Research On Issues Concerning The Protection Of Employees’ Personal Information ——From The Perspective Of Regulating The Processing Activities Of Employers

Compared with other information subjects,the realization of the personal information rights and interests of the employees relies more on regulation on the acts of the information processor--the employers.As the two most closely related laws on protection of personal information of employees,the Employment Contract Law（"ECL"）and the Personal Information Protection Law（"PIPL"）are different in terms of the above regulation.Article 8 of the ECL limits the scope of personal information of the employees which the employer may process as "information directly related to the employment contract",but this article only applies to "when the employers recruit the employee".The PIPL extends the application time scope to the "conclusion and performance of employment contract and distinguishes sensitive personal information.However,with respect to the information content,the PIPL adds a provision on the "necessary for the implementation of human resources administration".In general,the ECL and the PIPL have different focuses on the personal information protection of the employees,but both of them need to be further improved.By comparing and analyzing the two laws,this thesis clarifies key issues in the personal information protection of the employees and,on such basis,explores ways to improve the legal system from the perspective of regulating the employers’ processing of the personal information of the employees.Specifically,this thesis will focus on the following aspects:Firstly,this thesis sorts out the existing researches on the protection of personal information of the employees.This part is divided into two aspects.The first is to sort out the common researches on the protection of personal information of the employees by civil law scholars,including the content and the general rules on processing of personal information.The second is to summarize employment law scholars’ research on the characteristics of the issue of the personal information protection of the employees,including the protection of the employees’ privacy,the relationship between the employees,personal information rights and the employers’ employment management rights,as well as the application of the "inform and consent" rule in the field of employment relations.Secondly,this thesis analyzes the shortcomings of the current system for the personal information protection of the employees in conjunction with the relevant provisions of the ECL and the PIPL,mainly in the two aspects:（1）the scope of the employees’ personal information which the employers process is unclear.The current regulations on the employers’ processing of the employees’ information do not cover the whole process of employment relationship,and the aforesaid scope breaks the boundary of the relativity of employment contract;（2）The current regulations lack targeted supervision and management measures.In the field of employment relations,some penalties in the PIPL are too severe and inconsistent with other provisions on regulating acts of employer in other aspects in employment laws.Thirdly,this thesis analyzes the cause of the current difficulties in personal information protection of the employees.Major causes include unclear distinguishing of personal information of the employees,inadequate application of the principle of proportionality in the review of information processing of the employers and limited exercise of the employees’ right of consent.Fourthly,After a comprehensive analysis of the above two laws in respect of the the personal information protection of employee,this thesis focuses on the regulation on the employers’ processing of the personal information of the employees,with an attempt to explore the way to perfect the personal information protection of the employees.Specifically:（1）clarifying the scope of the employees’ personal information which the employers process.From the prospective of time,such processing shall cover the whole process from the establishment to the termination of employment relations,and different regulatory measures shall be taken in different stages;（2）Restructure the "inform and consent" rule.With respect to the current difficulties in the employment relations field,this thesis proposes suggestions from both "inform" and "consent" perspectives.With regard to the "inform" perspective,the employers shall be limited for the purpose of processing the case and their inform obligation shall be further specified;with regard to the "consent"perspective,the individual consent of the employee may be replaced by collective agreement,so as to ensure that the employees can freely exercise their right of consent at their discretion;（3）Clarify the legal liability of employers based on the characteristics of the employment relationship.On one hand,relevant provisions stipulated in existing employment laws are interpreted to include infringements on personal information rights and interests of the employees.On the other hand,during the hearing of employment disputes,the court may apply the relevant rules on the exclusion of unlawful evidence to review the legality of the evidence submitted by the employers involving the personal information of the employees.By clarifying the legal liabilities,the courts further pressure the employers to restrain their confidence processing behaviors.