Employers can check criminal record searches of employees and candidates in certain circumstances under the new Working Rules for Public Security Departments to Handle Criminal Record Checks, issued by the Ministry of Public Security on 31 December 2021.
According to the latest regulations, public security authorities can provide criminal record searches in any of the following situations:
- Individuals may search, or entrust others with searching, their own criminal records. Search requests for criminal records of Chinese citizens can be made to the police station of the place of their registered permanent residence or place of residence. Foreigners who have resided in China for not less than 180 days may submit a search request to the immigration administration section of the county or higher-level public security authority of their place of residence.
- Employers may search the criminal records of their existing or prospective employees, provided that such a search is necessary to confirm the individual is not banned from a certain job position due to a criminal record based on relevant laws and regulations.
- When administrative authorities implement administrative permissions or grant employment qualifications, or when notary public offices notarise criminal records, they may search the criminal records of the persons concerned, in accordance with the law.
For the purposes of the regulations, a person has a criminal record if their guilt has been confirmed in an effective, written judgment of a People’s Court.
They further clarify that if a person has a criminal record, but was aged under 18 at the time of the crime, and sentenced to not more than five years of fixed-term imprisonment, they should be issued with a Certificate of No Criminal Record or a search advice stating that they have no criminal record.
The regulations require employers applying for a criminal record search to submit a letter of introduction, valid ID proof of the person submitting the application, a search application bearing the official seal of the entity (stating specific legal provisions on which the application is based), and proof that the search target is an existing or prospective employee.
In practice, employers conducting background checks on job applicants or employees often require the individuals to do their own criminal record searches and provide the relevant proof.
These latest regulations set a precedent by entitling employers to search the criminal records of their existing or prospective employees – but it should be noted that searches must comply with laws and administrative regulations on employment bans.
Based on relevant laws, persons with a criminal record are barred from certain industries and positions.
Examples include: “main responsible persons” of entities engaged in production or business operations; persons active in export business activities; persons engaged in the control of food production and business, or in food inspection; persons in key positions relating to cyber safety control or online business operations; registered accountants; and directors, supervisors and officers of companies or commercial banks. (This list includes only some of the positions involving employment bans and does not specify all prohibited positions, the criminal offences concerned and/or the period of the ban.)
Although the regulations empower employers to search criminal records of their existing or prospective employees, inquiries with police stations in several areas show that as of the posting date of this article, many areas (namely Shanghai and Guangzhou) do not yet accept criminal record search applications from employers.
Employers are recommended to inquire further with their local public security authority as to implementation status of the regulations.
Also noteworthy is that processing of criminal records is subject to the Personal Information Protection Law.
Given that criminal records constitute sensitive personal information, employers are recommended to formulate compliant privacy policies and get their existing/prospective employees to sign their agreement with them, in accordance with applicable statutory requirements.
Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice.
You can contact Baker McKenzie by e-mailing Howard Wu (Shanghai) at firstname.lastname@example.org