CHINA Law and Practice Contributed by: Yang Cheng, Songshan Liu, Yan Yu and Weina Wang, Lantai Law Firm
China’s anti-discrimination framework follows a gen - eral-duty-plus-specific-protection model. General obligations to prevent harassment and protect per - sonality rights apply across contexts, while certain characteristics – most notably gender in employment – receive enhanced protection through administrative supervision rather than direct sanctions. Overall, China’s approach is differentiated rather than unified: • sexual harassment is highly institutionalised; • student bullying is increasingly codified; • employment gender discrimination is mainly administratively supervised; and • workplace bullying is primarily addressed through civil liability. While fragmented, the framework is moving towards clearer institutional duties and more enforceable rem - edies. 8.4 Criminal Cases Where an internal investigation reveals suspected criminal conduct, the employer must promptly shift from internal handling to co-ordination with criminal authorities. Internal governance may no longer sub - stitute statutory duties of reporting, evidence pres - ervation and co-operation, and failure to make this transition may expose the employer or responsible personnel to liability. Under Articles 110–113 of the Criminal Procedure Law, organisations discovering suspected criminal facts must promptly report to the competent authori - ties and may not conceal, delay or resolve the matter internally. The employer’s role is limited to preserving evidence, preventing further harm and co-operating with law enforcement. Once criminal proceedings are initiated, employment actions must follow labour–criminal interface rules. Termination is generally permissible only where the employee has been lawfully held criminally liable; suspicion, case filing or detention alone does not jus - tify dismissal. During custody, labour contract per - formance may be suspended, but termination must
await the statutory threshold. Where labour disputes overlap with criminal cases, courts typically apply the “criminal first, civil later” principle. Internal investigation methods are subject to height - ened limits. Employers must avoid coercion, unlaw - ful access to private devices or communications, and evidence destruction or fabrication. Evidence obtained unlawfully may be excluded and undermine subsequent employment actions. Risk-containment measures are permissible only if proportionate and non-punitive. In short, suspected criminal conduct triggers manda - tory procedural escalation: reporting, evidence pres - ervation and co-operation with authorities, coupled with cautious handling of employment measures to avoid obstruction risks and unlawful termination. 8.5 Multi-Jurisdictional HR Internal Investigations Multi-jurisdictional HR internal investigations involving China are subject to the mandatory application of Chi - nese law and public policy controls. Any investigation involving data collected in China, personal information or security-related matters must comply with Chinese mandatory laws, regardless of foreign law choices or group policies. The core constraint is data sovereignty. Investigation data collected in China may be transferred overseas only in accordance with the Personal Information Protection Law, and data stored in China may not be provided to foreign authorities without Chinese regula - tory approval. Matters involving potential state secrets or confidentiality may not be classified or transferred abroad without prior clearance. In addition, organisational and labour-law boundaries apply: representative offices may not conduct sub - stantive HR investigations, and information collec - tion must be limited to matters directly related to the employment relationship. In short, cross-border HR investigations involving China are governed by mandatory Chinese law and data controls, not corporate discretion.
119 CHAMBERS.COM
Powered by FlippingBook