Strike, Right To Strike And The Legislation On Strike--Research From The Point Of View Of Legal Sociology

With a combination of subjects like Jurisprudence, Constitution Law, Labor Law and Comparative Law, discussion about the concept of strike, right to strike and legislation on strike has been performed in the perspective of legal sociology. The author of this thesis believes that strike is the stopping of working of a certain number of workers in a collective way. Generally speaking, there are five component parts of this definition: First, strike is an economic way of the employees' struggling against their employers when their interests run against each other and when there are no other peaceful ways of solving the problem. Second, the direct goal of strike is the improvement of working conditions and other economic benefits. Strikes of political, revolutionary or other natures do not fall into the category of the concerns of labor law. Third, strike refers to the stopping of working by the employed. Persons like leaseholders, tenants, contractors, though in their relations of renting and contraction, they are one of the main bodies of civil legal relations, their nonfeasance, for all its likeness of strike, cannot be called strike because they are not the employed in the labor contract. Fourth, strike is the breaking of the labor contract, not the termination of it and the labor contract does not lose its effectiveness because of the strike. The workers' returning to work after the strike is not the beginning of a new labor contract for it is only the continuation of the old one. Last, strike is the stopping of working of a majority of workers in an organized way, therefore, the stopping of working of a single worker can not be called strike. On the other hand, it is not necessary for all the workers to stop working to make a strike. If the number of workers who refuse to work poses certain effect and pressure on companies, is then can be counted as a strike. There should be some degree of organized relations between the strikers and not the stopping of working of separate individuals. The stopping of working of a single individual is counted as his breaking of the labor contract and therefore, it cannot be protected by the labor law as strike does.In essence, strike is the concrete representation of the radical conflicts of the labors and the capitalists and strikes cannot be avoided if the two parties continue to coexist. What are avoidable are the frequency and the degree of severity. After the Second World War, the strengthening of the democratic powers and the leaping development of the postwar economy provide the political and economic foundation of the lessening of the conflicts between the employers and the employees. With the lessening of the conflict of the two parties, cooperation and negotiation become the main trend. Strike, as the most radical form of collective struggles, mainly occurs in the course of the group negotiations. Generally speaking, the group negotiations can proceed smoothly with the reaching of a final agreement as the result. If the talks fall into a deadlock, both the employers and the employees can announce the failure of the negotiation.By way of the discussion of the concept of strike and other relevant problems, the author of this paper holds that the right to strike is the right of the employees, given by the government, to counter the employers whenever necessary. The right to strike, by its legal nature, can be a political right as well as an economic right. The right to strike is the right of an individual and it is also without any doubt the right of a collectivity. The stopping of working of a single worker or employee is not only of no significance; it can also bring with it certain risks. Only if strike becomes a collective deed can it become a real right, which has its value of existence. The right to strike is an after-right and the fore-right is the right of organizing and taking part in the labor union. Without the labor union and any other labor organizations, the right to strike can never come off. Certainly, the right to strike is also an individual right and it...