Sexual Harassment Tort Study

The issue of sexual harassment has arisen a high attention in the society. It seems a little bit difficult to have an open and pure-hearted discussion on the issue of sexual harassment in China, where there is still a taboo in the topic of sex. Actually other countries in the world have started their legislation in the issue of sexual harassment since 1970. Since the first case of the issue of sexual harassment was submitted to court, a hot discussion on the issue of sexual harassment has been expanded in China, as well as in nation's legislation schedule.The thesis starts with the definition of sexual harassment. It firstly introduces the origin of the definition of sexual harassment and its evolution in different countries. It is created by Professor C.A.Mackinnon, as a kind of sex discrimination, with a focus on protection of female sexual right. Then after a comparison of understanding in sexual harassment between China and other countries, the author reveals his view that sexual harassment is a tort related to sex to violate other's will and offend other's sexual independence. This definition shows the general characteristic of sexual harassment in the aspects of generalization of subject, clarity of object and prominence of action.Chapter II makes an analysis in the essence of current issue of sexual harassment. Sexual harassment is an offence to personal sexual right. It causes a relation in law of obligation between infringers and victims and its essence is an action. Compared with previous view which regards sexual harassment as a sexual discrimination, the tort theory reveals the essence more correctly. Then we explain the subject, object, criterion for distinguishing and liability in order to establish a theoretical system for sexual harassment action as follows: sexual harassment as a tort to offend other's sexual freedom with subject of both male and female, the criterion of a man with honesty and good faith to judge the existence of a sexual harassment and employer's vicarious liability on the basis of the relationship of infringers and victims.Chapter III introduces the legislations in sexual harassment of Anglo-American law system countries and Continental law system countries and regions. This part tries to provide legislation experience for our motherland with an introduction of specific legal systems. Firstly, it emphasizes the importance of legislation in sexual harassment, namely, each country should definitely legislate on the issue of sexual harassment, despite different legislation modes. Secondly, it makes effort for the construction of concrete systems, such as the definitions of sexual harassment of different countries, the change of subject of action, employer's vicarious liability and the distribution of burden of proof.Chapter IV gives legislative proposals on the basis of analysis. Firstly, it analyses the legislation of our motherland in sexual harassment, which provides condition for consummating the legislation. Secondly, it provides that the legislation in sexual harassment should consider two aspects: the legislation mode and the construction of concrete systems. It is suitable for our country that different laws of different areas have corresponding provisions of anti-sexual harassment. It hopes for a comprehensive and integrated legal system mainly basing on the aspects as follows: to define sexual harassment clearly and establish criterion for identifying it; to prescribe the right of sexual independence which will provide a reasonable basis for the sexual harassment case; to prescribe the right to request the right personality in order to make the right personality relief perfectly; to build a comparative system of employer's vicarious liability for sexual harassment so as to establish a healthy work environment; to establish a system of the distribution of burden of proof to adapt to the characteristic of sexual harassment.