| View previous topic :: View next topic |
| Author |
Message |
Mysterious Mark
Joined: 15 Dec 2004
Posts: 121
|
 Posted: Thu Apr 20, 2006 5:51 am Post subject: Contract validity |
 |
|
I posted this question to the contract sticky a few days ago. Due to a lack of replies, here it is again.
It's been stated that in order for a contract to be legally binding, it needs to be written on SAFEA paper, have a SAFEA (?) stamp, and be in Chinese, with an English translation being optional.
I don't remember coming across any first-hand evidence (e.g. a statement on a government website) to support these claims. It may be that they're true for SAFEA contracts but that SAFEA contracts are not the only contracts under which foreign teachers can legally be employed.
Is there a general law stating that all contracts of any kind must be in Chinese in order to be binding?
Also, you know that clause that says that the employer will introduce the relevant laws, decrees and regulations to the employee? Have you ever asked your employer to do that? I did recently and was handed a bilingual copy of the entry-exit law for foreigners. I clarified that I wanted to see the employment law. "But it's only in Chinese." "That's okay, I'd like to see it anyway." "Um, I will have to look for it..."  |
|
| Back to top |
|
 |
clark.w.griswald
Joined: 06 Dec 2004
Posts: 2056
|
| Posted: Thu Apr 20, 2006 7:44 am Post subject: Re: Contract validity |
|
|
| Mysterious Mark wrote: |
It's been stated that in order for a contract to be legally binding, it needs to be written on SAFEA paper, have a SAFEA (?) stamp, and be in Chinese, with an English translation being optional.
I don't remember coming across any first-hand evidence (e.g. a statement on a government website) to support these claims. It may be that they're true for SAFEA contracts but that SAFEA contracts are not the only contracts under which foreign teachers can legally be employed. |
I suspect that if this is in fact true then it only relates to those foreign teachers who are employed on �foreign expert� status. Most of us are employed as foreign employees but it is my understanding that most of us are no longer considered foreign experts.
| Mysterious Mark wrote: |
| Is there a general law stating that all contracts of any kind must be in Chinese in order to be binding? |
Not that I am aware of. It is my understanding that a contract written in any language is legally binding here provided that:
a) both parties agree to it; and
b) that it is able to be interpreted clearly by those who would be called upon to enforce it here
Obviously a Chinese language document would be the preferred document in a legal case as it would be easier for the locals to follow and understand clearly. However, if you have an English version then I am not aware of any law that invalidates this based solely upon the choice of language.
Some bilingual contracts contain a clause along the lines of �in case of differences in meaning between the versions of this contract, the Chinese version will prevail�. Personally I think that this is good to determine which overrides the other as if there are differences and it is not stated which should be followed then legally you are likely to reach loggerheads, or worse have an interpretation that is made not based upon the content of the agreement but instead the lack of patience by whoever is being asked to adjudicate.
| Mysterious Mark wrote: |
| Also, you know that clause that says that the employer will introduce the relevant laws, decrees and regulations to the employee? Have you ever asked your employer to do that? I did recently and was handed a bilingual copy of the entry-exit law for foreigners. I clarified that I wanted to see the employment law. "But it's only in Chinese." "That's okay, I'd like to see it anyway." "Um, I will have to look for it..." |
These may help:
Labor Law of the People�s Republic of China
Regulations Governing the Employment of Foreigners in China |
|
| Back to top |
|
|
vikdk
Joined: 25 Jun 2003
Posts: 1676
|
| Posted: Thu Apr 20, 2006 9:44 am Post subject: |
|
|
Although I know nothing about this subject - when I read from a so -called expert -
| Quote: |
| I suspect that if this is in fact true |
| Quote: |
| Not that I am aware of |
| Quote: |
| I am not aware of any law |
I start to think that I to could write long wordy postings on this subject and also sound pretty knowledgeable 
Anybody here ever use a contract to put a grievance right - official/non-official or written on toilet paper in Swahili  |
|
| Back to top |
|
|
Sinobear
Joined: 24 Aug 2004
Posts: 1269
Location: Purgatory
|
| Posted: Thu Apr 20, 2006 9:53 am Post subject: |
|
|
If it can be used against you, it is legally binding. If it is to your advantage, hahahahahaha.
Read the book 'Getting Along with the Chinese (for fun and profit) - Fred Schneiter ISBN 962-7160-19-9.
To give a couple of tidbits from the book:
 Chinese don't enter into a business agreement unless they're certain they're getting the better deal.
Chinese prefer "understandings" rather than written contracts.
From another source...despite the arbitration clause in most contracts, attempting to take your case to arbitration will likely get you deported, and, it will cost you more time and money than you could ever justify with a legal victory.
"If it sounds too good to be true...it probably is."
"No good deed goes unpunished."
Cheers! |
|
| Back to top |
|
|
englishgibson
Joined: 09 Mar 2005
Posts: 4345
|
| Posted: Thu Apr 20, 2006 10:41 am Post subject: Contract validity |
|
|
| Quote: |
| I start to think that I to could write long wordy postings on this subject and also sound pretty knowledgeable |
I've thought about that before when Clarkie participated on EF related threads 
Have you noticed "the list of schools in Taiwan/China?"....signature move 
| Quote: |
| If it can be used against you, it is legally binding. If it is to your advantage, hahahahahaha. |
That sounds like China 
Cheers and beers |
|
| Back to top |
|
|
nolefan
Joined: 14 Jan 2004
Posts: 1458
Location: on the run
|
| Posted: Thu Apr 20, 2006 3:35 pm Post subject: |
|
|
SAFEA merely provides guidelines for employment of foreigners; therefore, a contract can be binding with or without their "paper".
The main requirement in China seems to be the almighty seal. If it's sealed, it's valid! |
|
| Back to top |
|
|
latefordinner
Joined: 19 Aug 2003
Posts: 973
|
| Posted: Thu Apr 20, 2006 3:59 pm Post subject: |
|
|
Sinobear, you summed it up nicely.
CWG:
| Quote: |
| Most of us are employed as foreign employees but it is my understanding that most of us are no longer considered foreign experts |
Speak for yourself |
|
| Back to top |
|
|
clark.w.griswald
Joined: 06 Dec 2004
Posts: 2056
|
| Posted: Thu Apr 20, 2006 11:30 pm Post subject: |
|
|
I think it sad that six people have posted in this thread after the question by the OP, but only two have actually attempted to help the OP. Makes you wonder why the other four even bother to post
Latefordinner don't get offended. My comment about most of us no longer being considered 'foreign experts' refers to the term used by the government and the terms and conditions of employment that go along with this term - it is not an indication of the ability of the teacher. In the past foreign experts were academics who came to China to teach in largely government owned institutions for which only the basic of salaries was paid - RMB1,500-3,000 per month. Nowadays many of us are employed by private kindergartens, mainstream schools, colleges, and language institutes, and I am not sure that employment in private enterprises constitutes being a 'foreign expert' as per the government's definition of this.
Although a bit ambiguous, you can get an idea of what I am talking about in the SAFEA document Administration of Employment Contracts for Foreign Experts.
| Quote: |
Article 2
These Measures shall apply to the contracts for employment of foreign experts working in the cultural and educational fields. Foreign experts refer to those foreign professionals engaged in education, the media, publication, culture, art, public health and sports within the territory of the Peoples Republic of China.
Agreements involving foreign experts working in cultural and educational fields sent through exchanges between governments, sister cities, schools and non-governmental organizations can refer to these Measures. |
So although not 100% clear it seems that SAFEA considers there to be two groups of teachers in China - those that are 'foreign experts' and those that aren't. Teachers who are not employed under 'foreign expert' status can choose to follow SAFEA measures but don't seem to be bound by them, and I assume that the same applies to schools.
Mark - As to your earlier question about the validity of the languages of an employment contract, I can see no such stipulation in the regulations that I have read.
There is this:
| Quote: |
Article 6
The following particulars shall be specified in the contract:
(1 ) the name and nationality of the parties ;
(2) the date and place of the signing of the contract;
(3) the time period, place and method of performance;
(4) the rights and obligations of the parties;
(5) the amount of salary, method of payment, living arrangements, medical care and so on;
(6) the liabilities for breach of contract;
(7) the ways for settling contract disputes;
( the languages in which the contract is written and their validity. |
Number 8 of which suggests to me that my earlier comments were correct in that a contract of employment can be written in any language and still be valid. Also the SAFEA guidelines seem to support my earlier suggestion that a bilingual contract should state which language version would prevail in the case of a discrepancy.
I am not a contract lawyer so I do not apologize for prefacing my opinions as being opinions. Personally I think it is misleading when people post their opinion as being fact yet we see this time and time again on this board. I would be interested if any of the other long-termers here have any comments about this topic. |
|
| Back to top |
|
|
vikdk
Joined: 25 Jun 2003
Posts: 1676
|
| Posted: Thu Apr 20, 2006 11:51 pm Post subject: |
|
|
| But Clark isn't if fair to the newbie to tell them not to pin too much hope on a contract if they indeed do get major problems with a Chinese employer - and that is in whatever way or form that contract is infact written. Therefore an old sceptic like me would say - at best a Chinese contract gives you an idea of what you may expect, especially in terms of hours and wages |
|
| Back to top |
|
|
clark.w.griswald
Joined: 06 Dec 2004
Posts: 2056
|
| Posted: Fri Apr 21, 2006 2:58 am Post subject: |
|
|
| vikdk wrote: |
| But Clark isn't if fair to the newbie to tell them not to pin too much hope on a contract if they indeed do get major problems with a Chinese employer - and that is in whatever way or form that contract is infact written. Therefore an old sceptic like me would say - at best a Chinese contract gives you an idea of what you may expect, especially in terms of hours and wages |
What personal experience do you have in attempting to pursue your contractual rights with the authorities here in China that leads you to believe that this is the case? Sure I am aware of all the opinions on this and I don't necessarily disagree with these, but my question is more specific. Have you ever approached the authorities in a serious manner to discuss contractual issues and see if you can resolve them? If you have no such personal experience then how can you as an individual be so sure that others could not receive a positive outcome if they chose to pursue their rights through the appropriate channels and in the appropriate manner?
By the way, this thread is not about rights under the contract but instead the question as to whether or not there is any legislative restriction as to what language etc the contract must be written in. Once again vikdk hijacks a thread! |
|
| Back to top |
|
|
jester
Joined: 18 Apr 2006
Posts: 111
|
| Posted: Fri Apr 21, 2006 4:33 am Post subject: Hijack? |
|
|
| I'm new here (on this forum) and I don't agree with this "clark" person. He seems like a whiner extraodinaire. I agree with Vikdk. No contract is worth anything. Fullstop. Period. Finish. End of story. Contracts are only the carrot on the stick. We all have to take our chances. No it's not a jungle out there, but the roar did not come from a mouse. |
|
| Back to top |
|
|
Roger
Joined: 19 Jan 2003
Posts: 9138
|
| Posted: Fri Apr 21, 2006 4:59 am Post subject: |
|
|
| vikdk wrote: |
| But Clark isn't if fair to the newbie to tell them not to pin too much hope on a contract if they indeed do get major problems with a Chinese employer - and that is in whatever way or form that contract is infact written. Therefore an old sceptic like me would say - at best a Chinese contract gives you an idea of what you may expect, especially in terms of hours and wages |
Viktoria, trying to win that cigar is not going to work for you! You are wrong again, as almost always! Mysterious Mark isn't a NEWBIE - unless you admit to being one yourself - there is one year of difference between his first post and yours! |
|
| Back to top |
|
|
jester
Joined: 18 Apr 2006
Posts: 111
|
| Posted: Fri Apr 21, 2006 5:20 am Post subject: |
|
|
To inform a real newbie, roger. Is Viktoria your boy/girlfriend? Or maybe an ex? The endless bickering between you two points to a nasty(or not so nasty ) breakup in the recent past. Please bring us all up to speed.
Thanks |
|
| Back to top |
|
|
Mysterious Mark
Joined: 15 Dec 2004
Posts: 121
|
| Posted: Fri Apr 21, 2006 5:21 am Post subject: |
|
|
To those interested in debating whether or not China has any laws worth mentioning at all, I don't blame you for considering pessimism a useful attitude, but please save it for another thread.
Clark, thank you for putting those laws on your website, even though they're all about 10+ years old now. Obviously they're not exhaustive in terms of what foreigners who are interested in Chinese law need to know. The article you quoted about what a contract should contain does seem to imply that there's no need for a Chinese version, but it doesn't rule out such a requirement.
Three things to remember:
1) There are recurring mentions of the need to act in accordance with the law, without reference to specific laws, i.e. so that any other law can be applied.
2) There are recurring mentions of the powers of lower levels of government to interpret national laws ("decide how to implement the regulations" kind of stuff).
3) The laws on Foreign Experts and Employment of Foreigners do not cover all foreigners doing work/business in China.
| Quote: |
Article 34
No privately-owned economic entity or individual citizen is allowed to employ foreign people. |
Private companies can't employ foreigners? That might just be out of date, but more likely imo it demonstrates my third point.
Anyone who technically falls into a category not covered by the above mentioned laws will need to read other laws to find out what Chinese law says about his/her situation. If I ever get around to it, I will sit down with a Chinese lawyer and have a nice, long talk about these issues.
In the meantime, in a country with officially recognized minority languages, isn't there some kind of official language law? |
|
| Back to top |
|
|
vikdk
Joined: 25 Jun 2003
Posts: 1676
|
| Posted: Fri Apr 21, 2006 6:08 am Post subject: |
|
|
What this whole forum is about is information - and warning those who don't know better that by following the advice of certain posters here could lead you into a situation which you didn't expect. To answer questions on contract law in China you certainly have to be an expert - you have to understand the legal precedent these laws work under - otherwise all info on this supposition, but supposition that seems to have been dressed up as real mc'coy info!!!
Hard info here consists of experience - and warning the new about not pinning too many hopes on these bits of paper - and how many of the so called wise here talk through their.... So If I help give folk a real impression of this place and the job instead of making it into a 3 out of 5 star fantasy land - then I really don't care what thread I write in
Hej Jester I have Rogers love child - he abandonned us long ago, so at the moment I'm trying to win over a certain CWG but he's playing hard to get - and even though I've saucing it up with some of the rough stuff - giving him a lash here an there - seems ol'C ain't too interested - you got any advice  |
|
| Back to top |
|
|
|
FAQ
Search
Memberlist
Usergroups
Register
Profile
Log in to check your private messages
Log in
