The Employment of “Elderly” Foreigners in China: Service or Employment?

作者/编者:Jiang Junlu(Partner), Luo Kaitian (Associate)
作者单位:金杜律师事务所
创作年代:2016
出处/来源:金杜律师事务所
学科分类:劳动法学
所属机构:金杜律师事务所
文献语种:

摘要

With the development of Chinese economy, more and more foreigners are being employed in China, among which there is a group of “Laowai” who has already reached or even passed the Chinese statutory retirement age (the “Elderly Foreigners”). The Elderly Foreigners are not like their Chinese fellows who are retired completely at the age of 55 or 60, but still being active at their jobs or even acting as middle-level and high-level managers or technicians in many companies. The question is, whether the employment form of the Elderly Foreigners is service or employment under Chinese law? The Regulations on the Management of the Employment of Foreigners in China provides that in China, the minimum employment age for a foreigner is 18, but there is no explicit provision to specify whether they shall be bound by requirements of the Chinese statutory retirement age. In some regions such as Beijing and Shanghai, local regulations stipulate that the upper age limit is 60 or, 60 for male and 55 for female. However, these local regulations do not provide a clear instruction on the foreigners’ statutory retirement age in China and, at the same time, allow the liberation of the aforesaid age requirements for talents urgently needed. Thus, does it mean that the Elderly Foreigners in China are not legally required to retire?To crack the puzzle, this article deals with a research on several cases through public resources available and realized that the answers of local courts in various regions are not the same.

关键词: The Elderly Foreigners; Service; Employment

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