新規速遞：《促進和規范數據跨境流動規定》發布，員工個人信息出境有機會豁免申報
Quick View of New Regulations: The Provisions on Promoting and Regulating Cross-border Data Flows was Issued, Employees' Personal Information Outbound Can be Exempted from Declaration
新規速遞：北京市發布《北京市高級人民法院、北京市勞動人事爭議仲裁委員會關于審理勞動爭議案件解答（一）》
Quick View of New Regulations: Beijing Issued the Official Reply (I) to Trial of Labor and Personnel Disputes of Beijing Higher People's Court and Beijing Labor and Personnel Dispute Arbitration Commission
新規速遞：《京津冀勞務派遣合規用工指引》發布，引導勞務派遣單位和用工單位依法依規開展勞務派遣活動
Quick View of New Regulations: The Guidelines for the Compliance of Labor Dispatch in the Beijing-Tianjin-Hebei Region was Issued, Guiding Labor Dispatch Service Providers and Accepting Entities to Conduct Labor Dispatch Activities in Compliance with Laws and Regulations
新規速遞：湖北省人社廳印發《湖北省審理勞動人事爭議仲裁案件若干問題規范指引（一）》，聚焦常見勞動爭議問題
Quick View of New Regulations: Hubei Province Human Resources and Social Security Department Issued Hubei Provincial Normative Guidelines for Hearing Arbitration Cases of Labor-Management Disputes on Several Issues (I), Focusing on Common Labor Dispute Issues
Exploration of Typical Cases: The Supreme People's Court Released Six Typical Labor Contract Disputes Cases
典型案例：上海市通報商業秘密案件審判情況并發布典型案例
Exploration of Typical Cases: Shanghai Announced the Summary of the Trial of Trade Secret Cases and Released Typical Cases
典型案例：最高檢、上海市、廣東省等多地陸續發布勞動人事爭議典型案例
Exploration of Typical Cases: The Supreme People's Procuratorate, Shanghai, Guangdong Province and Many Other Places Have Successively Released Typical Cases of Labor and Personnel Disputes一、新規速遞：《促進和規范數據跨境流動規定》發布，員工個人信息出境有機會豁免申報Quick View of New Regulations: The Provisions on Promoting and Regulating Cross-border Data Flows was Issued, Employees' Personal Information Outbound Can be Exempted from Declaration
2024年3月22日，國家互聯網信息辦公室正式發布《促進和規范數據跨境流動規定》（“《規定》”），并自公布之日起施行。《規定》第五、七、八條對數據出境合規申報義務（包括安全評估申報、訂立個人信息出境標準合同或通過個人信息保護認證）設定了觸發門檻和豁免情形，對于企業數據出境的減負信號明顯。On March 22, 2024, the Cyberspace Administration of China issued the Provisions on Promoting and Regulating Cross-border Data Flows ("Provisions"), which comes into effect on the date of publication. Articles 5, 7 and 8 of the Provisions set out trigger thresholds and exemptions from the obligation of data outbound compliance declaration(including applying for the security assessment of outbound data transfer, concluding a standard contract for personal information transfer abroad or passing the certification of personal information protection), which indicates a clear signal of relief for enterprise outbound data transfer.
根據《規定》第5條，就以下情形，可以整體豁免數據出境合規申報義務：（1）履行合同所必需；（2）跨境人力資源管理；（3）保障人身財產安全；（4）非關鍵信息基礎設施運營者少量（當年1月1日起向境外提供不足10萬人）非敏感個人信息。Pursuant to Article 5 of the Provisions, the following cases may be exempted from the obligation of data outbound compliance declaration: (1) necessary for the performance of a contract; (2) for cross-border human resources management; (3) to protect the safety of persons and property; and (4) for a small amount (less than 100,000 persons as of January 1 of the current year) of non-sensitive personal information provided by a data processor other than a critical information infrastructure operator.其中，關于跨境人力資源管理，豁免前提是“按照依法制定的勞動規章制度和依法簽訂的集體合同實施跨境人力資源管理，確需向境外提供員工個人信息”。因此，相關企業（特別是外商投資企業）應當根據相關法規要求，制定相關勞動規章制度或簽署集體合同，才能符合上述豁免條件。Regarding cross-border human resources management, the prerequisite for the exemption is that it is necessary to provide employees' personal information abroad for the purpose of conducting cross-border human resources management in accordance with the employment rules and regulations formulated in accordance with the law and collective contracts concluded in accordance with the law. Therefore, enterprises (especially foreign-invested enterprises) should formulate relevant employment rules and regulations or sign collective contracts in accordance with relevant laws and regulations to meet the above exemption conditions.二、新規速遞：北京市發布《北京市高級人民法院、北京市勞動人事爭議仲裁委員會關于審理勞動爭議案件解答（一）》
Quick View of New Regulations: Beijing Issued the Official Reply (I) to Trial of Labor and Personnel Disputes of Beijing Higher People's Court and Beijing Labor and Personnel Dispute Arbitration Commission2024年4月30日，北京市發布了《北京市高級人民法院、北京市勞動人事爭議仲裁委員會關于審理勞動爭議案件解答（一）》（“《解答（一）》”）。同時，北京市2014年發布的《北京市高級人民法院 北京市勞動爭議仲裁委員會關于勞動爭議案件法律適用問題研討會會議紀要（二）》、2017年發布的《北京市高級人民法院、北京市勞動人事爭議仲裁委員會關于審理勞動爭議案件法律適用問題的解答》等八項文件不再執行。On April 30, 2024, Beijing Municipality issued the Official Reply (I) to Trial of Labor and Personnel Disputes of Beijing Higher People's Court and Beijing Labor and Personnel Dispute Arbitration Commission ("Reply (I)"). At the same time, eight documents regarding labor disputes handling issued by Beijing previously are no longer enforceable.《解答（一）》系北京市各級法院及勞動仲裁委員會就勞動爭議案件審理中的裁判尺度的綜合總結，回應了實踐中的諸多疑難問題，就勞動爭議案件受理范圍與案件管轄、勞動爭議案件裁審銜接、勞動關系及責任主體的認定、勞動合同的訂立、勞動合同的履行和變更、勞動合同的解除和終止、其他等七個方面的問題進行了解答，對于北京地區用人單位的日常勞動管理及勞動爭議處理具有重要的指導意義。The Reply (I) is a comprehensive summary of the rulings in relation to the adjudication of labor dispute cases of Beijing courts and labor arbitration committees at all levels, and responds to many difficult issues in practice, providing guidance on seven aspects including the scope of acceptance and jurisdiction of labor dispute cases, the interface between the trail of arbitration and litigation of labor dispute cases, the identification of the labor relationship and the responsible subject, the formation of a labor contract, the performance and modification of a labor contract, and the end and termination of a labor contract, etc., which is of great significance in guiding the daily HR management and labor disputes handling by employers in Beijing.三、新規速遞：《京津冀勞務派遣合規用工指引》發布，引導勞務派遣單位和用工單位依法依規開展勞務派遣活動
Quick View of New Regulations: The Guidelines for the Compliance of Labor Dispatch in the Beijing-Tianjin-Hebei Region was Issued, Guiding Labor Dispatch Service Providers and Accepting Entities to Conduct Labor Dispatch Activities in Compliance with Laws and Regulations為促進京津冀地區勞務派遣市場協同有序健康發展，規范勞務派遣用工行為，北京市、天津市、河北省三地的人力資源和社會保障部門于2024年2月3日聯合印發了《京津冀勞務派遣合規用工指引》（“《用工指引》”）。In order to promote the synergistic, orderly and healthy development of the labor dispatch market in the Beijing-Tianjin-Hebei region and to regulate the employment of labor dispatch, the human resources and social security departments of Beijing, Tianjin and Hebei Province jointly issued the Guidelines for the Compliance of Labor Dispatch in the Beijing-Tianjin-Hebei Region (the "Guidelines") on February 3, 2024.《用工指引》包含勞務派遣單位、用工單位、勞動糾紛處理、違反勞動保障法律法規的處理四個部分，重點對勞務派遣單位與用工單位的資質、行為予以引導和提示，進一步明確和強調了勞務派遣單位、用工單位的相關義務和責任。The Guidelines covers labor dispatching service providers, accepting entities, handling of labor disputes, and handling of violations of labor security laws and regulations, focusing on guiding and prompting the qualification and behaviors of labor dispatching service providers and accepting entities, and further clarifies and emphasizes the relevant obligations and responsibilities of labor dispatching service providers and accepting entities.值得關注的是，《用工指引》還從主體、崗位要求、法律關系、支配與管理、工作成果衡量標準、法律適用六個方面具體闡述了勞務派遣與勞務外包的主要區別，重點提示用工單位避免出現名為勞務外包實為勞務派遣的情形。It is noteworthy that the Guidelines also elaborate the main differences between labor dispatch and labor outsourcing in subject, job requirements, legal relationship, control and management, measurement standards of work output, and application of laws, and suggests that employers avoid situation that labor outsourcing is de facto labor dispatch.四、新規速遞：湖北省人社廳印發《湖北省審理勞動人事爭議仲裁案件若干問題規范指引（一）》，聚焦常見勞動爭議問題
Quick View of New Regulations: Hubei Province Human Resources and Social Security Department Issued Hubei Provincial Normative Guidelines for Hearing Arbitration Cases of Labor-Management Disputes on Several Issues (I), Focusing on Common Labor Dispute Issues2024年3月22日，湖北省人力資源和社會保障廳印發了《湖北省審理勞動人事爭議仲裁案件若干問題規范指引（一）》，聚焦常見勞動爭議問題，供湖北省內處理勞動爭議仲裁案件時作為參考。On March 22, 2024, Hubei Province Human Resources and Social Security Department Issued Hubei Provincial Normative Guidelines for Hearing Arbitration Cases of Labor-Management Disputes on Several Issues (I),focusing on common labor dispute issues for reference when handling labor dispute arbitration cases in Hubei Province.該指引對于勞動爭議的受案范圍、確認勞動關系爭議的仲裁時效、二倍工資的計算標準、用人單位可以單方調崗的情形、勞動者被迫辭職的限定情形、勞動者承諾不需要繳納社保后主張經濟補償金的處理、不符合錄用條件的認定、客觀情況發生重大變化的認定、加班工資的計算標準等問題作出了明確和細化，對于湖北地區用人單位的勞動用工合規管理具有重要的參考價值。The guideline made clear and detailed provisions on the scope of labor disputes, the limitation of arbitration of confirmation of employment relationship, the standard for calculation of double wages, the circumstances under which an employer can unilaterally transfer employment posts, the limited circumstances under which a worker is forced to resign, the handling of claims for economic compensation after the worker promises not to pay social security contributions, the determination of non-satisfaction of the employment conditions, the determination of significant changes in the objective circumstances, the calculation standard of overtime wages, and other issues, providing an important reference value for Hubei employers in labor and employment compliance management.五、典型案例：最高人民法院發布六起勞動爭議典型案例
Exploration of Typical Cases: The Supreme People's Court Released Six Typical Labor Contract Disputes Cases2024年4月30日，最高人民法院發布六起勞動爭議典型案例。典型案例裁審觀點如下：On April 30, 2024, the Supreme People's Court released six typical cases of labor disputes. The opinions of the typical cases are summarized as below:1. 用人單位不能通過訂立承包合同規避勞動關系。某公司和車間工作人員簽訂車間承包協議，法院認定員工從事的工作是公司業務的組成部分，并按月領取勞動報酬，員工接受了公司的管理，雙方存在勞動關系。An employer cannot circumvent establishing a labor relationship by entering into a contracting agreement. An employer entered into a workshop contracting agreement with a workshop employee, and the court found that the work performed by the employee was an integral part of the employer's business, the employee received monthly remuneration for his work, and the employee accepted the employer's management, due to which there was an employment relationship between the two parties.2. 勞動者對于是否訂立無固定期限勞動合同具有單方選擇權。某公司已與員工連續訂立二次固定期限勞動合同，法院認定員工提出訂立無固定期限勞動合同，且沒有《勞動合同法》第三十九條和第四十條第一項、第二項的情形的，公司無權拒絕續訂。就此問題，各地司法實踐存在差異，最高院發布的該典型案例對于此前采用不同裁審口徑的地區（例如上海）的影響有待觀察。Employees have the unilateral right to choose whether or not to enter into an open-ended employment contract. An employer had entered into two consecutive fixed-term employment contracts with its employees, and the court found that the employer had no right to refuse to renew the contract if the employee proposed to enter into an open-ended employment contract and there were no circumstances as stipulated in Article 39 and Article 40 (1) and (2) of the Labor Contract Law. On this issue, there are differences in judicial practices in different localities, and the impact of the Supreme Court's release of this typical case on regions that have previously adopted a different caliber of adjudication (such as Shanghai) remains to be seen.3. 競業限制協議不能限制非負有保密義務的勞動者的自主擇業權。某公司主張其推拿師和培訓師違反競業限制義務，法院認定公司僅證明員工接觸到一般經營信息，而非核心經營信息，不屬于負有保密義務的人員，無需支付違約金。A non-competition agreement cannot restrict the right to independent career choice of a worker who is not under an obligation of confidentiality. An employer claimed that its massage therapist and trainer had breached their non-competition obligations, and the court found that the employer had only proved that the employees had access to general business information, not core business information, and that they were not persons subject to a duty of confidentiality, and were not required to pay liquidated damages.4. 員工配偶投資、經營存在競爭關系的企業可能構成員工違反競業限制義務。某公司主張其總經理離職后，該員工妻子設立了具有競爭關系的新公司的行為違反競業限制義務。法院認為因員工和妻子具有緊密的人身和財產關系，經濟利益具有一致性，故認定員工違反了競業限制約定。If the spouse of an employee invests in or operates a competing enterprise, the employee may violate the non-competition obligation. An employer claimed that after the departure of its general manager, the wife of the employee violated the non-compete obligation by setting up a competing new company. The court held that the employee and his wife had close personal and property relationships and identical economic interests, so the employee was found to have violated the non-compete agreement.5. 研發人員辭職后拒不交接工作造成公司損失的，應承擔賠償責任。某公司研發人員未提前三十日通知即自行離職，且拒絕辦理交接手續，某公司通過啟動備用方案、招聘人員、委托設計等產生了損失，法院酌定員工賠償損失5萬元。The R&D Personnel who refuse to handover his/her work after resignation shall be liable for indemnification if he/she causes losses to the employer. The R&D personnel of the employer left his job without giving 30 days' prior notice and refused to handover. The employer suffered losses due to starting its backup plan, recruiting replacement, commissioning design, etc., and the court decided that the employee shall compensate the employer for losses of RMB 50,000.6. 男職工應依法享受護理假。某公司攝影工作員工因妻子待產回家陪產，法院認定男方享受護理假不少于十五天，假期內公司需照發工資。Male employees are entitled to paternity leave. Where an employee who was engaged in photography went home to company childbirth as his wife was due to give birth, the court ruled that the employee shall be entitled to a paternity leave of no less than 15 days and the employer shall pay salary to the employee during such leave as usual.
六、典型案例：上海市通報商業秘密案件審判情況并發布典型案例
Exploration of Typical Cases: Shanghai Announced the Summary of the Trial of Trade Secret Cases and Released Typical Cases2024年4月17日，上海市三中院、上海知識產權法院共同召開新聞發布會，發布2015-2023年商業秘密案件審判情況和12起典型案例。
On April 17, 2024, Shanghai Third Intermediate Court and Shanghai Intellectual Property Court jointly held a press conference to announce the summary of the trial trade secret cases from 2015 to 2023 and released 12 typical cases.商業秘密案件具有當事人多為高新技術領域經營者、從業者、案件起因多為人才流動引發糾紛、訴訟標的或者犯罪金額較高等特點。本次典型案例中體現出裁審機構的下述裁判觀點值得關注：Trade secret cases have the characteristics that the parties are mostly entrepreneurs and employees in the high-tech field, the reasons for the cases are mostly disputes triggered by the flow of talents, and the subject matter of the litigation or the amount of the crime is relatively high. The following judgement views of the courts and the labor arbitration committees are worthy of attention:1. 從多份不同文件總結提煉的技術信息、產品配方、單一潛在客戶的采購意向以及銷售代理商在為供貨商開發客戶時形成的客戶信息可作為商業秘密獲得保護。Technical information summarized and extracted from a number of different documents, product formulas, the purchase intention of a single potential customer and customer information formed by a sales representative while developing customers for a supplier can be protected as trade secrets.2. 員工從公司系統中下載涉案商業秘密的技術圖紙并轉存至外接存儲設備，相關商業秘密已被非法獲取，此時舉證責任將轉移至員工。The employee downloaded the technical documents involves the trade secrets from the employer's system and transferred them to the external storage device, the relevant trade secrets have been illegally obtained, and the burden of proof will be shifted to the employee at this point.3. 員工擅自將技術信息轉存至未經公司授權的USB存儲設備中，在簽署承認事實并承諾配合刪除文件的《確認函》后又拒絕配合，法院判令員工停止侵權，賠償公司經濟損失26萬元及合理開支24萬元。The employee transferred the technical information to the USB storage device without authorization from employer and refused to cooperate after signing the Confirmation Letter acknowledging the fact and promising to cooperate in deleting the files, the court ruled that the employee should stop infringing the trade secrets, and compensated the employer for 260,000 RMB of economic loss and 240,000 RMB of reasonable expenses.4. 侵犯經營秘密的案件中，公司員工親屬關系人員持股新公司和原告公司既有客戶發生了交易，客戶出具了主動交易的說明但無法明確“經由業內朋友介紹”中的“業內朋友”為何人，或者新公司先辯稱客戶系基于個人信賴后辯稱自行開發的，但均無證據佐證或證明，因此法院認定上述抗辯不能成立。In the case of infringement of trade secrets, the new company was owned by a relative of an employee of the employer, which had transactions with the employer's customers, and the customers provided a description of the initiative of the transaction, but it was not possible to clarify "introduced to the new company by friends in the industry", or the new company first argued that the customer was based on personal trust and then argued that it was developed on its own, but there was no evidence to corroborate or prove any of these, so the court found that the above defenses could not be sustained.5. 此外，侵犯商業秘密罪的刑事案件中還體現出下述觀點：非法獲取并持有商業秘密類型的侵犯商業秘密案件可引入“虛擬許可+類比參照”標準；提出反向工程辯解需結合主客觀證據證實反向工程的研發過程；利用商業秘密對軟件源代碼進行保護需要明確秘點；認罪認罰并積極賠償取得權利人諒解可獲寬緩處理。In addition, the following opinions of the courts have been reflected in criminal cases of trade secret infringement: The "virtual license + analogous reference" standard can be introduced in cases of trade secret infringement of the type of illegally acquired and possessed trade secrets, reverse engineering defense needs to be combined with subjective and objective evidence to confirm the research and development process, utilizing trade secrets to protect software source code must to clarify the key secret point, and pleading guilty and actively compensation and obtaining the understanding of the right holder can be given lenient treatment.七、典型案例：最高檢、上海市、廣東省等多地陸續發布勞動人事爭議典型案例
Exploration of Typical Cases: The Supreme People's Procuratorate, Shanghai, Guangdong Province and Many Other Places Have Successively Released Typical Cases of Labor and Personnel Disputes自2021年中央全面深化改革委員會第十八次會議審議通過《關于加強訴源治理推動矛盾糾紛源頭化解的意見》以來，各地司法機構積極推進和完善訴源治理的系列措施。Since the 18th meeting of the Central Committee for Comprehensively Deepening Reform in 2021 approved the Opinions on Strengthening the Governance of Sources of Complaints and Promoting the Resolution of Conflicts and Disputes at the Source, judicial institutions have been vigorously promoting and enhancing a series of measures for the governance of sources of complaints.2024年4月26日，上海第二中級人民法院與上海市人力資源和社會保障局共同簽署《關于加強訴源治理和裁審銜接若干意見》，并發布十個勞動爭議糾紛典型案例。其中，以下案例值得關注：On April 26, 2024, the Shanghai Second Intermediate People's Court and the Shanghai Municipal Bureau of Human Resources and Social Security jointly signed the Opinions on Strengthening the Governance of Sources of Complaints and Connecting Adjudication and Trial, and released ten typical cases of labor disputes. Among them, the following cases are worthy of attention:1. 案例1中，員工（注冊估價師）接受賣方私下宴請，因買方舉報后公司被行業協會通報批評，裁決認為公司以嚴重違反職業道德為由解雇員工合法。In case 1, an employee (a registered appraiser) accepted a private banquet from the seller, and his employer was criticized by the industry association due to the buyer's report, and the award found that the employer's dismissal of the employee for serious violation of professional ethics was lawful.2. 案例2中，員工任職期間需要利用休息日和法定節假日在家完成信息撰寫和后臺推送工作，裁決依據查明的加班事實，結合雙方認可的工作量，酌情認定員工每個休息日和法定節假日加班時間為1小時。In case 2, the employee was required to perform information writing and online publishing work at home on rest days and statutory holidays during his employment. On the basis of the established facts of overtime work and the workload recognized by both parties, the award found that the employee's overtime work was one hour for each rest day and statutory holiday.3. 案例6中，公司因員工一年內多次上班遲到依據內部制度扣除工資約21萬元，判決認為公司僅可通過規章制度扣除未提供勞動時間對應的工資，不得為了懲罰而扣除多倍工資，需補發約20萬元工資差額。In case 6, the employer deducted about 210,000 RMB from the employee's salary due to the employee's late for work multiple times in a year based on the internal rules and regulations, and the judgment held that the employer could only deduct the salary corresponding to the time of absence of work according to the rules and regulations, but could not deduct extra salary for the purpose of punishment, and ruled the employer to make up for the difference in salary of approximately 200,000 RMB.2024年3月至4月，各地裁審機構陸續發布與婦女權益保障以及勞動人事相關爭議的典型案例，主要包括：Between March and April 2024, the Supreme People's Procuratorate, the courts and the labor arbitration committees in Guangdong, Jiangsu, Zhejiang, Sichuan, Chongqing, and Hebei released typical cases regarding disputes related to women's rights and interests and labor and personnel.
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