摘要：Before setting foot in China to embark on a work journey, many foreigners are filled with doubts. They often ask whether they can
Before setting foot in China to embark on a work journey, many foreigners are filled with doubts. They often ask whether they can work in China based on a labor service relationship. Can they start working with just a work permit? Is it possible to sign a one-time contract and receive a lump-sum payment to settle everything? Today, let's delve into the key details of legal employment in China, combining current hot topics.
在踏上中国这片土地，开启工作之旅前，许多外籍人士心中满是疑惑。他们常问，能否凭借劳务关系在华工作？仅凭工作许可证就能上岗吗？能不能签个一次性合同，拿笔一次性报酬就完事？今天，咱们就结合眼下的热门话题，来好好捋一捋合法就业的那些关键细节。
First, it's essential to distinguish between labor relations and labor service relations. Foreigners who wish to work in China must ensure that all procedures are properly handled. Only when both the work permit and the work-related residence permit are obtained can an employer and an employee establish a labor relationship. If a foreigner rushes to join a company without approval, they will cross the red line of illegal employment. Moreover, even if a foreigner who has not obtained a "Foreigner's Work Permit" legally signs a labor contract with an employer, the labor relationship will not be established. Article 14 of the Supreme People's Court's "Interpretation on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (IV)" clearly states that if a foreigner has not obtained employment documents legally and signs a labor contract with a domestic enterprise, the court will not support the confirmation of a labor relationship with the employer.
劳动关系与劳务关系，这俩概念得先分清楚。外籍人士想在华就业，手续必须得办利索。只有把工作许可证和工作类居留许可都妥妥当当办下来，企业用工时，双方才能构成劳动关系。要是没拿到审批，外籍人士就急着入职企业，那可就触碰了非法就业的红线。再者，那些没依法拿到《外国人工作许可证》的外籍人士，就算先跟企业签了劳动合同，劳动关系也照样不成立。最高人民法院的《关于审理劳动争议案件适用法律若干问题的解释（四）》第十四条就明确说了，外国人没依法拿到就业证件，就和境内企业签劳动合同，这种情况下，想要确认和用人单位存在劳动关系，法院是不会支持的。
Let's also discuss illegal employment. Article 43 of the "Exit and Entry Administration Law of the People's Republic of China" clearly defines the scenarios of illegal employment. These include working without obtaining a work permit and work-related residence documents as required, working beyond the scope of the work permit, and students working in violation of the regulations on part-time work and study. The maximum fine for employers who illegally hire foreigners has increased from 50,000 to 100,000 yuan. Foreigners who work illegally in China face a maximum fine increased from 1,000 to 20,000 yuan, and in severe cases, they may be detained for five to fifteen days and even deported. From the date of deportation, they will not be allowed to enter China for ten years. In addition, Article 80 of the law stipulates that for illegal employment of foreigners, a fine of more than 5,000 yuan but less than 20,000 yuan shall be imposed; in serious cases, detention of more than five days but less than fifteen days, and a fine of more than 5,000 yuan but less than 20,000 yuan shall be imposed. For individuals who introduce foreigners to illegal employment, a fine of 5,000 yuan per illegal introduction, with a total amount not exceeding 50,000 yuan, shall be imposed; for enterprises, a fine of 5,000 yuan per illegal introduction, with a total amount not exceeding 100,000 yuan, shall be imposed. If there are illegal gains, they shall be confiscated. For those who illegally hire foreigners, a fine of 10,000 yuan per illegal hire, with a total amount not exceeding 100,000 yuan, shall be imposed, and illegal gains shall also be confiscated.
咱再聊聊非法就业那些事儿。《中华人民共和国出境入境管理法》第四十三条把非法就业的情形讲得明明白白。比如没按规定拿到工作许可和工作类居留证件就工作，超出工作许可范围工作，留学生违反勤工助学规定工作，这三种都算非法就业。那非法聘用外国人的用人企业，面临的最高罚款从五万涨到十万。而在华非法就业的外国人，最高罚款也从一千提高到两万，严重的还得面临五到十五天拘留，甚至遣送出境，从遣送出境那天算起十年内都不准入境。另外，该法第八十条还规定，外国人非法就业的，处五千元以上两万元以下罚款；情节严重的，处五日以上十五日以下拘留，并处五千元以上二万元以下罚款；介绍外国人非法就业的，对个人处每非法介绍一人五千元，总额不超过五万元的罚款；对企业处每非法介绍一人五千元，总额不超过十万元的罚款；要是有违法所得，那违法所得也得被没收；非法聘用外国人的，处每非法聘用一人一万元，总额不超过十万元的罚款，有违法所得的同样没收。
When it comes to legal employment procedures, the first thing that comes to mind is probably "employment permit" and "employment certificate." In fact, since April 1, 2017, the state has implemented the "integration of two certificates." For those coming to work in China for more than ninety days, the "Foreign Expert Certificate (Foreign Expert's Permit to Work in China)" and the "Employment Certificate (Foreigner's Permit to Work in China)" are no longer issued. Instead, the "Foreigner's Work Permit Notice" and the "Foreigner's Work Permit" are issued. So, which foreigners are exempt from obtaining a work permit? There are mainly four categories: First, those directly hired by the Chinese government, with senior professional titles or special skill qualification certificates, and holding a "Foreign Expert Certificate" issued by the Foreign Experts Bureau; second, foreign labor personnel engaged in offshore oil operations with a "Foreigner's Permit to Work in Offshore Oil Operations in the People's Republic of China," who do not need to land and must have special skills; third, foreigners approved by the Ministry of Culture, holding a "Temporary Business Performance License" to conduct commercial artistic performances; and fourth, foreigners holding a Chinese "Foreigner's Permanent Residence Card."
说到合法就业手续，大家第一反应可能是“就业许可”和“就业证”。其实从 2017 年 4 月 1 日起，国家推行“两证整合”，来华工作超九十天的，不再发《外国专家证（外国专家来华许可）》和《就业证（外国人入境就业许可）》了，改发《外国人工作许可通知》和《外国人工作许可证》。那哪些外国人能免办工作许可呢？主要有四类：一类是我国政府直接出资聘请的，有高级技术职称或特殊技能资格证书的外籍专业技术和管理人员，还得持有外国专家局发的《外国专家证》；第二类是持《外国人在中华人民共和国从事海上石油作业工作准证》的海上石油作业外籍劳务人员，他们不用登陆，得有特殊技能；第三类是经文化部批准，持《临时营业演出许可证》来搞营业性文艺演出的外国人；第四类就是持有中国《外国人永久居留证》的外籍人员。
The legal application for foreign employment is also an important issue. Foreigners who work legally in domestic enterprises must sign a labor contract with the enterprise according to the "Regulations on the Administration of Employment of Foreigners in China," with a maximum term of five years. From this regulation, it can be seen that foreigners who have completed employment procedures legally and their employers have a labor relationship, which is subject to Chinese labor laws and regulations. The enterprise must sign a labor contract within one month of employment; otherwise, the foreigner has the right to hold the enterprise accountable. In addition, the type of labor contract is important. When foreigners sign a labor contract with a domestic enterprise, they can only sign a fixed-term contract with a term not exceeding five years. Fixed-term contracts and contracts with a term based on the completion of a specific task are not applicable. However, the opinions of provinces, cities, and autonomous regions on this matter vary. For example, Shanghai is relatively special. Its relevant notices state that enterprises and foreigners approved for employment can agree on the employment term, position, remuneration, and other rights and obligations through a labor contract.
外国人就业的法律适用问题也不容忽视。依法在境内企业就业的外国人，依据《外国人在中国就业管理规定》，企业必须和被聘外国人签劳动合同，期限最长不超五年。从这规定能看出，依法办完就业手续的外国人和用人单位是劳动关系，适用中国劳动法律法规。企业得在用工一个月内签劳动合同，不然外国人可有权要求企业担责。另外，劳动合同种类有讲究，外国人和国内企业签劳动合同时，只能签不超五年期限的固定期限合同，无固定期限合同和以完成一定任务为期限的合同都不适用。不过各省市自治区对这事儿看法不一，像上海就比较特殊，其相关通知里说企业与获准聘雇的外国人，有关聘雇期限、岗位、报酬等双方权利义务都可以通过劳动合同来约定。
Regarding overtime, foreigners who work legally and work overtime beyond the statutory working hours are also entitled to overtime pay. The national law clearly stipulates that foreigners are subject to the national working hours regulations, and enterprises must pay overtime pay for overtime work. Social insurance is even more critical, and foreigners must also pay it legally. Article 97 of the "Social Insurance Law" first stipulates that foreigners working in China must participate in social insurance in accordance with this law. The "Interim Measures for the Participation of Foreigners Employed in China in Social Insurance" issued by the Ministry of Human Resources and Social Security further clarifies this matter. However, it should be noted that personnel from countries that have signed bilateral or multilateral social insurance agreements with China must follow the agreement when participating in social insurance in China. But don't misunderstand; not all personnel from these countries are exempt from social insurance. If they have not paid social insurance in their home country or have exceeded the agreed exemption period, the employer must pay social insurance for them in accordance with the law. At present, China has signed bilateral social insurance agreements with nine countries, including Germany and South Korea. When enterprises recruit people from these countries, they must carefully review the terms of the agreement.
加班方面，依法就业的外国人在法定工作时间外加班，同样能享受加班工资。国家法律明确规定，外国人也适用国家的工作时间规定，超时劳动企业就得依法支付加班工资。社会保险更是关键，外国人也得依法缴纳。《社会保险法》第九十七条首次规定外国人在中国境内就业要参照本法参保。之后人力资源和社会保障部的《在中国境内就业的外国人参加社会保险暂行办法》进一步明确这事儿。但要注意，和中国签了社保双边或多边协议国家的人员，在中国就业参保得按协议来。不过别误会，并不是这些国家的人员都能免缴社保。要是他们在本国没缴社保，或者超出了协议规定的免缴期限，那用人单位就得依法给他们缴社保。目前我国和德国、韩国等九个国家签了社保双边协议，企业在招这些国家的人时，得仔细看看协议条款。
As for rest and vacation, foreigners who work legally enjoy the same rights as domestic workers in terms of rest and vacation, as stipulated by national laws and regulations, such as annual leave, statutory holidays, marriage leave, maternity leave, and other statutory holidays. In terms of wages, the wages paid by enterprises to foreigners during normal working hours must not be lower than the local minimum wage standard.
再看看休息休假，依法就业的外国人在这方面和国内劳动者一样，享有国家法律法规规定的休息休假权利，像年休假、法定节假日、婚假、产假等法定假期都能享受。工资方面，企业在正常工作时间向外国人支付的工资不得低于当地最低工资标准。
The issue of the retirement age of foreign employees is also relatively complex. According to the "Labor Contract Law," when a worker reaches the statutory retirement age or begins to enjoy pension benefits, the labor contract is terminated. But when foreign employees reach the statutory retirement age in China, can enterprises terminate the labor contract? Shanghai courts have previously held that Shanghai does not prohibit foreigners who have reached the statutory retirement age from continuing to work, while Beijing courts support enterprises in terminating labor contracts on the grounds that employees have reached the statutory retirement age without paying economic compensation.
外籍员工退休年龄的问题也比较复杂。按《劳动合同法》，劳动者达法定退休年龄或开始享受养老待遇时，劳动合同终止。可外籍员工到中国法定退休年龄时，企业能不能终止劳动合同呢？上海法院曾认为上海地区没禁止已达法定退休年龄的外国人继续就业，而北京法院则支持企业以员工达法定退休年龄为由终止劳动合同，还不用支付经济补偿金。
The issue of enterprises signing open-ended labor contracts with foreign employees also depends on the local situation. The "Labor Contract Law" stipulates that after signing two fixed-term labor contracts with the same employer, an open-ended contract must be signed upon renewal. However, whether foreign employees can demand an open-ended contract after signing two fixed-term contracts with the same enterprise varies by region and should be based on local interpretations. According to the "Regulations on the Administration of Employment of Foreigners in China," foreign-related labor contracts shall not exceed five years in length, and they will be terminated upon expiration. They can be renewed after completing the approval procedures.
企业与外籍员工签无固定期限劳动合同的事儿，也得看地区情况。《劳动合同法》规定在同一用人单位连续订两次固定期限劳动合同后，再次续订得签无固定期限合同。但外籍员工在同一家企业连续签两次固定期限合同后，能不能要求签无固定期限合同，各地情况不同，得以当地解释为准。根据《外国人在中国就业管理规定》，涉外劳动合同最长不超五年，期满就终止，履行完审批手续后可以续订。
What if an enterprise refuses to issue a certificate of termination to a foreign employee? This will require administrative approval. The new employer is the main body for applying for approval, and the approval materials include a certificate of termination and a cancellation notice for the "Foreigner's Work Permit," which must be issued by the original unit. If the original unit does not cooperate, the foreign employee's work permit cannot be smoothly changed, and they cannot work legally in China. In this case, the foreign employee can resolve the issue through complaints or litigation, and the enterprise must bear the losses caused.
要是企业拒给外籍员工开离职证明咋办？这就得找行政部门审批了。新用人单位是申请审批的主体，审批材料包括离职证明和《外国人工作许可证》注销单等，这些得原单位出。原单位不配合，那外籍员工的工作许可证就没办法顺利变更，没法在中国合法工作了。这种情况下，外籍员工可以通过投诉或诉讼来解决，企业也得承担由此造成的损失。
In summary, foreigners who come to work in China must carefully understand these regulations to avoid falling into the quagmire of illegal employment. If they are worried about making mistakes in applying for a work visa, they can consult professional institutions at any time to obtain application assessment plans and ensure a smooth start to their work journey in China.
总之，外籍人士来华工作，得仔细了解这些规定，避免陷入非法就业的泥潭。要是担心自己办理工作签证出错，可以随时咨询专业机构，获取申请评估方案，让自己在中国的工作之旅顺利开启。
来源：外事商务咨询中心
