On 6 September, the Ministry of Human Resources and Social Security promulgated the Foreign Nationals Employed in China Participating in Social Insurance Interim Measures, which came into force on 15 October.
Scope of application
The Measures govern foreign nationals who have obtained employment in China, i.e. people of non-Chinese nationality who have obtained employment certificates (such as work permits for foreigners, permits for foreign experts or permits for resident foreign correspondents) and residence certificates for foreigners, and who hold permanent residence permits for foreigners and are working lawfully in China.
The Measures provide that employing units which are legally registered in China such as enterprises, institutions, social organizations, private non-enterprise entities, foundations, law firms and accounting firms, and the foreign nationals they legally hire, must pay social insurance premiums for basic pension insurance, basic medical insurance, industrial injury insurance, unemployment insurance and maternity insurance in accordance with the law.
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Moreover, if a foreign national who has concluded an employment contract with an overseas employer is sent to work at a branch office or a representative office registered in China, then he or she is also required to pay social insurance premiums according to law in the same way as applies to domestic Chinese work units.
However, if a national of a country which has signed a bilateral or multilateral social security agreement with China wishes to work in China, he or she needs to handle social insurance matters pursuant to that agreement.
Period for completing registration
Employing units and domestic work units should handle social insurance registration for foreign nationals within 30 days of the date of applying for employment certificates for such foreign nationals.
In addition, the agencies that handle employment certificates for foreign nationals are required to promptly communicate to the local social insurance agencies the information about the employment of foreign nationals in China.
Entitlement requirements
If a foreign national is entitled to receive monthly social security benefits outside China, he or she should provide, on an annual basis, information identifying the social security agency that pays the social security benefits together with proof of identity issued by a Chinese embassy or consulate, or notarized by a notary in the country of residence and authenticated by a Chinese embassy or consulate.
However, if a foreign national is a legal immigrant, it is permissible for him or her not to provide proof of identity. Immigrants need only to prove their existence at a social security agency.
Personal social security accounts
If a foreign national leaves China before he or she reaches the specified pension age, his or her personal social security account will be retained. If he or she returns to work in China, his or her premium contribution period will be calculated on a cumulative
basis.
If a foreign national applies in writing to terminate his or her social insurance, he or she may be paid a lump-sum amount on account of the savings in his or her social security personal account. If a foreign national dies, the balance in his or her personal social security account may be inherited according to law.
Dispute resolution and penalties
If a foreign national has a dispute with his or her employing unit or domestic work unit over social insurance, he or she can apply for mediation or arbitration or take legal action. If the employing unit or domestic work unit infringes his or her social security interests, he or she may also request the social security administration department or social insurance premium collection agency to deal with it according to the law.
If an employing unit or a domestic work unit fails to complete the social insurance registration for a foreign national it hires or to pay social insurance premiums for him or her in accordance with the law, this matter will be dealt with pursuant to the PRC Social Insurance Law and Labour Security Supervision Regulations as well as other laws, rules and regulations.
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Business Law Digest is compiled with the assistance of Haiwen & Partners. The authors can be emailed at baochen@haiwen-law.com. Readers should not act on this information without seeking professional legal advice.
