The Civil Law Regulation Of Sexual Harassment

Article 1010 of the Civil Code brings the regulation of sexual harassment into the civil law for the first time,adopting a legislative model in which the protection of private rights is the main focus,supplemented by the protection of the workplace,which imposes liability on the perpetrator and stipulates that the units should take measures to jointly curb sexual harassment.Although sexual harassment is explicitly prohibited by law,there is still no consensus on what is sexual harassment and the object of its infringement.Academic circles also have different opinions on the infringement of sexual harassment.The legal provisions only emphasize the obligations of the unit to its powers and subordinate relationships,without specifying whether or what responsibilities other types of responsibilities should bear.This article mainly focuses on the above problems and solves them one by one.First,the concept of sexual harassment is clarified through its origin and development,and its legal characteristics are abstracted on this basis.After comparing the right to health,the right to body,the right to privacy,the right to chastity and the right to general personality,it is determined that the object violated by sexual harassment is sexual autonomy.Based on the actual situation in China,the comparative law is used to analyze and construct the identification criteria of sexual harassment,including specific object,violation of will,abnormal desire and certain severity.Secondly,from the perspective of right protectionism,this paper analyzes the constituent elements of sexual harassment as a general tort,and elaborates the feasibility of gross negligence as a subjective fault.On the basis of the general exemption,this paper analyzes the particularity of sexual harassment tort liability,mainly from two aspects of tort liability capacity and victim consent.Corresponding the way of responsibility with the specific provisions of the Civil Code,and advocating the implementation of punitive compensation system in view of the seriousness of sexual harassment.Finally,from the perspective of workplace protectionism,interpret the deep connotation of the articles.On the basis of the traditional division of sexual harassment in the workplace,this paper puts forward the concept of the type of relationship between the victim and the perpetrator.Then discussion in the context of relevant scholarly views to determine the nature of statutory duty of care of the unit to prevent sexual harassment,and further divide the unit liability into fault presumption liability and fault liability according to the type of workplace relationship.After that,it is clear that the unit should bear the supplementary liability within the scope of fault,and the composition of the unit liability is briefly discussed.