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Legal Provisions for Employment of Foreigners in China
Date:2014-07-15     
 

I. In case of foreigner employment, the foreigners obtaining employment in China must get the additional certificates.
    1.It is necessary for foreigners, stateless persons and residents of Hong Kong, Macao and Taiwan to get the three certificates for becoming a qualified employer in
China. 
    According to Article 8.1 of the Rules for the Administration of Employment of Foreigners in China implemented on May 1, 1996, the foreigners employed in China shall
present their vocational visas to enter China. After reaching China, they shall get Foreigner Employment Permit and Resident Permit for Foreigners before they obtain employment in China. That is to say, the three certificates, vocational visa, Foreigner Employment Permit and Resident Permit for Foreigners are necessary for a foreigner to obtain employment in China.
    According to Article 4 of the Provisions on the Administration of the Employment of Taiwan, Hong Kong and Macao Residents in the Mainland implemented on October 1,
2005, “The employment permit system shall be implemented for the employment of Taiwan, Hong Kong and Macao residents in the mainland. The employer proposing to employ or receive assigned Taiwan, Hong Kong and Macao residents shall apply for Permit for Employment of Taiwan, Hong Kong and Macao Residents (hereinafter referred to as the Employment Permit). Taiwan, Hong Kong and Macao residents intending to run their individual business in the mainland shall apply for the Employment Permit on their own.
    The residents from Taiwan, Hong Kong and Macao that have acquired permission and the Employment Permit shall be protected by the applicable law for their employment in the mainland. The employer intending to employ or receive assigned Taiwan, Hong Kong and Macao residents shall implement the registration system. All the Employment Permits shall be printed by the Ministry of Human Resources and Social Security.”
    It is thus clear that the Employment Permit must be obtained for residents from Taiwan, Hong Kong and/or Macao to obtain employment in the mainland. So, the residents
from Taiwan, Hong Kong and/or Macao employed or received by an employer shall hold the Employment Permit. In addition, according to the stipulations herein, it is the legal duty of the employer to apply for employment permit for the foreigners obtaining employment in China.
    2. The labor relation may be confirmed if the foreigner holds the Foreign Expert Certificate or the Work Permit for Foreign Experts in China rather than the employment
permit.
    Article 14.2 of the Interpretations (IV) of the Supreme People’s Court on Several Issues of Applicable Laws for Trial of Labor Dispute Cases implemented on February
1, 2013 goes “If the foreigners holding the Foreign Expert Certificate and the Work Permit for Foreign Experts in China establish an employment relationship with an employer in China, the labor relationship may be confirmed”.

II. If any foreigner obtains employment in China without employment permit, such employment is not applicable for the modifications of the Labour Law, and the application for confirming the labor relation shall be refused.
    1. The Labor Contract Law stipulates that “Establishing a labor relation, concluding, performing, changing, cancelling or terminating the labor contract by and
between the enterprises, individual economic organizations, private non-enterprise organizations, etc. and labors, shall be applicable for the Labor Contract Law.”
    According to this stipulation, the requirements for being applicable for the Labour Law of China are shown as below:
    (1)The employer must be an enterprise, individual economic organization, private non-enterprise organization or other types of organization within China.
    (2) The employed party must be a labor. The applicable law of China stipulates that any Chinese citizen has a right of labour. Therefore, it is necessary for
foreigners, stateless persons, and Hong Kong, Macao and Taiwan residents to meet the employment requirements stipulated by the applicable law of China to become a legal labor in China.   
    2.Article 14.1 of the Interpretations (IV) of the Supreme People’s Court on Several Issues of Applicable Laws for Trial of Labor Dispute Cases implemented on
February 1, 2013 goes, “The application for confirming the labor-employer relationship by any parties involved shall not be supported by the people’s court if a foreigner or stateless person concludes a labor contract with an employer in China without acquiring the employment permit as per the applicable law, or a resident from Hong Kong Special Administration Region, Macao Special Administration Region or Taiwan concludes a labor contract with an employer in the mainland without acquiring the employment permit as per the applicable law.”

III. The labor-employer relationship of the “foreign employees” obtaining employment legally is also applicable for the Labor Contract Law.
    The Chinese laws for employment of foreigners consist mainly of the Law of the People’s Republic of China on Control of the Entry and Exit of Aliens and the detailed
rules for implementation, and the Rules for the Administration of Employment of Foreigners in China. These laws focus on employment qualifications and procedures. However, the Labour Law, the Labor Contract Law, etc. do not stipulate the foreigner employment in China. 
    Article 16 of the Notice of Several Opinions on Implementing the Rules for the Administration of Employment of Foreigners in China goes, “The employment period, post
and other rights and duties of the foreigner permitted to be employed shall be concluded by a labor contract by and between the employer and the foreigner.” Therefore, most of the disputes between employers and employed foreigners shall be settled as per the labor contract.
    Whether the labor-employer dispute that is not covered by the labor contract is applicable for the labour law and regulations?
    Article 26 of the Rules for the Administration of Employment of Foreigners in China goes, “The labor-employer dispute between the employer and the employed foreigner
shall be handled as per the Labour Law and the Rules for Settling Labor-Employer Disputes of Enterprises”. That is to say, the foreigners legally obtaining employment in China have not only the basic labor rights and interests concluded by and between them and their employers, but also the other rights stipulated by the labour laws.    Disputes between the foreigners legally obtaining employment and their employers may be settled by the labor contracts by and between them and their employers and the applicable labour laws. For example, if the labor contract by and between a foreigner obtaining employment legally and his employer does not cover economic compensation, at the termination of the contract, the foreign employee may claim for economic compensation from automatic termination of the mature contract as per the legal employment and labor contract.

IV. In juridical practice, some people think the labor-employer relationships that are not confirmed because the foreigners obtain employment without following the applicable law are invalid, and the two parties should shoulder the loss resulting from the invalidation of the labor contract based on respective faults; while some other people think such labor contract should not be deemed as an invalid contract because the applicable laws neither specifically stipulate that such relationships break the laws nor specifically deem such contract as invalid contract, and thus the  relationships  between such foreigners and their employers may be deemed as the labor-employer types and the claims for labor remuneration and other services may be handled as per the agreement by and between the parties.


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