Research On Legal Issues Of Sexual Harassment And Tort From The Perspective Of Civil Code

The "Civil Code of the People’s Republic of China" sets up the right of personality as an independent part for the first time,in which the fourth chapter of the second chapter "the right to life,the right to the person,and the right to health" stipulates the details of the prohibition of sexual harassment.However,the content of sexual harassment stipulated in the "Civil Code" needs to be further clarified,which mainly includes the tort object of sexual harassment,the legal obligation of the employer in the tort of sexual harassment,and the principle and form of liability of the employer based on the legal obligation.In addition,the occurrence of sexual harassment is often more sudden and occurs in hidden places.Therefore,sexual harassment is more difficult to prove than ordinary cases.First of all,the infringement object of sexual harassment should be reasonably defined.At present,the subject of sexual harassment infringement is mainly defined as physical rights,general personality rights,and sexual autonomy in the theoretical circle and judicial practice in my country.The "Civil Code" stipulates the prohibited content of sexual harassment in the chapter "Body Rights and Health Rights",leading some scholars to mistakenly define the infringement objects of sexual harassment as physical rights and health rights.This article points out the irrationality of various specific personality rights identified in theory and practice as the object of infringement,and analyzes the rationality of general personality rights as the tort of sexual harassment,and finally concludes that the object of infringement of sexual harassment should be defined as general personality rights.Secondly,in sexual harassment and infringement,the principle and form of liability of the employer based on the legal obligation should be clear,and the legal obligation it undertakes should be detailed.In the case of sexual harassment and tort,employers should bear fault liability when they violate the statutory obligations set by the Civil Code;the statutory obligation assumed by the employer is essentially a security obligation,so the form of responsibility assumed by the employer should be supplementary liability.In addition,employers should take the prohibition of sexual harassment in the Civil Code as the outline,and refine them in their own internal systems to form a comprehensive and complete system of sexual harassment prevention.Finally,the difficulty of proving sexual harassment in judicial practice in my country needs to be improved urgently.Due to the particularity of sexual harassment and the judge’s tendency toward direct evidence,the difficulty of producing evidence for sexual harassment infringement is a typical problem.The difficulty of proving sexual harassment should be resolved through the following three points:firstly,an employer-centered evidence collection system should be built.Secondly,judges should take into account the particularity of sexual harassment tort cases,pay attention to the rules of daily life experience,and use logical reasoning to judge whether it constitutes sexual harassment.Thirdly,by improving the probative power of the victim’s statement and the testimony of interested witnesses,reduce the proof standard of sexual harassment cases to a certain extent,so that judges can more easily reach the level of inner conviction about the existence of sexual harassment and infringement.