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Chapter 1 General Provisions
Article 1
In accordance with the State Council Office Development (1991) No. 71, and other related stipulations, the Provisional Administrative Measures on Shanghai Foreign Personnel Cooperation” (hereinafter the Measures) is formulated to promote the development of personnel cooperation in Shanghai, simplify the examination and approval procedures of personnel’s trips abroad, and strengthen the administration of labor export related activities.
Article 2
The foreign personnel service cooperation referred to in the Measures refers to economic behaviors of enterprises in Shanghai dealing in contracting foreign projects and personnel service cooperation (hereinafter referred to as dispatching units) signing foreign personnel service cooperation contracts with foreign government institutions, enterprises, other economic organizations or individuals (hereinafter referred to as foreign parties), organizing Chinese workers, farmers, sailors, cooks, doctors and nurses, engineering technology personnel or management personnel (hereinafter personnel dispatched) to offer personnel services outside China and receive service payment.
Article 3
The forms of foreign personnel service cooperation referred to in the Measures include:
1) The dispatching unit signs foreign labor service contract with foreign party, and is responsible for contract implementation;
2) The dispatching unit signs foreign labor service contract with foreign party, and entrusts project implementation unit with the responsibility of contract implementation. (hereinafter referred to as implementation unit);
3) The implementation unit collect business information on foreign labor cooperation, consigns dispatching units with signing foreign labor cooperation contracts with foreign parties and handling overseas trip procedures. The implementation units then is responsible for the implementation of the contract.
Article 4
The foreign personnel cooperation conducted in Shanghai city must observe the following policies:
1) The enterprise must abide by related laws and rules of China, comply with diplomatic policies and foreign economic and technological cooperation policies, and refer to international practices;
2) The enterprise must abide by concerning laws and rules of host countries and regions, and respect local customs;
3) The enterprise must observe the contract and ensure quality on the basis of equality and mutual benefit;
4) The enterprise must contribute to the development of friendly and cooperative relations between countries;
5) The enterprise must observe the salary criteria formulated by MOFTEC for countries and areas concerned, and prohibit price competition.
Chapter 2 Dispatching Units and Implementation Units
Article 5
The term dispatching units as used in the Measures refers to enterprises, exclusively or concurrently, dealing in contracting foreign projects and personnel service cooperation.
Article 6
The right to operate contracting of foreign projects and personnel service cooperation shall be examined and granted by MOFTEC. The applying procedure is: the applying unit shall submit its application to the authority in charge; the related authority presents the application to the Foreign Trade and Economic Cooperation Committee of Shanghai Municipal Government for preliminary review; then the Municipal Committee shall submit the application to MOFTEC for examination and approval.
After registration with Shanghai Administration of Industry and Commerce, the approved dispatching unit will be issued license for sending personnel abroad by MOFTEC.
Article 7
The term implementation units as used in the Measures refers to enterprises or institutions that send their own employees to implement the entire or partial task of foreign personnel service.
Generally speaking, implementation units of foreign labor cooperation shall be selected by dispatching units that sing contracts of foreign labor cooperation.
Chapter 3 Dispatching
Article 8
To conduct foreign labor cooperation with foreign parties, dispatching units must sign contracts, of legal force and in written form, with foreign parties on foreign labor cooperation.
Article 9
In accordance with of foreign labor cooperation contracts, dispatching unit or implementation units shall select labor service personnel and establish personnel relationship in one of the following ways:
1) In cases where personnel sent abroad are selected by implementation units, their personnel relationships with the implementation units remain unchanged (hereinafter as dispatched by implementation units);
2) In cases where personnel sent abroad are selected by dispatching units through open recruitment:
a) those who are currently employed may, with permission from their original employers, retain their posts without being paid and keep their personnel relationships with their original employers (hereinafter personnel dispatched with working post retained without salary); They can also choose to resign to break off their personnel relationships with their original employers, and sign contracts with the dispatching units after being recruited (hereinafter dispatched after resignation). Should disputes arise over their resignation, the Measures on Foreign Invested Enterprises’ Recruiting In-service Personnel shall be referred to.
b) those who are currently unemployed shallwill sign contracts with dispatching units after being recruited.
If the aforementioned personnel to be dispatched hold senior professional titles, they shall not be dispatched until permission has been obtained from bureaus in charge of their original employers.
Article 10
In cases where personnel to be dispatched are from other provinces or cities, the dispatching units in Shanghai shall obtain approval from the Shanghai Foreign Trade and Economic Cooperation Commission unless otherwise stipulated.
If labor service enterprises under the charge of the central government or enterprises of other provinces and cities intend to dispatch personnel from Shanghai enterprises or institutions, approval shall generally be obtained from the Shanghai Foreign Trade and Economic Cooperation Commission.
Article 11
Dispatching units shall present the following documents to the Municipal Foreign Trade and Economic Cooperation Committee to apply for approval document on sending personnel abroad:
1) License for sending personnel abroad;
2) Contracts of foreign labor cooperation signed with the foreign party;
3) Application report from the dispatching unit;
4) Other relevant materials needed for examination and approval.
On receipt of the aforementioned documents, the Shanghai Foreign Trade and Economic Cooperation Commission shall give official reply in written form within in 5 working days.
Article 12
Dispatching units or implementation units shall present the approval document to go through various political examination formalities for trips abroad for personnel to be dispatched:
1) For personnel dispatched by implementation units, the implementation units
2) For personnel dispatched with working post retained without salary, their original employers shall be responsible for conducting their political examination and preparing political examination materials;
3) For personnel dispatched after resignation, their original employers or the subdistrict offices holing their registered permanent residence shall be responsible for conducting their political examination and preparing political examination materials;
4) For personnel originally unemployment, the subdistrict offices holing their registered permanent residence shall be responsible for conducting their political examination and preparing political examination materials;
5) For farmers, fisherman and self-employed laborers, the subdistrict offices holing their registered permanent residence or the township governments shall be responsible for conducting their political examination and preparing political examination materials; for employees from township enterprises, the authority in charge are to be responsible for political examination activities and providing political examination materials.
Dispatching units are to provide political examination approval documents after reviewing the political examination materials prepared for the aforementioned personnel.
Article 13
Dispatching units shall present license for sending personnel abroad, approval documents on sending personnel abroad, and approval documents on political examination to apply for passports in conformity with the following stipulations:
1) For personnel dispatched to perform agreements signed by government or government departments with foreign parties, or for personnel directly selected and dispatched by dispatching units, or for personnel dispatched to countries or regions that require Ordinary Passport for Official Purpose for entry, the dispatching units shall apply to the Foreign Affairs Office of the Shanghai Municipal Government for Ordinary Passports for Official Purpose.
2) All Ordinary Passports for Private Purpose required shall be handled in conformity with related stipulations of the Shanghai Bureau of Public Security.
Article 14
Personnel approved to be dispatched for one year or beyond shall go through formalities on health inspection and protective inoculation in Shanghai Health Quarantine Bureau prior to going abroad.
Article 15
For enterprises whose applications conform to the stipulations of the Measures, the Foreign Affairs Office of Shanghai Municipal Government and Public Security Bureau of Shanghai City shall process their applications.
Chapter 4 Labor Income Distribution and Labor Insurance
Article 16
personnel dispatched by implementation units shall negotiate with the implementation units on the distribution of their labor income in one of the following methods:
Method 1:
1) The personal income of personnel dispatched shall be no less than 60% of their personnel contract amount, the remaining part is to be allocated by implementation units and dispatching units upon agreement reached;
2) The domestic basic salaries of dispatched personnel shall be paid as usual, personnel insurance and single child subsidy shall also be paid as usual, but bonus, allowance, insurance and welfare treatment shall be suspended.;
3) Upon completion of the contract, personnel shall return to and go on working with their original employers, and the period of their working abroad shall be included in their length of service.
Method 2:
1) The personal income of dispatched personnel shall be no less than 75% of their personnel contract amount, the remaining part is to be allocated by implementation units and dispatching units upon agreement reached;
2) The domestic basic salaries, personnel insurance, single child subsidy, bonus, allowance, insurance and welfare treatment of dispatched personnel shall be suspended.;
3) Same as the third item in Method 1.
Article 17
For personnel dispatched with working post retained without salary, the allocation of their labor income and personnel insurance shall refer to Method 2 of Article 16.
Article 18
For personnel dispatched after resignation, the allocation of their labor income and personnel insurance shall follow the following stipulations:
1) Prior to going abroad, the dispatching units shall collect, from foreign parties, labor suretyship bond of US$ 250~500 in advance, then forward 50% of that amount to social unemployment insurance institutions concerned, and forward the rest to original employers of the personnel to be dispatched exported, or to subdistrict offices (Township governments) holding the personnel’s’ registered permanent residence;
2) When personnel are working abroad, the administration fee charged by dispatching units shall not exceed 10% of personnel contract amount, the rest belong to the personnel themselves;
3) Contracts signed by personnel with dispatching units shall come to an end upon the personnel’s return from abroad on completion of personnel contracts; personnel shall return to their original places of residence and resume their state of unemployment, and shall receive unemployment insurance in accordance with relevant stipulations;
4) If dispatched personnel have entrusted their dispatching units or subdistrict offices (township governments) to pay for their pension fund during their staying abroad, the period shall be included into their lengths of service when they return to China.
Article 19
The distribution of labor income and personnel insurance for personnel originally unemployed during their stay abroad shall refer to items 1~3 of Article 18.
Article 20
The distribution of labor income and personnel insurance for sailors dispatched shall be formulated separately.
Article 21
For foreign personnel cooperation implemented in the form stipulated in item 3 of Article 3, the agency fee charged by dispatching unit shall not exceed 5% of the contract amount; and the rest of the contract amount shall be arranged by the dispatching units with related departments.
Article 22
Service revenue obtained by implementation units for foreign personnel service cooperation (not including contracted projects) can be included into the wage fund and used appropriately.
Chapter 5 Administration and Coordination
Article 23
Foreign labor cooperation in Shanghai shall be put under centralized administration of the Shanghai Foreign Trade and Economic Relation Commission. It shall perform duties list below:
1) Acceptance, preliminary examination and forwarding of applications made by enterprises in Shanghai for operation commission on contracting foreign projects and labor cooperation;
2) Examination and approval of related trips abroad;
3) Organizing relevant departments and offices to conduct training for personnel to be dispatched abroad;
4) Conducting commendation, awards, or punishment concerning dispatching units and implementation units;
5) Coordination relevant issues.
Article 24
Administration institutions such as the Foreign Affairs Office of Shanghai Municipal Government, Shanghai Bureau of Public Security, Shanghai Personnel Bureau, Shanghai Customs, and Shanghai Health Quarantine Bureau shall give their support to foreign labor service to promote the development of foreign labor cooperation in Shanghai.
Article 25
When staying abroad, dispatched personnel shall accept the administration by Chinese embassies, consulates, offices in the country where they work, or administration by other relevant labor authorities.
Chapter 6 Supplementary Provisions
Article 26
Implementation of sending training personnel and personnel of various categories to Japan shall follow the stipulations of the Measures.
Article 27
Relevant units and individuals shall be encouraged to provide information on international labor cooperation projects to dispatching units. In cases where project contracting succeeds, the provider of the information shall will be rewarded by dispatching units.
Article 28
Personnel to be dispatched against the stipulations of the Measures may procure tax-free goods in specified tax-free shops against their passports and tax-free shopping credentials.
Article 29
The Measures shall be interpreted by Shanghai Foreign Trade and Economic Cooperation Commission.
Article 30
The Measures shall go into effect as of December 1, 1992. Any previously formulated measures, in case of discrepancy, shall subject to the Measures.
Issued by Shanghai Municipal Government
November 13, 1992
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