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上海市人才流动条例(修正) Shanghai Municipality, Movement of Professionals Regulations (Revised)

2006-05-13 01:11   我要纠错 | 打印 | 收藏 | | |

(Adopted at the 32nd Session of the 10th People's Congress Standing Committee of the Shanghai Municipality on 19 December 1996; revised according to the > Decision>, adopted at the 5th Session of the 12th People's Congress Standing Committee of the Shanghai Municipality on 26 June 2003.)

颁布日期:20030626  实施日期:20030626  颁布单位:上海市人大常委会

  PART ONE GENERAL PROVISIONS

  Article 1 These Regulations are formulated in order to strengthen control on the movement of professionals within this municipality, standardize procedures regarding the movement of professionals, guarantee the lawful rights and interests of work units and individuals, safeguard social and public interests, and promote economic construction and social development, in accordance with the provisions of relevant State laws and regulations and in the light of the actual circumstances of the municipality.

  Article 2 For the purposes of these Regulations, the term “movement of professionals” refers to any person who has specialist technical or managerial skills and by a mutual decision with the work unit concerned chooses to and changes his individual professional position or work unit.

  Article 3 These Regulations shall apply to the movement of professionals within this municipality and any related acts and activities.

  Where the provisions of laws and regulations have other stipulations, such provisions shall prevail.

  Article 4 The movement of professionals shall be in line with the principles of promoting a reasonable allocation of human resources, respecting the right of professionals to choose their profession and the right of work units to recruit their staff.

  Professionals shall be encouraged to join key State-emphasized industries and departments, key State construction projects and key scientific research projects.

  Article 5 The Shanghai Municipality Personnel Bureau (hereafter, “municipal personnel bureau”) shall be the administrative department in charge of work related to the movement of professionals within the municipality. Its key duties and responsibilities are as follows:

  1. the management and directing of work related to the movement of professionals within this municipality;

  2. responsibility for the administration of the examination, approval and supervision of the establishment of any professional exchange service organizations;

  3. the directing of qualified personnel to join key industries emphasized by the State and the municipality, key governmental and State construction projects and key scientific research projects;

  4. the handling of any disputes that arise in relation to the movement of professionals; and

  5. responsibility for the implementation of these Regulations.

  Under the direction of the municipal personnel bureau, the regional and county personnel bureaus shall be responsible for work related to the movement of professionals within their areas of jurisdiction.

  PART TWO SCOPE OF ACTIVITIES OF WORK UNITS AND INDIVIDUALS INVOLVED IN THE MOVEMENT OF PROFESSIONALS

  Article 6 All work units and individuals involved in the movement of professionals shall comply with the provisions of laws and regulations. They shall not infringe the lawful rights and interests of any party, and shall voluntarily perform obligations as agreed in the appointment contract (hereafter, “contract”)。

  Article 7 The movement of professionals shall not be restricted on grounds of the nature of the work unit, or of the identity, profession or sex of an individual, unless the provisions of laws and regulations stipulate otherwise.

  Article 8 The movement of professionals may occur in the following ways:

  1. commissioning a recommendation of professionals from a professional exchange service organization;

  2. arrangements made at professional exchange conferences;

  3. job-seeking and recruitment advertisements published or broadcast via different news media; and

  4. other channels that facilitate the promotion of movement of professionals.

  Article 9 Published or broadcast contents of job-seeking and recruitment advertisements shall be accurate and shall not violate the provisions of laws and regulations.

  Article 10 In the course of personnel selection undertaken by a work unit and an individual, each party shall, on the basis of facts, briefly inform the other of their basic conditions and requirements, and provide the necessary supporting documents and other relevant materials.

  Article 11 Work units shall not employ improper means to recruit its staff, and shall not on any pretext collect fees from any applicants.

  Article 12 Where a work unit and an individual have come to an agreement on appointment, a contract shall be executed on the basis of equality, voluntary participation and agreement by consultation. Such matters as period of appointment, training, housing, as well as confidentiality of technology and trade secrets may also be written into the contract.

  Article 13 Where an individual wishes to terminate a contract in advance or resign on the ground of a new job offer, he shall notify the work unit within the time limit as prescribed by the provisions of laws and regulations.

  Article 14 Where an individual wishes to terminate a contract in advance or resign on the ground of a new job offer, and the contract he signed with the work unit contains agreements on such matters as period of appointment, training fees and housing allowance, etc., these matters shall be handled in accordance with the agreed terms of the contract.

  Where there are no agreements in the contract, but it is proven that the work unit has indeed paid for training or provided housing to an individual, the work unit may request compensation. Specific methods of compensation shall be stipulated by the municipal personnel bureau.

  Article 15 Upon receipt of a written notice on advanced termination of contract or resignation, and no dispute arises in relation to the contract, or the obligations as agreed in the contract have already been performed, the work unit shall process the termination or resignation within the stipulated time limit.

  Article 16 No individual shall engage in the following acts in the course of movement of professionals:

  1. leaking of State secrets;

  2. infringement of the work unit's intellectual property rights;

  3. divulging of trade secrets of the work unit; or

  4. perpetration of others acts that are in violation of the relevant laws and regulations.

  Article 17 Without the consent of the work unit, key technical and managerial personnel working for key State and municipal projects and key scientific research projects shall not seek appointment elsewhere before the projects are completed.

  Where personnel knowing State secrets wish to change their jobs, permission shall be sought in advance from the department in charge of classified information. The case shall then be dealt with in accordance with relevant provisions.

  Personnel who are lawfully placed under investigation by judicial or administrative organizations, and the case is yet to be closed, such personnel shall not change their jobs without the consent of the investigating organizations.

  Article 18 Where an individual goes to work for a work unit situated in another province or municipality, and is required to complete certain formalities, the work unit concerned shall complete such formalities for the individual in line with their power of authority in respect of personnel management.

  Where professionals are in severe shortage and high demand and a work unit wishes to seek such personnel from other provinces and municipalities, an application shall be submitted to the regional or county personnel bureau. Upon approval, the work unit may complete the relevant formalities.

  Article 19 Where a work unit wishes to recruit any personnel studying abroad or foreign experts from overseas, the work unit shall complete formalities in accordance with relevant State and municipal provisions.

  PART THREE PROFESSIONAL EXCHANGE SERVICE ORGANIZATIONS

  Article 20 Professional exchange service organizations are agencies that provide a channel for mutual selection in respect of a new job offer to work units and individuals. Their services shall be provided in accordance with the principles of openness, fairness and impartiality.

  Article 21 Where a work unit wishes to establish a professional exchange service organization, it must comply with the following conditions:

  1. it must have the necessary place of operation and facilities for the conducting of any activities related to professional exchange services;

  2. it must employ specially trained and specialist professional staff;

  3. it must have sound standardized working procedures and articles of association; and

  4. it must have the capacity for independent civil liability.

  Article 22 Work units under this municipality or work units under the central government or other provinces or municipalities operating within this municipality that need to establish a professional exchange service organization shall apply to the municipal personnel bureau. Work units under regional and county governments that need to establish a professional exchange service organization shall apply locally to their respective regional or county personnel bureaus. No individual may establish a professional exchange service organization.

  The municipal, regional and county personnel bureaus shall decide whether or not to grant approval within 30 days from the date of receipt of the relevant application. If after examination it is found that the applicant possesses the necessary qualifications, a “Shanghai Municipality Professional Exchange Services Permit” will be issued. Where some cases must also undertake industrial and commercial registration, formalities shall be completed at the department-in-charge of the administration for industry and commerce.

  No work unit shall engage in professional exchange services activities without approval.

  Article 23 The scope of service of professional exchange service organizations shall cover the following areas:

  1. accepting commissions from work units and hire and recruit professionals required by and for such work units;

  2. accepting individuals' commissions and recommending individuals to the relevant work units;

  3. providing labour market information and an enquiry service to work units and individuals;

  4. holding a variety of training courses relevant to job-seeking and recruitment; and

  5. other approved service projects.

  Professional exchange service organizations under the municipal personnel bureau, or regional and county personnel bureaus may, when commissioned by the municipal, regional or county personnel bureaus, handle such matters as keeping personnel files and records, and acting as a personnel agency, etc., in accordance with relevant State regulations.

  Article 24 Where a professional exchange service organization wishes to hold a large-scale municipal or profession-oriented professional exchange event, it shall report to the municipal personnel bureau for examination and approval 15 days before the date on which the event is to be held. Where no approval is given, no large-scale professional exchange events shall be held.

  Article 25 Professional exchange service organizations shall carry out intermediary service-oriented activities on the basis of facts, and shall not provide false or deceptive information.

  Article 26 The municipal bureau for commodity pricing shall, in conjunction with the municipal bureau of finance and the municipal personnel bureau, examine and determine which types of service offered by a professional exchange service organization should be charged, and the standard rate of each service.

  PART FOUR HANDLING OF PROFESSIONAL EXCHANGE DISPUTES

  Article 27 Disputes that arise from professional exchange shall be handled in accordance with the principles of lawfulness, fairness and promptness. The lawful rights and interests of the parties concerned shall be safeguarded.

  Article 28 Where a professional exchange dispute arises, the parties concerned shall settle the dispute through consultation in accordance with the provisions of laws and regulations and pursuant to the agreements made under the contract. The parties concerned may also apply for mediation to the personnel dispute mediation body of the next higher department-in-charge of the work unit concerned.

  Article 29 Where consultation or mediation fails, the parties concerned may apply for adjudication by the regional or county personnel bureau where the work unit is located. Where the parties concerned are work units under the central government or other provinces or municipalities operating within this municipality, or the case involves a serious and complicated professional exchange dispute, an application for adjudication may be made directly to the municipal personnel bureau.

  Article 30 The municipal, regional or county personnel bureaus shall, within seven days from the date of receipt of a written application for adjudication submitted by the parties concerned, decide whether or not the case shall be granted a hearing.

  Where a hearing is granted, the municipal, regional or county personnel bureau concerned shall give a ruling within 60 days from the date of acceptance of the case.

  Article 31 Where the parties concerned do not wish to comply with the ruling given by the municipal, regional or county personnel bureau, they may initiate a proceeding with a people's court in accordance with the law.

  PART FIVE

  LEGAL LIABILITY

  Article 32 Where a work unit violates Article 11 hereof and uses improper means to recruit professionals, thereby causes losses to the work unit in which the person concerned originally worked, the recruiting work unit shall be liable for compensation.

  Article 33 Where a work unit violates Article 15 hereof and does not process the termination of contract or resignation for an individual within the stipulated time limit, thereby causes losses to that individual, the work unit shall be liable for compensation.

  Article 34 Where an individual violates Article 16 hereof and perpetrates any prohibited acts, thereby causes damage to a work unit, he shall be liable for compensation. Where State secrets are leaked, but the degree is not serious enough for the imposition of criminal punishment, an administrative penalty shall be imposed. Where the act constitutes a criminal offence, the criminal liability shall be pursued in accordance with the law.

  Article 35 Where a professional exchange service organization violates Article 25 hereof and deliberately provides false or deceptive information, thereby causes losses to the parties concerned, the professional exchange service organization shall be liable for compensation.

  Article 36 Where the following acts are perpetrated in violation of these Regulations, the municipal, district or county personnel bureau shall impose a penalty in accordance with the following provisions:

  1. where a professional exchange service organization is established without approval in violation of Paragraph Three of Article 22 hereof, the organization shall be banned in accordance with the law, its illegal income confiscated and, in the light of the severity of the circumstances, a fine of less than Rmb 5,000 may be imposed;

  2. where a professional exchange service organization violates Article 24 hereof and holds a large-scale professional exchange event without undergoing examination and approval, it shall be ordered to suspend its holding of the event, any illegal income shall be confiscated and, in the light of the severity of the circumstances, a fine of less than Rmb 10,000 may be imposed; and

  3. where a professional exchange service organization violates Article 25 hereof and does not carry out its intermediary activities on the basis of facts, and provides false or deceptive information, a warning shall be given or a fine of less than Rmb 5,000 shall be imposed and, where the circumstances are serious, its “Shanghai Municipality Professional Exchange Services Permit” shall be revoked.

  Article 37 Where a work unit violates Article 11 hereof and collects fees from job-seeking personnel or where a professional exchange service organization violates Article 26 hereof and collects charges but not according to the list of chargeable items and the standard rates, the administration department of commodity prices shall impose a penalty in accordance with relevant provisions.

  Article 38 Where the staff of the municipal, regional or county personnel bureau derelict in their duties, abuse their power, practise graft, thereby infringes the lawful rights and interests of any work units, individuals or professional exchange service organizations, the municipal, regional or county personnel bureau concerned shall impose an administrative penalty in the line with their powers of administration. Where the act constitutes a criminal offence, the criminal liability shall be pursued in accordance with the law.

  Article 39 Where the parties concerned are not satisfied with any specific administrative acts imposed by an administrative administration department, the parties concerned may apply for an administrative review or initiate an administrative proceeding in accordance with the PRC, Administrative Review Law or the PRC, Administrative Litigation Law.

  Where the parties concerned fail to apply for an administrative review, to initiate a proceeding or to comply with a specific administrative ruling within the time limit as stipulated by the law, the department that made the ruling may apply to the people's court for enforcement.

  PART SIX SUPPLEMENTARY PROVISIONS

  Article 40 Such matters as pension, unemployment insurance and medical insurance, which may be affected in the course of job-seeking and professional exchange, shall be dealt with in accordance with the relevant laws of the State and this municipality.

  Article 41 Resident representative offices of foreign enterprises and other foreign resident offices situated in this municipality that wish to recruit capable personnel, shall be handled in accordance with the relevant regulations of the State and this municipality.

  Article 42 The municipal personnel bureau shall be responsible for interpretation of any issues related to specific application of these Regulations.

  Article 43 These Regulations shall be implemented as of 1 April 1997.

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