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bdlb23
Newbie
Joined: May 30, 2006
Posts: 8
Status: Offline
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Mar 31, 2009 - 01:13 PM |
 
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MoonOverMiami
LoopKicker
Joined: Jan 07, 2008
Posts: 862
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Apr 18, 2009 - 01:26 AM |
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Hi Erex,
Another question for you. Company A subcontracts an order they received to company B. Company B made a mistake in the production thereby costing Company A more money than is owed for previous subcontract jobs. Company A wants Company B to bear the additional cost for that order, but Company B insist its Company A's fault and demand payment for previous orders. Company B is also withholding the materials given by Company A to complete the job and have refused to return the material.
1. Is Company A required to pay Company B for previous jobs completed, or can they deduct the amount owed due to the error?
2. Is Company B obligated to pay for the extra cost incurred by Company A?
3. What is the statute of limitation for Company B to file a lawsuit against Company A, and vice versa.
As always, thanks for your time and assistance! |
_________________
"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: 279
Location: Shanghai
Status: Offline
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Apr 20, 2009 - 08:57 AM |
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Hi
I believe there is dispute between Company A and Company B, i.e if Company B has mistake in the production and therefore who shall be responsible for the additional cost.
If I am legal representative of Company A, I may collect evidence and file against Company B for 1) additional cost/loss because of Company B's fault; 2) return of materials.
Of course, Company B has the right to ask for payment for previous orders. But at this stage, I think a better way for Company A is to withhold this money and settle all with Company B in the court.
This is only my initial advice. I may learn more about this case before a serious advice can be given. If you need my assistance, you can call me 13391052852 or write to erexcxl@yahoo.com.cn
Regards
Erex Chen |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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Apr 20, 2009 - 08:58 AM |
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Hi
I believe there is dispute between Company A and Company B, i.e if Company B has mistake in the production and therefore who shall be responsible for the additional cost.
If I am legal representative of Company A, I may collect evidence and file against Company B for 1) additional cost/loss because of Company B's fault; 2) return of materials.
Of course, Company B has the right to ask for payment for previous orders. But at this stage, I think a better way for Company A is to withhold this money and settle all with Company B in the court.
This is only my initial advice. I may learn more about this case before a serious advice can be given. If you need my assistance, you can call me 13391052852 or write to erexcxl@yahoo.com.cn
The time limit for a lawsuit is two years if both are companies registered in China.
Regards
Erex Chen |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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Apr 27, 2009 - 06:52 PM |
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Shanghai Labor Bureau: Labor Dispute Arbitration Jurisdiction
The Shanghai Municipal Labor Dispute Arbitration Committee may handle labor cases:
a) Labor dispute between employee and whole foreign-invested company whose registered capital is over USD 10 million;
b) Labor dispute between foreign employee, employee from Taiwan, HK and Macau and Chinese who has permanent residence in a foreign country and his company in Shanghai;
c) Other case which may have big influence.
Labor dispute may be governed by Labor Dispute Arbitration Committee where the employment contract is carried out or where the company is located. In case both the employee and the company apply for arbitration separately at Committee where the employment contract is carried out and where the company is located, then the dispute shall be governed by Committee where the contract is carried out. |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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May 12, 2009 - 04:03 PM |
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Several Questions about Paid Leave
Recently we received a lot of inquiries regarding employee’s paid leave from clients. Some aspects of paid leave regulation have not been properly understood. These questions include:-
Q: Under which circumstance the employee is entitled to paid leave?
A: Employee who has worked consecutively 12 months is entitled to paid leave. Here consecutively 12 months refer to the working period before the employee starts to have paid leave, including his working period in other companies.
For example, an employee has worked 12 months and then is recruited by the company. If there is no interrupt during this 12 months, then he can have paid leave as soon as he enters into the company. However, if there is interrupt, for example, one month no work, then he cannot have paid leave immediately. He is only entitled to paid leave after 12 months working without interrupt.
Q: According to the law, employee who has accumulatively worked for no less than 1 year but less than 10 years is entitled to 5 days paid leave. Employee who has accumulatively worked for no less than 10 years but less than 20 years is entitled to 10 days paid leave. Employee who has accumulatively worked for no less than 20 years is entitled to 15 days paid leave. How to understand the term of accumulatively correctly? It means working period in the same company or working period at different companies?
A: Here the working period shall refer to the period the employee has worked at different companies. Since it may be difficult for the company to determine the exact working period for each employee, it is advised to check their previous signed employment contracts, record of social security payment, or just get a written recognition from the employee directly.
to be continued... |
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leidelaohu
Board Lord
Joined: June 11, 2007
Posts: 5743
Status: Offline
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May 12, 2009 - 05:13 PM |
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| erexchen wrote: |
Q: According to the law, employee who has accumulatively worked for no less than 1 year but less than 10 years is entitled to 5 days paid leave. Employee who has accumulatively worked for no less than 10 years but less than 20 years is entitled to 10 days paid leave. Employee who has accumulatively worked for no less than 20 years is entitled to 15 days paid leave. How to understand the term of accumulatively correctly? It means working period in the same company or working period at different companies?
A: Here the working period shall refer to the period the employee has worked at different companies. Since it may be difficult for the company to determine the exact working period for each employee, it is advised to check their previous signed employment contracts, record of social security payment, or just get a written recognition from the employee directly. |
Gotta love it  If this is correct then a person who works for BaiBaiPangPang Diapers for eleven years then changes to clerking at Lawson's, after one year is entitled to 10 days vacation paid by Lawson's, even tho 11 of their years were accumulated working elsewhere.
Or do they even have to work the year for Lawson's ? Assuming they had 11 years and nine months at BaiBaiPangPang, in three months at Lawson's they'd hit the twelve year mark. Now Lawson's gets to pay the 10 days vacation for twelve years' work even tho they've only worked there three months, but the total is twelve years ?
What the heck, here is China |
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MoonOverMiami
LoopKicker
Joined: Jan 07, 2008
Posts: 862
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May 12, 2009 - 11:00 PM |
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Yup, the local labor bureau warned us this was coming. Even the guy who attends these meetings in Beijing (I presume) said this is an unbalanced law.
| erexchen wrote: |
Q: Under which circumstance the employee is entitled to paid leave?
A: Employee who has worked consecutively 12 months is entitled to paid leave. Here consecutively 12 months refer to the working period before the employee starts to have paid leave, including his working period in other companies.
For example, an employee has worked 12 months and then is recruited by the company. If there is no interrupt during this 12 months, then he can have paid leave as soon as he enters into the company. However, if there is interrupt, for example, one month no work, then he cannot have paid leave immediately. He is only entitled to paid leave after 12 months working without interrupt. |
So, if an employee takes a day off 3 months in, then they will have to wait another 12 months before they are entitled to 5 days of paid leave? And if they take another day off 10 months in, wait another 12 month?
| erexchen wrote: |
| A: Here the working period shall refer to the period the employee has worked at different companies. Since it may be difficult for the company to determine the exact working period for each employee, it is advised to check their previous signed employment contracts, record of social security payment, or just get a written recognition from the employee directly. |
What if the contract cannot be verified to be authentic, or there is no record of social security payment? A company cannot just rely on the employee's word on how many years they have worked. Regarding verifying previous contracts, a contract should have the company chop on it. Is there a central agency that keeps records of company chops to make sure it is real? |
_________________
"One who falls asleep with an itchy backside, will wake up with smelly fingers..." |
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StMichael
Rocker
Joined: Feb 19, 2005
Posts: 783
Location: Qibao, Shanghai
Status: Offline
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May 13, 2009 - 09:20 PM |
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Marakanis
Fire-eater
Joined: Jan 11, 2009
Posts: 2934
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May 14, 2009 - 01:45 AM |
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Are there any Chinese laws relating to public urination? Can I pee openly on any public street rather than use a restroom? What about peeing on other people? Can I pee on someone's property?
R.Kelly is dying to know, and so am I. =P |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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May 15, 2009 - 10:24 AM |
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Can you summarize your questions for us here? Thanks! |
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StMichael
Rocker
Joined: Feb 19, 2005
Posts: 783
Location: Qibao, Shanghai
Status: Offline
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May 15, 2009 - 05:58 PM |
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Do we foreigners have to go out of China for 30 days consecutive, or 90 days in total, *every* year or just every 5 years, to avoid having our overseas income taxed in China? |
_________________
Michael Chan www.senseimichael.com |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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May 18, 2009 - 11:00 AM |
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As you can see from the law, there are serveral different situations for tax payment:
1) almost all expats working in China shall not be regarded to have domicle in China;
2) expat who has worked no more than 90 days consecutivedly or accumulativedly in one tax year, or no more than 183 days consecutively or accumulatively in one tax year under a tax treaty between China and his home country, he is not liable to pay tax in China for income from source outside of China;
3) expat who has worked more than 90 days consecutivedly or accumulativedly in one tax year, or more than 183 days consecutively or accumulatively in one tax year under a tax treaty between China and his home country, he shall pay tax in China for income from source outside of China. However, his income from outside of China during his working period outside of China shall not be taxed in China;
4) temporary trip abroad shall not be counted. Temporary trip refers to trip of not more than 30 consecutive days or 90 total days within one tax year.
5) expat who has worked no less than 1 year but less than 5 years, after approved by tax authority, he is allowed not to pay tax for income from source outside of China; From the sixth year, he shall pay tax in China for all incomes. |
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StMichael
Rocker
Joined: Feb 19, 2005
Posts: 783
Location: Qibao, Shanghai
Status: Offline
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May 19, 2009 - 04:55 PM |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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May 24, 2009 - 09:02 PM |
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Q: For new employee, how he can enjoy the paid leave?
For new employee who is qualified to enjoy the paid leave according to the law, his paid leave in the new company for the beginning year shall be calculated according to the remaining days of the said year. After calculation, if the paid leave day is less than one day, then he cannot have paid leave in the beginning year.
For example, Employee A has worked for 5 years before he is recruited by the company. The date he is recruited is October 31, then the paid leave days for the beginning year shall be
(61/365)*5=0.83
So he does not have paid leave in the beginning year.
Q: Under which circumstances the company is not necessary to pay 300% for unused paid leave?
If after acquiring employee’s consent the company does not arrange paid leave for employee, or the actual paid leave days used by employee is less than the days as required by the law, for the unused paid leave day, the company shall pay 300% daily salary as compensation to the employee.
If the company does not want to pay this 300% compensation, it shall get consent from the employee that the employee gives up the paid leave.
Q: How to calculate the daily salary if the company has to pay 300% for unused paid leave?
The daily salary shall be calculated according to the employee’s monthly salary and montly working days (21.75).
The monthly salary shall be average monthly salary of the past 12 months before the company pays 300% compensation (overtime payment is excluded). If the employee has worked less than 12 months in the company, the monthly salary shall be the average monthly salary of the working months in the company.
Q: When the company terminates the employment contract with the employee, how to deal with the paid leave days which the employee has not used?
For this situation, the unused paid leave days shall be calculated according to working time for the terminating year. If the calculated unused paid leave days is less than one day, then no compensation need to be paid.
For example, the company terminates the contract on June 30, and according to the working years, the employee is entitled to 10 paid leave days. Up to June 30, he has used 3 days of paid leave, then the unused paid leave days shall be
(181/365)*10-3=1.95
So the employee still has one day of paid leave. The company shall pay totally 300% daily salary as compensation for unused paid leave to him. However, since the company has paid the normal daily salary for the working days, therefore the company needs to only pay 200% daily salary as compensation under this situation.
If the employee resigns, then the company does not need to pay this compensation. |
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lkn4aurum
Barker
Joined: July 04, 2006
Posts: 179
Location: Shanghai
Status: Offline
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May 30, 2009 - 07:07 AM |
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Dear Chinese Lawyer,
A friend of mine has been offered an opportunity to purchase a smallholding in Jiangsu with the hopes of starting a business there. My friend is not a local but a foreigner. He has legally lived and worked in China now for over 5 years, so he meets the governments 1 year minimum residency requirement for purchasing real estate. Do you know if it is legal for a foreigner to hold the title to a small holding rather than an apartment? Any information would be most welcome.
If it's not legal for a foreigner to own this small holding do you know if there are any restrictions on Chinese ownership. For example my wife is Chinese but not from Jiangsu, so maybe she could purchase the property if he can not as a foreigner. |
_________________
Food Is Heaven ~ Generosus Nascitur Non Fit |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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June 01, 2009 - 07:57 PM |
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This is a good question. The issue that the smallholding can be purchased or not shall be decided by the nature of this smallholding. If this land is not owned by the state but with collective land ownership, this land cannot be sold to foreigner and your wife.
Please note in China the land ownership shall be divided into state-owned land ownership and collective land ownership. No collective land can be freely purchased or sold in the market.
So it may need an investigation before I can give a precise answer. |
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Muaddib
Lurker
Joined: Dec 01, 2008
Posts: 33
Status: Offline
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June 01, 2009 - 08:57 PM |
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I work part-time (12 hours a week) for a foreign company so they claim that they don't have to pay me 3x hourly wage for working on national holidays, is that true?? |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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June 03, 2009 - 04:01 PM |
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DO you have an employment permit with this company? |
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Shangstar
Fire-eater
Joined: Feb 07, 2008
Posts: 2772
Location: Spitland
Status: Offline
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June 05, 2009 - 04:34 PM |
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Okay, here's a big legal question for you Erex!!
Say a foreign married couple legally reside in China with their children. Husband is of "A" nationality. Children are also of "A" nationality. Wife is of "B" nationality. (None are Chinese).
Say they split up in China and fight over the kids. Husband wants to take the children back to country "A" but wife wants to take the children to country "B".
The kids are living here under their father's residence permit.
Who legally has custody of the children in China? |
_________________
Charles Darwin: Differences between humans are differences in degree, not differences in kind |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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June 07, 2009 - 08:23 PM |
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I think this question will not be decided under China law since neither of the wife and the husband is Chinese and their marriage was not registered in China. The custody of the chindren shall be decided by the law of country A or B. Not by China. |
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Shangstar
Fire-eater
Joined: Feb 07, 2008
Posts: 2772
Location: Spitland
Status: Offline
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June 07, 2009 - 08:53 PM |
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but when they are all in China, if the husband does not allow the wife access to the children in China, is there anything the wife can do in China? I am not referring to permanent custody, rather temporary custody of the children while they are all in China.....does Chinese law get involved in this? |
_________________
Charles Darwin: Differences between humans are differences in degree, not differences in kind |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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June 07, 2009 - 09:30 PM |
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under China law, both the wife and husband have custody of the children during the marriage. So I don't think your problem can be properly resovled under china law. You can call the police, they can assist to mediate this matter but no legal binding. |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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June 19, 2009 - 01:54 PM |
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State Administration of Taxation: Interest expense arising from outstanding investment contribution by shareholders is not allowed to be deducted before enterprise income tax
According to article 27 of Implementation Rule of Enterprise Income Tax, if the investor/shareholder cannot contribute its investment in the agreed time limit, interest incurred from company loan which is equivalent to outstanding investment, shall not be regarded as company’s expense. This interest shall be borne by the investor/shareholder himself and is not allowed to be deducted before enterprise income tax. |
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erexchen
Reacher
Joined: Aug 14, 2006
Posts: 279
Location: Shanghai
Status: Offline
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June 24, 2009 - 01:13 PM |
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Retirement Home in China: Another Investment Opportunity by Foreign Investor
Retirement homes in demand in China (source from CCTV 9)
As China becomes a graying society, more senior citizens are choosing to live in retirement homes rather than putting pressure on their children. But many such homes in major cities are not prepared for the increasing demand.
Residents of this retirement home in Beijing enjoy a peaceful life. Special nursing and health care sets their minds at ease, as well as those of their children.
They're very lucky to be living here.
Zhao Lijun, director of Beijing 1st Social Welfare Home,said, "Our current occupancy is full. And there are still over 1,000 on the waiting the list."
1,000 are waiting, but only 50 beds become vacant a year. The home has almost doubled its beds from the previous 300, but can't keep up with increasing demand.
Senior citizens are making up an increasing proportion in China. A fourth of the population is now over 60. As more of them chose to live in a retirement home, it's putting tremendous pressure on resources.
Conditions are extremely critical in Tianjin, where over 16% of the people are elderly.
A senior citizen said, "We registered on the waiting list at the beginning of 2006. After two years, we can finally move into the home."
Local governments are looking for ways to meet the increasing demand. In Shanghai, where a fifth of residents are 60 and over, the budget for welfare accommodation has been increased.
Shanghai Social Welfare official Zhang Shuping said, "Altogether there are about 70,000 beds in retirement homes in Shanghai. We are planning to add 300,000 beds by 2010."
Meeting the needs of the elderly has to come in line with the completion of the country's social welfare system.
And as their lifestyle changes, China's seniors are hoping it will be secure and rewarding.
China’s Current Legislation on Retirement Home
Currently China has not formed a complete legal system on retirement home. Most of legislation is local regulations promulgated by local governments such as in Shanghai, Tianjin, etc. And in Shanghai, some of foreign investor has already begun their investment in this industry and prepared well in the next round of expansion.
Retirement Home Investment in Shanghai
On June 8, 1998, Shanghai government promulgated Administration Rules of Retirement Home Institutes, which provides some basic principles on establishment of retirement home by domestic and foreign investors.
# Business Model allowed
Under current regulation in Shanghai, foreign investor is not allowed to set up a retirement home in the form of a WOFE. It has to find a local partner and set up a JV in Shanghai. Therefore for the foreign investor, the first step is to find a reliable partner in China.
# Conditions for the retirement home
As required by the regulation, the following conditions shall be met for setting up a retirement home:
a) the retirement home shall be in line with the city plan in Shanghai;
b) there shall have a fixed service place with at least 50 beds;
c) the building design shall be in line with architecture and design criteria for retirement home with disability friendly facility for old people. The retirement home shall have separate entry and exit;
d) the retirement home shall have its own dining room, washroom, bathroom and indoor/outdoor activity place;
e) the retirement home shall have its article of association and management rule;
f) the retirement home shall have management personnel and nursing staffs. The principles and nursing staffs shall have qualifications as required by the government;
g) qualified medical staffs are required;
h) with required capital for operation.
# Approval by government
The application of setting up a retirement home shall be approved by both Shanghai Commission of Commerce and Shanghai Civil Affairs Bureau.
Our Firm’s Service for foreign investors
Our firm, V & T, is one of the largest law firms in China having three offices in Shanghai, Beijing and Shenzhen with more than 200 attorneys and staffs. Currently we provide service for our clients to find business opportunity both in China and oversea countries. In particular, we have broad connections with local governments as well as companies and with rich resources to find projects/investors for the clients.
In consideration of China’s society population development, retirement home can be a sun-rising industry under current economic crisis. However, since the law and regulation in this aspect is not complete, the coordination with local government in setting up the retirement home becomes very important.
If you are interested in this industry, you can feel free to contact us for more information.
Should you have any questions about this Law Newsletter, please contact:
如您对本法律资讯有任何疑问，请与下述律师联系：
陈祥龙 Erex Chen Attorney at Law
Email（电子邮件）： erexcxl@yahoo.com.cn
Tel（电话）： ＋86 21 5081 9091
Mobile（手机）： 13391052852
Fax（传真）： ＋86 21 5081 9591
V & T Law Firm
PRC ATTORNEYS
万商天勤律师事务所
上海市福山路458号同盛大厦11楼
11F, Tongsheng Tower, 458 Fushan Rd, Shanghai
200122, China
www.vtlaw.cn |
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