Chinese Lawyer

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Re: Chinese Lawyer

Postby the_rookie69 » Thu Nov 10, 2011 12:55 pm

I have a question: I was married to a chinese girl and now divorced.If i want to get married again in china,do i need another single status affidavit from my country or my country's embassy or what?.Will be thankful for your smart input.
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Re: Chinese Lawyer

Postby erexchen » Tue Nov 15, 2011 1:59 pm

Yes I think so.
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Re: Chinese Lawyer

Postby erexchen » Tue Dec 06, 2011 1:20 pm

On September 6, 2011, the Ministry of Human Resources and Social Security issued the Interim Measures for the Participation of Foreigners Employed in China in Social Insurance (the Measures) which will come into effect on October 15, 2011.

The Measures specifies that employers who employ foreigners shall, within 30 days of the date on which the employment certificate is handled, make arrangements for the foreigners to participate in social insurance. Foreigners employed in China, after going through employment procedures and obtaining corresponding employment certificates, shall participate in social insurance for employees, including basic endowment insurance for employees, basic medical insurance for employees, work-related injury insurance, unemployment insurance and maternity insurance.

The payment of the social insurance for foreigners, according to current local practice, shall be as follows:


Basic endowment insurance:

The company contributes 22% of the monthly salary;
The employee contributes 5% of the monthly salary, which shall be deducted from the salary of the employee.

Basic medical insurance:

The company contributes 12% of the monthly salary;
The employee contributes 2% of the monthly salary, which shall be deducted from the salary of the employee.

Work-related injury insurance:

The company contributes 0.5% of the monthly salary.

Unemployment insurance:

The company contributes 2% of the monthly salary;
The employee contributes 1% of the monthly salary, which shall be deducted from the salary of the employee.

Maternity insurance:

The company contributes 0.5% of the monthly salary.

In the event the foreign employee leaves China, he can choose to keep the social insurance account and the payment can be continued if he is back to China for work in the further again. However, if he does not want to keep the account, he can apply for cancelling. In that case, the balance in his personal social insurance account can be withdrawn.

Foreigners employed in China refer to people without Chinese nationality who have obtained the Employment Certificate for Foreigner, the Certificate of Foreign Expert, the Certificate of Permanent Foreign Correspondent and other employment certificates and residence certificates for foreigners in accordance with the law, possess the Permanent Residence Certificate for Foreigner, and have been employed in China in accordance with the law.
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Re: Chinese Lawyer

Postby MoonOverMiami » Fri Dec 09, 2011 6:20 pm

Can the employer back pay the pension to the first date of employment?
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Re: Chinese Lawyer

Postby erexchen » Tue Dec 13, 2011 1:39 pm

Current practice does not allow back pay the pension.
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Re: Chinese Lawyer

Postby Fundraiser100 » Mon Dec 19, 2011 9:55 am

Hi Erex
I am looking for Chinese representation at the Labour Bureau, my chinese run company is listed as a Foundation in the Netherlands but employs over 100 foreign teachers (incl me), it pays salaries late and does not issue tax statements or payslips. Can I seek justice locally for these breaches? Thanks
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Re: Chinese Lawyer

Postby erexchen » Mon Dec 19, 2011 6:29 pm

You can please contact via chenxianglong@vtlaw.cn. I will be happy to meet with you and discuss.
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Re: Chinese Lawyer

Postby erexchen » Thu Dec 29, 2011 1:31 pm

Buying Property in China for Marriage: Be cautious!

The Supreme Court issued a Judicial Explanation recently over Marriage and Divorce Law. There is a clause which may have substantial influence to expat who is ready to get married in China.

Article 10 of the Explanation states that if the property is bought with paid advance payment before the marriage by one party and the property is registered under such party, and the mortgage is paid with the common property of the couple after the marriage, in case of divorce, except the couple can reach agreement on division of the property, the property bought shall belong to the party whose name is registered. The party owning the property shall compensate the other party who contributes to the mortgage payment with common property after marriage as well as the value increase in proportion to the mortgage payment with common property.

Under current law, expat is only allowed to buy the property after working or studying in China for one year. So if the expat does not meet this condition, from legal perspective, his name will not be registered. So if he wants to buy a property for marriage in China, the only way is to register the property under the name of the Chinese party. We had clients who made all payment and the property was registered under the Chinese party before marriage, when it comes to divorce, the expat may lose his/her right over the property.

To avoid the loss, there are several ways which can be considered before buying the property, which include:

1. If the situation allows, the property shall be bought after marriage. Under current law, except there is a prenuptial agreement, the property acquired after marriage, in most cases, shall be common property of the couple. So if possible, the property shall be bought after marriage. In that case, whatever whose name is registered, the property shall not be regarded as personal property of the Chinese party;

2. If the property has to be bought before marriage and the expat will pay all or part of the advance payment but his/her name cannot be registered, a written agreement shall be signed by the couple and the ownership of the property shall be clarified;

3. For most of Chinese, it may not a happy thing to discuss the division of the property before marriage. So in some cases, even an agreement will not be considered before marriage. However, if the expat has concerns over the property and the possible divorce in the future, we still suggest the following measures be taken to reduce the loss to minimum:

(a) if the expat will contribute the advance payment for the property before marriage, he shall keep all email records for discussing the purchase matter/ownership of the property with the Chinese party. That may be a more natural way instead of signing agreement;

(b) If possible, the advance payment shall be paid from the bank account of the expat to the developer or the seller of the property directly. We had clients who paid the money to the Chinese party then the Chinese party paid to the developer or the seller. In that case, from legal perspective, it may be not easy to prove the advance payment is paid by the expat;

(c) For all mortgage to be paid after marriage, the payment shall be made from the bank account of the expat to the bank directly;

(d) The expat shall keep the sales contract, bank loan agreement and all payment transfer records/receipts, although the sales contract and the bank loan agreement may not be under the name of the expat.
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Re: Chinese Lawyer

Postby Logic » Thu Dec 29, 2011 4:27 pm

Hi Erex,

I'm trying to find out the process for adopting a step child in China. I hope to adopt my Chinese girlfriend's daughter after we marry next year.

I believe a step parent can adopt with the consent of the natural parents. I'm not sure if the fact I'm foreign would affect my right to adopt as a step father or alter the process in Chinese law?

I understand so far that in Chinese law a child under the age of 14 can be adopted. If the child is over 10 his/her consent must be obtained. Is 14 years the maximum age for adoption?

My girlfriend has had no contact with her ex husband for 10 years so we are unlikely to get his consent. She says he gave up all rights to his child as part of their divorce settlement. Is his consent still required?

How long would the process take typically?

Thanks!
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Re: Chinese Lawyer

Postby MoonOverMiami » Thu Dec 29, 2011 5:00 pm

erexchen wrote:(c) For all mortgage to be paid after marriage, the payment shall be made from the bank account of the expat to the bank directly;


Thought all bank accounts after marriage is considered communal property...or is it salary earned is considered communal property. What advantage will the expat have if paying by his bank account if the account is considered shared by both husband and wife (unless I'm mistaken on the communal property).
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Re: Chinese Lawyer

Postby erexchen » Fri Dec 30, 2011 9:48 am

MoonOverMiami wrote:
erexchen wrote:(c) For all mortgage to be paid after marriage, the payment shall be made from the bank account of the expat to the bank directly;


Thought all bank accounts after marriage is considered communal property...or is it salary earned is considered communal property. What advantage will the expat have if paying by his bank account if the account is considered shared by both husband and wife (unless I'm mistaken on the communal property).


Mutual property is a definition under China Marriage Law, which mean that except a prenuptial agreement by both the wife and the husband, all property (salary and other business earning) which acquire during the course of marriage by either the wife or the husband shall be regarded as common property of the couple. The common property can be registered only under one party's name. For instance, the bank deposit under one party's name, although it is under one party's name, in case of divorce, this shall be regarded as common property and shall be divided between the couple.

The reason why the expat shall pay the mortgage from his bank to the bank of seller is if the property is bought before marriage and registered under the Chinese party's name, the property shall be regarded the personal property of the Chinese party. So according to the Clause of the Explanation, the expat shall prove his contribution amount for the mortgage after marriage. That's why we suggest he pay from his account to the seller's account directly.
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Re: Chinese Lawyer

Postby erexchen » Fri Dec 30, 2011 1:55 pm

Logic wrote:Hi Erex,

I'm trying to find out the process for adopting a step child in China. I hope to adopt my Chinese girlfriend's daughter after we marry next year.

I believe a step parent can adopt with the consent of the natural parents. I'm not sure if the fact I'm foreign would affect my right to adopt as a step father or alter the process in Chinese law?

I understand so far that in Chinese law a child under the age of 14 can be adopted. If the child is over 10 his/her consent must be obtained. Is 14 years the maximum age for adoption?

My girlfriend has had no contact with her ex husband for 10 years so we are unlikely to get his consent. She says he gave up all rights to his child as part of their divorce settlement. Is his consent still required?

How long would the process take typically?

Thanks!


Under Current Adoption Law, if the child is adopted by a step father, the natural parent shall give their consent. However, if the father cannot be contacted or dies, it is possible the mother can decide upon approval from the authority.

For the adoption by a step father, the age of the child can be over 14 years old.

For adoption by a foreigner, basically you shall follow a process of legalization, which include the home country authority's statement of your basic information, such as the age, marriage status, property, health, criminal record etc and such documents shall be legalized in China Embassy. After that, you shall register the adoption in China authority (usually the Bureau of Civil Affairs) and a written adoption agreement shall be signed accordingly. The adoption shall be registered in the China authority.

For details, I suggest you consult with the Bureau of Civil Affairs at the province level where the kid's HUKOU located.
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Re: Chinese Lawyer

Postby Logic » Fri Dec 30, 2011 2:08 pm

Hi Erex,

Thanks for the reply.

Can you clarify what you mean about the 'home country authority's statement of your basic information'. The information you mention comes from many different sources.

How is it collected and legalised in the China Embassy if I live here?

I read that the UK and China have an agreement in place that says a legal adoption in China is recognised in the UK. What does this mean in practice?

Do you have any idea how long the process takes?

Thanks again.
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Re: Chinese Lawyer

Postby erexchen » Fri Dec 30, 2011 3:37 pm

The Statement is issued by the authority for adoption in your country (if you are UK citizen, it shall be issued by relevant authority in the UK).

For details you can read more info from China Center of Adoption Affairs

http://www.china-ccaa.org/swsy/swsy_index_en.jsp
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Re: Chinese Lawyer

Postby martinokiac5 » Fri Dec 30, 2011 3:47 pm

我渠,你这样也行,v587。。。以后搞个为外籍服务的法律咨询电商网站好了
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Re: Chinese Lawyer

Postby js.2011.04 » Fri Dec 30, 2011 3:55 pm

Translation, please.
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Re: Chinese Lawyer

Postby Logic » Fri Dec 30, 2011 6:03 pm

Thanks for the web address Erex. Very helpful.
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Re: Chinese Lawyer

Postby MoonOverMiami » Thu Feb 16, 2012 11:53 am

erexchen wrote:Mutual property is a definition under China Marriage Law, which mean that except a prenuptial agreement by both the wife and the husband, all property (salary and other business earning) which acquire during the course of marriage by either the wife or the husband shall be regarded as common property of the couple. The common property can be registered only under one party's name. For instance, the bank deposit under one party's name, although it is under one party's name, in case of divorce, this shall be regarded as common property and shall be divided between the couple.

The reason why the expat shall pay the mortgage from his bank to the bank of seller is if the property is bought before marriage and registered under the Chinese party's name, the property shall be regarded the personal property of the Chinese party. So according to the Clause of the Explanation, the expat shall prove his contribution amount for the mortgage after marriage. That's why we suggest he pay from his account to the seller's account directly.


Hi Erex,

How does an oversea Survivorship property play into marriage in China? For example, a house is bought in the parents name in the US with the child being named owner at the time of the parents death. Child marries a Chinese national, parents passes away years into the marriage. Would that US property be communal, or would the child be the sole owner?

Likewise, if the child takes a mortgage out on that said property in the US to buy a house in China (while parents are still alive), would the house in China be communal property if bought either before or after the marriage, or would the house be solely the child's?

Thx!
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Re: Chinese Lawyer

Postby erexchen » Sun Feb 26, 2012 12:24 pm

How does an oversea Survivorship property play into marriage in China? For example, a house is bought in the parents name in the US with the child being named owner at the time of the parents death. Child marries a Chinese national, parents passes away years into the marriage. Would that US property be communal, or would the child be the sole owner?

Under current law, if one party receives property under a will during the marriage, and he/she is named the only successor in such will (the spouse is excluded in such will), the property shall be his/her personal property.

Likewise, if the child takes a mortgage out on that said property in the US to buy a house in China (while parents are still alive), would the house in China be communal property if bought either before or after the marriage, or would the house be solely the child's?

It is no problem the house belongs to the child if he/she buys before marriage and the house is under his/her name.

IF it is bought after marriage and the house is only under his/her name, as long as he/she can prove the money he buys this house is his/her personal money acquired before the marriage, then it shall still be his/her personal property.
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Re: Chinese Lawyer

Postby jeffinflorida » Sun Feb 26, 2012 1:41 pm

Hello Erex I have a legal question. If I kill and dismember my Chinese girlfriend in China and go back to the USA will China seek to have me extradited back to China? And will the USA agree to this?
Who would have thought that a girl who is a hooker would be a hooker... In China of all places?!?
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Re: Chinese Lawyer

Postby erexchen » Mon Feb 27, 2012 9:39 am

Currently there is no formal extradition agreement between China and US. So it is based on judicial cooperation. Definitely China may have jurisdiction over this criminal case but if the criminal is in US, it is up to US decision if it may handle to China.
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Re: Chinese Lawyer

Postby jeffinflorida » Mon Feb 27, 2012 9:51 am

erexchen wrote:Currently there is no formal extradition agreement between China and US. So it is based on judicial cooperation. Definitely China may have jurisdiction over this criminal case but if the criminal is in US, it is up to US decision if it may handle to China.


Thank you for your prompt reply! I'm off to the mall to buy some super-sharp knives!
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Re: Chinese Lawyer

Postby erexchen » Mon Feb 27, 2012 1:55 pm

Risk Control for Legal Representative in the Company

Legal Representative is a basic company system under current China Corporate Law. That is, any new established company should appoint a natural person as the company’s legal representative, who may act on behalf of the company. The legal representative can be either Chinese or foreigner.

With regards the conditions for acting as a legal representative, under current law, the following persons cannot be appointed as legal representative:

1. has no civil disposing capacity or his/her civil disposing capacity is limited;
2. criminal penalty or mandatory criminal measure is being enforced on him/her;
3. is being wanted by the police or state security departments;
4. is sentenced due to taking graft or committing bribery, offences against property, disrupting socialism market economic order and has completed a term of imprisonment for less than 5 years; is sentenced due to other offences and has completed a term of imprisonment for less than 3 years; or is sentenced to depriving of political rights due to offence and has completed a term of imprisonment for less than 5 years;
5. ever was the legal representative or director or manager of any enterprise which was bankrupted due to bad operation and was responsible for the bankruptcy of such enterprise, and it is less than three years since the completion of liquidation for the bankruptcy of the enterprise;
6. ever was the legal representative of any enterprise which was revoked Business License due to illegal activities and was responsible for such illegal activities, and it is less than three years since the revocation of Business License;
7. has large outstanding personal debts.

In consideration of the special position of legal representative in a company, as well as the power he is granted and the legal responsibility he shall take, on the issue of selection and appointment of legal representative, the company shall have to strike a balance between power distribution and risk control.

Under current corporate law, the legal representative of a company appointed under its articles of association shall be its chairman of the board of directors, its acting director or its manager. Therefore, generally speaking, legal representative, in most cases, is core people in a company. However, in some cases, to prevent potential risk, the investor of the company may also appoint nominal legal representative, whose name is lent and who has nothing with company’s business.

From the perspective of legal representative, although he is granted with company power and can act on behalf of the company, he shall probably take civil, administrative or criminal liability due to company behavior, or even is subject to emigration restrictions. From this point, potential risk is there for a legal representative.

I. Potential legal risk for a legal representative

Generally speaking, when a legal representative acts in accordance with the laws, administrative regulations and articles of association of a company, such acts shall be deemed acts of the company and the liability arising out of such activities are assumed by the company. Therefore, generally a legal representative shall not take any personal responsibility for such acts.

However, in special circumstances, due to violation of the law, regulation and articles of association by legal representative, or in special cases, a legal representative shall take personal liability as follows:

Potential Civil Liability of a Legal Representative

A legal representative shall take civil liability in the following two situations:

1. A legal representative may be liable to compensate for loss suffered by the company if such loss is caused due to misconduct or negligence of the legal representative.

The act of a legal representative represents the company and all consequence relating to the act shall be assumed by the company itself. However, if the act of a legal representative is against the law, regulation or articles of association, which damages company’s interest, the company is entitled to request the legal representative to compensate any loss from the misconduct.

2. A legal representative may take responsibility due to his violation of fiduciary duty and duty of care to the company.

The violation of fiduciary duty and duty of care to the company herein refers to the situation where a legal representative takes advantage of his position by obtaining bribes or any other illegal gains, or misappropriating company assets for personal interest. The legal representative shall compensate to the company for any loss due to the illegal act.

Potential Administrative Liability of a Legal Representative

Under any of the following circumstances, except company liability assumed by the company itself, its legal representative may be subject to administrative sanctions, fines and if the offences constitutes a crime, criminal liability shall be investigated:

a. conducting illegal operations beyond the range approved and registered by the registration authority;
b. concealing facts from the registration and tax authorities and practicing fraud;
c. secretly withdrawing funds or hiding property to evade repayment of debts;
d. disposing of assets without authorization after the company is dissolved;
e. failing to apply for registration and make a public announcement promptly when the company undergoes a change or termination, thus causing interested persons to suffer significant losses;
f. engaging in other activities prohibited by law, damaging the interests of the state or the public interest.

Unless the legal representative can prove he was not aware of such acts and was not subjectively, at fault or delinquent in fulfilling his duty, he may bear administrative liability for the acts of the company that is in violation of the law and regulation.

Potential Criminal Liability of a Legal Representative

The criminal liability of a legal representative, in case of company crime, is a special liability associated with company crime, where the legal representative belongs to a person who is directly in charge or person is directly responsible for the crime. For example, according to article 153 of criminal law, in case of company smuggling, besides the fine which is imposed on the company, the persons who are directly in charge and the persons who are directly responsible for the crime shall be sentenced to fixed term imprisonment of not more than three years or criminal detention; if the circumstances are serious, they shall be sentenced to fixed term imprisonment of not less than three years but not more than 10 years; if the circumstances are especially serious, they shall be sentenced to fixed term imprisonment of not less than 10 years.

Although the laws do not provide the scope of the term "persons who are directly in charge and person who is directly responsible", in legal practice, a legal representative is commonly deemed to be within such scope and will be found liable for the criminal acts committed by the company.

There are other company crimes where a legal representative may be subject to criminal liability, including but not limited to, crimes of manufacturing and selling toxic or harmful foodstuff, crime of falsely declaring registered capital, crime of false capital contribution, or withdrawing capital contribution upon registration, crime of issuing stock or bonds by fraudulent means, crime of presenting false financial statement, crime of impairing liquidation, etc.

Compulsory Measures that may apply to a Legal Representative

In one of the following circumstances, a legal representative may be subject to compulsory measures:

1. if a company has unsettled civil cases or fails to perform its duties imposed by legal documents, judicial authorities may impose compulsory measures on its legal representative, including restrictions on him leaving the country;
2. If a company has entered bankruptcy proceedings, its legal representative shall not leave his place of domicile without court’s permission;
3. If a company defaults on its tax payment, the tax authorities may restrict its legal representative from leaving the country.

II. How to prevent legal risk to a maximum extent

For the legal risk a legal representative may face, the following measure shall be adopted to reduce the occurrence of such risk:

1. The legal representative shall carry out its fiduciary duty and duty of care to the company and act as allowed by the law, regulation and articles of association. When dealing with company matters, the legal representative shall avoid making any decision just based on his own experience blindly and shall try to find legal base for any decision. A formal legal advise shall be sought from a legal consultant to prevent potential risk;
2. The legal representative shall be careful in signing on various legal documents. As a legal representative, it is common he shall need to sign on a lot of legal documents, which may relates to the company finance, business and legal aspects. The legal representative shall not be in a casual manner in signing any document which is submitted by his staff without proper examination, which may cause serious problem afterwards and cannot be remedied;
3. Authorization Limit. In some cases, the legal representative has business trip or has to stay oversea for a long-term basis. For the sake of convenience, some of them like to authorize other person in the company to carry out his power as a legal representative. The problem is such authorization is without any written form and limit to the scope and term of authorization. More seriously, the legal representative does not care about the exercise of the power by the authorized person. In extreme cases, the authorized person abuses the power and even conducts illegal activities with such authorization. After occurrence of the problems, the legal representative cannot easily exclude himself from liability. Therefore, proper authorization and supervision is necessary;
4. The company shall keep a well-organized company regulation. The best is each person in the company attends his own duties and the responsibility arrives a person. In case of company crime, if the company does keep a well regulation which can prove the legal representative is not the person who is directly in charge for the criminal activity and knows nothing about the illegal decision made by other person within their duty in the company, the legal representative may be probably exempted from liability. On the contrary, without any company regulation, the legal representative is undoubtedly the prime suspect as a person who is directly in charge.
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Re: Chinese Lawyer

Postby Severus » Sat Mar 10, 2012 12:33 am

A different question, not answered elsewhere on SHExpat that I can find: would Power of Attorney and Medical Power of Attorney documents generated in English in another country (but signed/witnessed/notarized at a consulate in Shanghai) automatically be valid in China, or are separate documents required?
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Re: Chinese Lawyer

Postby erexchen » Sat Mar 10, 2012 8:32 pm

This is related to the validity of a foreign legal documents. Usually if such legal document needs to be used in Chinese court, authority, etc, it shall be notarized and legalized in the country where the legal documents is generated. Notary means such document shall be notarized in a notary public office in the foreign country. Legalization means after notary, the notarized legal document (POA etc) shall be taken to China Embassy in that country and legalized by Chinese embassy.
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Re: Chinese Lawyer

Postby Severus » Sun Mar 11, 2012 1:03 am

erexchen wrote:This is related to the validity of a foreign legal documents. Usually if such legal document needs to be used in Chinese court, authority, etc, it shall be notarized and legalized in the country where the legal documents is generated. Notary means such document shall be notarized in a notary public office in the foreign country. Legalization means after notary, the notarized legal document (POA etc) shall be taken to China Embassy in that country and legalized by Chinese embassy.


Thanks for the speedy reply! So even though the document would be signed/witnessed/notarized at a consulate in China, it could not be locally certified by an official Chinese notary or other government agency but would have to be validated at a Chinese embassy/consulate overseas? Would it be easier to do a separate document notarized locally for use in China?
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Re: Chinese Lawyer

Postby erexchen » Sun Mar 11, 2012 1:33 pm

No local notary and legalization is acceptable.
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Re: Chinese Lawyer

Postby ATP » Mon Mar 19, 2012 8:46 am

When Chinese neighbours complain about a foreigner, is there a "standard" procedure that such complaints are handled? What rights does the foreigner have? More importantly, does he have any rights? If, and when, should a lawyer be involved?

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Re: Chinese Lawyer

Postby lowlight » Mon Mar 19, 2012 6:48 pm

^ complain to whom about what? why would there be a "standard" procedure for an unspecified complaint? involve a lawyer when the law is involved.
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Re: Chinese Lawyer

Postby erexchen » Sun Mar 25, 2012 7:16 pm

yeah, we are curious at what the complaint is.
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