Member Peng Jing: It is proposed to build a new model of fertility cost sharing

Beijing, March 8 (Reporter Gong Yunfei) On March 8, Peng Jing, a lawyer who is a member of the National Committee of the Chinese People's Political Consultative Conference and the founding partner of Chongqing Jingsheng Law Firm, made a guest appearance at an online micro-interview activity jointly organized by the Procuratorial Daily Justice Network and Toutiao to share with netizens the proposals he brought this year.

JusticeNet: What proposals did you bring this year? What are the main areas covered?

Lawyer Peng Jing: I am very happy to participate in the #Face to Face with Delegates and Members event the following year, and I brought twelve proposals to the two sessions this year.

There are eight proposals focusing on the legal field, mainly focusing on the quality of live streaming goods, self-media washing, digital economy, internal supervision of courts, public interest litigation functions of procuratorial organs, family education legislation, and amendments to the Lawyers Law. Among them, in the field of digital economy, I put forward two legal proposals, namely "Suggestions on Strengthening the Regulation of Data Competition of Internet Platform Enterprises" and "Proposal on Improving the Construction of supporting legal systems for "Data Production Factorization".

There are four proposals in other fields, two of which are suggestions on the economic construction of the Chengdu-Chongqing region, one is a proposal for a new investment and financing model for rural revitalization, and the other is a proposal for accelerating the exploration of a new model of fertility cost sharing.

Justice Network: In recent years, online live broadcasting with goods has gradually become a new trend of e-commerce, but false publicity, product quality is not passed, after-sales service and other issues have also emerged. In your opinion, how to better regulate the live streaming behavior at the legal level and protect the rights and interests of consumers?

Lawyer Peng Jing: Under the influence of the "new crown epidemic" in 2020, the emerging e-commerce format represented by live streaming with goods has risen rapidly, bringing great convenience to people's transactions. However, live streaming has also brought many problems, such as false publicity, data fraud, hidden gray industrial chain, difficulty in returning and exchanging goods to protect rights, etc. Have also appeared many times, which has aroused the attention of all walks of life. At present, for the new sales model of live streaming with goods, it is necessary to affirm the positive significance of its existence, but also to find problems, strengthen supervision, and guide this sales model to a benign development.

In terms of legal regulation in the field of live streaming in China, there are mainly problems such as the lack of special legal provisions, the complexity of responsible subjects, and the lack of effective supervision of behavior, for which I put forward the following suggestions:

The first is to improve the legal system. According to the development trend of the online live broadcasting industry, its own characteristics and the current legislative status, it is imperative to introduce a specialized online live broadcasting industry law with comprehensive content and taking into account the needs of all parties. At the same time, it should also promote the adoption of the "Measures for the Supervision and Administration of Online Transactions", clarify the business identification system for live streaming with goods, and provide the implementation of the review system.

The second is to strengthen administrative supervision. Government departments should clarify their functions, set reasonable rules, refine the scope of supervision, and balance the relationship between the participating entities. We should classify and grade live streaming programs, raise the entry threshold for anchors with goods, and set qualification conditions for anchors who promote and sell special products, such as applying for health certificates and food hygiene permits for food live streamers; strengthen cooperation with enterprises, develop and improve network public opinion monitoring software and live broadcast filtering systems; set up open live broadcast channels on live broadcast platforms, strengthen communication with users, and solve problems of public feedback in a timely manner; use live streaming program source traceability technology and content preservation technology to implement accountability systems.

The third is to build a self-discipline mechanism. Each live streaming platform may set up unified industry standards, rules, charters and self-regulatory conventions for self-supervision. At the same time, introduce credit appraisal mechanisms, establish a tripartite blacklist of anchors, live broadcast platforms, and network users, and strengthen the review and management of anchors' live broadcast behavior and interactive content. At the same time, the network platform should strengthen regulatory measures for live streamers, do a good job of real-name authentication and credit evaluation of live streamers, formulate and improve the access and certification system for live streamers, do a good job of qualification review and induction training, and conduct spot checks and consumer shopping satisfaction surveys from time to time.

The fourth is to smooth the channel for safeguarding rights. Accelerate the establishment of a "supervision and rights protection through train" system, and accelerate the efficiency of the platform in handling complaints. It can learn from the "supervision and rights protection through train" system set up by the "e-commerce express train platform" of the China Consumer Association on March 15, 2016, and synchronously link the rights protection channels of the market supervision department, consumer protection organization and live broadcast platform in the live streaming activities, and the supervisors will monitor the live broadcast activities in real time, and efficiently accept and handle consumer complaints, and interview, guide or warn the live broadcast operators. For large-scale or large-scale live streaming activities, regulatory rights defenders can also participate in live broadcast supervision and rights protection.

Justice Network: From the world's experience, the higher the cost of childbirth borne by enterprises, the more common the phenomenon of discrimination in women's employment is likely to be. In order to solve the problem of discrimination in women's employment, it is particularly important to promote a reasonable sharing of the cost of childbirth, what are your suggestions for this?

Lawyer Peng Jing: At present, china's fertility costs are continuing to rise, because the cost of childbirth is mainly borne by employers and families, in practice, the national policy level only pays attention to the direct cost of childbirth, while ignoring the indirect impact costs on employers and families, and a new type of birth cost sharing cooperation mechanism has not yet formed a benign interaction between the government, society, families and employers. The resulting problem is that, on the one hand, employers, from the perspective of maximizing profits, reduce or even be reluctant to recruit job-seeking women who are married and childless and may have two children. For example, although the government pays the wages of female employees during maternity leave in the form of maternity allowances, the five social insurances and one fund and daily benefits need to be borne by the employer, and the employer faces the problem of vacancies during the maternity leave. In the long run, women will be disadvantaged in the competition in the labor market for their responsibilities such as housework and childbirth, and will be discriminatoryly treated by the employer. On the other hand, individual women have concerns in the early and middle stages of fertility decisions, which are reflected in their reluctance to have children and dare not have children.

In order to promote the healthy development of the career path of female workers, it is proposed to build a new model of childbirth cost sharing to help women smoothly pass the childbearing period, reduce the impact of childbirth on employment, and promote women's equal employment.

First, strengthen government safeguards and reasonably balance the protection of women's rights and interests with the distribution of enterprise market benefits. First, it is proposed to formulate tax policies that encourage employers to hire female workers. When working women enter the reproductive stage, the state should give enterprises some burden reductions, such as reducing some corporate income tax, so that enterprises are more willing to hire women. At this stage, relevant pilot work can be carried out in some provinces and cities, and it can be promoted nationwide after the conditions are ripe, or it can be determined through policy guidelines, legislation and other means. Second, taking into account the current diversification of employment patterns in China, we can try to expand the coverage of maternity insurance to women in flexible employment. Flexible employment personnel who participate in maternity insurance and pay in full and continuously for more than one year can enjoy the treatment of maternity insurance and more fully protect women's reproductive rights and interests. The third is to suggest strengthening the cultivation of women's awareness of rights, encouraging women to safeguard their rights in a timely manner by increasing the extensive publicity of laws such as the Labor Law and the Law on the Protection of Women's Rights and Interests, teaching ways and methods to collect evidence of gender discrimination in employment, and safeguarding women's employment-related rights in legal channels.

Second, enhance the capacity of social services and eliminate the "worries" faced by women in childbirth and employment. Perfect and developed childcare services, care services, and health care services are an important means to promote the balance between women's fertility and employment, and are an effective apportionment of the indirect costs of women who give birth. In this regard, the first is to propose to improve the level of public service guarantees for fertility, explore subsidies for childcare services, and provide "bottom-up" services such as childcare for families with children through public finance, and coordinate conflicts between women's families and work. The second is to propose to standardize and optimize the development of the infant and child service industry and practitioners, learn from the "qualified nanny system" for infants and young children aged 0-3 in France, strengthen the training and supervision of infant and young child nanny service personnel, and improve the quality and service level of employees. The third is to accelerate the construction of mother and baby rooms in public places, encourage employers to build fertility service venues such as "Loving Mommy Hut", and solve the worries of female employees returning to work.

Third, reasonably divide the responsibilities of employers, optimize system guarantees, and reasonably allocate the working time and salary of second-child mothers. First, it is recommended that employers set up flexible working mechanisms for female employees, allowing female employees to spend their childbirth and lactation (one year after childbirth) in the form of "compensatory dismissal, suspension of pay, part-time work, remote work", etc., so as to reflect the special protection and humane care of female employees by law, so as to achieve a win-win situation for the protection of the rights and interests of society, employers and female employees. The second is to suggest that employers formulate gender equal career development plans, provide vocational guidance and return-to-work training for working women who have two children, and help female employees balance family and work relations. Third, it is proposed to promote the "extended paternity leave for men" system on the basis of the pilot to indirectly balance the gender choice of enterprises, so as to alleviate gender discrimination among employers in employment. It is suggested to learn from the suggestions made by the Shanghai Women's Federation to the Shanghai Two Sessions that "maternity leave shall be shared and determined by both husband and wife through consultation", and to a certain extent, "men and women should be treated equally" to reduce the pressure of women's job search.

Justice Network: In 2020, the central document officially includes data in the scope of production factors, and the construction of the supporting legal system corresponding to "data production factorization" is not yet perfect.

Lawyer Peng Jing: The "marketization" of data production factors has released the potential of enterprises and helped economic and social development, but it has also brought many new problems. Therefore, it is necessary to strengthen legislative research as soon as possible and promote the construction of a supporting legal system.

The existing problems mainly include the difficulty of establishing data property rights, the difficulty of orderly data behavior, and the difficulty of regulating data competition. It can be improved from the following three aspects:

First, reconstruct the data property rights system. In the property rights system, it is necessary to take into account the economic characteristics of data information and its rich diversity, and the design of the data property rights system can be explored according to the following path. The first is to determine whether exclusive rights are granted based on factors such as disclosure, migration, and trading. The second is to replace ownership with "data control" as an exclusive rights arrangement. It is recommended to break through the legal paradigm of "ownership - right to use", do not set data ownership, and only set "data control" with exclusive effect.

Second, establish the order of data behavior. To protect the interests of users, it is necessary to shift the focus from the front end to the back end, that is, from "the user's consent" to "the use behavior of data users", and to protect the rights of users by standardizing data use behavior. Strict privacy and trade secret protection obligations should be imposed on data use. At present, the cybersecurity law, the e-commerce law, the data security law (draft) and other legal normative systems and national standards should be sorted out, and the specific contents involving data security policies, data privacy protection, and data circulation supervision should be sorted out, and the necessary provisions of data transaction agreements should be constructed and improved.

Third, create data competition rules. After the factorization of data production, the analysis of data competitiveness and data behavior needs to be based on summarizing practical experience and refining specific rules in a timely manner to determine the different competitiveness of different types of data. Specifically, on the basis of enriching relevant laws and regulations such as the Price Law and the Anti-Unfair Competition Law, a scientific and transparent price announcement process and dynamic early warning standards for data production factors can be constructed, and a reasonable and orderly price supervision and abnormal fluctuation adjustment mechanism for data elements can be improved. In addition, it is necessary to improve the relevant laws and regulations, policies and standard systems, issue a compliant and reasonable list of data sharing responsibilities, and build an operating mechanism for coordinating data flow and data transactions. In addition, it is necessary to re-examine and adjust the existing anti-monopoly analysis methods and standards in the Anti-Monopoly Law, namely vertical monopoly agreements, abuse of market dominance, and concentration of undertakings, which are premised on market structure, so as to adapt to the new characteristics of data competition.

Justice Network: With the development of the digital economy, the legal disputes of Internet enterprises caused by data have gradually increased. In your opinion, what legal means should be used to promote the standardization of data competition among Internet enterprises?

Lawyer Peng Jing: The foundation of the competition of modern Internet enterprises lies in data competition. It is not uncommon for large Internet platform enterprises to use huge data and user scenario stickiness to maliciously obstruct the development of other market entities, infringe on consumers' data subject rights, fair trade rights, and right to know, and restrict competition and unfair competition. Therefore, the regulation of data-related competition behavior should become the main focus of the competition regulation system for Internet platform enterprises.

There are the following legal issues in the data competition of Internet platform enterprises in China:

On the one hand, the level of legal regulation on the protection of personal information of Internet platform enterprises still needs to be improved. The platform does not implement the consumer's right to know in the product design, avoids explaining to consumers the conclusions based on algorithm principles and automated decision-making, consumers cannot fully understand the use and sharing status of personal information, and cannot effectively exercise the right to refuse and correct data processing. Due to the complexity of data processing scenarios and information asymmetry of large Internet platforms, consumers lack the resources and means to safeguard their legitimate rights.

On the other hand, the ownership of data is not clear, the flow of data is blocked, and unfair competition and restrictive competition are rampant. The existing data competition supervision mechanism has problems such as the lack of coordination and linkage of regulatory authorities, the lagging compliance system of Internet platform enterprises, and the inability of regulatory measures to keep up with the development of the digital economy industry.

In this regard, I would like to make the following suggestions:

1. Accelerate the legislative process of the Personal Information Protection Law, and suggest that under the premise of safeguarding national data sovereignty and the legitimate data asset rights and interests of enterprises, add the content of data portability rights on the basis of the Personal Information Protection Law (Draft), and refine the specific scenarios and supervision mechanisms in which personal information processors must perform their algorithmic explanation obligations;

2. For specific industries and fields such as finance, health, education, communications, marketing, etc., formulate relevant administrative regulations for data competition supervision, implement the main body of supervision responsibility, clarify regulatory responsibilities, integrate regulatory resources, strengthen regulatory coordination, unify regulatory scales, and form an Internet platform supervision organization system required by high-standard market systems; for Internet platforms with different types and different technical and economic characteristics, classify and design regulatory mechanisms and models to achieve hierarchical and accurate supervision; introduce regulatory impact assessment systems. Use new regulatory technology to promote the seamless integration of online supervision (off-site supervision) and offline supervision (on-site supervision);

3. Adhere to the principle of accountability of platform enterprises, implement the establishment of enterprise data compliance systems such as appointing persons responsible for personal information protection of enterprises and data processing risk assessment mechanisms; continue to explore and improve administrative settlement and liability reduction systems in the field of anti-unfair competition and anti-monopoly law enforcement, and establish enterprise compliance guidelines by regulatory authorities by issuing administrative settlement cases;

4. Accelerate the landing of the data element flow mechanism, encourage regions to explore the establishment of a data confirmation system, encourage the industry to explore the establishment of a data element pricing mechanism based on the attributes, structure, production process, and production scenarios of data elements, and establish a standardized system for data security utilization and data transactions;

5. Adhere to the principle of inclusive and prudent supervision, through the setting up of fault-tolerant mechanisms such as "regulatory sandboxes", encourage Internet platform enterprises to innovate in the digital economy and optimize the digital business environment; adhere to the bottom line thinking, and resist the use of capital and industry status by head Internet platforms to challenge national data sovereignty and financial system security.

Justice Network: Among the topics you are concerned about this year, can you talk about the suggestions for the revision of the Lawyers Law?

Ms. Peng Jing: In recent years, the number of lawyers and law firms in China has grown rapidly, and as of 2019, the number of lawyers in China has reached 473,000. After the Eighteenth National Congress of the Communist Party of China, a series of programmatic opinions and requirements on the lawyer system and the management of the legal profession issued by the central government, as well as the "Task List for judicial administration reform in 2020" issued by the Ministry of Justice, have put forward new requirements for the revision of the Lawyers Law and the management of the lawyers' profession. However, some provisions of the current Lawyers Law lag behind, making it difficult to adapt to the development of lawyers' careers in the new era.

The main problems include the narrowness of the scope of lawyers' business, the need to strengthen lawyers' practice rights, the vague nature of the lawyers' associations is not conducive to the standardized management of the legal profession, the management assessment system for trainee lawyers is not yet standardized, and the lack of necessary practice norms for the group of lawyers of public lawyers' companies (hereinafter referred to as "two public lawyers").

In order to promote the improvement of lawyers' legal norms and strengthen the management of the legal profession, the recommendations are as follows:

First, adopt the "negative list method" to stipulate the scope of lawyers' business. It is suggested that a bottom-up clause be added to article 28 of the Lawyers Law, using the "negative list" method to clarify that lawyers can provide legal services that do not violate the provisions of the law, and as long as the law does not prohibit them, lawyers can provide corresponding legal services in accordance with market demand, so as to improve the matching degree of lawyers' business with economic and social development.

The second is to strengthen all-round protections for lawyers' rights. First of all, the nature and positioning, main functions, and basic rights of lawyers should be clarified in the general provisions, providing a clear basis for lawyers to participate in the construction of socialist rule of law. Second, it is made clear that where lawyers are insulted, defamatory, threatened, retaliated against, or physically injured as a result of practicing in accordance with law, the relevant organs should promptly stop it and handle it in accordance with law. Third, the relevant provisions of article 49 of the Lawyers Law on the possible punishment of lawyers for misconduct are amended, establishing the criminal immunity of lawyers within the scope of the law, and strengthening the guarantee and supervision of the exercise of this right. Finally, lawyers' practice liability insurance is introduced, and compulsory practice liability insurance for law firms and lawyers is implemented to ensure the safety of lawyers' practice.

The third is to clarify the positioning of the public welfare institutions of the Lawyers Association. In terms of business management, lawyers associations should give full play to the role of professional committees and special committees in guiding lawyers' business, training and exchanges. In terms of work mechanisms, fully summarize and absorb the guangzhou lawyers association's experience in establishing a center for safeguarding lawyers' practice rights and a center for the acceptance and investigation of complaints, establish a nationwide lawyer rights protection center and a complaint acceptance center, and give play to the role of lawyers in protecting their rights and punishing lawyers for violating the law.

Fourth, it is recommended to further clarify the conditions for lawyers' practice access. First, it stipulates and refines the conditions for the access of practicable lawyers to conduct. Second, the internship period for trainee lawyers is extended to 2 years, but the probationary period for former procurators, former judges and other personnel with legal practice experience is changed. Finally, clarify the rights and obligations of trainee lawyers and ensure the standardization of the practice of trainee lawyers.

The fifth is to clarify the legal status of public lawyers and corporate lawyers. Combined with the practical experience of the "two public lawyers", a reasonable rights, obligations and management mechanism is set up for the "two public lawyers". At the same time, we will improve the talent flow mechanism between social lawyers, public lawyers, and corporate lawyers, and build a team of socialist lawyers with Chinese characteristics with complementary advantages and reasonable structure. #Legal Perspective on the Two Sessions # #代表委员面对面 #

(Source: Justice Network)