美歐與中國貿易摩擦的勞動法問題及應對思考

Labor Law Issues in Sino-US and Sino-EU Trade Friction: Critical Reflection and Suggested Response

當前美國、歐盟與中國之間貿易摩擦的根源之一，是美國、歐盟對中國在反傾銷反補貼領域的市場經濟條件的否定以及對重建彼此間公平貿易的要求，由此，勞動法問題被嵌入到市場經濟條件判定、替代國選擇和出口企業排除非市場經濟條件自證之中。美國、歐盟圍繞工資問題所援引的勞動法論據，既存在邏輯悖謬、概念混淆、數據缺陷，也存在對中國現有勞動糾紛救濟機制的錯誤理解，且其中相關勞動法問題與勞動力要素扭曲之間不具有直接因果關係。中國有必要在WTO DS515和DS516的後續審理中，據理力爭，反駁美國、歐盟認定中國非市場經濟條件的勞動法論據；同時，重視勞動法問題與國際貿易發生聯繫的方式和關鍵要素，提升中國工會在涉勞動法問題的國際貿易爭端解決中的作用。

Currently one of the roots of the China-US and China-EU trade friction is in essence the denial of China, s market economy condition in anti-dumping and countervailing by USA and EU with the intention to restore fair trade. Labor law issues are embedded in the judgement of market economy condition, selection of surrogate country and request for waiver of non-market economy criteria by individual export companies. However, by resorting to labour law arguments, USA and EU have not provided solid legal foundation for the judgement of non-market economy condition in terms of labor factor, as there are obvious logical fallacy, misconception, defective data and misunderstanding on China's labor law remedy mechanism. Labor law in China is not to be blamed for the so called market distortion of China's labor factor, because there is no direct causal relationship between the former and the latter. On the one hand, it is necessary for China to argue from the lens of labor law against the arbitrary judgement of EU and USA in terms of China's non-market economy condition in anti-dumping and countervailing cases, i. e. DS515 and DS516. On the other hand, more attention should be paid to the internal nexus between labor law and international trade, critical labor law factors relevant with the judgment of unfair trade, and the role of trade union, in trade dispute settlement.