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YOUR KEY TO LABOR AND EMPLOYMENT LAW IN CHINA=中國勞動(英文
《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.
本書是一本關(guān)于中國勞動法與中國勞動合同法的實(shí)用手冊。全面涵蓋了中國勞動法領(lǐng)域的所有核心及實(shí)務(wù)問題,包括勞動合同、勞動報酬(工資)、勞動時間與休息休假、勞動安全與健康、女職工的勞動保護(hù)、外國人勞動者、社保與住房公積金、集體合同、工會與民主管理、勞動行政管理部門的監(jiān)管、勞務(wù)糾紛。內(nèi)容采用“總-分”的結(jié)構(gòu)形式,是勞動法律師、外企高管、法務(wù)、人力資源管理者及所有對中國勞動法感興趣的外國學(xué)者、研究人員的重要、實(shí)用、便捷的參考資料。
Preface
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 stateowned enterprises;the standardization of private enterprises and the localization of foreigninvested 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.
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 www.laodongfa.com,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
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
2.1Introduction
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 be Established
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
2.12.4AdvanceNotice of Dissolution by Employee
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 Employment Contract
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 Employment Contract
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
3.1Introduction
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
3.3.2Income 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
4.1Introduction
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
4.4Overtime
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
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