CHINA Law and Practice Contributed by: Linda Liang, Piao Liu, Chutian Wang and Xiangbo Lv, King & Wood Mallesons
Of these transfer mechanisms, detailed rules have been laid out regarding the SCC Approach, and the SCC template has been published. Employers who are eligible to adopt the SCC Approach shall follow the relevant rules for complying with the PI outbound transfer requirements. The Provisions on Promoting and Regulating the Cross-border Transfer of Data promulgated on 22 March 2024 exempt the PI processor from adopting one of the above three legal mechanisms for PI out - bound transfer on certain grounds, including employ - ers’ cross-border transfer of employees’ PI where it is necessary for conducting human resource man - agement according to the rules and regulations and collective contracts established/concluded in accord - ance with the law. Retaining Employees’ PI According to the PIPL, the retention period of PI shall be the shortest time necessary for achieving the pro - cessing purpose, though the specific length of the retention period is not specified. It is suggested that employers decide the retention period according to the type of PI and the specific stage in the employ - PI processors that violate the PIPL in their PI process - ing will be subject to the following legal liabilities. Civil liabilities Individuals can file lawsuits against PI proces - sors according to the PRC Civil Code, claiming an infringement regarding their PI. As provided by the PIPL, the burden of proof for such cases lies with the PI processor to prove that it is not at fault. Other - wise, the PI processor shall be liable for damages and other civil liabilities. Where PI processors violate the requirements under the PIPL during PI processing and infringe the rights and interests of multiple individuals, the People’s Procuratorate, consumer organisations prescribed by the laws, and organisations determined by the state cyberspace authorities may file lawsuits. Administrative liabilities Competent PI protection authorities can also issue orders for rectification and warnings, and can confis - ment life cycle. Legal Liabilities
cate unlawful income from PI processors for violations of the PIPL. In the case of failure to rectify, legal liabili - ties include fines, rectification and the confiscation of
unlawful income. Criminal liabilities
The PIPL refers to the PRC Criminal Law for relevant behaviours constituting crimes. According to the PRC Criminal Law, fines and/or up to seven years of impris - onment can be imposed for illegally acquiring PI, or illegally selling or providing PI to third parties.
4. Foreign Workers 4.1 Limitations on Foreign Workers
Foreigners working in the PRC should abide by laws and regulations such as the Law on the Management of the Entry and Exit of the PRC, and the Regula - tions on Management of Foreigners Working in China. According to these regulations, for foreigners to work legally in China, the following requirements shall be met: • they have reached the age of 18 and are in good health; • they have professional skills and work experience required by the job; • they do not have a criminal record; • they have a definite employer; and • they have a valid passport or other international travel document. In addition, for foreign workers to work legally in Chi - na, the prior approval of competent labour administra - tive authorities, a work permit and a residence permit shall be obtained. Failure to obtain the valid permits will lead to penalties for both the employer and the employee, and detention may be imposed on the for - eign employee. These rules do not apply to foreign employees of foreign embassies, consulates, offices of the United Nations and other international organisa - tions in China, which enjoy diplomatic privileges and immunities. As a side point, the term of an employment contract between an employer and a foreign worker may not exceed five years. The employer may apply for renew -
133 CHAMBERS.COM
Powered by FlippingBook