Sunday, February 17, 2019

China: Courts recognize new causes of action for sexual harassment and employment discrimination // Supreme People's Court

China's civil justice system has inched ahead on recognition of women's rights.  The Supreme People's Court 关于增加民事案件案由的通知 (December 12, 2018 No. 344) gave notice to all courts - even the military courts - to recognize two causes of action for 1) disputes regarding right of equal employment opportunity   [平等就业权纠纷] in actions based on personal dignity and 2) for harm due to sexual harassment [性骚扰损害责任] in tort actions involving educational institutions. 

China's legal system is derived from the continental Codes, largely the German Civil Code which was, a century or more ago, imported via Japan.  China lacks a broad, express recognition of personal civil rights as found in the U.S. Civil Rights Act of 1964 specifying freedom from discrimination by race, color, sex, or national origin.   But China  has adopted laws that declare broad personal rights.  The SPC's notice shows it is satisfied that there is an adequate basis in law for the newly recognized employment discrimination and sexual harassment actions.

The SPC presumably grounds its action in the General Principles of Civil Law (2017).  That measure states at Article 109 "[t]he personal liberty and human dignity of a natural person is protected by law. [第一百零九条 自然人的人身自由、人格尊严受法律保护.]  These rights are, in Article 110, specified in language drawn from the 2009 Tort Law to include "life, bodily integrity, health name, reputation, honor, and the freedom to marry. [第一百一十条 自然人享有生命权、身体权、健康权、姓名权、肖像权、名誉权、荣誉权、隐私权、婚姻自主权等权利.]  

The General Principles establish a right of action at Article 120  that if one's "civil law rights and interests are infringed"  there is a "right to demand the tortfeasor bear tort liability".  [第一百二十条 民事权益受到侵害的,被侵权人有权请求侵权人承担侵权责任。]

Similarly the Labor Contract Law (2007) in Article 77 provides that if a worker's legal rights and interests are harmed there is a right to demand the relevant department to handle it according to law or demand arbitration or bring a lawsuit.  [第七十七条 劳动者合法权益受到侵害的,有权要求有关部门依法处理,或者依法申请仲裁、提起诉讼。]

This action assures that Courts will accept filings in such cases.  [China's courts had long stymied change by not accepting for filing cases that did not fit into recognized categories or that pose special management problems.  In 2014 the Communist Party's Central Committee directed that failures to accept cases for filing must change.  A new filing and registration system was adopted by the legislature and a plan went into effect in May 2015.  By December 2016 the Supreme People's court announced great progress had been made in that regard.]

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