Chinese Lawyer
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
Status: Online!
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 Posted:
Sep 28, 2009 - 08:07 AM |
 
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Some people don't comply with the traffic rule. If there is any accident, they will have responsibility of couse. But expat in China shall take care of themselves since no body wants to be involved in any accident.
The general traffic rule is the same. |
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TrueNorth
Barker
Joined: Sep 08, 2009
Posts: 140
Location: Shanghai
Status: Offline
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Sep 28, 2009 - 11:24 AM |
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Thanks for your reply. It surely clarified my question. In China laws are one thing, but how they are applied is another. So expats, be extra cautious unless you have a solid guanxi to a high level.... |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
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Oct 18, 2009 - 10:38 AM |
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Priority of Purchase in Lease Agreement
Priority of Purchase in Lease Agreement refers to the right of lessee who has the priority of purchase when the lessor sells his apartment during the term of lease agreement. The lessor is liable to give the lessee a notice with a reasonable term in advance when he sells the apartment and under the same condition, the lessee has the priority of purchase.
A. Several exceptions
Although the lessee has the priority of purchase according to the law, under the following situations, the lessee will have no priority of purchase:
a) Co-owner of the apartment claims priority of purchase
If there is other co-owner to the same apartment, such co-owner may have the priority of purchase too. Under such circumstance, the lessee has no priority over the co-owner.
b) In the event the lessor sells his apartment to his relatives, including his spouse, parents, children, brothers/sisters, grandparents/grandchildren, then the lessee cannot have priority.
The lessor sells the apartment based on the relative relationship. Under such circumstances, the lessee cannot claim priority.
c) After the lessor gives the lessee a notice, the lessee fails to respond with intention of purchase within 15 days.
Before the lessor sells his apartment, he shall notify the lessee with a reasonable term in advance and see if the lessee intends to use the priority of purchase. If no response comes from the lessee within 15 days, then the lessee may lose his right of priority.
d) In the event that a third party has purchased the apartment in good faith and the apartment has been registered under the third party’s name.
Under that circumstances, according to the law, the third party’s interest shall be protected. The lessee cannot claim the contract between the lessor and the third party is invalid. However, the lessee can claim compensation against the lessor.
B. What is the same condition?
The priority of purchase shall be based on same condition. That is, if the lessor can have a better purchase condition from a third party while the lessee cannot offer, then the lessee cannot use his priortity.
Such condition may include purchase price, payment term, amounts, performance condition etc.
Usually the lessor’s notice to the lessee shall include the condition of purchase from any third party (if any) so that the lessee can make a decision if he intends to use the priority and send his decision to the lessor in due time. |
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leidelaohu
Board Lord
Joined: June 11, 2007
Posts: 5751
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Oct 18, 2009 - 11:52 AM |
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| erexchen wrote: |
Priority of Purchase in Lease Agreement
Priority of Purchase in Lease Agreement refers to the right of lessee who has the priority of purchase when the lessor sells his apartment during the term of lease agreement. The lessor is liable to give the lessee a notice with a reasonable term in advance when he sells the apartment and under the same condition, the lessee has the priority of purchase. |
Interesting you would bring this up. I assume the same regulations apply to commercial space ?
Our office was sold recently, the first we heard of it was when the new owner's land agents told us we had to sign a document saying we gave up our right to buy the office. Whoa, wait a minute here ! We didn't even know the place was for sale until five minutes ago, why should we give up anything without looking into it ? "We need you to sign this .." Right. And I need a new liver, so what else is new ?
As it turns out, they never would tell us the price but checking around, there's no way we'd pay such an inflated amount for a third-rate p.o.s. It would take thirty years to pay the place off, given our current rent. Ridiculous.
What we did do tho, was use the leverage from this requirement to extend our lease two more years at the current price. They can't transfer ownership until we sign off on this right and I bluffed bigtime.
Erexchen, it might be more interesting for the business people here to know what the regulations say about offices being sold out from under tenants. Or housing tenants, for that matter. Are the new owners required to honor existing leases ? And we're getting some static about the initial deposit - my position is that the amount is listed in the original lease, it's not our job to find the original receipt so that the new owner can collect that amount from the old owner. Of course we've looked but the receipt is probably in the US. Not really our problem ...
Makes me wonder why the old owner would make a fuss over that. The amount is clearly stated in the original lease agreement, he knows he got the money, we know he got the money, the building management knows he got the money, everybody involved knows it. Why he's being an asshole about the situation I have no idea. Traditional culture, vicious landlord, is all I can think of.
Maybe you could do a description of a tenant's "rights" in this situation ? |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
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Oct 19, 2009 - 12:03 PM |
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As I wrote, if the landlord did not send notice to you before he sold the office and the office has been registered under the name of the new landlord, you can claim compensation from the old landlord.
Usually the lease contract shall be continued even the office is transferred to the new landlord.
With regards the receipt, I think a simple way is that you, the new landlord and the old landlord sign an agreement which may inlcude: 1) you have paid the deposit to the old landlord; 2) the old landlord will transfer the deposit to the new landlord; 3) after the new landlord receive the deposit from the old one, he shall give you a new receipt; 4) the old receipt becomes invalid. |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
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Oct 19, 2009 - 12:05 PM |
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Of course if you sign the document required by the agent, that means you give up the right and cannot claim compensation from the old landlord any more. |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
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Oct 27, 2009 - 12:43 PM |
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Draft of Foreign-related Arbitration Agreement and Enforcement of Arbitration Award under China Law
By Erex Chen
In China, with the increase of foreign investment and prosperity of international trade, the cooperation between Chinese company and foreign company becomes more diversified and complicated. As a result, the number of business disputes has been increasing rapidly. When the dispute arises, the parties involved will seek a fast and efficient dispute settlement mechanism.
Currently litigation and arbitration are the most popular mechanisms for dispute settlement. Compared with litigation, arbitration is more convenient and efficient and the award in arbitration is enforceable internationally. Some of its features include:
Final and Binding. Litigation may include the first and second instances and may usually be time-consuming. Unlike the judgments made in litigation of first instance, arbitration award becomes final and binding as soon as rendered.
Party Autonomy. The parties are free to appoint arbitrators of their own choice, to select the place and language of arbitration and to determine the applicable law. The parties can also design the arbitration proceedings to meet their special need by agreeing on the organization of hearing, submission of evidences and presentation of argument.
Confidentiality. Arbitration proceedings are not open to the public. Thus the business secrets and the reputation of the parties can be effectively protected.
International Recognition and Enforcement of Arbitration Award.
However, in the contract, the choice of arbitration is not easy for everyone and it shall be conducted in a professional and careful way. In reality, a number of arbitration agreements or clauses drafted by the parties may contain the intention of dispute settlement through arbitration but such agreements or clauses may be invalid because they don’t meet the requirements under the law. As a result, the dispute cannot be settled efficiently.
I. Definition of Foreign Related Arbitration under China law
Foreign related arbitration is an arbitration that involves “foreign elements,” but the arbitration tribunal is within PRC territory.
The “foreign elements” in these kinds of arbitrations entail: (i) one or both parties being citizens of another country, stateless individuals, or foreign entities; (ii) the subject matter of the dispute is located outside of China; or (iii) the facts establishing, altering, or terminating the parties relationship occurs outside of the PRC.
For example, the disputes between importer and exporter in international trade, or Chinese investor and foreign investor in a joint venture can be settled through this kind of arbitration.
II. How to make a valid arbitration agreement?
A. The criteria for evaluating the validity of an arbitration agreement
Before the validity of an arbitration agreement can be evaluated, the criteria for evaluating shall be determined.
According to the Interpretation of Issues Relating to Application of the Arbitration Law of People’s Republic of China, which promulgated by the Supreme Court of the People’s Republic of China, when evaluating the arbitration agreement, the law that parties agree should apply. If there is no law the parties agree, but they have selected the location for arbitration, then the law governing that location shall apply. If there is no law the parties agree, nor is location for arbitration selected, or such location is not clearly agreed, then the law governing the court shall apply.
Secondly, who has the right to evaluate the arbitration agreement? According to the Arbitration Law of People’s Republic of China, if any party has objection to the validity of an arbitration agreement, he can file a change to the arbitration tribunal agreed by parties or file to the court. Such court shall be the intermediate court where the arbitration tribunal is located, or where the location of arbitration agreement is signed, or where the domicile of the applicant and the other party is located.
Thirdly, when such challenge can be filed? According to the Arbitration Law of People’s Republic of China, such challenge shall be filed before the first hearing is held in the arbitration.
B. Content of a valid arbitration agreement
A valid arbitration agreement shall include:
a) the intention to resolve the dispute through arbitration;
b) the matters to be decided and settled through arbitration, and
c) the agreed arbitration tribunal.
For example, the standard arbitration agreement which is suggested by China International Economic and Trade Arbitration Commission is as follows:
Any dispute arising from or in connection with this Contract shall be submitted to China International Economic and Trade Arbitration Commission for arbitration, which shall be conducted in accordance with the Commission’s arbitration rule in effect when applying for arbitration. The award is final and binding upon both parties.
The above agreement contains: (i) the intention- settle dispute through arbitration; (ii) the matters for arbitration – any dispute arising from or in connection with the contract; (iii) agreed arbitration tribunal – China International Economic and Trade Arbitration Commission (“CIETAC”).
An arbitration agreement or clause drafted in accordance with above requirements can be a valid agreement or clause.
C. Several types of arbitration agreement being invalid or incomplete
a) Inaccurate Name of an Agreed Arbitration Tribunal
If the name of agreed arbitration tribunal is inaccurate and such tribunal does not exist, then the arbitration agreement shall be invalid.
As an exception, if the name of the tribunal is inaccurate but the tribunal can be inferred from the agreement, then such agreement still can be deemed valid. For instance, the old name of CIETAC is Foreign Economic and Trade Arbitration Commission. If the parties use the old name in the arbitration agreement, then it shall be deemed to select CIETAC.
b) Only Arbitration Rule agreed
If the parties only select a specific set of arbitration rule without specifying the arbitration tribunal, in most cases such agreement shall be invalid.
However, if according to that arbitration rule, the arbitration tribunal can be determined, then such arbitration agreement shall be still valid. For instance, article 4 paragraph 4 of CIETAC’s rule clearly establishes that where the parties agree to refer their dispute to arbitration under these rules without providing the name of an arbitration institution, they shall be deemed to have agreed to refer the dispute to arbitration by CIETAC. Under such circumstances, although the parties only mention like “all disputes shall be governed by CIETAC rule”, such arbitration agreement is still valid.
c). The Parties select two or more arbitration tribunals
Unless the parties can reach consensus to select one of these tribunals afterwards, such arbitration agreement shall be invalid.
d). Only location of arbitration agreed
For instance, in the arbitration agreement, the parties only agree that the disputes shall be settled through arbitration in Shanghai. However, since there are many arbitration tribunals in Shanghai, such type of arbitration agreement shall be invalid. However, if the parties choose Qingdao instead of Shanghai, and because there is only one arbitration tribunal in Qingdao, such arbitration agreement shall still be deemed valid.
III. Enforcement of Arbitration Award
The award made by the arbitration tribunal shall be binding as soon as rendered. But what about if the losing party fails to satisfy the award?
The arbitration tribunal itself has no power of enforcement. In the event if the losing party fails to satisfy the award made by the arbitration tribunal, the prevailing party can apply to the court for enforcement.
A. The court in charge of enforcement of arbitration award
According to Article 257 of the Civil Procedure Law of People’s Republic of China, if the losing party fails to satisfy the arbitration award, the prevailing party can file application of enforcement to the intermediate court where the domicile of the losing party is located or where the property of the losing party is located.
However, if the domicile of the losing party or his property is not in the territory of China, the arbitration award shall be submitted for recognition and enforcement to a foreign court which may have jurisdiction over the enforcement.
B. Right of challenge to the arbitration award
The court may have the right to examine the arbitration award based on application filed by one party, although such kind of examination is procedural in nature. But to some extent, such examination will bring potential risk to the prevailing party.
a. Non-enforcement of the arbitration award
If the respondent to the arbitration provides evidence to the court and proves one of the following situations exist, after examined and confirmed by the collegiate panel in the court, the court can decide not to enforce the arbitration award:
a) there is no arbitration agreement/clause concluded in the contract and no further written arbitration agreement is reached before the arbitration;
b) the respondent in the enforcement receives no notice from the arbitration panel about designating arbitrators or holding arbitration hearing, or the respondent fails to make statement during the arbitration hearing due to causes not attributable to himself;
c) the composition of arbitration panel or the procedure of the arbitration does not comply with the arbitration rule;
d) the matters for arbitration don’t fall into the scope of arbitration agreement, or the arbitration tribunal has no right to make the arbitration.
In addition, the court can decide not to enforce the arbitration award if the award is made against the public interest.
b. Revoking the arbitration award
The parties, within 6 months upon receipt of the arbitration award, can file application of revoking the award to the intermediate court where the arbitration tribunal is located if one of the following situations can be proved:
a) there is no arbitration agreement;
b) the matters for arbitration don’t fall into the scope of arbitration agreement, or the arbitration tribunal has no right to make the arbitration;
c) the composition of arbitration panel or the procedure of the arbitration does not comply with the arbitration rule;
d) the evidence used for rendering the award is fabricated;
e) the other party hides evidence which may have material influence to render a justice award;
f) the arbitrators are involved in corruption in the arbitration, or the arbitrators commit malpractices for selfish ends, which leads to a law-bending judgment.
In addition, the court can decide to revoke the arbitration award if the award is made against the public interest.
3. The party to the arbitration files objection to the validity of the arbitration agreement during the arbitration and files again to the court for non-enforcement or revoking of the award with the same cause after the award is rendered. After examination by the court, such claim is supported by the court and therefore the court decides not to enforce the arbitration award, or to revoke the award.
IV. Suggestion.
Since the draft of the arbitration agreement has direct effect to the validity of the arbitration agreement and the enforcement of the award, we suggest the parties use the standard arbitration agreement or clause published by the agreed arbitration tribunal. It is also suggested the foreign party consults with a PRC arbitration lawyer before amending the standard arbitration agreement or clause and make sure the amended arbitration agreement or clause is not invalidated. |
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eveprirose
Lurker
Joined: Sep 23, 2009
Posts: 29
Status: Offline
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| Posted:
Oct 27, 2009 - 01:06 PM |
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| Post subject: what if the rep office with trading function?? |
| erexchen wrote: |
How to set up a rep office in China
(ii) materials needed
1. the investor's business certificate
2. the investor's bank credit certificate
3. the passport copy of the legal representative
4. lease agreement and the property ownership certificate
5. materials regarding the investor company and its directors, the appointment paper and CV of the chairman and members of BOD |
what's more needed for such an rep office but with a more function of trading??
how to set up?? |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
Status: Online!
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Oct 28, 2009 - 10:53 AM |
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The Rep office cannot do trade according to the law. You can consider to set up a trading WOFE. |
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hyper
Newbie
Joined: Oct 29, 2009
Posts: 1
Status: Offline
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Oct 29, 2009 - 10:48 PM |
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| Post subject: accident court case |
Hi,
I am not sure if you can help me on accident matters.
a driver made an illegal u-turn causing my bicycle to crash. i flew over and hurt my knee, fractured my finger with some serious road rash leaving scars on my elbow, knee and shin. Traffic police assigned 100% responsibility to him but he is unwilling to settle the case with me as his insurance company is not committing to him what he can claimed (my medical bills in foreign hospital, damaged bike, transport and sick leave). He decided we should settle in court.
it's been 4 months and I am still having difficulty walking down the stairs - Apart from mental stress, I also lost the ability to train and compete in amateur races.
I have been told that these facts will not be taken into consideration in court and i may end up paying part of the bill and the lawyer fees.
I am not sure what I should do in order to win this case successfully.
I would be grateful, if you can offer any advice or point me in the direction.
Thank you very much! |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
Status: Online!
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Oct 30, 2009 - 09:00 AM |
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I am sorry to hear that. If you like, you can contact me via email erexcxl@yahoo.com.cn or call my mobile 13391052852. I will do my best to help you. |
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Shangstar
Fire-eater
Joined: Feb 07, 2008
Posts: 2788
Location: Spitland
Status: Offline
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Oct 30, 2009 - 10:18 AM |
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hi Erex, do residential leasing contracts need to be filed with the local authority in order to be enforceable? If a landlord hasn;t been declaring its rental income (i..e no fapiao to the tenant), can he still enforce it in the courts? |
_________________
Charles Darwin: Differences between humans are differences in degree, not differences in kind |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
Status: Online!
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Oct 30, 2009 - 03:39 PM |
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The contract is not necessary to file for registration. The registration will not affect the legal effect of the contract.
The contract without registration is recognized by the court. |
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OE800
Squeeker
Joined: July 31, 2008
Posts: 18
Status: Offline
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Nov 04, 2009 - 10:52 PM |
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Hi,
I recently had an issue at my office. I was unable to come in to work, and so I called in sick. My company requires me to show a doctor's note to prove that I was sick, so I provided this. Now, my company is requesting me to hand in my hospital booklet, which shows a lot of personal information, and I believe it's none of their business. My employer says this is company policy, and I will not be paid if I do not produce this document. However, it sounds like a huge violation of my privacy, and a sort of trick by my company to make it more inconvenient and difficult for its employers to get the benefits they deserve in their contract, such as paid sick leave. Am I forced to produce this document? Or is my company doing something wrong? |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
Status: Online!
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Nov 05, 2009 - 09:40 AM |
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Please check your company's staff handbook and see if the hospital booklet is required. If not, I think the doctor's note is enough. |
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OE800
Squeeker
Joined: July 31, 2008
Posts: 18
Status: Offline
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Nov 05, 2009 - 10:54 AM |
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Essentially, in the past a doctor's note was enough. However now, they claim to have changed the policy, and require this book. But this was changed without any notice, am I required to sign something if this isn't in my contract? |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
Status: Online!
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Nov 05, 2009 - 12:58 PM |
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The staff handbook shall be delivered to all employees for review before the employee can agree to sign the handbook. Otherwise, the handbook shall not be binding. |
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MoonOverMiami
LoopKicker
Joined: Jan 07, 2008
Posts: 865
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Nov 11, 2009 - 04:55 PM |
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| erexchen wrote: |
| In most cases, I think the employee shall be happy to take the vacation. |
Hi Erex,
Not a question, but a story just something to pass time. This post of your's had to do with the vacation days salary.
Well, we have one employee that we told should take some vacation days and he agreed. Instead of taking the vacation days, he went to work at another production line in our factory during that time. Then he claimed he never took the vacation and wanted the 3x salary on top of the days worked.
We told him it doesn't work that way...we'll pay him for the days he worked but it also counted as using up his vacation days. He conceded.
Something to share with the policy makers.  |
_________________
"One who falls asleep with an itchy backside, will wake up with smelly fingers..." |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
Status: Online!
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Nov 12, 2009 - 09:42 AM |
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That's interesting. Maybe he changed his mind and wanted to earn more money. Good boy! However, this situation happened in your company even after he agreed the vacation, which to some extent reveals the management problem in your company.
First, the company shall have good document in place with his signature if the vacation is agreed by both parties, which may avoid dispute;
Secondly, the company HR department shall notify his department and he will be on vacation and when starts. The relevant document can be sent to the department manager for record;
Thirdly, If he changed his mind and ask to work, the deparment manager shall report to the company and the company decides if the vocation shall be cancelled. If the company decides to maintain the previous agreement, then the company shall not allow him to work.
Just for your reference. |
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MoonOverMiami
LoopKicker
Joined: Jan 07, 2008
Posts: 865
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Nov 12, 2009 - 10:05 AM |
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| erexchen wrote: |
Thirdly, If he changed his mind and ask to work, the deparment manager shall report to the company and the company decides if the vocation shall be cancelled. If the company decides to maintain the previous agreement, then the company shall not allow him to work.
Just for your reference. |
Thanks Erex!
First two were done, but on this third part he didn't ask. Just showed up and started working. The other production line supervisor had no idea he is on leave. This is our fault for the supervisor letting employees from other lines work. We should make it clear to our supervisors this cannot happen.
[*scratch what I wrote before, think I got this clarified*] |
_________________
"One who falls asleep with an itchy backside, will wake up with smelly fingers..." |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
Status: Online!
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Nov 12, 2009 - 12:10 PM |
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Happy to discuss the questions with you. Good Day! |
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leidelaohu
Board Lord
Joined: June 11, 2007
Posts: 5751
Status: Offline
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Nov 12, 2009 - 12:31 PM |
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| MoonOverMiami wrote: |
| First two were done, but on this third part he didn't ask. Just showed up and started working. The other production line supervisor had no idea he is on leave. This is our fault for the supervisor letting employees from other lines work. We should make it clear to our supervisors this cannot happen. |
China is so funny. One of these days when I want to make a few extra bucks I'm going to run over to the GM plant and just show up on the assembly line. Ten bucks says no one remembered to tell their supervisors that people aren't allowed to just walk in off the street to work  |
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MoonOverMiami
LoopKicker
Joined: Jan 07, 2008
Posts: 865
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Nov 12, 2009 - 12:59 PM |
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_________________
"One who falls asleep with an itchy backside, will wake up with smelly fingers..." |
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Cage
Talker
Joined: Mar 16, 2006
Posts: 103
Status: Offline
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Nov 13, 2009 - 07:47 AM |
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Dear Erex,
You have been very helpful in providing information there. Unfortunately, I couldn’t find answers within the website (or elsewhere) to my questions.
Under Shanghai’s labour laws, what compulsory insurances must an employer provide for a foreign employee working under local terms?
Thanks! |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 280
Location: Shanghai
Status: Online!
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Nov 13, 2009 - 10:34 AM |
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A new regulation in Shanghai which came into effect last month says that for expat employee who has legal work permt, the company can provide pension, medical and work-related injury insurance. But that is not compulsory.
The calculation and rate for such insurances shall be consistent with the local employees.
Pension 22% from the company and 8% from the employee
Medical 12% from the company and 2% from the employee
Work-related injury 0.5% from the company |
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