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Regulations of Shanghai Municipality on the Flow of Talented Personnel
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| (Approved at the 32nd Session of the Standing Committee of the 10thShanghai Municipal People's Congress on December 19, 1996) Chapter I General Provisions Article 1 With a view to strengthening the management of the flow of talented personnel in the municipality, standardizing the system of the flow of talented personnel, protecting the lawful interests of both the work units and individuals, safeguarding the common interests of the society and promoting the economic and social development, the present Regulations are formulated in accordance with the relevant state laws and regulations, and in line with the municipality's actual conditions. Article 2 The flow of talented personnel specified in the present Regulations refers to the change of professions or work units of those with special technical skills or management talents through a twoª²way selection between the professionals and the work units. Article 3 The present Regulations apply to the flow of talented personnel within the municipality and the related actions and activities. Where there are other related laws and regulations, they shall be observed accordingly. Article 4 The flow of talented personnel shall adhere to the principle of promoting rational distribution of talent resources and respecting the right of the talents to choose professions and the autonomy of work units to hire employees. Talented personnel are encouraged to flow to industries and sectors with special state backup and state key construction projects and major scientific research undertakings. Article 5 The Shanghai Municipal Personnel Bureau (hereinafter referred to as the Municipal Personnel Bureau) is the competent authorities in charge of the municipality's management of the flow of talented personnel. Its main responsibilities include: 1. To manage and supervise the municipality's flow of the talented personnel; 2. To examine and approve the establishment and supervise the management of talent exchange service organizations; 3. To guide the flow of talented personnel into key state and municipal industries and sectors and major construction projects and scientific research undertakings; 4. To deal with disputes arising from the flow of talented personnel; and 5. To be responsible for the implementation of the present Regulations. Under the guidance of the Municipal Personnel Bureau, district(county) personnel bureaus are in charge of the flow of talented personnel within their respective administrative areas. Chapter II Code of Conduct for Work Units and Individual Persons in the Flow of Talented Personnel Article 6 In the flow of talented personnel, both work units and individual persons shall abide by laws and regulations and shall not infringe upon each other's lawful interests. And they shall conscientiously fulfill the obligations stipulated in the contract of employment (hereinafter referred to as "the contract"). Article 7 There are neither restrictions on the nature of a work unit, nor on the status, profession and sex of an individual person, in the flow of talented personnel. But there are exceptions where there are other provisions of related laws and regulations. Article 8 The flow of talented personnel can be achieved by the following means: 1. Requesting a talent exchange service organization to recommend; 2. Making arrangements through various talent exchange fairs; 3. Placing talent and job want advertisements in mass media; and 4. Other channels that contribute to the flow of talented personnel. Article 9 The contents of talent and job wanted advertisements placed in mass media shall be accurate and there shall be no violations of laws and regulations. Work units shall get the approval either from the municipal or district (county) personnel bureau before advertising for talented personnel through mass media. Mass media are not allowed to carry or broadcast any talent wanted advertisement that fails to get the approval. Article 10 While making mutual selection, work units and individual persons shall tell each other their own actual conditions and requirements, and present the necessary documents and other relevant materials. Article 11 Work units are not allowed to recruit talented personnel by improper means, nor to charge those who accept the offer of employment any fees on any pretence. Article 12 After a work unit has forged an employment relationship with an individual person, the two sides shall sign a contract on the basis of mutual consent and in accordance with the principle of equality and willingness. They may also reach an agreement on the terms of service, training, housing and keeping technical and/or business secrets. Article 13 If an individual person has to terminate an employment contract before it expires, or resign owing to the need of talent flow, he or she shall notify his or her work unit within the period set by the provisions of the related laws and regulations. Article 14 If an individual person has to terminate a contract before it expires, or resign owing to the need of talent flow, matters such as the term of service, training cost and housing compensation agreed on in the contract he or she signed with the work unit, shall be handled in accordance with the st ipulated terms of the contract. If there is no agreement on such matters in the contract, and the work unit does pay for the training of the individual and provide housing for him or her, the work unit may ask for compensation. The specific compensation process shall be stipulated by the Municipal Personnel Bureau. Article 15 If there is no dispute over the contract, or the engagements of the contract are met, the work unit shall go through the necessary formalities for the individual to leave office within the set deadline after it receives his or her written notice to terminate the contract before it expires or his or her letter of resignation. Article 16 For individual persons in the flow of talented personnel, the following activities are not permitted: 1. Betrayal of state secrets; 2. Infringement of the intellectual property right of his or her work unit; 3. Encroachment on the business secrets of his or her work unit; and 4. Other activities banned by the relevant laws and regulations. Article 17 Without the approval of his or her work unit, anyone who are leading technical and managing personnel in a state or municipal key project or a major scientific research programme is not allowed to flow before the project or the programme is completed. The flow of those whose work involves state secrets shall get in advance the approval of the secret keeping administrative department and be handled in accordance with the relevant regulations. Without the permission of the investigation department, those who are still under investigation by judicial organs or administrative departments in accordance with the law and whose cases are not winded up are not allowed to change their work units. Article 18 The authorities concerned shall handle the necessary formalities in accordance with their jurisdiction of personnel management for those seeking to work in other provinces and municipalities. If a work unit needs to introduce from other provinces and municipalities talented personnel who are badly needed and hard to find in Shanghai, it shall first apply to the municipal or district or county personnel bureau for approval and then go through necessary formalities. Article 19 If a work unit wants to invite Chinese students studying/studied abroad, or introduce foreign experts from other countries, it shall go through necessary formalities in accordance with the relevant regulations set by the state and the municipality. Chapter III Talent Exchange Service Organizations Article 20 Talent exchange service organizations refers to those which provide intermediary services for both work units and individual persons in accordance with the principal of being open, fair and impartial. Article 21 The following conditions are required to establish a talent exchange service organization: 1. It has the premise and facilities essential for providing services for talent exchange activities; 2. It has specialized staff with professional training; 3. It has complete and feasible working norms and regulations; and 4. It is capable of bearing the civil liability independently. Article 22 Work units directly under the municipal government and those directly under the central government and from other provinces and municipalities shall apply to the Municipal Personnel Bureau if they want to set up talent exchange service organizations; work units directly under district or county governments shall apply to their local district or county personnel bureaus if they want to set up talent exchange service organizations. Individual persons are not allowed to establish talent exchange service organizations. Municipal or district (county) personnel bureaus shall make the approval decisions within 30 days after they receive the applications, and issue the "Licence of Shanghai Municipality for Undertaking Talent Exchange Services" to the qualified work units. Those talent exchange service organizations that need at the same time to file for commercial and industrial registration shall go through the registration formalities at the commercial and industrial administrative department. Those without approval are not allowed to undertake talent exchange service activities. Article 23 Talent exchange service organizations are authorized to provide the following services: 1. Entrusted by a work unit to recruit or employ the talented personnel it needs; 2. Entrusted by an individual person to recommend him or her to a work unit; 3. Providing both work units and individual persons with talent exchange information and consulting services; 4. Organizing various training programmes related to the flow of talented personnel; and 5. Undertaking other approved services. If entrusted by the municipal or district (county) personnel bureaus, talent exchange service organizations directly under them are also allowed to take care of personal files for floating personnel and engage in personnel agent services in accordance with the relevant state regulations. Article 24 If talent exchange service organizations need to organize a citywide, or for a particular trade, large talent exchange programme, they shall apply to the Municipal Personnel Bureau for approval 15 days before it is held. No large talent exchange programme shall be held without approval. Article 25 Talent exchange service organizations shall provide intermediary services according to actual facts, and are not allowed to supply false information. Article 26 The Municipal Price Control Bureau, together with the Municipal Finance Bureau and Municipal Personnel Bureau, shall check and ratify the chargeable services and their prices listed by talent exchange service organizations. Chapter IV Settlement of Disputes in the Flow of Talented Personnel Article 27 Settlement of disputes arisen in the flow of talented personnel shall be made in accordance with the principal of being lawful, fair and timely, protecting the legitimate rights and interests of the party concerned. Article 28 When a dispute arising from the flow of talented personnel, the parties concerned shall settle the dispute through consultation in accordance with the provisions of the related laws and regulations and the terms stipulated in the contract. They may also apply to the personnel dispute arbitration organ run by the administrative authorities of their work units for mediation. Article 29 If the parties concerned fail to settle the dispute through consultation or mediation, they may apply to the district (county) personnel bureau in the same location of the work unit for award. An application may be filed directly with the Municipal Personnel Bureau for award, if the work unit of the party concerned is directly under the central government or from other provinces and municipalities; or if the dispute is serious and complicated. Article 30 The municipal or district (county) personnel bureau shall make the decision whether or not to accept the written application for award within 7 days after it is handed in by the party concerned. If it decides to accept the application, the municipal or district (county) personnel bureau shall make the award within 60 days after the application is accepted. Article 31 If the party concerned does not agree with the award made by the municipal or district(county) personnel bureau, he or she may bring an action in the local people's court in accordance with the law. Chapter V Legal Liability Article 32 If a news organization violates the provisions of Article 9, Section 3 of the present Regulations to carry talent wanted advertisement without approval and brings damage to the party concerned, it shall bear the joint liability of compensation. Article 33 If a work unit violates the provisions of Article 11 of the present Regulations to recruit talented personnel by using improper means and brings damage to the original work unit of the person(s) recruited, it shall have the liability to pay compensation. Article 34 If a work unit violates the provisions of Article 15 of the present Regulations and fails to complete the necessary formalities for the individual person to leave the post within the set deadline, thus bringing damage to the individual person, it shall have the liability to pay compensation. Article 35 If an individual person violates the provisions of Article 16 to conduct what is banned in the flow of talented personnel and brings damage to the work unit, he or she shall have the liability to pay compensation. If his or her betrayal of state secrets is not serious enough for criminal penalties, he or she shall be given administrative punishments. If the act of violation constitutes a crime, he or she shall be prosecuted for his or her criminal liability in accordance with the law. Article 36 If a talent exchange service organization violates the provisions of Article 25 to deliberately supply false information and brings damage to the party concerned, it shall have the liability to pay Compensation. Article 37 Acts that violate the provisions of the present Regulations shall be punished by the municipal or district (county) personnel bureau in accordance with the following stipulations: 1. If a work unit violates the provisions of Article 9, Section 2 of the present Regulations to place mass media talent wanted advertisement without approval, it shall be given a disciplinary warning or be imposed a fine of no more than 2,000 yuan; 2. If a work unit violates the provisions of Article 22, Section 3 of the present Regulations to set up a talent exchange service organization without approval, the organization shall be banned in accordance with the law and its illegal gains shall be confiscated. A fine of no more than 5,000 yuan may also be imposed in the light of seriousness of the circumstances; 3. If a talent exchange service organization violates the provisions of Article 24 of the present Regulations to organize without approval to hold large scale talent exchange activities, it shall be ordered to stop the activities, and its illegal gains shall be confiscated. A fine of no more than 10,000 yuan may also be imposed in the light of seriousness of the circumstances; and 4. If a talent exchange service organization violates the provisions of Article 25 of the present Regulations to supply false information, it shall be given warning or be imposed a fine of no more than 5,000 yuan. If the circumstances of the case are serious, its Licence of Shanghai Municipality for Undertaking Talent Exchange Services shall be revoked. Article 38 If a work unit violates the provisions of Article 11 of the present Regulations by charging those accepting its offer of employment a fee; or if a talent exchange service organization violates the provisions of Article 26 and fails to charge according to the set chargeable items and prices, the price control department shall impose penalties on it in accordance with the relevant regulations. Article 39 Any staff member of the municipal or district (county) personnel bureau who abuse their power, neglect their duty, practice favoritism for self interests, or infringe upon the lawful rights and interests of work units, individual persons or talent exchange service organizations shall be given administrative punishment by the municipal or district(county) personnel bureaus within the extent of their authority. Those whose act constitutes a crime shall be prosecuted for their criminal liability. Article 40 If the party concerned does not accept the administrative decision made by the competent administrative department, it (he or she) may apply for reconsideration or bring an administrative action in the local people's court in accordance with the "Regulations of Administrative Reconsideration" and the "Administrative Litigation Law of the People's Republic of China". If the party concerned neither applies for reconsideration nor brings an action within the legal time limit, and fails to comply with the penalty decision, the authorities which have made the administrative decision shall apply to the people's court for enforcement. Chapter VI Supplementary Provisions Article 41 Matters including the pension plan, unemployment insurance and medical insurance of those talented personnel in the process of flow shall be handled according to the relevant State and municipal provisions. Article 42 If the representative offices of foreign enterprises and other resident overseas institutions in the municipality need to recruit talented personnel, they shall go through necessary formalities in accordance with the relevant State and municipal provisions. Article 43 The Municipal Personnel Bureau is responsible for the interpretation of the application of the present Regulations. Article 44 The present Regulations shall become effective on April 1, 1997. |
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