As previously introduced, the Civil Code of the People’s Republic of China (hereinafter referred to as “Civil Code”) was approved by the National People’s Congress of the People’s Republic of China on May 28th, 2020, which will come into force on January 1st , 2021.

In the Civil Code, one unique aspect is that the Personality Rights section has never previously been independently legislated upon. Now, as an independent part, Personality Rights has attracted a lot of attention. We hereby discuss how it will influence a company’s employee management, differing from previous laws and regulations as the first article of our series.

 

  1. Personal Information Protection

 

Before:

General Rules of the Civil Law of the People’s Republic of China (2017)

Article 111

The personal information of a natural person shall be protected by the law. Any organization or individual shall legally obtain the personal information of others when necessary and ensure the safety of such personal information, and shall not illegally collect, use, process or transmit the personal information of others, or illegally buy or sell, provide or make public the personal information of others.

 

After:

 

Civil Code of the People’s Republic of China (2021)

Article 1035

The processing of personal information shall follow the principles of legitimacy, rightfulness and necessity, and over processing of information is not allowed, and the following conditions must be met:

  1. The consent of such natural person or his or her custodian shall be obtained, unless otherwise stated by laws and administrative regulations;
  2. Rules on processing of information shall be publicized;
  3. The purpose, way and scope of processing of information shall be expressly stated; and
  4. Laws and administrative regulations, as well as covenants and agreements between the parties shall not be violated.

Processing of personal information includes the collection, storage, use, processing, transmission, provision, disclosure of the personal information, etc.

From this comparison, we can ascertain that the rules are becoming more detailed and companies, more burdened. When companies hire a new employee, generally before an interview, they will request applicants to fill in an application form regarding their personal information such as their ID, address, educational experience, working experience, parents’ information, etc.

Since the company has a necessity of obtaining certain personal information to find new employees, how the company will handle such information is important for legal compliance.

 

To reduce the risk of a legal dispute regarding personal information with applicants or employees, we hereby suggest the following:

  1. When applicants are filling in the application form, the company may ask the applicants to sign an authorization letter, stating that the applicant allows the company to collect the personal information only for the sake of employment purposes, and the information will be deleted after a fixed period if the applicants are not admitted;
  2. For employees’ personal information, the company may specify in the Employee Handbook that the company is entitled to use the information, including their salaries, punch in/out record, fingerprints and so on in addition to their ID, past working experience, contact number and address, for the use of employee management.
  3. In addition, the company shall carefully keep the obtained information. For example, the paper documents may be put in a place that only limited people can gain access to in order to reduce the risk of disclosure, while the electronic documents may be encrypted or stored in a special hard drive.
  4. If possible, the company may sign confidential agreements with those who have access to other employees’ personal information. If the company has been claimed for damages by an employee regarding information disclosure, the company will have a chance to receive reimbursement.

 

 

  1. Sexual Harassment Prevention

 

Before:

(1) Law on the Protection of the Rights and Interests of Women (2018)

Article 40

Sexual harassment against women shall be prohibited. The victims shall have the right to complain to the entity or the relevant organ.

 

(2) Special Provisions on Labor Protection of Female Employees (2012)

Article 41

Employing units shall prevent and stop sexual harassment towards female employees at the working place.

 

After:

 

Civil Code of the People’s Republic of China (2021)

Article 1010

Where a person sexually harasses another person against his or her will through verbal behavior, words, images, physical behavior, or other forms, the victim has the right to request the actor to assume civil liability according to the law.

An organ, enterprise, school or any other entity shall prevent and curb any harassment conducted by use of powers and affiliation by taking reasonable preventative measures, accepting complaints, and carrying out investigations into and handling the cases.

As we can see from the comparison, for the laws and regulations regarding sexual harassment under the national level, the Civil Code clearly lists certain forms that can be considered as sexual harassment and instructs companies how to prevent sexual harassment instead of  just using some simple explanatory words as before. In addition, the Civil Code no longer only limits females as victims of sexual harassment, which means that males can also request for legal protection if sexually harassed.

Therefore, if the company wants to relieve itself from potential liability regarding sexual harassment, we recommend the company to take some of the following measures:

  1. Specify what kind of behaviors will be considered as sexual harassment and how the employee will be punished for harassment in the Employee Handbook;
  2. Establish a system regarding how to accept the victim’s harassment report, investigate the facts and handle the misconduct;
  3. Give training to employees regarding the prevention of sexual harassment and urge the necessity of reporting;
  4. Take care of the victim and the suspect’s privacy in case of further infringement of their legal rights.

 

With the introduction of the section on Personality Rights in the Civil Code, China is showing its emphasis on the protection of personal rights. Therefore, employers will be burdened with more obligations for protecting such rights of their employees and it is important for employers to consider the improvement of their original employee management to avoid potential legal risks.

Since the Civil Code has just been approved and has not yet come into effect, currently there is no relevant case law adjudicated according to the Civil Code as of yet but we will continue to follow any and all updates regarding opinions released from the government. If you are interested and want to obtain more information, please feel free to contact us at info@dandreapartners.com.