Your Key to Labor and Employment Law in China

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  • Language: Chinese, English
  • Format: 22.6 x 15.2 x 2 cm
  • Page: 325
  • Publication Date: 11/2017
  • ISBN: 9787519716424
  • Publisher: China Law Press
《Your Key to Labor and Employment Law in China》adopting the structure of the Labor Law as a basis and written with a global vision, this book is conceptualized as the first practical book introducing China,s labor and employment law and initially establishes the general rules governing the employment relationship and integrating the experience of River Delta Law Firm,s native lawyers. It provides an overview of the China,s labor and employment law which is useful for foreign enterprises operating in China or who deal with Chinese companies. It is also useful for foreigners seeking a basic understanding of China,s labor and employment law. Additionally, we trust that the book is useful for comparative study by human resources professionals working in multi-national enterprises and international labor law experts.

About the Author
Jingbo Lu (Jason), the Founding Partner and Director of River Delta Law Firm, is a renowned labor and employment law expert in China. Jingbo Lu was, and continues to be, a forerunner and pioneer in the labor and employment law service area for the Mainland of China.
Having practiced for over 20 years, Jingbo Lu has many notable accomplishments , including founding the first professional online labor law service platform, initiating the first HR periodical “Labor Law China”, and launching the first app "Labor Law China”for HR services. Jingbo Lu has also acted as a long-term legal consultant for hundreds of multinational corporations, foreign-funded enterprises, state-owned enterprises and private enterprises . He has also provided training of labor and employment law in the Mainland of China, Hong Kong, Singapore, Vietnam, US California and Cambodia for thousands of enterprises over his many years of practice. Jingbo Lu's outstanding performance in labor law has earned him a strong reputation among his peers, and it has solidified his position as a leading expert in the area of labor and employment law throughout the Mainland of China.
Jingbo Lu's most notable publications include:
◆RDL-Golden Key to Employment Law-Management of Employment Termination
◆RDL-Golden Key to Employment Law-Management of Female Employees
◆A Guide to HR Application of Employment Contract Law
◆Dispute and Harmony-Essentials on Labor Dispute Prevention and Settlement
◆Legal Practice for Enterprise Recruitment Management
◆Management of Employment Relationship of Group Enterprises
Table of Contents
Chapter 1Overview
1.1Brief History of Chinas Labor and Employment Law
1.1.1Prehistory of Chinas Labor and Employment Law
1.1.2Labor and Employment Law in the Modern China
1.1.3Labor and Employment Law during the Transition Period of the New PRC
1.1.4Labor and Employment Law toward the Contemporary China
1.2Framework of Chinas Labor and Employment Law System
1.2.1Levels of Chinas Labor and Employment Law
1.2.2Sections of Chinas Labor and Employment Law
1.3Main Features of Chinas Labor and Employment Law System
1.3.1Close Connection with the Politics
1.3.2Enormous, Diversified and Convoluted Contents
1.3.3Increasingly Important Local Judicial Documents and Typical Cases
Chapter 2Employment Contract
2.2Employer and Employee
2.2.1Scope of Employer
2.2.2Identification of Employer
2.2.3Qualifications for Employee
2.3Identification of Employment Relationship
2.3.1Characteristics of Employment Relationship
2.3.2Evidences for Employment Relationship
2.3.3How to Identify an Employment Relationship
2.4Work Rules and Regulations of Employer
2.4.1Nature of Work Rules
2.4.2Two Types of Work Rules
2.4.3Legality of Contents of Work Rules
2.4.4Procedures of Formulation and Modification of Work Rules
2.4.5Relation between Work Rules and Employment Contract
2.5Establishment of Employment Contract
2.5.1Right to Know of both Parties
2.5.2Requirements for Written Form
2.5.3De facto Employment Relationship
2.5.4Required Clauses of Employment Contract
2.5.5Three Types of Employment Contract
2.6Open Ended Employment Contract
2.6.1Circumstances under which an Open Ended Employment Contract must beEstablished
2.6.210 Consecutive Years of Service with the Same Employer
2.6.3Two Consecutive Fixed Term Employment Contract with the Same Employer
2.6.4Legal Liability for Failing to Establish an Open Ended Employment Contract
2.6.5How to Establish an Open Ended Employment Contract
2.7Probation Period
2.7.1Application of Probation Period
2.7.2Times of Probation Period
2.7.3Length of Probation Period
2.7.4Suspension of Probation Period
2.7.5Wage during Probation Period
2.7.6Resignation and Dismissal during Probation Period
2.8Term of Service
2.8.1Conditions for Setting a Term of Service
2.8.2Breach of Term of Service
2.8.3Liquidated Damages
2.8.4Relation between Term of Service and Term of Employment Contract
2.9Non Competition Agreement
2.9.1Employees Suitable for Non Competition Agreement
2.9.2The Scope, Term and Area of Non Competition
2.9.3Economic Compensation for Non Competition
2.9.4Dissolution of Non Competition Agreement
2.9.5Responsibility for Breach of Agreement
2.10Invalidity of Employment Contract
2.10.1Three Circumstances causing Invalidity
2.10.2Ways to Determine Invalidity
2.10.3Legal Consequences of Invalidity
2.11Performance and Modification of Employment Contract
2.11.1Full Performance of Employment Contract
2.11.2Merger and Separation of Employer and Change of Employers Name, Legal Representative, Key Person in Charge and Investors
2.11.3Identification of Modification of Employment Contract
2.11.4How to Modify an Employment Contract
2.12Dissolution of Employment Contract by Employee
2.12.1Distinction between Dissolution and Termination of Employment Contract
2.12.2Two Types of Dissolution by Employee
2.12.3Immediate Dissolution by Employee
2.12.4AdvanceNotice of Dissolution byEmployee
2.12.5Liabilities for Unlawful Dissolution by Employee
2.13Immediate Dissolution of Employment Contract by Employer
2.13.1Three Types of Dissolution of Employment Contract by Employer
2.13.2Circumstances for Immediate Dissolution by Employer
2.13.3Procedures of Immediate Dissolution by Employer
2.13.4Nature of Immediate Dissolution by Employer
2.14Advance Notice Dissolution of Employment Contract by Employer
2.14.1Circumstances for Advance Notice Dissolution by Employer
2.14.2Procedures of Advance Notice Dissolution by Employer
2.14.3Exceptions to Advance Notice Dissolution by Employer
2.15Economic Lay off by Employer
2.15.1Circumstances for Lay off by Employer
2.15.2Conditions for Lay off by Employer
2.15.3Procedures of Lay off by Employer
2.15.4Protections in Lay off by Employer
2.16Dissolution of Employment Contract by Mutual Agreement
2.16.1Two Types of Dissolution of Employment Contract by Mutual Agreement
2.16.2Application Scope of Dissolution by Mutual Agreement
2.16.3Requirements on Dissolution by Mutual Agreement
2.17Termination of Employment Contract
2.17.1Circumstances for Termination of Employment Contract
2.17.2Exceptions to Termination of Employment Contract
2.17.3Terminations with Severance Pay
2.18Collateral Obligations for Dissolution and Termination of EmploymentContract
2.18.1Certificate of Dissolution or Termination of Employment Contract
2.18.2Transfer of Employees Archives and Social Insurance Relationship
2.18.3Handover of Work
2.19Severance Pay
2.19.1Scope of Application of Severance Pay
2.19.2General Standard of Severance Pay
2.19.3Special Standard of Severance Pay
2.19.4Payment of Severance Pay
2.20Unlawful Dissolution and Termination of Employment Contract
2.20.1Identification of Unlawful Dissolution or Termination of EmploymentContract
2.20.2Remedy for Unlawful Dissolution or Termination
2.21Labor Dispatch
2.21.1Labor Dispatch vs.Outsourcing
2.21.2Requirements for Establishment of Dispatching Entity
2.21.3Scope of Application of Labor Dispatch
2.21.4Employment Contract and Dispatch Agreement
2.21.5Employment Relationship between Dispatched Employee and Accepting Entity
2.21.6Return of Dispatched Employee
2.22Part Time Employment
2.22.1Definition of Part Time Employment
2.22.2Establishment of Part Time Employment Contract
2.22.3Payment for Part Time Employee
2.22.4Termination of Part Time Employment
Chapter 3Wage
3.2Definition of Wage
3.2.1Nature of Wage
3.2.2Basic Principles of Wage Legislation
3.2.3Components of Wage
3.3Minimum Wage and Social Average Wage
3.3.1Definition of Minimum Wage
3.3.2Ine Excluded from the Minimum Wage
3.3.3Determination of Minimum Wage
3.3.4Standard of Minimum Wage and Social Average Wage
3.4Overtime Wage
3.4.1Cardinal Number for Calculation of Overtime Wage
3.4.2Rates for Calculation of Overtime Wage
3.5Determination and Adjustment of Wage
3.5.1Determination of Wage
3.5.2Adjustment of Wage
3.5.3Wages during Downtime and Idling Period
3.6Payment of Wage
3.6.1Payment with Legal Tender
3.6.2Payment Directly to the Employee and Obligation of Recording
3.6.3Payment in Time and Postponement of Payment
3.6.4Payment in Full and Deduction of Wage
3.7Legal Liabilities
3.7.1Civil Liability
3.7.2Administrative Liability
3.7.3Criminal Liability
Chapter 4Working Hours and Leaves
4.2Standard Working Hour System
4.2.1Legal Requirements of Standard Working Hour System
4.2.2Days for Calculation of Wage
4.2.3Days for Institutional work
4.3Special Working Hour System
4.3.1Shortened Working Hour System
4.3.2Flexi Time Working Hour System
4.3.3Comprehensive Working Hour System
4.3.4Agreement and Permission
4.4.1Conditions for Overtime
4.4.2Two Forms of Overtime
4.4.3Upper Limit of Overtime
4.4.4Punishment for Illegal Overtime and Delay of Overtime Payment
4.4.5Exception for the Overtime Regulations
4.4.6Overtime in Special Working Hour System
4.5Statutory Holidays and Festivals
4.5.1Holidays and Festivals for All Citizens
4.5.2Holidays and Festivals for Certain Citizens
4.5.3Holidays and Festivals for Ethnic Minorities
4.5.4Other Statutory Days
4.6Paid Annual Leave
4.6.1Conditions for Paid Annual Leave
4.6.2Length of Paid Annual Leave
4.6.3Wage during Paid Annual Leave
4.6.4Arrangement for Paid Annual Leave
4.6.5Exceptions to Paid Annual Leave of Current Year
4.6.6Waiver of Paid Annual Leave
4.6.7Pay for Unfulfilled Paid Annual Leave
4.6.8Legal Liabilities
4.7Home Leave
4.7.1Conditions for Home Leave
4.7.2Length of Home Leave
4.7.3Wage during Home Leave
4.7.4Relation between Home Leave and Paid Annual Leave
4.8Marriage Leave and Bereavement Leave
4.8.1Conditions for Marriage Leave and Bereavement Leave
4.8.2Extended Marriage Leave
4.8.3Wage during Marriage Leave and Bereavement Leave
4.9Sick Leave and Personal Leave
4.9.1Conditions for Sick Leave
4.9.2Length of Sick Leave and Medical Period
4.9.3Wage during Sick Leave
4.9.4Discipline for False Sick Leave
4.9.5Personal Leave
Chapter 5Occupational Safety and Health
5.2Reform Tendency and Focuses
5.3State Administration of Work Safety
5.4Protection of Occupational Safety
5.4.1Obligations on Employers of All the Entities Engaged in Production
5.4.2Obligations on Employers of Specific Industries, Hazardous Goods andWastes
5.4.3Obligations on Specific Entities to the Employer
5.4.4Rights and Obligations of Employees
5.4.5The Role of Trade Unions
5.4.6External Supervisory System
5.5Protection of Occupational Health
5.5.1Obligations of Employers on Risk Control Measures
5.5.2Obligations of Employers to Disclose and Report
5.5.3Other Specific Obligations of Employers
5.5.4Rights and Obligations of Employees
5.5.5The Role of Trade Unions
5.5.6External Supervisory System
Chapter 6Occupational Protection of Female Employees
6.2Protection against Employment Discrimination
6.2.1Recruitment Discrimination
6.2.2Sexual Harassment
6.2.3Equal Pay for Equal Work
6.3Protection from Unsuitable Work
6.3.1Scope of Prohibited Work for Female Employees
6.3.2Work Adjustment for Female Employees during Pregnancy
6.4Protection of Working Hours
6.4.1Prohibition on Overtime
6.4.2Prohibition on Night Shift
6.4.3Time for Antenatal Care
6.4.4Breastfeeding Hour and Lactation Period
6.5Protection of Leaves
6.5.1General Maternity Leave
6.5.2Special Maternity Leave
6.5.3Incentive Maternity and Paternity Leave
6.6Protection of Wage and Treatments
6.6.1Prohibition from Reduction of Wage
6.6.2Maternity Allowance
6.6.3Medical Expenses on Childbirth and Abortion
6.7Protection from Termination
6.7.1Prohibition from Dismissal on the Basis of Pregnancy, Childbirth andLactation
6.7.2Restrictions on Termination during Pregnancy, Maternity Leave and NursingPeriod
Chapter 7Employment of Aliens
7.2Employment Permission
7.2.1Requirements for Employers
7.2.2Requirements for Aliens to be Employed in China
7.2.3Visa for Employment of Aliens
7.2.4Procedures and Certificates for the Employment of Aliens
7.3Legal Liabilities for Unlawful Employment of Aliens
7.3.1Legal Liabilities of Employers
7.3.2Legal Liabilities of Employees
7.4Employment Contract
7.4.1Terms of the Employment Contract
7.4.2Main Clauses of the Employment Contract
7.4.3Disputes from Employment Contract
7.5Social Insurance
7.5.1Obligation of Participating in Social Insurance
7.5.2Exemption from Participating in Social Insurance
7.5.3Social Insurance Treatment
Chapter 8Social Insurance and Housing Provident
8.2Basic Pension Insurance
8.2.3Individual Account
8.2.4Transfer and Continuation
8.2.5Conditions to Get Pension
8.2.6Statutory Retirement Age
8.2.8Enterprise Annuity Funds
8.3Basic Medical Insurance
8.3.3Individual Account
8.3.4Transfer and Continuation
8.3.5Conditions to Enjoy Benefits
8.3.7Prepay Rule
8.3.8Resident Medical Insurance
8.4Unemployment Insurance
8.4.3Transfer and Continuation
8.4.4Unemployment Registration
8.4.5Conditions to Enjoy Benefits
8.5Work Related Injury Insurance
8.5.3Identification of Work Related Injury
8.5.4Work Capability Assessment
8.5.5Benefits Paid by Work Related Injury Insurance
8.5.6Benefits Paid by Employer
8.5.7Suspending from Enjoying Benefits
8.5.8Protection on Employment Relationship
8.5.9Prepay Rule
8.6Maternity Insurance
8.6.4Maternity Leave
8.7Housing Provident Fund
8.7.3Individual Account
8.7.4Withdrawal and Use
8.7.5Improvement of the System
Chapter 9Collective Negotiation and Collective Contract
9.2Features of Collective Negotiation and Contents of Collective Contracts
9.2.1Features of Collective Negotiation
9.2.2Contents of Collective Negotiation
9.3Procedures of Collective Negotiation
9.3.1Representatives of Collective Negotiation
9.3.2Obligations and Protection of Representatives
9.3.3Initiation of Collective Negotiation
9.3.4Preparation for Negotiation
9.3.5Procedure of the Meeting
9.3.6Special Local Regulations
9.4Validity of Collective Contracts
9.4.1Coming into Force
9.4.2Validity of Collective Contracts
9.4.3Change and Termination of Collective Contracts
9.4.4Examination and Announcement
9.5Collective Contract Disputes
9.5.1Disputes Arising from Concluding Collective Contracts
9.5.2Disputes Arising out of the Performance of a Collective Contract
Chapter 10Trade Union and Democratic Management
10.2Nature and Functions of Trade Unions
10.2.1Nature of Trade Unions
10.2.2Functions of Trade Unions
10.3The Establishment and Legal Status of Trade Unions
10.3.1The Establishment of Trade Unions
10.3.2The Legal Status of Trade Unions
10.4The Composition and Operation of Basic Level Trade Unions
10.4.1General Assembly and Representative Assembly of Basic Level Trade Unions
10.4.2Basic Level Trade Union Committee
10.4.3Protection for Officials of Basic Level Trade Unions
10.4.4Funds and Property of Trade Unions
10.4.5The Cancellation of Basic Level Trade Unions
10.5Responsibilities of Trade Unions
10.5.1Representation and Organization in Democratic Management
10.5.2Help and Guidance on Conclusion of Employment Contract
10.5.3Suggestion, Negotiation and Representation on Employment Related Issues
10.5.4Supervision and Investigation on Work Safety Issues
10.5.5Taking Part in Mediation, Arbitration and Legislation
10.6Employees’ Congress
10.6.1Establishment of Employees’ Congress
10.6.2Employee Representatives
10.6.3Organization and Composition of Employees’Congress
10.6.4Rights of Employees’ Congress
10.6.5Working System of Employees’ Congress
10.7Other Forms of Democratic Management
10.7.1Increasing Transparency
10.7.2System of Employees’ Directors and Employees’ Supervisors
Chapter 11Labor Security Supervision and Inspection
11.2Features and Principles of Labor Security Supervision and Inspection System
11.2.1Features of Labor Security Supervision and Inspection System
11.2.2Principles of Labor Security Supervision and Inspection System
11.3Subject and Object of Labor Security Supervision and Inspection
11.3.1Labor Security Administrative Department
11.3.2Administrative Counterparts of Labor Security Supervision and Inspection
11.3.3Duties and Authorities of the Labor Security Administration
11.3.4Issues under Labor Security Supervision and Inspection
11.4Implementation of Labor Security Supervision and Inspection
11.4.2Forms and Measures of Inspection and Investigation
11.4.3Procedures of Labor Security Supervision and Inspection
11.4.4Forms of Administrative Penalty and other Administrative Activities
11.5Legal Liabilities
11.5.1Concerning Occupational Protection on Special Employees
11.5.2Entering Written Employment Contract and Working Hours
11.5.3Concerning Wages and Economic Compensation
11.5.4Concerning Social Insurance and Trade Unions
11.5.5Concerning Employers Violation of the Administrative Procedure
11.5.6The Legal Liabilities of the Labor Security Supervisors and the LaborSecurity Administrative Departments
Chapter 12Labor Disputes
12.2Definition, Classification and Scope of Labor Disputes
12.2.1Definition of Labor Disputes
12.2.2Classification of Labor Disputes
12.2.3Scope of Labor Disputes
12.3Principles for Solving Labor Disputes
12.3.1Legality and Impartiality
12.3.2Timeliness and Openness
12.3.3Emphasizing Mediation
12.4Mediation of Labor Disputes
12.4.1Labor Dispute Mediation Organization
12.4.2Mediation Agreement of Labor Disputes
12.5Labor Dispute Arbitration Organization
12.5.1Labor Dispute Arbitration Commission
12.5.2Labor Dispute Arbitration Institutes
12.5.3Arbitral Tribunals
12.5.4Labor Dispute Arbitrators
12.6Limitation of Labor Dispute Arbitration
12.6.1General Limitation Period
12.6.2Special Limitation Period
12.6.3Suspension and Renewal
12.7Jurisdiction of Labor Dispute Arbitrations
12.7.1Jurisdiction Level
12.7.2Territorial Jurisdiction
12.7.3Invalid Mutual Agreement on Jurisdiction
12.7.4Transfer of Jurisdiction and Objections to Jurisdiction
12.8Procedures of Labor Dispute Arbitration
12.8.1Determining the Parties
12.8.2Applications for Arbitration
12.8.3Accepting an Application
12.8.4Preparing for an Arbitration
12.8.5Tribunal Hearings
12.8.7Entry into Force and Enforcement of Legal Documents
12.9Burden of Proof in Labor Dispute Arbitration
12.9.1General Principles
12.9.2Inversion of Burden of Proof
12.9.3Conditional Inversion of Burden of Proof
12.9.4Fair Allocation of Burden of Proof
Law Mentioned in the Text
Sample Pages Preview

Social Security is a system administered by the State thatguarantees the basic needs oflife for citizens.Social Security takesthe form of insurance for citizens who lose labor capacity or meet lifeobstacles including aging, sickness, unemployment, disability, childbirth, death or disaster, as defined by law.In China, socialinsurance is the most important part of the social security system,which consists of social relief, social welfare and special care, inaddition to socialinsurance.
The soaal insurance legislation history of the PRC can bedivided into the following phases.
(1) Creation: The State Council promulgated the Labor InsuranceRegulation in Feb of 1951, which created a comprehensive systemcovering pensions, medical, sickness, work—related injury, maternityinsurance and allowances for survivors.The State Councilpromulgated several more regulations on the retirement of workersfrom state—owned enterprises and government organs in the followingfew years With the gradual implementation of these regulations, thesocial insurance systemhas been established and developed.


The Labor Law of the Peoples Republic of China, which came into effect on Jan 1 1995, is the product of the reform of Chinas socialist market economy. The implementation of the Labor Law facilitated Chinas reform. Since the implementation of the Labor Law, the employment structures in China have changed dramatically, with some changes including the rapid development of the industrial and service sectors; increasing migrant rural workers; the incorporation of the stateowned enterprises; the standardization of private enterprises and the localization of foreigninvested enterprises. The human resources industry has also flourished in every area, including the human resource legal service.
It was in 2015, the 20th year since the implementation course of the Labor Law, the 20th year of practicing as a lawyer, and the 12th anniversary of my establishment of River Delta Law Firm, that I decided to write this book. Confronting several setbacks, the book is finally finished 2 years later. Even in these 2 years, some major labor related policies in China have emerged, including the implementation of the “universal two child” policy, the plan to raise the retirement age, the plan to combine maternity insurance and basic medical insurance, and changes to Chinese policies on employment of foreigners. Fortunately, although different understandings in labor and employment law exist in local practice, and the labor related policies have changed at the national level, China is a complex but unitary country. Comprehensive knowledge about state policy contributes to a deep understanding in local practice, and thus the former is the focus of this book.
This book is conceptualized as the first practical book introducing Chinese labor and employment law which is authored by a Chinese legal practitioner. The book is provides an overview of the law.The content of this book is intended only to provide a summary and general overview on Chinese employment law. It is not intended to be comprehensive, nor does it constitute legal advice. The author has attempted to ensure that the content is accurate, but does not guarantee the accuracy of the book for your circumstances. You should seek specific legal or other professional advice catered to your circumstances and should not act or rely on any of the content in this book. which is useful for foreign enterprises operating in China or who deal with Chinese companies. It is also useful for foreigners seeking a basic understanding of Chinas labor and employment law. Additionally, we trust that the book is useful for comparative study by human resources professionals working in multi national enterprises and international labor law experts.
This book has adopted the structure of the Labor Law, rather than using labor law theory as a basis. The book adopts an enterprise management approach and is written with a global vision. The book initially establishes the general rules governing the employment relationship and integrating the experience of River Delta Law Firms native lawyers.
Nevertheless, the regulatory framework governing Chinese labor and employment relations is inherently complex. There are numerous and convoluted laws, regulations and cases governing different aspects of employment, with new exceptions emerging almost immediately as principles are established. This is the reflection of the historical development of Chinas labor and employment legislation, and the rapid industrial changes occurring today. This book does not purport to cover all of the complex and growing field of employment relations.
In addition to the constant proliferation of new laws and exceptions, the words in existing laws often take on new meanings to adapt to changing practical realities. The consequence is that the rights and obligations of employers regularly change. Inherent tensions between employers and employees will always characterize the employment relationship, no matter how harmoniously the drafters of legislation wish it to operate. The number of labor disputes is still increasing over the past few years. Collective stoppages and group incidents occur from time to time. Meanwhile, as the new economy corporations rise, the instinct to evade compliance with laws, including labor laws, still widely exists. This leads to a clear conflict between regulation and development, while the undercurrent value is the collection and analysis of the big data based upon the arithmetic and code, even generating the conflict between artificial intelligence and human beings. Therefore, the reform of labor and employment law in China is always ongoing.

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Your Key to Labor and Employment Law in China