 25 persons shall
establish the grass-roots trade union committee.
In case of units with less than
25 members, they may separately establish the grass-roots trade union committee,
or may jointly
establish the committee by the members in more than 2 units, or
may elect one organizer to organize the members to carry out activities.
The
establishment of a trade union organization shall be reported to the trade union
at a higher level for approval.
Any organizations that are not organized and
established according to the "Constitutions of the Chinese Trade Union" are not
allowed
to carry out activities in the name of the trade union, nor to replace
the trade union to exercise its functions and powers.
Article 10
The
enterprise or the institution shall, simultaneously in the preparation of its
establishment, support the staff and workers to
prepare the establishment of the
trade union.
The enterprise or the institution that has opened its business
but not yet established the trade union shall, within 6 months upon
the date of
business, support and help the staff and workers to establish the trade
union.
The trade union at a higher level shall help and guide the staff and
workers in the enterprise or the institution that has not yet
established the
trade union to organize and establish the trade union, while the enterprise or
the institution shall give support
and provide necessary conditions.
Article
11
No unit or individual person shall obstruct the staff and workers to
organize and established the trade union according to law, cancel
or merge the
trade union organizations arbitrarily, and place the working body of the trade
union in other departments.
The relevant department shall actively support,
cooperate with the trade union organization of the higher level, and guide the
staff
and workers in those enterprises or institutions that have not yet
established the trade union organization to establish the trade
union, and
shall, according to law, correct the unlawful acts that obstruct the
organization and establishment of the trade union.
Article 12
With the
termination of the enterprise, or the cancellation of the institution or organ
to which the grass-roots trade union belong,
that trade union shall be cancelled
correspondingly, and be reported to the trade union of a higher level for the
record.
Article 13
The trade union committee and the auditing board of
funds shall be elected by the conference of the members or the conference of
the
representatives of the members. The close relative of the major responsible
person(s) of the enterprise shall not be the candidate
for the member of the
grass-roots trade union committee in the enterprise he/she works in.
The
trade union at all levels shall establish the committee of women staff members
and women workers, and in case of less than 25
women members, a women' s
committee member shall be elected.
The municipal and district/county
federation of trade unions, the municipal industrial trade union, the
sub-district and township
and town trade union may establish organizations of
legal service to serve the staff and workers.
Trade unions at all levels may
establish supervision organization of labor law under the trade
union.
Article 14
The chairman and the deputy chairman (men) shall be
elected by the conference of the members or the conference of the
representatives
of the members, or may also be elected by the trade union
committee, and the system of term of office shall be adopted.
Article
15
The municipal, district/county federation of trade unions and the
municipal industrial trade unions have the status of the legal
person of the
mass organization.
The legally established sub-district, township and town
trade unions, district/county industrial trade unions and grass-roots trade
unions shall, satisfying the following conditions and with the approval of the
district/county federation of trade unions or the
municipal industrial trade
union, acquire the status of the legal person of the mass organization:
(1)
The trade union committee has been established;
(2) With necessary property
or funds;
(3) With its own name and office; and
(4) With the capacity of
bearing civil liabilities independently.
In case of the trade union with
legally possessed or acquired status of the legal person of the mass
organization, its chairman
is the legal representative.
Chapter III The Rights and Duties of the Trade Union
Article 16
The people' s government at all levels may call meetings or
adopt other proper means to inform the trade unions at the same level
of the
planning of important work of the government and the administrative measures
relevant to the trade union work, study and
find a solution for the opinions and
demands of the staff and workers reflected by the trade union.
The labor
administrative department under the people' s government at all levels shall,
jointly with the trade unions at the same
level and the representatives from
enterprises, establish a three-party consultation mechanism of the labor
relationship, and jointly
study and settle important issues concerning the labor
relationship.
The sub-district office and the department in charge of labor
administration in the locality of economic development zones and industry
(science and technology) park areas may, jointly with the trade union
organization under the sub-district or the economic development
zone or the
industry (science and technology) park area and the representatives from the
enterprises, establish a three-party consultation
mechanism of the labor
relationship, and jointly study and settle important issues concerning the labor
relationship in the locality.
Article 17
When the municipal and
district/county people' s governments formulate the plans on national economy and
social development, and
when the Municipal People' s Government studies and
drafts laws, rules and regulations on important issues concerning the immediate
interests of the staff and workers, they shall solicit the opinions of the trade
union at the same level.
The municipal and district/county people' s
government and relevant departments shall, when studying and formulating
important policies
and measures on the employment, salary and wage, price,
production safety, welfare benefit, and social insurance etc., or establishing
the social supervision organizations concerning the above mentioned affairs,
invite the trade union at the same level to participate
and solicit the opinions
of the trade union at the same level.
The municipal and district/county
federation of trade unions may investigate and analyze the problems of
employment, labor payment,
price, production safety, welfare benefits, social
insurance and actual situations of the team of the staff and workers, etc., and
give its opinions and proposals to the people' s government.
Article 18
The
conference of the representatives of the staff and workers (the conference of
the staff and workers) in the state-owned enterprises,
the state-owned holding
enterprises, the collectively- owned enterprises and the institutions is the
basic form of exercising democratic
management of the enterprises or the
institutions; and is the organization for the staff and workers to exercise the
right of democratic
management, and to examine, approve and decide the important
issues of decision-making and affairs involving the immediate interests
of the
staff and workers in accordance with laws, rules and other relevant regulations
of the State and the Municipality.
The trade union committee in the
state-owned enterprises, the state-owned holding enterprises and the
institutions is the working
organization of the conference of representatives of
the staff and workers (conference of the staff and workers) responsible for
the
routine work of the conference of representatives of the staff and workers (the
conference of the staff and workers), inspecting
and urging the implementation
of the decisions made by the conference of representatives of the staff and
workers (the conference
of the staff and workers). The trade union committee in
the collectively-owned enterprises shall support and organize the staff
and
workers to participate in the democratic management and the democratic
supervision. The trade union committees in the other
enterprises and
institutions shall, in accordance with laws and regulations, organize the staff
and workers to adopt the forms
suitable to their own units to participate in the
democratic management.
In case that the enterprise or the institution
violates the system of the conference of representatives of the staff and
workers
(the conference of the staff and workers) or other systems of democratic
management, the trade union has the right to demand a correction.
Article
19
When studying important issues concerning the operational management and
development, the enterprise or the institution shall solicit
the opinions of the
trade union. And the meeting that are called to discuss matters concerning the
immediate interests of the staff
and workers such as salary and wage, welfare,
labor safety and hygiene and social insurance, etc. shall be attended by the
representatives
from the trade union.
Article 20
In case of establishing
a board of supervision in the enterprise, the representative from the trade
union shall be the candidate
for the member of the board of supervision.
In
case there is no representative from the trade union in the board of directors
of the enterprise, the board of directors shall,
when studying and deciding
issues concerning the immediate interests of the staff and workers such as labor
payment, welfare benefits,
safety production and labor protection, social
insurance, etc., solicit the opinions of the trade union in advance, and invite
the representatives from the trade union to attend the meeting as an
observer.
When studying and deciding important issues of production and
management, and formulating important rules and regulations, the board
of
directors shall solicit the opinions of the trade union, and obtain cooperation
from the trade union.
The expenses for the observation of the representatives
from the trade union to the board meeting shall be listed in accordance with
the
channel of funds of the members of the board of directors.
Article 21
On
behalf of the staff and workers, the trade union shall, according to law, sign
collective contracts concerning labor payment,
working hours, holidays and
vacations, labor safety and hygiene, insurance and welfare and other matters
with the enterprise or
the institution operated by means of enterprise-oriented
management through consultation on the basis of equality; and may separately
sign agreement on matters of salary and wage according to law. The draft of the
collective contracts and the draft of the salary
and wage agreement shall be
submitted to the conference of representatives of the staff and workers or the
whole body of the employees
for discussion and approval, and be submitted to the
labor administrative department and the trade union of a higher level according
to relevant provisions.
The industrial trade union or the federation of trade
unions in the areas with a higher concentration of enterprises such as the
economic development zones, and industry (science and technology) park areas
may, on behalf of the staff and workers, sign collective
contracts according to
law with the representatives from the respective enterprises through
consultation on the basis of equality.
In case that a signature or an
alteration of the collective contract is proposed by the trade union, the
enterprise or the institution
operated by means of enterprise-oriented
management shall, according to relevant regulations, consult on the basis of
equality
with the trade union upon receiving the notice in writing. In case that
the enterprise or the institution operated by means of enterprise-oriented
management refuses a consultation on the basis of equality without proper
reasons, or in case of a failure in the consultation
for settlement due to a
dispute over the signature of the collective contract, the trade union may apply
to the labor administrative
department of the local government for a
coordination in the settlement according to law.
In case of a dispute over
the performance of the collective contract and a failure in the consultation for
settlement, the trade
union may apply to the labor dispute arbitration committee
for arbitration. If the case is refused by the arbitration organization,
or if
the arbitration award is not acceptable, the trade union may bring a lawsuit in
a people' s court according to law.
Article 22
The enterprise or the
institution shall, when drafting the text of labor contract, solicit the
opinions of its own trade union.
The trade union shall guide the staff and
workers in their signing the labor contract, and supervise the performance of
the labor
contract according to law.
In case of finding that the enterprise
or the institution does not sign labor contracts with the staff and workers, the
trade union
shall have the right to demand a correction, or suggest that the
relevant government department handle the case according to law.
Article
23
In case that the enterprise or the institution imposes a punishment on an
employee, but the trade union believes there is insufficiency
of legal proofs,
insufficiency of facts and reasons, improper punishment or overstepping the
legal right of punishment, etc. the
trade union shall have the right to state
its own opinion.
When an enterprise unilaterally discharges the employee' s
contract, the enterprise shall at the same time inform the trade union
of the
reasons. If the trade union thinks that the enterprise violates laws,
regulations or breaches relevant contracts, and thus
demands a re-consideration,
the enterprise shall consider the trade union' s opinion, and inform the trade
union of the result
in writing.
Article 24
The enterprise shall, according
to law, establish a mediation committee of labor dispute. The chairman of the
mediation committee
of labor dispute shall be the representative from the trade
union, and its working body shall be established in the trade union.
The
district/county federation of trade unions, the municipal industrial trade
unions, and the sub-district or township and town
trade unions may, jointly with
the representatives from relevant parties, establish the mediation organizations
of labor dispute.
The party(ies) to a labor dispute may apply to the
mediation committee of his/her own unit for a mediation, or may apply to the
mediation organization of labor dispute mentioned in the preceding clause for a
mediation.
The mediation committee of labor dispute established by the
government shall have member(s) from the representative(s) of the trade
union at
the same level.
Article 25
In case that the enterprise or the institution
violates labor laws and regulations with following situations that infringe upon
the labor rights and interests of the staff and workers, the trade union shall,
on behalf of staff and workers, negotiate with the
enterprise or the
institution, and demand the enterprise or the institution to take measure for a
correction. The enterprise or
the institution shall study and deal with the
case, and make a reply to the trade union. In case that the enterprise or the
institution
refuses to correct, the trade union may apply to the local people' s
government for a settlement according to law:
(1) Deduct, or delay without
reason the payment of the employees' salary or wage;
(2) Do not provide safety
and hygienic conditions of labor, or the safety and hygienic facilities and
conditions of labor do not
meet the requirements of the State;
(3) Prolong
the working hours at will, or does not pay for the over-time according to
provisions;
(4) Infringe upon the special rights and interests of female
employees and employees under the legal age; and
(5) Other cases that
seriously infringe upon the labor rights and interests of the
employees.
Article 26
The trade union shall, in accordance with the
provisions of the State, exercise supervision over the simultaneous designing,
construction,
going into production and use of the labor conditions and safety
and hygienic facilities of the newly-built or extended enterprises
or the
technical reform projects with the principal part of the project. The enterprise
or the competent department shall seriously
deal with the opinions raised by the
trade union, and inform the trade union of the result in writing.
Article
27
In case of finding the operator or the manager of the enterprise or the
institution commands in violation of rules, forces the employees
to run risks in
the operation, or obviously and seriously hidden dangers or occupational hazards
in the process of production,
the trade union has the right to make proposals,
and the enterprise or the institution shall give reply and solution in time. In
case of finding situations that threaten the safety of the employees' lives, the
trade union has the right to advise that the enterprise
or the institution
should organize its employees to withdraw from the dangerous spot, and the
enterprise or the institution shall
make decisions and act in time.
The
investigation and handling of industrial death and injury accidents of the
employees and other problems that seriously damage
the health of the employees
shall be attended by the trade union. The trade union shall give its opinions on
the handling of the
case to the relevant department(s), and has the right to
investigate and affix the liability to the directly responsible person(s)
in
charge and relevant responsible person(s). The opinions given by the trade union
shall be studied and replied in time.
Article 28
The trade union has the
right to go to the sites of production, working and business of the enterprise
or the institution for investigation,
and to supervise the situation concerning
the implementation of labor laws and regulations. The relevant departments shall
offer
their support.
When the trade union investigates a case in which the
enterprise or the institution infringes upon the legitimate rights and interests
of the staff and workers, the unit concerned shall offer assistance, give the
facts, provide relevant materials, and shall not
obstruct or refuse the
investigation.
The trade union shall, in the investigation, keep the business
secrets of the enterprise or the institution in accordance with law.
Article
29
The trade union shall participate in the supervision of the management and
the use of the social insurance fund, and the implementation
of the minimum
salary and the margin of minimum subsistence guarantee.
The trade union has
the right to urge the enterprises, the institutions and the organs to pay social
insurance funds such as the
pension, medical care, industrial injury,
unemployment and child bearing, etc.
Article 30
In case that the relevant
personnel of the enterprise or the institution illegally detains the
employees' legal certificates like
the resident identification card, etc., does
other acts that infringe upon the employees' legitimate rights and interests such
as illegal body search, detention, and personal insult, corporal punishment or
beating etc., the trade union has the right to stop,
and shall give proposals on
handling of the case. The department responsible for the handling of the case
shall inform the trade
union of its opinion of the handling within 30
days.
Article 31
In case of events like a stop of work or a slow down that
happen in an enterprise or institution, the trade union of the unit shall
immediately report to the trade union of a higher level, and consult on behalf
of the employees with the enterprise, the institution
or the relevant part(ies),
reflect the employees' opinions and demands, and propose opinions for settlement.
In case of a failure
in the consultation, the trade union of a higher level
shall, jointly with the labor administrative department and the competent
department of the unit, go to the unit where the event(s) occur(s) to
investigate the matter, and consult jointly for an appropriate
handling.
The
enterprise or the institution shall satisfy the reasonable demands raised by the
employees, and the trade union shall assist
the enterprise or the institution to
resume the production and restore the working order as soon as
possible.
Article 32
In case of an infringement upon the legitimate rights
and interests of the staff and workers, the trade union shall support them
to
appeal, apply for arbitration, bring lawsuit, and provide legal
assistance.
Article 33
The trade union shall support the operators or the
managers of the enterprise or the institution to perform production and business
activities and scientific management, and shall, jointly with the enterprise or
the institution, educate the staff and workers
to do the job with the awareness
of being the masters of the country, take good care of the State or the
enterprise property, organize
the mass participation of the staff and workers in
the activities of rationalization proposals and technical innovations, conduct
spare time cultural and technical studies and training, and organize the staff
and workers to participate in recreational and sports
activities.
Article
34
The trade union shall assist the enterprise, the institution and the organ
to organize the staff and workers to take part in activities
of convalescence
and recuperation, operate the collective welfare business for the staff and
workers, and do a good job of the
social insurance.
Article 35
With the
authorization of the government, the trade union shall, jointly with relevant
departments, do a good job in the appraising
and choosing, commendation,
cultivation and administration of the model workers and the advanced workers,
give publicity to their
deeds, and be concerned about their work and
living.
Article 36
The trade union shall assist the people' s government
and relevant units to do a good job in the work of the retired (retired on
merit) personnel, and be concerned with their living and protect their
legitimate rights and interests.
Chapter IV The Staff and the Property of the Trade Union
Article 37
The authorized professional staff formation of the municipal
and the district/county federation of trade unions shall be decided
through
consultation between the municipal federation of trade unions and the municipal
or the district/county organization administrative
departments. The authorized
professional staff formation of the industrial trade union and the sub-district
or township and town
trade unions, etc. shall be decided through consultation
between the trade union of a higher level and the relevant departments.
The
enterprise or the institution with a staff and worker body of over 200 persons
shall be provided with full-time trade union
staff. The number of the full-time
trade union staff shall be determined through consultation between the trade
union of a higher
level and the enterprise or the institution. In case of a
staff and worker body of less than 200 persons, the enterprise or the
institution may be provided with full-time or part-time trade union
staff.
Article 38
During the term of office, the job post of the chairman,
deputy chairman (men) and the member(s) of the committee in the trade union
or
the stipulated post in the labor contract shall not be transferred at will. In
case of a transfer due to the need of work, consent
shall be obtained from the
trade union committee of the unit. In case of the transfer of the chairman or
the deputy chairman, consent
shall also be obtained from the trade union of a
higher level.
In case of the transfer of the job of the person in charge of
the preparation for the establishment of the trade union, opinions
shall be
solicited from the trade union of a higher level in advance.
The solicitation
of opinions from the trade union of a higher level shall be made in writing. The
trade union of a higher level
shall reply within 15 days upon the date of
receiving the inquiry in writing. Approval shall be taken for granted if no
reply is
given after the time limit.
Upon the date of taking the office for
the full-time chairman, deputy chairman (men) or committee members of the
grass-roots trade
unions, the valid period of their labor contracts shall be
automatically prolonged, and the period of time prolonged shall equal
to the
period of their term of office. Upon the date of taking the office for the
part-time chairman, deputy chairman (men) or
committee members, if the
unperformed time period of their labor contracts is shorter than the period of
their term of office,
the valid period of the labor contract shall be
automatically prolonged to the termination of their term of office. However,
persons
who commit serious personal fault during the period of the term of
office or persons who reach the legal retirement age shall be
exception.
In
case that the full-time chairman, deputy chairman (men) or committee members of
the grass-roots trade unions no longer serve
full-time in the trade union after
the termination of their term of office, the unit they work in shall properly
arrange their
jobs.
Article 39
The labor payment and other welfare
treatment of the staff of the grass-roots trade union shall be borne by their
work unit.
The labor payment and other welfare treatment of the full-time
chairman, deputy chairman (men) and committee members of the grass-roots
trade
union shall, in case the State and this Municipality have otherwise provided, be
implemented accordingly; and may, in case
where there is no such provisions, be
stipulated through consultation between the trade union of the work unit or the
trade union
of a higher level and the employer-unit.
The treatment of the
staff and the retired and retired-on-merit staff and workers of the trade unions
at all levels above the sub-district,
township and town as well as of the
affiliated enterprises or the institutions shall be implemented according to
relevant provisions
of the State and the Municipality.
Article 40
The
grass-roots trade union committee shall, when it is necessary to use the
production (working) hours to call meetings or to carry
out activities, decide
through consultation with the responsible person of the work unit in
advance.
Part-time committee members of the trade union may have 3 working
days every month to do trade union work with salary and without
affecting the
welfare treatments. In case of more than 3 working days, the trade union shall
ask for consent from the person in
charge of the work unit in
advance.
Article 41
The enterprises, institutions and organs that have
established trade unions shall, before the 15th of every month, appropriate and
pay to the trade union the monthly trade union funds, the amount equals to 2% of
the total salary and wage of the preceding month
of the entire body of staff and
workers. The total amount of salary and wage shall be calculated according to
the provisions of
the State Bureau of Statistics. The enterprises, institutions
and organs that have established the organization for the preparation
of
establishing the trade union shall appropriate and pay to the trade union the
trade union fund from the date of the establishment
of such preparatory
organization according to the preceding clause.
The trade union at all
levels shall deliver to their trade union of a higher level the amount of funds
according to the stipulated
ratio.
Article 42
The trade union shall,
according to the principle of independent funds, establish the examination and
supervision systems of budget,
audit and funds.
The income and expenditure of
the trade union at all levels shall be examined by the trade union funds
examination committee at
the same level, and be reported to the conference of
the members or the conference of the representatives of the members at regular
intervals and be subject to supervision. No unit or individual person shall
embezzle, misappropriate or allot at will the trade
union' s funds and property
and the fixed assets allotted to the trade union by the State.
The legitimate
rights and interests of the enterprise or institution that belong to the trade
union for the service of the staff
and workers are protected by law. No unit or
individual person shall change the subordination relationship.
In case of a
merge of the trade union organization, the funds and property shall be owned by
the merged trade union. In case of
a cancellation of the trade union, its funds
and property shall be disposed of by the trade union at a higher
level.
Article 43
The people' s government at all levels and enterprises,
institutions, and organs shall provide the trade union at the same level
with
offices and facilities.
Chapter V Legal Liabilities
Article 44
Against anyone who acts in violation of the provisions of these
Regulations that infringes upon the legal rights and interests of
a trade union,
the trade union has the right to apply to the people' s government or relevant
departments for handling, or bring
a lawsuit in a people' s court according to
law.
Article 45
Against anyone who obstructs the employees' legal
participation and organization of the trade union, or obstructs the assistance
and guidance of the trade union of a higher level to the staff and workers on
the preparation for the establishment of the trade
union in violation of the
provisions of these Regulations, the labor administrative department shall order
the violator to correct.
In case of a refusal of correction, the labor
administrative department shall apply to the municipal or the district/county
people'
s government for handling. In case of an obstruction by means of violence
or threat that causes serious consequences, and thus constitutes
a crime, the
violator shall be prosecuted for criminal liability according to law.
Article
46
Against anyone who transfers at will the job posts of the chairman, deputy
chairman (men) or the committee members of the grass-roots
trade union in the
trade union or the posts stipulated in the labor contract and the job of the
person(s) in charge of the preparation
for the establishment of the trade union
in violation of the provisions of these Regulations, the trade union of the work
unit
or the trade union of a higher level may submit the case to the labor
administrative department, and the labor administrative department
shall order a
correction and a restoration of the original job. Any losses and damages shall
be compensated.
In case that the work unit arbitrarily alters its labor
contracts, the chairman, deputy chairman (men) or committee members of the
trade
union, or the person(s) in charge of the preparation for the establishment of
the trade union may apply for a labor arbitration
according to law, and may
bring a lawsuit in a people' s court if the arbitration is not accepted.
In
case anyone insults, defames or inflicts body injuries to the staff of the trade
union who perform their duties according to
law, and thus constitutes a crime,
the violator shall be prosecuted for criminal liability according to law. If the
acts are not
serious enough to constitute a crime, the violator shall be
punished by the public security organ according to the "Regulations
on the
Administration of Public Security and Imposition of Punishment" .
Article
47
In case anyone does any one of the following acts in violation of the
provisions of these Regulations, the labor administrative department
shall order
a restoration of the injured party' s job and a back pay of the well-deserved
payment for the period that the labor
contract has been terminated. If the
employee or the trade union staff is not willing to restore the job, the labor
administrative
department shall order an indemnity equal to twice the annual
income of the injured party and an economical compensation according
to the
provisions on the termination of the labor contract:
(1) The discharge of the
labor contract due to the employee' s participation in the trade union
activities; and
(2) The discharge of the labor contract due to the trade
union staff' s performance of the duties provided in these
Regulations.
Article 48
In case anyone does any one of the following acts
in violation of the provisions of these Regulations, the municipal or the
district/county
people' s government shall order a correction and handle it
according to law:
(1) Obstruct the trade union to organize the staff and
workers to exercise the democratic rights according to law by means of the
conference of the representative of the staff and workers and other
forms;
(2) Illegally cancel or merge the trade union organizations;
(3)
Obstruct the trade union' s participation in the investigation and handling of
the accidents involving the industrial death
or injury of the employees and
other cases that infringe upon the legitimate rights and interests of the
employees; and
4) Refuse the consultation on the basis of equality without
proper reasons.
Article 49
In case of an embezzlement, misappropriation or
allocation and transfer at will of the trade union' s property and funds, and a
refusal of return, the trade union may bring a lawsuit in a people' s court to
demand a return and a payment of damages for the
loss.
Article 50
The
organization that is not organized and established according to the "Constitution
of the Chinese Trade Union" and in violation
of these Regulations, but conducts
activities in the name of the trade union or replace the trade union to exercise
the duties
and rights of the trade union, shall be banned according to law by
the administrative department in charge of the registration of
mass
organizations according to law.
Article 51
In case that the enterprise,
institution or organ does not pay the trade union funds when it is overdue, or
pay less, the trade
union shall give it a notice of urging for a payment within
a time limit. When the payment is again overdue, the grass-roots trade
union or
the trade union of a higher level may, according to law, apply to a people' s
court for a pay warrant. In case that the
pay warrant is not performed, the
trade union may apply to the people' s court for an enforcement according to
law.
Article 52
In case that the trade union staff violates the provisions
of these Regulations, and infringe upon the rights and interests of the
staff
and workers or of the trade union, the trade union at the same level or the
trade union of a higher level shall order a correction,
or impose a penalty. If
the case is serious, the wrongdoer shall be removed from the office according to
the "Constitution of the
Chinese Trade Union" . In case there are losses and
damages, the wrongdoer shall be liable for compensation. And in case the
wrongful
act constitutes a crime, the wrongdoer shall be prosecuted for criminal
liability according to law.
Chapter VI Supplementary Provision
Article 53
These Regulations shall become effective on May 1,
1995.
Regulations of Shanghai Municipality on the Administration of the
Distribution of Publications
(Adopted at the 44th Session of the Standing
Committee of the 11th Shanghai Municipal People' s Congress on October 28,
2002)
Chapter I General Provisions
Article 1
These Regulations are formulated for the purposes of
strengthening the administration of the distribution of publications, developing
and prospering cultural undertakings, and promoting the socialist ideological
and ethical construction, in accordance with the
"Regulations on the
Administration of Publications" by the State Council and in the light of this
Municipality' s actual circumstances.
Article 2
The distribution of
publication mentioned in these Regulations refers to the acts of the general
distribution, wholesale and retail
business operation of newspapers,
periodicals, books, electronic publications and audio-video products, and other
publications.
Article 3
These Regulations shall apply to the distribution
and distribution-related renting, subscription-soliciting, giving-as-compliment,
sending-out, and exhibition of publications and the administration thereof in
this Municipality' s administrative area.
Where there are provisions otherwise
provided by administrative regulations on audio-video products, such provisions
shall prevail.
Where there are provisions provided by the postal law on
postal enterprises' distribution of newspapers and periodicals, such provisions
shall prevail.
Article 4
The Shanghai municipal administrative department
of press and publication (hereinafter referred to as MPPA) shall be in charge of
the supervisory and administrative work of this Municipality' s distribution of
publications, and shall be responsible for organizing
the implementation of
these Regulations.
The district and county administrative departments in
charge of the administration of publication shall be responsible for the
supervisory
and administrative work of publication distribution in their
respective administrative areas and be under the leadership of the
MPPA in
professional work.
The administrative departments of industry and commerce
administration, public security, price control, education, postal service
and
customs shall, according to their respective duties, do well in supervision and
administrative work related to publication
distribution.
Article 5
The
MPPA shall, according to the actual needs of development of the Municipality and
the cultural demands of citizens, work out
the development program for
publication distribution and, upon approval by the Municipal People' s
Government, announce the program
to the masses.
The establishment of
distribution units of publications and trading markets of publications shall
conform to the requirements of
total amount, structure and layout set forth by
this Municipality' s development program for publication distribution.
Chapter II Licensing of Conducting Publication Distribution
Article 6
This Municipality shall adopt the licensing system of
publication distribution and renting. Those who are engaged in publication
distribution or renting business shall obtain the "License of Publication
Distribution" (hereinafter referred to as the License).
Units that are engaged
in general distribution business of publications and chain operation business of
nationwide publications
shall go through licensing formalities according to the
relevant State provisions.
Chinese-foreign equitable joint ventures,
Chinese-foreign contractual joint ventures and foreign-funded enterprises that
are engaged
in publication distribution business shall do as provided by the
State.
Article 7
Units engaged in publication wholesale business or units
and individual persons engaged in publication retail business or renting
business shall meet the following conditions:
(1) Having managerial personnel
that meet the requirements of appropriate qualification;
(2) Having fixed
business operation sites and necessary business operation facilities; and
(3)
Having registered capital in compliance with the provisions of laws and
regulations.
Article 8
The chain operation of publications includes both
direct chain operation and allied chain operation.
Units engaged in direct
chain operation business shall meet the following conditions:
(1) Having
legal personality;
(2) Having the number of outlets required by the
industrial and commercial administrative department;
(3) Having the
administration system of chain operation as required; and
(4) Having the
registered capital provided by laws and regulations.
The unit engaged in
direct chain operation of publications for over one year may conduct allied
chain operation business of publications.
Those engaged in allied chain
operation shall be the units or individual persons of publication distribution
established with permission.
Article 9
The unit that sets up the trading
market of publications shall have the qualifications for general distribution of
publications
and have obtained approval from the MPPA.
The trading market of
publications shall meet the following conditions:
(1) Having managerial
personnel that meet the requirements of appropriate qualifications;
(2)
Having the administration system of trading market required by the
provisions;
(3) Having the registered capital and operation sites in
compliance with the provisions of laws and regulations.
Article 10
The
unit applying for conducting wholesale, direct chain operation business of
publications shall lodge an application to the MPPA.
The unit and individual
person applying for conducting retail and renting business of publications shall
lodge an application to
the district/county administrative department in charge
of publication administration.
Article 11
The MPPA or the district/county
administrative department in charge of publication distribution shall, within 20
days from the date
of receiving the application materials for conducting
distribution and renting business of publications, make a decision of approval
or denial of the application. A permit shall be issued to the approved; and
reasons shall be given in writing to the denied.
The unit or individual
person that has obtained the permit upon approval shall take out the business
license from the industrial
and commercial administrative department before
being allowed to launch any business activity.
Article 12
The chain
operation unit of publications that sets up another direct operation outlet in
addition shall, within 20 days from the
business opening date of the outlet,
report to the MPPA for the record; those accepting allied outlets shall, within
20 days from
the date of signing an alliance contract, report to the MPPA for
the record.
Article 13
If the units or individual persons that distribute
or rent publications alter the business scope and business form of publication
distribution, they shall go through anew permission formalities according to the
provisions of Article 6, Clause 2 and Article
10 of these Regulations. If
altering other matters, they shall go through alteration formalities with the
original approving authority,
the MPPA or the district/county administrative
department in charge of publication administration.
When the units and
individual persons that distribute and rent out publications, terminate the
distributing and renting activities,
they shall go through cancellation
formalities with the original approving authority, the MPPA or the
district/county administrative
department in charge of publication
administration, and surrender the permit.
When the chain operation units of
publications shut down their direct operation outlets or terminate the allied
store contracts,
they shall report to the MPPA for the record within 20 days
from the date of shutting down their direct operation outlets or terminating
allied store contracts.
If the units and individual persons that distribute
and rent out publications have the cases set forth in the preceding three
clauses,
they shall go through appropriate formalities with the industrial and
commercial administrative department.
Article 14
The units and individual
persons that distribute and rent out publications shall go through the annual
permit inspection formalities
with the original approving authority, the MPPA or
the district/county administrative department in charge of publication
administration.
The MPPA or the district/county administrative department in
charge of publication administration shall inspect over the following
matters:
(1) Conditions for conducting publication distribution and rent out
business;
(2) Any acts of illegal operation; and
(3) Any other acts in
violation of the provisions of these Regulations on license
administration.
Those who fail in the inspection or do not undergo before the
deadline the inspection shall not continue to conduct the publication
distribution business.
Chapter III Administration of Publication Distribution
Article 15
The units and individual persons that distribute and rent out
publications shall do business in the checked and ratified operation
sites, and
place the permit and business license on the conspicuous position of the checked
and ratified operation site.
The permit and business license shall not be
altered, transferred, leased out or lent.
Article 16
When the units and
individual persons that distribute publications, launch distribution business
through Internet, they shall report
to the original approving authority, the
MPPA or the district/county administrative department in charge of publication
administration
for the record with the permit, website name or the name of
website they link to, e-mail address and other relevant materials before
launching business.
If the units and individual persons that distribute
publications launch publication distribution business through Internet, they
shall have the number of permit of publication distribution, the permit-issuing
department, the number of report for the record,
the name of publication in
operation, the publishing unit and the standard book number, periodical number,
as well as edition number,
and the name of import unit for the imported
publications, if any, marked on the conspicuous place of website or
webpage.
Article 17
The publication trading market shall set up the
market administration organization, which shall control over trading activities
in the market according to relevant provisions set by the State and this
Municipality.
Article 18
Publication wholesale units shall not wholesale
publications to any unit or individual person that does not have a
licence.
Units and individual persons that distribute and rent out
publications shall not purchase publications from any unit or individual
person
that does not have a licence.
Publication trading markets shall not provide
business sites of publication distribution for any unit or individual person
that
does not have a licence.
Article 19
Publication wholesale units
shall, within three days from the date of purchase, submit the duplicate of
purchase voucher to the
MPPA for the record.
Where any publication is
distributed in this Municipality for the first time, the MPPA, if it requires a
sample of the publication,
shall notify the party concerned in writing. The
party concerned shall, within the prescribed time period as notified in writing,
provide the publication sample. The MPPA shall, within 10 days from the date of
receiving the sample, complete the examination
and return the sample to the
party concerned, except for the publication sample with contents or cases banned
in Article 22 of
these Regulations.
Article 20
Publication distributing
units, when holding publication exhibition activity in places other than their
business sites, shall, before
holding the exhibition, report to the
district/county administrative department in charge of publication
administration in the
locality where the exhibition is held for the
record.
Where the publication distributors association holds publication
exhibition activity, the provisions in the preceding clause shall
be
followed.
Article 21
The distribution units of middle and primary school
textbooks shall be designated through bidding or other open and impartial forms
by the MPPA and the educational administration together with the competent price
control department. Any other units or individual
persons shall not conduct the
distribution business of middle and primary school textbooks.
The
distribution units of middle and primary school textbooks shall not sell tie-in
or importunately middle and primary school teaching
auxiliary
materials.
Article 22
No publications or publication publicity materials
with contents banned by laws, administrative regulations or other State-set
provisions
shall be distributed, rent, subscription -solicited, given as
compliment, sent out or exhibited.
No publications or publication publicity
materials imported illegally, infringing upon other persons' copy rights, and
having other
cases that distribution is banned by laws and regulations shall be
distributed, rent, subscription -solicited, given as compliment,
sent out or
exhibited.
The MPPA shall be responsible for the appraisal of publications
with contents or cases banned in the preceding two clauses, and its
affiliated
publication appraisal agency may undertake the specific appraisal
work.
Article 23
The MPPA or the district/county administrative
department in charge of publication administration, when, based on the obtained
evidence
of suspected offence or on tip-offs, making investigation over acts
suspected of conducting illegal publication distribution, may
examine articles
related to illegal activities, and may seal up or distrain articles proved with
evidence to be related to illegal
activities. Administrative law enforcers shall
produce law-enforcement certification when performing official duties.
In
respect to publications whose distribution is banned by notification of the MPPA
or the district/county administrative department
in charge of publication
administration, the unit or individual person engaged in the distribution
business of the publications
shall promptly hand them in or wait for handling,
with no concealment, sell off, shift or destruction of such publications being
allowed.
Chapter IV Legal Liability
Article 24
Where the "Regulations on Administration of the
Publication" have provided penalties on acts that violate the provisions of these
Regulations, such acts shall be punished in accordance with the "Regulations on
Administration of the Publication" .
The following acts in violation of the
provisions of these Regulations shall be punished by the MPPA or the
district/county administrative
department in charge of publication
administration according to the seriousness of the cases:
(1) Those who, in
violation of the provisions of Article 6, Clause 1 of these Regulations, conduct
publication renting business
without licence shall be ordered to stop their
illegal acts, their illegal gains shall be confiscated, and they shall be
penalized
with a fine of less than 2,000 yuan.
(2) Those who, in violation of
the provisions of Article 9 Clause 1 of these Regulations, set up publication
trading markets without
authorization, shall be ordered to stop their illegal
acts, their illegal gains shall be confiscated and they shall be penalized
with
a fine of between not less than twice and not more than ten times the illegal
gains if the illegal gains is more than 10,000
yuan. If there are no illegal
gains or if the illegal gains are less than 10,000 yuan, they shall be penalized
with a fine of between
not less than 5,000 yuan and not more than 20,000
yuan.
(3) Those who, in violation of the provisions of Article 12, Article 16
Clause 1 of these Regulations, add a direct operation outlet,
take in an allied
store, or launch publication distribution business through Internet without
reporting for the record as required
shall be ordered to correct within a
prescribed time period, and, if they fail to correct before the deadline, their
illegal gains
shall be confiscated, and they shall be penalized with a fine not
less than 100 yuan and not more than 1,000 yuan.
(4) Those who, in violation
of the provisions of Article 13 Clause 1 of these Regulations, fail to go
through the permit alteration
formalities shall be ordered to correct within a
prescribed time period, and be penalized with a fine of between not less than
100 yuan and not more than 500 yuan.
(5) Those who, in violation of the
provisions of Article 15 Clause 1 of these Regulations, do business in a place
other than the
checked and ratified operation site shall be ordered to correct,
and shall be penalized with a fine of between not less than 500
yuan and not
more than 5,000 yuan.
(6) Those who, in violation of the provisions of
Article 15 Clause 2 of these Regulations, alter, transfer, lease or lend the
license
shall be ordered to correct within a prescribed time period, their
illegal gains shall be confiscated and they shall be penalized
with a fine of
between not less than 1,000 yuan and not more than 10,000 yuan. If the case is
serious, the wrongdoer shall be cumulatively
ordered to stop business for
rectification, or have the licence revoked.
(7) Any unit or individual person
engaged in publication distribution and renting business, or publication trading
markets that,
in violation of the provisions of Article 18 of these Regulations,
wholesale, or purchase publications from or provide publication
operation sites
for units or individual persons who do not have the licence, shall have the
publications and illegal gains confiscated
and shall be penalized with a fine of
between not less than 500 yuan and not more than 5,000 yuan. If the case is
serious, the
wrongdoer shall be cumulatively ordered to stop business for
rectification, or have the licence revoked.
(8) Those who, in violation of
the provisions of Article 19 of these Regulations, fail to submit duplicates of
purchase vouchers
for the record, or fail to provide samples of publications,
shall be ordered to correct within a prescribed time period and, if
they fail to
correct before the deadline, they shall be penalized with a fine of 500 yuan for
each kind of publications.
(9) Those who, in violation of the provisions of
Article 21 Clause 2 of these Regulations, sell tie-in or importunately middle
and
primary school teaching auxiliary materials, shall be ordered to stop their
illegal acts, have their illegal gains confiscated,
and be penalized with a fine
of between not less than 1,000 yuan and not more than 5,000 yuan.
(10) Those
who, in violation of the provisions of Article 22 of these Regulations, rent
out, solicit subscriptions for, give as
a compliment, send out or exhibit
publications or publication publicity materials with the banned contents or
cases shall have
the publications or publication publicity materials and illegal
gains confiscated and be penalized with a fine of between not less
than twice
and not more than ten times the illegal gains which is more than 10,000 yuan, or
be penalized with a fine of between
not less than 5,000 yuan and not more than
20,000 yuan if there are no illegal gains, or if the illegal gains are less than
10,000
yuan. If the case is serious, the wrongdoer shall be cumulatively ordered
to stop business for rectification or have the licence
revoked.
Article 25
Where a person purchases publications, in violation of the provisions of
these Regulation, from units or individual persons that
do not have the licence
or rents, solicits subscriptions for, gives as a compliment, sends out or
exhibits publications or publication
publicity materials with contents or cases
set forth in Article 22 of these Regulations, and that person gives or
identifies the
source which proves true after verification, the administrative
punishment set forth in these Regulations other than the confiscation
of
publications, publication publicity materials and illegal gains may be mitigated
or exempted.
Article 26
Those who resist or impede the functionaries of
administrative departments in performing their duties according to law, to an
extent
not serious enough for criminal punishment shall be dealt with by the
public security department according to the "Regulations of
the People' s Republic
of China on Public Security Administration and Imposition of Punishment" . If the
wrongful act constitutes
a crime, the wrongdoer shall be prosecuted for criminal
liability.
Article 27
The party concerned who is dissatisfied with the
specific administrative act made by the MPPA or the district/county
administrative
department in charge of publication administration may, according
to the "Law of the People' s Republic of China on Administrative
Reconsideration" or the "Administrative Litigation Law of the People' s Republic of
China" , apply for administrative reconsideration
or lodge an administrative
lawsuit.
The party concerned who does not apply for reconsideration of a
specific administrative act before the deadline, nor lodges a lawsuit,
nor
performs the specific administrative act, the MPPA or the district/county
administrative department in charge of publication
administration that does the
specific administrative act may apply to the people' s court for
enforcement.
Article 28
The persons-in-charge taking direct
responsibility of the MPPA or the district/county administrative department in
charge of publication
administration, or other directly responsible persons who
neglect their duties, abuse their powers, or engage in malpractice for
selfish
ends shall be given administrative sanctions by their work unit or higher
competent authorities according to law. If the
wrongful act constitutes a crime,
the wrongdoer shall be prosecuted for criminal liability according to law.
Chapter V Supplementary Provisions
Article 29
The definitions of terms relevant to these Regulations are as
follows:
Newspapers mean the serial publications with permanent names,
printing time, format and with one issue a week at least.
Periodicals mean
the serial publications with permanent names and columns, and serial number of
volumes, issues or in order of year,
season, month, ten-day or week, and bound
into book form.
Books mean publications of all kinds of books, pictorials,
wall calendars, pictures, New Year pictures, and single-page
calendars.
Electronic publications mean mass media in which information such
as pictures, wordings, sounds and images are stored in the form
of digital code
into magnet, optical or electric medium after editing and processing and read or
used through computers or devices
with similar functions so as to be utilized
for expressing thought, disseminating knowledge and accumulating culture, and to
be
copied for distribution.
Article 30
These Regulations shall become
effective on January 1, 2003. The "Regulations of Shanghai Municipality on the
Administration of
Markets of Books, Newspapers and Periodicals" shall be repealed
at the same time.
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