? 1, employees' awareness of rights protection is enhanced, and enterprise management is more difficult.
Lawyers suggested that enterprises should take the initiative to sort out labor and employment risks, standardize enterprise rules and regulations, and strengthen the daily management of employees.
2. Employees' information (personal information and privacy protection of employees) shall not be disclosed at will.
Article11of the Civil Code stipulates: "The personal information of natural persons is protected by law. If any organization or individual needs to obtain personal information, it shall obtain and ensure the information security according to law, and shall not illegally collect, use, process or transmit other people's personal information, or illegally buy, sell, provide or disclose other people's personal information. "
Article 1032 of the Civil Code stipulates that natural persons have the right to privacy. No organization or individual may infringe upon the privacy rights of others by spying, harassing, exposing or making public. Privacy is the private space, private activities and private information that natural people live in peace and don't want to be known by others.
Article 1034 of the Civil Code protects the personal information of natural persons according to law. Personal information is all kinds of information recorded electronically or in other ways that can identify a specific natural person alone or in combination with other information, including natural person's name, date of birth, ID number, biometric information, address, telephone number, e-mail address, health information, whereabouts information, etc. The privacy information in personal information shall be subject to the provisions on privacy; If there are no provisions, the provisions on the protection of personal information shall apply.
Article 1035 of the Civil Code shall follow the principles of legality, justness and necessity, and shall not handle personal information excessively, and meet the following conditions: (1) obtain the consent of the natural person or his guardian, unless otherwise stipulated by laws and administrative regulations; (2) Rules for publicly handling information; (3) Clearly explain the purpose, mode and scope of information processing; (four) does not violate the provisions of laws and administrative regulations and the agreement between the two parties. The processing of personal information includes the collection, storage, use, processing, transmission, provision and disclosure of personal information.
Lawyer's suggestion: The Civil Code defines the protection and category of personal information. It is not illegal for employers to collect employees' personal information for work and management needs, but they should get clear instructions from workers. Personal information collected by employees shall be used for proper purposes and shall not engage in two "no" acts stipulated in the Civil Code. In addition, we need to pay attention to the principle of personal information processing stipulated in Article 1035 of the Civil Code. The employing unit shall take all reasonable and effective measures to ensure the safety of the personal information collected by it and ensure that it will not be stolen or leaked. Employers themselves cannot disclose or tamper with employees' personal information. Therefore, enterprises must properly handle relevant information according to relevant laws and regulations, and balance the relationship between the unit's right to know and the protection of workers' personal information, otherwise they may face the risk of civil liability or even criminal liability. In the process of daily human resource management, the employing unit must properly store and keep the personal information of employees, and shall not disclose it at will. The dressing room, bathroom, toilet and dormitory in the enterprise are all private spaces, and cameras are not allowed to be installed. If necessary, the employer may consider establishing rules and regulations, such as regulations to protect employees' personal information and privacy, and conflict of interest reporting system. Of course, the establishment of rules and regulations should follow the legal, democratic and publicity procedures.
3. The employer has the obligation to prevent and stop sexual harassment in the workplace.
Article 10 10 of the Civil Code stipulates that if sexual harassment is carried out against the will of others by words or actions, the victim has the right to demand the offender to bear civil liability according to law. Organs, enterprises, schools and other units shall take reasonable measures to prevent, accept complaints, investigate and deal with them, and prevent and stop sexual harassment by taking advantage of their authority and affiliation.
Lawyer's suggestion: The Civil Code defines sexual harassment for the first time, and Article 10 10 clarifies the criteria for determining sexual harassment, endows the victims of sexual harassment with the right to request the other party to bear civil liability according to law, and also clearly stipulates the legal obligation of the employer to prevent and stop sexual harassment in the workplace. Enterprises that fail to fulfill their obligations to prevent and stop sexual harassment should also bear corresponding civil liabilities. If there is no systematic prevention and supervision, especially if there is no complaint mechanism for victims and punishment mechanism for perpetrators, it is difficult to use power or subordination to prevent and stop sexual harassment. It is suggested that enterprises should pay more attention to establishing and perfecting the system and culture of respecting and protecting employees' rights and interests.
4. If the employee's duty behavior causes damage to others, the employer can recover after taking responsibility.
Lawyer's suggestion: Article 16 of the Interim Provisions on Wage Payment stipulates that "if the employer suffers economic losses due to the laborer's own reasons, the employer may demand compensation for the economic losses according to the labor contract". Through comparison, it can be found that under the current regulations, if workers perform their duties and cause economic losses to the unit, the unit can recover compensation according to the agreement only if there is a special agreement in the labor contract between the two parties. Without the agreement, there is no basis for safeguarding rights. However, after the implementation of the Civil Code, if a laborer causes losses to the unit due to intentional or gross negligence in performing his duties, the unit may directly recover compensation from the laborer according to law after assuming the liability for compensation. For workers, they should be more cautious and attentive in their work and perform their duties in strict accordance with the operating procedures, otherwise the risk of compensation will increase, which will also enhance the sense of responsibility of employees.
It is more difficult to sign a commercial contract.
The Civil Code has been implemented since 202 1, 1, 1. One of the highlights is that the rules for determining the validity of contracts have been adjusted to a certain extent, especially the provisions on format clauses in Articles 496 and 497 of the Civil Code, which should attract the attention of entrepreneurs.
The format clause in Article 496 of the Civil Code is a clause drawn up by the parties in advance for reuse, and the two parties did not consult each other when concluding the contract. Where a contract is concluded by standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures such as exempting or lightening their responsibilities to remind the other party of the terms that have a significant interest in them, and explain the terms according to the requirements of the other party. If the party providing the standard terms fails to perform the obligation of prompting or explaining, so that the other party fails to pay attention to or understand the terms with which it has a significant interest, the other party may claim that the terms will not become the content of the contract.
Article 497th of the Civil Code is invalid under any of the following circumstances:
(1) The provisions of Section 3 of Chapter VI in Part I of this Law and Article 506 are invalid; (2) The party providing the standard terms unreasonably exempts or lightens its responsibilities, aggravates the responsibilities of the other party or restricts the main rights of the other party; (3) The party providing the standard terms excludes the other party's main rights.
Lawyer's suggestion (how to avoid invalid contract)
1. Not only the subject must be qualified, but also the subject qualifications of the counterparty and the contractor and the relevant qualifications required for signing and performing the contract should be carefully examined.
2. Follow the principles of fairness, honesty and consensus, and do a good job of "doing everything possible" in the early stage (inquire about the mandatory terms involved in the contract content to ensure that the purpose of signing the contract and the terms of the contract do not violate the mandatory terms).
3. Complete relevant procedures (if assessment and internal approval are required, corresponding procedures shall be performed).
4. The provider of standard terms shall follow the principle of fairness to determine the rights and obligations of both parties, and draw the attention of the other party to exempt or limit their responsibilities in a reasonable way such as words, symbols, fonts and other special signs that can attract the attention of the other party when concluding the contract, and give explanations according to the requirements of the other party. In addition, don't print the contract with the company LOGO.
6. The responsibility of the guarantor has changed.
Article 686 of the Civil Code stipulates: "The ways of guarantee include general guarantee and joint liability guarantee. If the parties have not agreed on the method of guarantee in the guarantee contract or the agreement is unclear, they shall bear the guarantee liability in accordance with the general guarantee. "
The second paragraph of Article 692 of the Civil Code stipulates that "if there is no agreement or the agreement is unclear, the guarantee period shall be six months from the date of expiration of the main debt performance period."
Lawyer's suggestion: After the promulgation of the Civil Code, the joint liability for breach of contract should be revised. In order to bear the general guarantee responsibility for breach of contract, the guarantee period is also more clear. Therefore, when signing a guarantee agreement in the future, enterprises should clearly stipulate the guarantee method and specific guarantee period, so as to avoid the general guarantee or shortening the guarantee period due to unclear or no agreement. If an enterprise wants a third party to undertake joint and several liability guarantee, it must be clearly written in the guarantee contract, otherwise it will be regarded as a general guarantee liability, and a clear guarantee period should be agreed.
7. Collateral can be traded freely.
Article 406 of the Civil Code stipulates that "during the mortgage period, the mortgagor may transfer the mortgaged property. Unless otherwise agreed by the parties, such agreement shall prevail. If the mortgaged property is transferred, the mortgage right will not be affected ..... "
Lawyer's suggestion: During the previous mortgage period, the mortgagor may not transfer the mortgaged property without the consent of the mortgagee. After the implementation of the Civil Code, the mortgaged property can be traded freely, and enterprises must pay attention to the mortgaged property that will "run away". In the future, when enterprises choose mortgage as the guarantee method, they should make an agreement on the transfer of collateral during the mortgage period to avoid the collateral "running away" and affecting the realization of their creditor's rights.
8. Divorce is not about leaving (divorce cooling-off period)
In the past, the couple negotiated a divorce and went to the Civil Affairs Bureau together, and they could get a divorce certificate in about half an hour. 20211,the Civil Code redefines the procedure of divorce by agreement. There are three stages: filing for divorce, cooling-off period and registering for divorce. To sum up, the important information is as follows:
(1) After both parties apply for divorce in the marriage registration office, if either party is unwilling to divorce within 30 days, the registration application can be withdrawn.
(2) After the expiration of the 30-day cooling-off period, both parties must attend the divorce certificate in person. Failure to be present in person, only one party present, or failure to receive it within the time limit will be regarded as withdrawal of the divorce application.
(3) If you still apply for divorce after the cooling-off period, you need to wait for a probation period of 30 days before you can get a divorce certificate.
In short, the procedure of going to the civil affairs bureau for divorce has become complicated, and it will take 60 days to negotiate smoothly.
9. Add the principle of * * * debt signing (one spouse shall not repay the debt).
According to Article 1064 of the Civil Code, debts incurred by both husband and wife with the same signature or ratified by one party afterwards, as well as debts incurred by one party in his own name for the daily life of the family during the marriage relationship, are joint debts of husband and wife.
Article 1064 of the Civil Code clearly confirms the principle of "* * * debt * * contract" between husband and wife:
(1) * * The same debt requires both husband and wife to * * * sign the same name or one of them "ratify" afterwards.
(2) During the marriage relationship, one party incurred debts in his own name for the needs of "family daily life".
(3) beyond the needs of family daily life, but the debt is used for husband and wife to live together and jointly produce and operate.
10, if you cheat, you will be punished, and your family will be rewarded for meritorious service.
Article 1087 of the Civil Code? At the time of divorce, the property of husband and wife is handled by mutual agreement. If the agreement fails, the people's court shall make a judgment based on the specific circumstances of the property and the principle of taking care of the rights and interests of children, wives and innocent parties.
In case of marital infidelity, the negligent party will get less property. If infidelity leads to divorce, the negligent party has a major fault, and the innocent party can claim damages according to Article 109 1 of the Civil Code.
According to article 1088 of the Civil Code, if one of the spouses undertakes more obligations such as raising children, caring for the elderly and helping the other spouse to work, he has the right to demand compensation from the other spouse when divorcing, and the other spouse shall make compensation. Specific measures shall be agreed by both parties; If the agreement fails, the people's court shall make a judgment.
The family model of "the man is the master outside and the woman is the master inside" hides inequality, and housework compensation is only a kind of compensation for the party who contributes a lot to housework.
1 1, my nephew can go to subrogation inheritance.
Paragraph 2 of Article 1 128 of the Civil Code adds that if the decedent's brother or sister dies before the decedent, the subrogation inheritance people and the children of the decedent's brother or sister are the victims. The Civil Code expanded the scope of subrogation inheritance, from subrogation inheritance people to brothers and sisters as the second legal heirs, and from subrogation inheritance people to nephews and nephews. Therefore, entrepreneurs should plan the inheritance of family fortune in advance.
12, notarized will is no longer preferred, and the last will is the most useful.
Article 1 142 of the Civil Code: The testator may withdraw or change his will. After making a will, if the testator carries out a civil legal act that is contrary to the contents of the will, it shall be regarded as withdrawing the relevant contents of the will. There are several wills. In case of conflict, the last will shall prevail.
After the implementation of the Civil Code, notarized wills no longer have priority. No matter what form of will, the content of the last valid will shall prevail. Deleting the stipulation that notarized wills have priority is a respect for the true will of the testator, which protects the freedom of wills and the freedom of citizens to dispose of their legitimate property to a greater extent.