Forum FAQ

Preferences

Watched Topics

Watched Forums

Chinese Lawyer

Goto page Previous 1, 2, 3, 4, 5 ... 26, 27, 28 Next

Shanghai Expat Forum Index » Hot Topics Forums » Visas, Taxes, and Legalities

Author

Message

french_64

Seeker

Joined: Dec 15, 2005
Posts: 47

Status: Offline

Posted: Apr 23, 2007 - 06:03 PM

Dear erexchen ,

i have a question.
i m married with a chinese >She is from beijing and we are living in shanghai.
I wanted to apply for a 1 Year L visa family visa but i heard that it s not possible to apply in sh because she is from beijing and i should apply over there>
But to apply in beijing i need a address in beijing but we live in shanghai>
Is it right and what can i do to stay with my wife?

loboman

Newbie

Joined: Apr 25, 2007
Posts: 5

Status: Offline

Posted: Apr 27, 2007 - 12:36 AM

Erex: My employer cheated me out of 4800 rmb / $600 us dollars. I followed the contract and gave them the proper notice before I left but they still don't want to pay me. What can i do ?

loboman

Newbie

Joined: Apr 25, 2007
Posts: 5

Status: Offline

Posted: Apr 27, 2007 - 12:40 AM

Erex: My employer cheated me out of 4800 rmb / $600 us dollars. I followed the contract and gave them the proper notice before I left but they still don't want to pay me. What can i do ?

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: Apr 27, 2007 - 09:58 AM

Hi French_64, sorry for the delay. You can apply for the visa if the following conditions can be met:

1) your passport;
2) your temporary residence registration form in Shanghai;
3) your marriage certificate which was issued in China;
4) Your wife's ID card;
5) Your wife's temporary residence certificate in Shanghai.

Are you from France?

Please feel free to write to me erexcxl@yahoo.com.cn if you have further questions.

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: Apr 27, 2007 - 10:01 AM

Hi Loboman. Thank you for your question. If a dispute arises, you are entitled to bring an arbitration. Of course, before you do that, you are advised to send a lawyer's letter to your employer and give them a warning first.

loboman

Newbie

Joined: Apr 25, 2007
Posts: 5

Status: Offline

Posted: Apr 27, 2007 - 03:12 PM

So let me please ask you. What would the fees be like to try to recover 4800 rmb? Would it be worth it?

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: Apr 28, 2007 - 11:50 AM

You can also bring the arbitration directly without a lawyer's letter. It's your option whether you need to do it through a lawyer.

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: Apr 28, 2007 - 02:23 PM

Hi Jeffrey,

Thank you for your mail.

Usually you shall have to file an arbitration within 60 days when an employment dispute arises and the arbitration may take serveral months . For your situation, it is quite difficult to settle the dispute in a week. That is why I suggest you find a lawyer and send your employer a lawyer's letter. Since the lawyer's letter is a formal warning before you choose to take legal action against them and there is possibility they don't want to see the arbitration and return the money to you.

In addition, if you have friends who can speak Chinese, you are also advised to report your situaitn to the employment government department and seek government support in this matter.

Regards,
Erex

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: Apr 29, 2007 - 04:46 PM

What If the Domain Name I Want Is Taken — But Not Used?

QUESTION:

I am hoping to start a website, to bring people to my stores. I tried to register my business's name as a domain name but found it was taken. When I type in the address, though, the screen says "under construction." It's been "under construction" for months. What should I do?

ANSWER:

You have a few options. The easiest thing to do is to try and wiggle your chosen name a little bit. If you're using .com with the name, could you use .org, .net, .biz or .info? Or, could you vary the name slightly from your exact business name? For instance, if you have a muffin store called "Franny's" you could try frannysmuffins.com, instead of frannys.com. Or, try a whole different name. Maybe use a slogan or a description of your product -- something like blueberryfever.com or moistandfluffy.com.

There is a chance that you're a victim of "cybersquatting," the bad-faith purchasing of a domain name. The "under construction" screen could show that the purchaser has no intention of using the domain name -- only of selling it back to you.

In this case, you could file a complaint in the China International Economic and Trade Arbitration Commission Domain Name Dispute Resolution Center.

Under such circumstances, you will generally have to show that you have rights in the name, that the registrant doesn't have rights in the name, and that the name was registered in bad faith. One example of bad faith is that the owner bought the name solely for the purpose of selling it to the legitimate owner.

Before that, though, you should look into the situation. There could be an innocent explanation for the "under construction" status. It is easy to register a domain but difficult to get a site up and running.

Try contacting the registrant. You can find registration information at www.cinnic.net.cn. Find out if there is a reasonable explanation for the use of the name and if the registrant would be willing to sell it to you.

Be aware that some registrants, especially cybersquatters acting in bad faith, may supply false information about domain name ownership. In these cases, there's not much that can be done to track them down. But there are ways to wrestle a domain name from a bad faith registrant even if the identity or location of the cybersquatter is unknown.

Edited by Erex

skyline5k
Board Legend

Joined: Sep 06, 2004
Posts: 10510
Location: is behind you with a knife O_O

Posted: Apr 30, 2007 - 11:59 AM

Quote:

If you're using .com with the name, could you use .org, .net, .biz or .info?

.org usually means organization. Franny's Muffins wouldn't look so good as an .org.
.net this one's stretching it, but it's possible. Think whether or not Franny's Muffins is a NETwork.
.biz looks cheap. but possible alternative. Subject to spammers a lot though.
.info I personally BLOCK any addresses under .info simply because it's more spam than legitimate sites.

As for the site "Under Construction" check out http://www.domaintools.com and check the WHOIS of the site you want. Perhaps simply asking them for it may be your key to getting it. Could simply be someone buying a domain, hoping to use it, but never did and its now abandoned. If it's proxied, though, that'll complicate things.Check for its expiry date as well. See if it's coming up soon.

That's my 2 cents.

_________________
"Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony."
~Dennis

randolph

Newbie

Joined: Apr 10, 2007
Posts: 3

Status: Offline

Posted: May 05, 2007 - 08:41 AM

Erex,

Can a person with a L (tourist) visa buy real estate in China?

Thanks

underh20
Board Legend

Joined: Sep 27, 2006
Posts: 12702
Location: Veggie-Free Zone

Posted: May 07, 2007 - 11:58 AM

^ No. You need to have been in China for one year with a residence permit in order to be able to buy property.

_________________
"If I need to buy a TV, I'll definitely buy a Japanese TV. A Chinese TV might explode." -- Jackie Chan

underh20
Board Legend

Joined: Sep 27, 2006
Posts: 12702
Location: Veggie-Free Zone

Posted: May 07, 2007 - 11:59 AM

erexchen wrote:

You can also bring the arbitration directly without a lawyer's letter. It's your option whether you need to do it through a lawyer.

How much do you charge to send a Lawyer's Letter?

_________________
"If I need to buy a TV, I'll definitely buy a Japanese TV. A Chinese TV might explode." -- Jackie Chan

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: May 09, 2007 - 12:32 PM

Hi Randolph, sorry for the delay. I am just back from my holidays travelling.

On July 11, 2006, China promulgated Opinions on Regulating Access to and Administration of Real Estate Market by Foreign investment which set strick conditions for foreign investment in China's real estate. Article 10 and 11 of the Opinion:-

Article 10. A branch or representative office, established in China by an overseas institution (except for an enterprise that has been approved to engage in real estate operation) or a foreign individual that has worked or studied in China for more than 1 year may purchase a commercial house according to his actual needs for self-use or self-accommodation, yet shall not purchase any commercial house not for self-use or self-accommodation. An overseas institution without any branch or representative office in China or a foreign individual that has not yet worked or studied for more than 1 year in China may not purchase any commercial house. A Hong Kong, Macao or Taiwan resident or an overseas Chinese may purchase a certain area of commercial house for self accommodation within China in line with his needs.

Article 11. Overseas institutions and individuals that meet the relevant provisions shall adopt a real-name system for purchasing of commercial houses for self-use or self-accommodation, and, upon the effective certification (an overseas institution shall hold the certification issued by the relevant Chinese departments on the establishment of China-based branch, an foreign individual shall hold the relevant approval certification for his work and study in China issued by the Chinese party, similarly hereinafter), may make registration of land use right and house property right in administrative departments of land and real estate.The administrative department in charge of the registration of property right shall, in strict accordance with the principles of self-use and self-accommodation, handle the relevant registration of property right of the overseas institutions and individual and shall not register for any house that fails to meet the relevant conditions.

Conclusion:

1) you shall have been in China for work or study for one than one year;
2) The real estate you will buy shall be for only purpose of self-use or self-accomodation.

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: May 09, 2007 - 12:51 PM

Hi Underh20, the service fee will be charged according to our firm's fee policy. Several factors shall be taken into account for the fee when we help our cliets to send a lawyer's demand letter:-

1) Whether the case is complicated;
2) The effort required to do legal research;
3) The client's requirements for such letter;
4) The language.

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: May 12, 2007 - 11:02 AM

Whether corporate Income Tax should be paid or not for Government Subsidy obtained by Foreign-invested Company and Foreign Company

On April 5, 2007, The General Bureau of Taxation promulgated Reply to Question on Income Tax Payment for Government Subsidy obtained by Foreign-invested Company and Foreign Company (hereinafter refer to as Reply). The Reply provides guide on income tax payment for foreign-invested company and foreign company when they are receiving Chinese government subsidy.

According to the Reply, in the event that foreign-invested company or branches set up by foreign company in China (hereinafter refer to as Enterprises) obtains monetary or non-monetary assets (hereinafter refer to as Government Subsidy) from Chinese government through various channels without any consideration, the issue of income tax payment shall be dealt with as follows:-

1. If Enterprises receive Government Subsidy in accordance with the Laws, Administrative Statute or Regulations, they are exempted from payment of corporate income tax. The Government Subsidy shall be dealt with as receipt of investment. The Laws, Administrative Statute or Regulations herein refer to those promulgated by the National People’s Congress, the Standing Committee of the National People’s Congress or the State Council.

2. If Enterprises receive Government Subsidy in accordance with regulations other than those set out in clause 1, and such Government Subsidy meet one of the following conditions, such Government Subsidy shall not be recorded in the current enterprise profits and losses. However, for assets purchased or formed with such Government Subsidy, costs, discount or amortization shall be calculated based on the value which is the balance between the asset value and Government Subsidy:-

a) The assets acquired by using Government Subsidy are long-term non-floating assets owned by the Enterprises;
b) Enterprises obtain Government Subsidy in the form of floating assets but these assets have been or must be used to purchase, construct or improve non-floating assets according to the conditions set by the government.

3. Except clause 1 and 2, Government Subsidy shall be recorded in the current profits and losses and income tax shall be paid accordingly.

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: May 22, 2007 - 11:44 AM

TOP 10 CASES FOR 2006 ANNOUNCED BY THE BEIJING HIGHER PEOPLE'S COURT

In December 2006, the Beijing Higher People's Court announced the 10 top intellectual property ("IP") cases of 2006. Whilst Chinese courts are not bound by precedent, the principles stated in these cases will offer guidance for future similar cases and illustrate the wide variety of different IP issues being litigated in the PRC.

Trade Marks

The top trade mark case which attracted much overseas attention is the Xiu Shui Clothing Market ("Silk Market") trade mark infringement case. Here, Chanel, Burberry, Gucci, Louis Vuitton and Prada successfully sued the proprietor who sold counterfeit products in the market as well as the market operator for trade mark infringement. The court ruled that the market operator had a responsibility to monitor, stop and eliminate counterfeiting in the market. Yet the operator failed to take timely action after being informed by the plaintiffs to stop its tenant’s infringingactivities in the market. These rulings were upheld on appeal.

In China National Cereals Oils & Foodstuffs Corp (COFCO). vs. Beijing Jiayu Oriental Wine Co., Ltd. and others, the court compensated the plaintiff for economic losses of more than RMB10 million, the highest amount of compensation awarded in IP cases in recent years. The Supreme People’s Court upheld the lower court’s decision that the defendant’s mark "Jia yu Great Wall in Chinese & device" was confusingly similar to the plaintiff’s well-known trade mark "Great Wall in Chinese & device" and constituted trade mark infringement.

Copyright

In the "matchstick man" case, the Chinese cartoon artist, Zhu Zhi Qiang ("Zhu") sued Nike Inc. and others for copyright infringement. Nike used the image of a "stick man" in its worldwide advertising campaign to promote a new product and Zhu claimed that this infringed his copyright in the hero of his well-known cartoon works, the "matchstick man". On appeal, the decision of the lower court was overturned by the Beijing Higher People’s Court. It held that the main similarities between the "matchstick man" and "stick man" were commonplace and as such were not protected by copyright.

The second copyright case concerned the infringement of software created by Beijing Han King Science and Technology Co. Ltd. called the "Han King Optic Character Recognition Software Series". The court held that the defendant, Changzhou City Wu Jin District Education Bureau, in allowing its registered users to freely download the said software (the protective mechanism set in place by the plaintiff was decoded) from its website, had committed copyright infringement.
In an unusual decision involving alleged copyright infringement of a novel written by the plaintiff Zhuang Yu, the court not only ordered the defendant to pay economic losses of RMB200,000, but also to pay RMB10,000 for mental distress suffered by the plaintiff.

The last copyright infringement case concerned the unauthorised use of the China Academy of Science’s ("CAS") name and logo by the defendant in the latter’s website and promotional materials. The court ruled that the defendant’s conduct constituted infringement of the CAS’s right to its name and of the copyright in its logo.

Patent

A significant case to the car manufacturing industry is the case against Qin Huang Island Jin Cheng Auto Car Industry Co. Ltd. Shenyang Hua Chen Jin Bei Vehicle Co. Ltd successfully sued the defendant for infringement of its registered design patent and was awarded compensation of RMB200,000.

In a utility model patent infringement case brought by Hua Run Li Zhi Yang Hang Furniture Co. Ltd, the court in both the first and second instance held that screens being sold by the defendant infringed the plaintiff’s registered utility model patent for "assembled screens". It also held that because the defendant, although claiming to be a distributor only, failed to provide evidence of the source of the infringing products, it was also liable for manufacturing them.

Recording Right

In the case against the internet content provider (ICP), Beijing Famous People Global Technology Co. Ltd., the court found that allowing internet users to download the plaintiff’s songs from its website constituted infringement of the plaintiff’s right to transmit the songs via the internet. The defendant’s argument that the contents of the website were provided by another party and that it was only responsible for uploading the information onto the website were rejected by the court. The defendant was the holder of the ICP permit and as such was responsible for its contents.

Unfair Competition

In the case of Guangdong Da Sheng Culture Transmission Co. Ltd. vs. Guangdong Fei Le Video Production Co. Ltd. and others, the defendants’ use of an album title, album design and packaging similar to those of a popular album of the singer "Daolang" constituted unfair competition. The singer and the producer of the album were ordered to pay compensation of RMB710, 000 to the plaintiff.

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: May 23, 2007 - 04:24 PM

Hi Friends, I start a new blog focusing on Chinese family law on http://erexfamily.blogspot.com/. You are welcomed to visit my blog and comment. Thank you!

LaVecchiaSignora

SuperStar

Joined: July 24, 2006
Posts: 1530

Status: Offline

Posted: May 23, 2007 - 04:30 PM

Erex, I have a question regarding contracts.

I have an employee who requested for an open contract, no specific ending date. I am willing to approve his request as he has been with us for more than 3 years and is one of my potential successors. I just want to know if an open contract has the same implications for an employer as in Europe (like no firing of employee, etc, etc.).

Thanks.

_________________
I like walking in the rain because no one knows im crying

underh20
Board Legend

Joined: Sep 27, 2006
Posts: 12702
Location: Veggie-Free Zone

Posted: May 24, 2007 - 11:20 AM

We have been told that anybody working for more than 5 years in a company has a defacto open contract regardless of what the contract actually states.

In any event, even if you have an open contract, you can terminate an employee for cause. We do this all the time and found that the key is having a well-documented case and very widely publicized company policy manual.

_________________
"If I need to buy a TV, I'll definitely buy a Japanese TV. A Chinese TV might explode." -- Jackie Chan

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: May 24, 2007 - 09:45 PM

Thanks for your question. I had question like this from my client before. Strickly speaking, an open contract under Chinese law refers to an employment contract which has no specific termination date. There are several conditions for entering into such kind of contracts:

A. The employee shall have been working in the same company for 10 years or more and the original contract has expired. Both the company and the employee agree to renew the contract;

B. The employee requests to sign an open contract.

Although there is no specific termination date for such contract, both parties can agree on conditions for termination. In case the condition is met, either party can terminate the contract.

For your situation, I think you need to first explain relevant Chinese employment law to the employee. An open contract is not binding for both parties at this time since his working years are still less than 10 years. However, you are advised to sign a contract with 10 or more years, which I think can function the same if both parties wants to keep the relationship.

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: May 24, 2007 - 09:50 PM

My new blogs focusing on Chinese family law, IP law, Employment Law and Commercial law:-

erexfamily.blogspot.com
erexip.blogspot.com
erexemployment.blogspot.com
erexcommercial.blogspot.com

Updated articles and news will be posted from time to time.

They are useful resuources for your living and business in China.

Please feel free to comment or write to me at erexcxl@yahoo.com.cn

underh20
Board Legend

Joined: Sep 27, 2006
Posts: 12702
Location: Veggie-Free Zone

Posted: May 25, 2007 - 09:05 AM

erexchen wrote:

Why do most major multi-national companies sign open contracts with all new employees?

_________________
"If I need to buy a TV, I'll definitely buy a Japanese TV. A Chinese TV might explode." -- Jackie Chan

erexchen

Reacher

Joined: Aug 14, 2006
Posts: 300
Location: Shanghai
Status: Offline

Posted: May 25, 2007 - 09:59 AM

Yes, I know some foreign-invested companies sign open contract with their employees. Our client Analog Devices is doing so. They adhere to their practice globally. And the contract version is almost the same like that they use for their oversea employees. Most big companies like to keep their culture consistent. However, we have advised them such contract is not in complicance with Chinese law. Some of them have accepted our advise and made necessary amendment.