【摘要】 普遍认为，劳动权是一项重要的基本人权，对社会经济发展有重要影响。中国改革开放至今，经济增长成绩显著，但对劳动权等基本权利的保障还存在不足，和国际法的要求相比，尚存在一定的差距。但究竟这种差距有多大？目前还没有科学的系统的度量。本报告试图弥补这项空白。采用Landman(2004)等人发展的人权度量框架，我们从政府承诺、、对承诺的实施以及实施绩效三个层面，来综合度量中国的劳动权状况。
首先，本报告认为，从政府承诺的角度看，中国政府对劳动权的保障已经做出了较大的努力，但也存在很多问题，具体表现在：有条件地签署了《经济、社会和文化权利国际公约》等国际人权公约和四项核心国际劳工公约(第 100 号、 第111号公约、第 138 号和 第182号公约) ；中国《宪法》和《劳动法》，和其他法律规章详尽地规定了劳动者权利的方方面面，但对结社自由等关键权利只有模糊的规定。其次，从政府绩效上看，近年来劳动市场参与率、就业/人口比率比较稳定，但女性参与率相对偏低，失业率在上升；未成年人的义务教育得到很大的改进，但童工现象仍然存在；特别是工作场所工人的生命权无法得到有效保护，数据表明，1993年到2004年间中国工矿企业年均工伤死亡人数是16747人，最近两年该项数据才开始下降。最后，我们通过调查数据来评价了劳动权保护的实践状况。调查表明，劳动市场上中国劳动者的平等就业权无法得到有效保障，歧视严重，调查样本中有21%的人认为存在不同程度的就业不公平，这种不公平主要来自身份问题，其中“外地人”身份导致的不公平占24%，“农民工”身份导致的不公平占32%，两项合计达56%。除此之外，年龄、身高、外貌和性别等也存在一定比例。调查数据也表明，对劳动权的制度保障也是不利的，存在政府失灵问题。比如，劳动纠纷中71%的受访者是选择私了，几乎没有人选择法院和工会等正式机构，这是因为通过正式机构维权的成本过高所致。可见，要改进劳动者的基本权利保障问题，必须降低制度运行成本，合理设计治理机制。
[Abstract] It is sure that the right to work is one of human rights, and is very important for social and economic development. Due to reform and openning in China, economic growth is rapid, but it is not enough for protecting the right to employment and achieving to international human rights standards. But how large is the degree of protecting? Now there is not answer. This report try to measure these rights protected by some available data and reasonable methods. According to the model measuring human rights which is developed by Landman(2004) and others, we will systematically measure the right to employment in China, which will be divided by three parts, that is the government’ commitment, the practices about the human rights, and the performance for practicing. The first, we think that China’ government is very effort to protecting the right to employment by commitment, but many problems occur. For example, the International Covenant on Economic, Social and Cultural Rights(ICESCR) and others covenants had been accepted, but some limitations had been provided too. Only four of the eight core international labor covenants had been accepted, that is C100, C111, C138, C182. The right to employment has been regulated by the constitute law, the labor law, and other laws and institutes, but some key rights are lack, for instance, there is not the freedom of association. The second, according to the performance of government, the rate of labor market participation and employment to population are stable these years, but it is low for women, and the unemployment is increasing. The free education has been done for child, but it is certain that there are some child labors. Especially the right to life can’t be protected at some workshops, the average death per year for labors is 16747 persons during 1993 to 2004 at industries in China, but the data is decreasing after 2004. Finally, we review the progress to protect the right to labor based on survey data. It is shown that the equal right to employment for labors in China can’t be efficiently protected, some kinds of discrimination can be found, 21% of samples think that they had been unequal and unfair experience at some degree during searching works, these discrimination on employment results from status of labor, the status is often defined as ‘countrymen’ who come from villages in China. Discrimination may occur due to age, gender, feature, political opinions, and so on. According to these survey data, the institutional arrangements are ineffient for protecting the right to labor, the failure of government occur. For example, when labors try to gain their fundemantal rights at working, the major had selected private order, which is 71% of samples, none depend on the formal institues as trade union or court., because the costs is too hight to efficiently protecting their rights by those formal institues. So it is nessary to reduce transaction costs from formal institues, and to reasonably design governance machnisms, if it will be improved for protecting the right to labor.
