Find Out How to Divide Assets in International Divorce Lawsuit in China
Exploring the complexities of asset divisions in international divorce cases often proves contentious and intricate.
In this second part of our International Divorce article, we cover extensively regarding asset division and ownership of foreigners and their spouse in the divorce process in China.
1.What property belongs to the personal property of one of the spouses in the event of divorce?
Article 1063 of the Civil Code clearly outlines the personal assets of an individual spouse, which, upon marriage, remain separate and do not become shared property with the other spouse.
(i) Premarital property, defined as assets owned by an individual prior to marriage registration, retains its status as personal ownership unless otherwise specified by mutual agreement.
(ii) Personal Injury Compensation: Any damages or compensation received by either party for bodily injury sustained by an individual, directly associated with the injury, is considered personal property.
(iii) Property designated in a will or gift agreement as belonging exclusively to one party.
(iv) Household items set aside for personal use by an individual, like clothing and personal care items, are typically regarded as personal property.
(v) The law also offers a broad guideline to encompass other instances of clearly personal property and to accommodate the varied aspects of social life. When determining the allocation of property, an asset can only be classified as personal property if it doesn’t fit into the first four categories mentioned above but exhibits distinct personal exclusivity. If the classification of the property is ambiguous, it is treated as shared property.
2．What property belongs to the joint property of husband and wife?
The Civil Code and the Interpretation on the Application of the Marriage and Family Part of the Civil Code specify that the following assets constitute the shared property of the spouses.
i) Earnings, bonuses, and compensation for work performed.
ii) Income generated from production, business activities, and investments.
(iii) Income derived from intellectual property rights.
(iv) Inherited or donated assets, excluding those specifically designated in a will or gift contract as belonging solely to one party.
(v) Profits obtained from investments made by one of the parties using their personal assets.
(vi) Housing subsidies and housing funds received or entitled to be received by both spouses.
(vii) Basic pension and bankruptcy resettlement compensation received or eligible for both parties.
(viii) Other assets that are designated for joint ownership
3. Can the spouses agree that property acquired during the marriage and pre-marital property shall belong to each of them?
Yes. Indeed, both parties should sign a written agreement, or the assets acquired during the marriage will be deemed joint property of the spouses unless otherwise provided in laws. We strongly recommend notarizing the relevant property agreement to guarantee its validity and recognition by the court in the event of any disputes.
4. How is the joint property of husband and wife distributed by the Chinese court in case of divorce?
In principle, assets are typically distributed equally, following a 50/50 division. However, Chinese courts have the discretion to allocate a larger portion to the party responsible for childcare, the woman, or the innocent party, based on the specific circumstances of the property.
5. How is the property purchased for both parties at the expense of one parent to be distributed in the event of divorce?
If the house was bought by the parents of one party of the spouses before their marriage, it shall be deemed as the gift to their own child unless expressly stated by the parents that the gift belongs to the spouses. If the house was bought by the parents of one party of the spouses after their marriage, it follows the agreement made by the couple regarding the house at that time. If there is no agreement or the agreement is ambiguous, unless the parents explicitly intended the gift for only one of the spouses, the property is considered a gift to the spouses and thus becomes joint marital property.
Question & Answers
(1) Can the spouse who has contributed more to the family ask for compensation from the other spouse?
In accordance with Article 1088 of the Civil Code, a spouse who has taken on more significant responsibilities such as child-rearing, elderly care, or supporting the other spouse in their endeavors, holds the right to seek compensation from the other party in the event of divorce. However, the Civil Code does not define specific criteria for this compensation, often resolved through negotiation between the spouses or by the court’s decision.
(2) In the event of a divorce, if one of the parties is cheating on his/her spouse, how can the other party maximize his/her interests in the division of property?
As per Article 1091 of the Civil Code, if one spouse cohabits with another individual, leading to divorce, the innocent party is entitled to seek compensation from the party at fault.
Article 1091 of the Civil Code grants the innocent party the right to seek compensation in cases where circumstances leading to divorce are attributable to the fault of the other party.
(i) Bigamy
(ii) Living together with someone else.
(iii) Family violence
(iv) Abuse or abandonment of family members
(v) Other major faults.
(3) What should be done if one of the spouses is found to have transferred property during the divorce?
If one of the spouse is found to have concealed, transferred, sold, damaged, or recklessly spent shared marital assets, or attempted to incur joint debts deceitfully to seize the other spouse’s property, the court may, during the divorce asset division process, allocate a reduced or no share of the marital assets to that spouse. If such misconduct is discovered by the other party after the divorce, they have the right to petition the court for a reconsideration of the division of the couple’s shared assets.
(4) What debts are shared by both spouses?
(i) Debts jointly signed and acknowledged by both spouses.
(ii) Debts accumulated by one spouse, for which the other spouse subsequently acknowledges joint responsibility.
(iii) Debts accumulated by one spouse in their own name during the marriage to cover the family’s everyday necessities (excluding debts exceeding these needs.
(5) How are joint debts to be paid by both spouses?
Both parties are responsible for payment.
If you have any queries, please feel free to contact us
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
Do You Know the Methods and Jurisdiction of International Divorces in China?
With the growing number of foreigners residing in China, there is also an increasing divorce cases among international couples, whether between two foreign nationals or a mix of Chinese and foreign individuals. Exploring these situations requires a thorough understanding of the complex laws and regulations governing foreign-related divorces in China.
This article aims to provide comprehensive insights into the relevant Chinese laws that underpin these divorces, offering readers a nuanced understanding of the process. In China, there are two primary methods for filing for divorce: mutual consent and divorce litigation.
1. How To Get Divorced in China
(1) Methods of Divorce
Divorce in China can be broadly classified into two main avenues: mutual consent divorce and divorce via litigation. Mutual consent divorce entails the voluntary agreement between a married couple to dissolve their union, which is formalized through the marriage registration authority. On the other hand, litigation divorce involves one or both spouses resorting to the people’s court to initiate divorce proceedings.
(2) What are the advantages of divorce by mutual agreement?
Mutual agreement divorce offers a more streamlined and expedited process compared to litigation divorce. Essentially, if both parties reach consensus on the divorce, they can directly visit the Civil Affairs Bureau, China’s administrative body for marriage registration, to initiate the divorce registration.
Following a mandatory 30-day cooling-off period from the application date, if both individuals remain steadfast in their decision to divorce, they can return to the Civil Affairs Bureau to obtain the official divorce certificate.
(3) Can a foreigner get divorced by mutual consent in China?
If both spouses are officially married in China, they can pursue a mutual agreement divorce at the Civil Affairs Bureau. However, if both individuals are foreigners and their marriage wasn’t registered in China, divorce can only be achieved through litigation.
(4) Under what circumstances is a litigated divorce necessary?
If both parties are unable to reach a mutual agreement on the divorce or if both parties did not register marriage in China, it will proceed through litigation.
(5) If a divorce is obtained through litigation, under what circumstances will the court grant a divorce?
In the legal proceedings of China, when one spouse initiates a divorce lawsuit for the first time, the court typically doesn’t immediately approve the divorce. However, the court will grant the divorce unless specific circumstances exist.
i) Being married to more than one person simultaneously or living together with another individual while still married.
ii) Engaging in acts of family violence or maltreating and abandoning family members.
iii) If the individual has a history of repeatedly engaging in activities such as gambling or drugs abuse.
iv) Two years of separation resulting from irreconcilable differences.
v) Additional factors contributing to the deterioration of the couple’s relationship.
(6) What should I do if the court decides not to grant a divorce?
If the court does not grant a divorce in the first legal action, a second divorce petition can be filed after six months from the judgment’s effective date. If the spouses continue to live separately for one year following the first judgment, and one of them files for divorce again, the court is mandated to grant the divorce.
(7) How long does it normally take to file for divorce?
A divorce process typically spans from six months to a year. The duration may vary depending on the workload of individual courts, with those handling heavier caseloads potentially requiring more time. Opting for mediation can shorten this timeframe.
2. Determining Jurisdiction in Foreign Divorce Matters
Determining jurisdiction in foreign divorce matters involves understanding which court has the authority to hear the case. For international couples, this typically depends on the domicile or habitual residence of the parties involved. We have outline a framework to address the divorce court jurisdiction in each individual scenarios that may take place.
Scenario 1：Chinese + Foreigners
(1) If the marriage took place in China, and both parties settled abroad.
The jurisdiction will be prioritize granting to filing the divorce case in the courts of the country where the parties reside.
If the courts in the country of residence refuse to accept the divorce case and determine that it falls under the jurisdiction of the court where the marriage took place, or where one of the parties last resided in the country, then jurisdiction lies with the court in that location.
(2) If the marriage took place in abroad and both parties settled abroad.
The jurisdiction will be in the country where the individual lives is given priority for the divorce case.
If this court declines to hear the case, stating it falls under the jurisdiction of the individual’s home country, then the court in the individual’s original or last known residence in their home country will have jurisdiction.
(3) If the marriage took place in China or foreign countries, and one party has settled abroad，the other one has settled in China
The domicile of one of the domestic parties will have the jurisdiction, as stipulated in Article 23 of the Civil Procedure Law and elaborated in Article 15 of the Judicial Interpretation of the Civil Procedure Law.
(4) If the marriage took place in China or foreign countries, and both parties have settled in China
Then the defendant’s place of domicile or habitual residence will have the jurisdiction. (Article 22 of the Civil Procedure Law, “CPL”）
Scenario 2：Foreigners + Foreigners
(1) if the marriage took place in foreign countries, and one party has settled abroad, the other party has settled in China.
The People’s Court where one of the domestic parties resides has the jurisdiction (Articles 4 and 23 of the CPL)
(2) if the marriage took place in foreign countries, and both settled in China.
Jurisdiction is established based on the defendant’s domicile or habitual residence, in accordance with the plaintiff-versus-respondent principle (Article 4,22 of the CPL)
(3) At what level of court do foreign divorce proceedings need to be brought?
The Basic People’s Court holds jurisdiction over all foreign divorce cases.
(4) Can the parties to a foreign-related divorce choose by agreement to be subject to the jurisdiction of the Chinese courts?
In accordance with Article 277 of the updated Civil Procedure Law as of 2023, parties involved in foreign-related divorce proceedings have the option to select the jurisdiction of a Chinese court through written agreement, irrespective of their residence status or any affiliation with China.
If you have more queries about international divorce, please feel free to contact us
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
How New Civil Procedure Law Will Transform Foreign Litigation
Exploring the revisions to China’s Civil Procedure Law, effective from January 1, 2024, reveals a notable addition: a new section dedicated to foreign-related civil litigation procedures. This update expands the jurisdiction of Chinese courts over such cases and introduces key provisions like parallel proceedings. It also simplifies procedures for foreign-related service and enhances judicial assistance systems. Additionally, it outlines procedures for extraterritorial investigation and evidence collection and refines rules for recognizing and enforcing foreign court judgments. This article provides insight into the implications these changes hold for foreigners and foreign companies.
1. Extension of the jurisdiction of Chinese courts in foreign-related cases
Where the following circumstances exist, Chinese courts may have jurisdiction
(1) Six selections of jurisdictions
Chinese courts can extend their jurisdiction to foreign-related cases under certain circumstances. If a civil litigation (except for identity relations litigation) involves a defendant (i.e., a foreign individual or company) without domicile in China, jurisdiction may be established in the following locations:
(i) where the contract was made;
(ii) where it was executed;
(iii) where the subject matter of the dispute is situated;
(iv) where property may be seized;
(v) where the wrongful act occurred;
(vi) where the representative organization is domiciled.
(2) The parties have mutually agreed in writing to select the jurisdiction of Chinese courts.
(3) Where there are other appropriate connections
In a civil jurisdictional dispute involving Intellectual Property Bridge No. 1 LLC, a Japanese company, and Huawei Technologies Co., Ltd. among others, the Japanese company contested the jurisdiction of the lawsuit initiated by Huawei. They argued that the dispute, centered around a license for a standard-essential patent, was essentially contractual in nature. However, as the Japanese company did not have domicile in China, they maintained that the jurisdictional connections pertaining to the contractual dispute were not relevant to this case. Consequently, they urged the Chinese court to dismiss the lawsuit.
In response to the jurisdictional objections, the Supreme Court introduced the nuanced concept of the “principle of appropriate connection.” It determined that Dongguan City had a relevant link to the dispute, justifying its role as the territorial jurisdictional hub. Furthermore, under relevant regulations, the First Instance Court is empowered to handle inter-regional jurisdiction in initial patent civil cases within Guangdong Province, excluding Shenzhen City. Therefore, the court’s exercise of jurisdiction is considered appropriate and free from any wrongdoing.
(4) The parties did not raise objections to jurisdiction and instead responded to the defense or lodged counterclaims.
For instance, in a scenario where a Chinese company entered a sales agreement with a Canadian counterpart, specifying the jurisdiction of the People’s Court in Shanghai, subsequent legal action was taken by the Chinese company against the Canadian entity in the People’s Court of Beijing. Despite this, the Canadian company opted not to contest jurisdiction but rather filed a defense statement with the Beijing Municipal People’s Court. In light of the recently amended law, this action by the Canadian party was construed as an implicit acknowledgment of the jurisdiction of the Beijing Municipal People’s Court. Consequently, the court was deemed rightfully vested with jurisdiction over the case.
2. Additional provisions on parallel proceedings
(1) Parallel proceedings in general
In the same dispute between parties, if one party sues in a foreign court and the other party sues in a Chinese People’s Court; or if one party sues in both a foreign court and a Chinese court, the Chinese court with jurisdiction may still accept the case.For example, a Chinese company and a U.S. company signed a supply contract, the contract did not explicitly agree on the competent court. The Chinese company sues the American company in a Chinese court, and at the same time, the American company sues the Chinese company in a U.S. court. According to the newly amended law, if the Chinese court has jurisdiction under the Civil Procedure Law, it can still accept the Chinese company’s lawsuit even if the American company has also filed a lawsuit in the American court.
(2) Parallel Litigation under Exclusive Jurisdiction Agreement
If the parties enter into an exclusive jurisdiction agreement to choose a foreign court jurisdiction, and the agreement does not violate the provisions of this law on exclusive jurisdiction, does not involve the People’s Republic of China’s sovereignty, security or social public interests, the Chinese court may rule that it is not admissible; if it has been admissible, the Chinese court may dismiss the lawsuit.For example, a Chinese company signed a sales contract with a French company and concluded an exclusive jurisdiction agreement stipulating that only the French court had jurisdiction; if the agreement did not violate the exclusive jurisdiction and did not involve China’s sovereignty, security or social public interests, then even if the parties filed a lawsuit against the Chinese court, the court could rule that the lawsuit was inadmissible or dismissed.
3. Revisions to Acceptance Subjects and Modes of Foreign-related Service
(1) Litigation Representatives
(2) Branches
When the recipient is a foreign legal entity (company), documents can be served on its representative office, branch, or appointed business agent in China authorized to accept service. There is no requirement to demonstrate the branch’s authorization to accept service.
(3) Sole Proprietorship
If a company has established a sole proprietorship in China, legal documents can be served directly to the sole proprietorship without a separate authorization from the foreign shareholder.
(4) Foreigners or Stateless Persons
Should a foreigner or stateless individual serve as the legal representative or key decision-maker of a company or organization in China and be a co-defendant in a commercial dispute, serving documents on the company or organization is permissible.
(5) Foreign Legal Entity or Other Organization
When dealing with a foreign legal entity or organization, if its legal representative or primary decision-maker is situated in China, serving documents upon them is authorized.
(6) Electronic Means
Electronic service now extends beyond conventional methods like fax or email. What matters is ensuring acknowledgment of receipt by the recipient, as long as it complies with the recipient’s country’s laws.
(7) Flexible Alternatives
Agreed-upon alternative methods of service are permissible, provided they adhere to the legal framework of the recipient’s country. For instance, if a trusted friend or relative delivers the document on behalf of the recipient with their consent, and without violating local laws, it is deemed acceptable.
(8) Efficient Service through Public Announcement
In cases where traditional methods are impractical, service may be conducted through public notice. The duration for such service has been shortened to 60 days, after which service is considered effective from the date of publication.
4. Expanding Extraterritorial Evidence Gathering Methods
(1) China’s Reach for Evidence in Foreign Territories under Revised Civil Procedure Law
When evidence is located abroad, the Chinese court has the authority to obtain and collect it based on provisions outlined in international treaties between the People’s Republic of China and the respective foreign State. This also applies to treaties where China is a signatory. Alternatively, evidence can be procured through diplomatic channels.
For instance, if an international treaty exists between China and the foreign state, such as the Hague Convention on Evidence, the people’s court may seek assistance through China’s foreign diplomatic service to request the State where the evidence is located to assist in the investigation and collection process.
(2) Three Varieties of Extraterritorial Evidence Gathering Methods (Subject to Legal Compliance in the Respective Jurisdiction)
A. In cases where the party or witness holds Chinese nationality, the Chinese embassy or consulate in their residing country may be tasked with conducting depositions on their behalf.
Embassy or consulate personnel, acting under the authorization of the people’s court, can coordinate with the involved parties or witnesses, schedule the deposition proceedings, and forward the collected evidence to the court.
B. Upon mutual agreement, the People’s Court is empowered to gather evidence through instant messaging platforms.
For instance, if a critical witness resides abroad and is unable to attend court proceedings in person, both parties’ consent allows for remote testimony via a court-arranged video conference. During this session, the witness can provide responses to queries from lawyers and the judge. Similarly, electronic evidence such as email exchanges or WeChat conversations can be shared and presented in court hearings through instant messaging tools, subject to the consent of both parties, to substantiate relevant case facts.
C. Upon mutual agreement of both parties, the People’s Court is authorized to consider alternative approaches for gathering evidence.
The amendment to the Civil Procedure Law concerning foreign-related dispute resolution procedures not only marks a comprehensive overhaul of many foundational aspects of foreign-related legislation but also incorporates numerous subtle and ingenious system designs. This not only addresses the immediate needs of foreign-related judicial practice but also reflects the unparalleled wisdom and ingenuity of the legislators.It stands as a significant response to the evolving landscape of the times and represents an essential requirement for the full realization of China’s state governance strategy governed by the rule of law, the advancement of reforms, and the expansion of international engagement. This amendment embodies a profound adaptation to the evolving dynamics of our era and stands as an imperative for the comprehensive implementation of the rule of law strategy, the deepening of reforms, and the holistic expansion of international outreach.
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
How to Acquire Resident Permit in China Without A Job?
Exploring legal residence options for foreigners in China can be challenging without conventional pathways such as employment or family ties. However, establishing a company and applying for a work permit and residence permit presents a viable alternative.
By leveraging entrepreneurial endeavors, individuals can not only secure legal residency but also engage in business activities within China’s dynamic market. Collaboration with legal experts and thorough preparation are essential for meeting regulatory requirements successfully. Through strategic planning and adherence to relevant statutes, foreign individuals can realize their aspirations for long-term residency in China while contributing to its flourishing business environment.
Step 1: Register A Company
There are several notable advantages to applying for a visa through the establishment of one’s own company. Firstly, pursuing a visa in conjunction with company ownership offers a more pragmatic and rational approach, aligning one’s residency status directly with their entrepreneurial endeavors.
Secondly, the process of visa renewal is often streamlined and expedited for individuals who are registered business owners, facilitating smoother transitions and continuity of residency. Moreover, fulfilling certain predetermined criteria within the framework of business ownership can lead to eligibility for permanent residency status, providing a pathway to long-term settlement in the host country. You may have the following inquiries regarding the specifics of launching a company, such as
- Q1: Do expatriates need to be present during the process of starting a company? Can it be handled online?
Expatriates who possess a real-name certified cell phone number and bank card have the option to complete the process online.
- Q2: How long does it take for a foreigner to start a company in China?
Usually only about 2 weeks to register a company.
- Q3: Is it possible for a company to be established by a single individual?
The establishment of a company requires of three distinct roles:
Firstly, at least one shareholder, who may concurrently serve as the legal representative, is indispensable.
Additionally, a supervisor and an individual who is responsible for the financial matters of the company are imperative.
It is pivotal to note that the roles of supervisor and financial person must be held by distinct individuals, precluding the possibility of a single person occupying both positions. Furthermore, it is stipulated that the accountant person must not be a foreigner who cannot speak Chinese.
- Q4: Can we forgo the appointment of the supervisor?
Under the impending new”Company Law,” scheduled for implementation on July 1, 2024, a notable change pertains to the governance structure of limited liability companies with fewer shareholders.
Specifically, according to the revised provisions, smaller limited liability companies, characterized by a reduced number of shareholders, will have the option to forgo the appointment of a supervisor. This exemption is contingent upon unanimous consent among all shareholders.
- Q5: Is the registered capital required to be fully paid in at once?
According to the amended Company Law, effective from July 1, 2024, shareholders are mandated to fully pay up their contributed capital within five years from the company’s incorporation date, as stipulated in the company’s articles of association. This requirement replaces the previous provision under the current company law, wherein the payment of registered capital was not obligatory at the time of incorporation.
- Q6: What are the liabilities of shareholders?
Shareholders typically assume limited liability concerning the company’s debts, restricted to the extent of their subscribed capital contributions.
However, in cases where the sole shareholder limited liability company fails to demonstrate the autonomy of the company’s assets from the shareholder’s personal assets, the sole shareholder may be subject to joint and several liabilities for the company’s debts.
Consequently, we strongly advise registering a company with two or more shareholders to mitigate such risks and uphold prudent corporate governance.
- Q7: Do foreigners’ passports and other materials need to be notarized and certified?
In the company registration process, there is no requirement for notarizing or certifying passports or any other documentation. However, for the application of a work permit, it is mandatory to provide a non-criminal record and education certificate that have been notarized with apostille certification.
- Q8: Following the company’s successful registration, what additional tasks must be completed?
To establish your company effectively, several essential steps must be taken, including applying for an official seal, opening a company bank account, registering tax certificate, and engaging the services of an accountant to provide assistance with financial matters. These steps collectively ensure the smooth operation and compliance of your company with regulatory requirements.
Step 2: Apply for Work Permit
Upon successful registration of the company, individuals can proceed to apply for a work permit. It’s important to note that various categories of work permits entail distinct application requirements. Therefore, applicants should meticulously review and adhere to the specific prerequisites outlined for their respective work permit classifications.
- Q1: What type of work permit am I eligible to apply for?
In China, foreign workers are categorized primarily into three classifications:
Class A for high-end talents, Class B for professionals, and Class C for other talents. While a strict quota management system is commonly enforced for Class C individuals across most regions, the application process typically prioritizes Class A and B categories.
For Class A high-end talents, the option exists to apply for a work permit valid for up to five years, offering an extended period of employment eligibility.
Conversely, Class B professionals may apply for a work permit with a maximum duration of two years, providing flexibility within the regulatory framework for their employment arrangements.
- Q2: What’s the duration for work permit during the initial application, and is it possible to extend or renew afterward?
Under ordinary conditions, an initial period of six months is typically granted for the issuance of a work permit. However, in cases where the applicant exhibits high qualifications, an initial period of one year may be approved. Furthermore, renewal of the work permit can be sought up to 30 days before its expiration date, facilitating a smooth continuation of employment arrangements.
- Q3: What does the process entail when applying for a work permit?
When applying for a work permit from outside of China, the company initiates the process by submitting the application and relevant documents through the online Service System for Foreigners Working in China.
Subsequently, upon approval, the company receives the Notification Letter of Foreigner’s Work Permit. Foreign nationals utilize this notification letter to apply for a work visa in their respective country. Following the acquisition of the work visa and entry into China, individuals proceed to apply for the formal work permit.
- Q4: What is the typical timeframe required for completion?
The application process for the Notification Letter of Foreigner’s Work Permit typically involves a timeframe of approximately 5-10 business days for completion.
Similarly, the application for the formal work permit also requires a timeline of approximately 5-10 business days.
- Q5: Is it possible to apply for a work permit without possessing a bachelor’s degree or higher education, or evidence of relevant professional qualifications?
Certainly. As a shareholder in the company being registered, individuals have the opportunity to apply for a visa as an investor. Notably, this process does not necessitate the submission of additional documents such as diplomas, certificates, or employment contracts.
- Q6: Which documents are necessary for an investor’s application of work permit?
You need a copy of the original business license and other documents proving that you are an investor, passport, certificate of no criminal record and medical certificate.
- Q7: What are the drawbacks of seeking a work permit as an investor?
During the renewal process of a work permit, the entry and exit bureau conducts a comprehensive review to ensure the continued normal operation of the company and the ongoing status of the applicant as the company’s investor. The assessment of the company’s normal operation primarily focuses on the regular payment of Value Added Tax (VAT).
- Q9: What should an applicant do if uncertain whether the company will settle VAT within six months of the initial application?
We advise you to pursue the application for a work permit as an employee of your company. However, it’s important to note that the eligibility criteria typically require candidates to possess a bachelor’s degree or higher educational qualification, along with relevant work experience.
- Q10: Which documents are required when applying for a work permit as an employee?
The application for a work permit entails the submission of the following documents:
(1) Completed Application Form for Work Permit;
(2) Valid passport;
(3) Non-criminal record certificate;
(4) Certificate of highest academic qualification (bachelor’s degree or above) or other professional qualifications;
(5) Certificate of work experience covering the last two years;
(6) Employment contract;
(7) Medical certificate;
(8) Electronic photo;
(9) Original photo.
Step 3: Apply for Resident Permit
- Q1: Where can I apply for a residence permit? Can I apply online?
Residence permits are exclusively obtainable through in-person applications at the Immigration Office located within each district.
Unlike other processes, online applications are not available for residence permits, it requires applicants to submit their requests offline, in accordance with the prescribed procedures.
- Q2: What documents are required to apply for a work-related residence permit?
The essential documents are:
(1) original passport;
(2) work visa;
(3) temporary accommodation registration form;
(4) medical report;
(5) work permit;
(6) company application letter;
(7) individual application letter;
(8) company business license.
- Q3: What’s the typical duration taken to complete the process?
It normally can take up to 10 working days but in some cases two weeks.
- Q4: How long will I be granted for residence permit?
Normally the period will be the same with work permit
If you have any inquiries regarding the specifics of launching a company, please feel free to contact us.
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
What You Can, And Can’t Say in Advertisement in China?
KEY TAKEAWAYS
- Chinese Advertising Law strictly prohibits the use of absolute superlatives such as “the best” “world-leading” to promote ethical and honest advertising practices.
- It is prohibited to publicized false or misleading advertising and misrepresented product benefits, to protect consumers from deceptive marketing practices.
- It’s a gross violation of the law to harm the state’s dignity or interests, public interests, hinder social stability, impede public order, violate social morality, infringe personal rights in advertising.
- The law prohibits discriminatory content based on ethnicity, race, religion, or sexual orientation in advertisements and aims to promote inclusivity and respect for diversity within society.
INTRODUCTION
The Advertising Law lays down precise guidelines for advertising material in China’s ever-changing advertising practice across the industry, outlawing any statements that are deceptive, untrue, or detrimental to society. Companies operating in China should familiarize themselves with the requirements of the law as there are severe penalties for non-compliance. In order for businesses to successfully traverse this intricate regulatory prospect, we’ll examine the essential elements of the Advertising Law in this article.
1. Overview of Prohibited Contents in Ads
In China’s Advertising Law, the following content are strictly prohibited to ensure ethical and honest advertising practices:
（1）Using Absolute Superlatives
Ads cannot include phrases like “the most, best, highest, top level, top-tier, top1, only, first, sales champion, world-leading, industry leader, forever, national level, world level, world premiere“, etc. which suggest unrivaled
（2）False and Exaggerated Advertising
While advertising often involves exaggeration, this rule targets claims that are demonstrably false.
Case1: False Discount Claims
Recent cases have exposed businesses falsely claiming product price reductions, despite never offering the items at full price. Such misleading price tactics in advertisements are considered false under the Advertising Law and the Provisions on Administrative Penalties for Price Violations, leading to penalties.
Case 2: The company advertised its Anti-Pylori Probiotic Flash-Release Tablets with misleading claims about preventing periodontal disease and inhibiting Streptococcus pyogenes adhesion. However, the product had no such effects, leading to a fine of 100,000 RMB from the market supervision division.
（3）Unauthorized Use of State Authority
Ads must not falsely claim endorsement by, or covertly use the names or images of, state authorities or officials.
For example, “only for ABC national authority” or “endorsed by ABC national leader or ABC national authority,” or using an officer’s name in the advertisement.
（4）Content Restriction
Ads cannot contain obscenity, pornography, gambling, superstition, terror, or violence.
For instance, an advertising that features an erotic suggestion or a description of the body, or one that talks about God’s favors or better fortune.
For instance, a business that used images of zombies and dead bones in their ticket advertisement was fined RMB 8,000.
（5）Offenses Against State Dignity or Interests
Advertisements must not harm the state’s dignity or interests, such as by using an incorrect map of China that omits key areas like Taiwan, the South China Sea islands, or the Diaoyu Islands.Besides, the term of “Former French Concession” is also not allowed in the advertising, as it relates to an area in contemporary China that was leased to France under treaties considered unequal. It transcends mere geographical and cultural descriptors, carrying with it a specific political and historical connotation. The use of this term, along with the implications it bears, is seen as derogatory and harmful to the state’s dignity and interests, breaching the stipulations of the Advertising Law.ShackShack Case: on October 22, 2021, ShackShack was fined RMB 200,000 for releasing a poster that featured the term “Former French Concession.” The reason given was that the term was perceived as demeaning and oppressive by those who had firsthand knowledge of colonial history, undermining the nation’s dignity.
（6）Misuse of National Symbols
The use or covertly use of the national flag, nationalanthem, national emblem, military flag, military anthem, or military emblem of the People’s Republic of China is forbidden.Example: a company was fined RMB 450,000 for hanging Chinese national flag with its company logo on it on its business premises.
（7）Impede Public Order or Violate Social Morality
（8）Hinder Social Stability and Harm Public Interest
Example: A real estate company was fined RMB 20,000 for an ad urging home purchases during COVID-19 to avoid quarantine measures. The ad was deemed to create fear among the homeless and incite housing concerns, harming social stability and public welfare.
（9）Endanger Personal and Property Safety, and Infringe upon Personal Privacy
（10）Discriminatory Content
（11）Environment and Culture Harm
（12）Infringe Rights and Interests of Others
2. Justifying Claims
If an advertiser disagrees with the penalties levied by the Market Supervisory Bureau, they have the option to present supporting evidence (such as awards, certificates, and data) to substantiate their claims.
Should the Market Supervisory Bureau maintain its stance on the penalties, the advertiser can request an administrative reconsideration from a higher-level authority within the Bureau or pursue an administrative lawsuit.
3. Legal Protections Against False Advertising
Various legal protections are available to consumers in response to the problem of deceptive advertising. One such precaution is the option to file a complaint with the Market Supervision Bureau through the website https://www.12315.cn/ or by calling 12315. The advertiser will face the consequences detailed in the sentences that follow if it is discovered that the advertisement is false.
In addition, a consumer has the right to sue the advertiser to recover damages if they believe the advertisement caused them bodily harm or property damage. They can also register a complaint with the Market Supervision Bureau.
4. Penalties for False Advertising
In accordance with Chinese Advertising law and regulation, offenders of fraudulent marketing face specific punishments. Upon discovery of fraudulent advertisements, the Market Supervision Bureau mandates the cessation of dissemination and removal of the advertisement’s influence within the appropriate scope. Offenders are fined three to five times the advertising fee; in cases where the fee is indeterminable or notably low, fines range from RMB 200,000 to RMB 1 million.
For more serious or repeated offenses exceeding three instances within a two-year period, fines escalate to five to ten times the advertising fee. If the fee is minimal or unascertainable, fines range from RMB 1 million to RMB 2 million. Additionally, the Bureau retains the authority to revoke the offender’s business license and advertisement review and approval document, with no acceptance of further advert review applications.
Feel free to contact us if you have more questions about restrictions of advertisement in China.
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
Can Foreigners Purchase Property in China？
KEY TAKEAWAYS:
- To purchase property in Shanghai, Guangzhou and Shenzhen, foreign buyers must have worked in the city for at least one year, while Beijing, Hangzhou, Wuhan only requires the foreign buyer to work in the city without a time limit.
- The Nanjing, Suzhou governments have lifted restrictions on foreigners buying property in their city.
- Additionally, most cities require that the foreign buyers and his/her families do not own any other property in China.
- The property must meet certain requirements before it can be sold to a foreign buyer.
1. Qualifications of Shanghai
- The foreign buyer shall have signed the labor contract with a Shanghai company for a period of more than one year;
- Shall have continuously paid individual income tax or social security in Shanghai for at least one year (the foreigners with permanent resident ID card are exempt from this requirement)
- Possess a work visa or resident permit for work;
- The foreign buyer and his/her family must not own any other houses in China.
- The purchased house must be only for self-occupation.
- The foreigner buyer is limited to purchasing one house at most.
- For further information, please contact 021-962269.
2.Qualifications of Beijing
- Possession of work visa, journalist visa, or permanent resident ID card (regardless of the duration);
- Temporary accommodation registration form issued by the police station;
- Only one house can be purchased.
- Check whether your eligibility to buy a house in Beijing on the website of Beijing House Qualification Verification Platform(http://gfzg.zjw.beijing.gov.cn/login.aspx)
3. Qualifications of Guangzhou
- Employment contract or certificate from Guangzhou company that confirms your employment for at least one year;
- Resident Permit that is valid for at least one year;
- Work visa or work permit；
- The buyer and his/her family do not own any other houses in China.
- The purchased property is only for self-occupation.
4. Qualifications of Shenzhen
- Work permit which has been valid for more than one year, unless the foreigner holds a permanent resident ID card.
- The buyer and his/her family do not own any other houses in China.
- The purchased property is only for self-occupation.
- Only one house can be purchased.
5. Qualifications of Suzhou
- Suzhou government has lifted restrictions on foreigners buying houses in Suzhou starting in 2023. There are no other qualification requirements, such as work visa or social security, for foreigners to buy a house in Suzhou.
- However, foreigners are limited to purchasing a maximum of three houses, each less than 120㎡. There are no restrictions of quantity on houses larger than 120㎡.
6. Qualifications of Hangzhou
- Work or study in Hangzhou (no requirements for the period)
- Hold a resident permit in Hangzhou
- The buyer and his/her family do not own any other houses in China.
- Only one house can be purchased.
(2) For other districts
- No restrictions
7. Qualifications of Nanjing
Nanjing government has lifted restrictions on foreigners purchasing houses in Nanjing starting in 2023. There are no additional qualifications, such as work visa, purpose, amount.
8. Qualifications of Chengdu
- If the house is less than 144㎡ and located in the district of Tian fu, High-tech Zone South Park, Jinjiang, Qingyang, Jinniu, Wuhou, Chenghua
The buyer must have continuously paid social security for at least six months
- If the house is more than 144㎡ or located in districts other than those mentioned above.
No restrictions
9. Qualifications of Wuhan
- Work or study in Wuhan (no requirements for the period)
- Individuals are limited to purchasing only one house for self-occupation.
10. Requirements of the Property
Foreigners purchasing a new property must confirm that it has a valid permit to be sold to foreigners. If purchasing a secondary property, they must check if the transaction can be approved by the local National Security Bureau.
If you need any legal advice or legal service of purchasing real estate in China, please feel free to contact us.
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
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How Much Severance Pay Am I Entitled To in China?
KEY TAKEAWAYS
1. The severance pay will vary between “N”, “N+1” and “2N” depending on the specific circumstances of termination.
2. “N” is calculated by multiplying the monthly average salary for the twelve months prior to terminating the labor contract with years of employment.
3. “N+1” = standard severance pay (N) plus one month’s average salary.
4. The severance pay is limited to three times the average monthly salary in the local area, with the calculation period capped at twelve years.
5. In addition to severance pay, you may also claim unpaid bonuses, commissions, overtime wages, wages for unused annual leave, compensation for refusing to sign a written labor contract, and compensation for non-competition if applicable.
6. Not all courts in China will uphold the termination of a foreigner’s contract. However, it is worth noting that the majority of courts do so, with the exception of the ones in Shanghai.
1. What does “N” stand for?
The term “N“ typically denotes standard severance pay. Article 47 of the Labor Contract Law (“LCL”) outlines that standard severance pay is calculated by multiplying the monthly average salary of the twelve months leading up to the termination of the labor contract by the length of employment. (“the monthly average salary of the twelve months leading up to the termination of the labor contract” hereinafter referred to as “average salary”)
If an employee has worked for less than six months, their severance pay will be calculated based on half a year; if they have worked for more than six months (including six months) but less than one year, their severance pay will be calculated based on one full year.
For example, the average salary amounts to CNY 10,000, with a working period of 3 years and 4 months. As a result, the corresponding severance pay of “N” is CNY 35,000.
Another instance shows an average salary of CNY 10,000 and a working period of 3 years and 9 months, leading to a severance pay (“N”) of CNY 40,000.
2. What does “N+1” refer to?
Article 40 of LCL mandates that employers must either provide one month’s prior notice to employees or pay one month’s salary as compensation in lieu of notice to terminate labor contracts legally and unilaterally. This implies that in the event of legal termination without one month’s prior notice, the employer must offer an additional one month’s salary as severance pay. Conversely, one month’s salary is not mandatory.
Therefore, “N+1” refers to the standard severance pay plus an additional month’s average salary (to compensate for the absence of a notice period).
For example. If the average salary is CNY 10,000, and the employee has worked for 3 years and 4 months. The severance pay of “N+1”=CNY 10,000×3.5+CNY 10,000 =CNY 45,000.
3. What does “2N” stand for
If the employer violates the law by terminating the labor contract, the employee has the right to either request the reinstatement of the labor relationship or demand that the employer pay double the standard severance pay, which is 2N.
For example, if the average salary is CNY 10,000 per month and the employee’s total working period is 3 years and 9 months, then the severance pay of 2N would equal CNY 80,000.
4. Scenarios for “N”, “N+1”, “2N”
For the sake of clarity, we provide the following summary of the scenarios pertaining to “N”, “N+1”, and “2N” as presented in our previous article:
- Scenarios for “N” or “N+1”
(1) Legal bilateral termination;
(2) Failure of renewal;
(3) Mass-layoff
(4) Bankruptcy, dissolution, cancellation;
(5) Employer’s legal unilateral termination (health issues or injury, incompetent in work, significant changes);
(6) The employee’s legal termination (ONLY “N”)
“N+1” only applies in situations where the employer fails to provides the employee with 30 days’ prior notice of termination.
“N” applies when the employer has given the notice period mentioned above, or when employees terminate the labor contract as per Article 38 of LCL.
- Scenarios for “2N”
As previously stated in our article, the employer is obligated to compensate the employee “2N” under the following circumstances:
(1) Terminating an open-ended labor contract by the employer (“open-ended labor contract” does not apply to foreign employees as the employment period can not exceed 5 years.)
(2) Dismissing a female employee during her pregnancy, confinement or nursing period.
(3) Dismissing an employee who suffers from sickness or non-work-related injury within the prescribed medical treatment period.
(4) Dismissing the employee who has worked in conditions exposing them to occupational disease hazards during employment without a pre-employment occupational health examination, or dismissing an employee suspected of suffering an occupational disease during the period of diagnosis or medical observation;
(5) Dismissing the employee who has been working for 15 years consecutively with the employer and will retire in less than five years; or
(6) Any other dismissal that is unlawful or prohibited by law.
5. Is there a limit for severance pay?
Certainly. Severance pay shall be capped at three times the local average salary where the employee’s average salary exceeds three times the average monthly salary of the previous year. Additionally, the calculation years of severance pay shall be limited to twelve years.
6. What else you may claim for?
- Unpaid bonus,allowance, commission, etc.
As long as these are agreed in the labor contract or other agreement.
- Overtime wage
Overtime wage on working days = hourly wage x overtime hours x 1.5
Overtime wage on weekend = daily wage x overtime days x 2
Overtime wage on statutory holiday = daily wage × overtime days ×3
- Wages for unused annual leave
Wages for unused annual leave=daily wage × overtime days ×3
- Compensation for failing to sign a written labor contract
If the employer fails to sign a written labor contract within the period of more than one month but less than one year, it has to compensate the employee double salaries every month (generally capped at 11 months).
- Compensation for non-competition
Only when the employer and employee have entered into a non-competition agreement.
7. Will the court uphold the severance pay of a foreign employee?
- Judicial Practice of Shanghai
(1) In the event that both parties have expressly agreed in the labor contract that the foreign employee is entitled to severance pay, the Shanghai courts will uphold the severance pay as per the Answers of Shanghai High People’s Court to Several Issues Concerning the Trial of Labor Dispute Cases (“ALDC”);
(2) Otherwise, most Shanghai court may not uphold the severance pay pursuant to the ALDC as they believe that foreigners are not eligible to apply the LCL since there are no laws explicitly stating that foreigners can apply the LCL.
Therefore, it is highly advised that foreign employees negotiate with their employer to cover a severance payment clause in the labor contract.
- Judicial Practice of Beijing, Guangzhou, Jiangsu, Zhejiang
Courts in Beijing, Guangzhou, Jiangsu, and Zhejiang province typically support the severance of foreign employees by arguing that the Administrative Provisions on Employment of Foreigners in China do not grant foreigners an exemption from the LCL. Thus, foreigners are eligible to cite the LCL.
Q&A
Q： How should I claim for severance pay?
A： You can initiate a labor arbitration procedure at the Labor Dispute Arbitration Committee where the labor contract is implemented or where the employer is located. For foreign employees in Shanghai, the labor arbitration procedure must be commenced at the Shanghai Municipal Labor Dispute Arbitration Committee.
Q： If I’m not satisfied with the arbitration verdict, what should I do?
A： You may file a lawsuit in court. Otherwise, the arbitration verdict will be enforced. When you are unsatisfied with the court judgment, you may initiate a second instance by submitting an appellate petition.
Q： If the employer fails to comply with the verdict or judgment, what should I do?
A： The employee may apply for enforcement once it takes effect.
If you would like us to assess whether you are entitled to severance pay, please feel free to contact us.
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
Am I Entitled to Severance Pay in China?
KEY TAKEAWAYS
(1) The employee is entitled to severance pay (“N” or “N+1”) under the circumstances of legal bilateral termination, failure of renewal, mass-layoff, bankruptcy, dissolution, health issues or injury, incompetency, significant changes.
(2) The employee is entitled to “2N” of severance pay when the employer’s termination is not permitted under the law or violates the law.
(3) Even if the termination is initiated by the employee, the severance pay (typically “N”) shall be paid by the employer in the event of the employer’s termination of open-ended labor contract, failure of paying remuneration or social security premiums and the employer’s fraud, coercion, violence or other conducts contrary to laws and regulations.
1. When You Are Entitled To Severance Pay?
Under Article 46 of the Labor Contract Law of PRC (“LCL”), the employer may terminate the labor contract but has to pay severance pay to the employee in the following circumstances:
- Legal Bilateral Termination (Article 36 of LCL)
When a company desires to terminate the labor contract, the LCL allows the company to enter into a mutual agreement with its employee on termination of employment relationship.
In such circumstance, a severance package (normally “n” or “n+1”) shall be involved in this termination agreement. The bilateral termination agreements are often used in the event of downsizing as it may avoid conflicts between both parties and legal costs for the potential legal proceedings.
- Failure of renewal
When a fixed-term employment contract expires, and the employer is not satisfied with the employee’s performance, it may choose not to renew the contract. However, a severance (typically “n” or “n+1”) has to be paid by the employer.
This rule changes when the second fix-term contract expires, in which case the contract becomes an open-term labor contract, and the employ has no right to not renew the contract, otherwise, it shall pay a severance of “2n” to the employee.
- Mass-layoff (Article 41 of LCL)
Under Article 41 of LCL, a mass-layoff refers to the collective termination of more than 20 employees or 10% of the total employees. A legal mass-layoff requires notification and explanation to labor union and all employees in advance, report to the labor administrative department for review.
Without the above procedures, the mass-layoff will be deemed as illegal termination which means the employee will likely be entitled to severance pay of up to “2N”. If the mass-layoff is approved by the labor administrative department, the employer still has to pay severance (normally “N” or “N+1”) to all the employees who were terminated.
- Bankruptcy, dissolution, cancellation
When the labor contract is terminated due to the employer’s bankruptcy, dissolution and cancellation, the employee is entitled to “N” or “N+1” of severance pay (Cause 4 and 5, Article 44 of LCL).
- Employer’s legal unilateral termination
The LCL (Article 40) allows the employer, in any of the following circumstances, to lawfully terminate the labor contract by either sending the employee a written notice 30 days in advance and paying severance of “N” or paying severance of “N+1” instead of 30 days’ written notice in advance:
(1) Health issues or injury:
A worker suffers from an illness or a non-work-related injury and, after the expiry of the prescribed medical period, is unable to fulfil his/her original work or fulfil the work that has been otherwise arranged by the employer;
(2) Incompetent in work
A worker is incompetent in performing his/her work and remains to be incompetent in performing the work after training or adjusting the position; e.g. the employee fails to meet the standard of performance appraisal for several times.
(3) Significant Changes
The objective circumstances under which the labor contract was concluded have significantly changed (e.g. enterprise migration, department abolishment), making it impossible to perform the contract, and the employer and the employee fail to reach a mutual agreement on changing the contents of the labor contract after negotiation.
- Employer’s illegal unilateral termination
The employer’s illegal unilateral termination will make the employee entitled to a severance pay of “2N”, and it refers to the following circumstances:
(1) Termination of an open-ended labor contract by the employee;
An open-ended labor contract has no expiration date and will continues until either the employer or the employee terminates the contract. If the employer and employee have entered into two consecutive fixed-term labor contracts, or if the employee has worked continuously in the company for 10 years, regardless of the labor contract, the employer and employee will automatically enter into an open-ended labor contract.
(2) Dismissing a female employee during her pregnancy, confinement or nursing period;
(3) Dismissing an employee who suffers from sickness or non-work-related injury within the prescribed medical treatment period;
(4) Dismissing the employee who has engaged in work exposed to occupational disease hazards during employment without a pre-employment occupational health examination, or dismissing an employee suspected of suffering an occupational disease during the period of diagnosis or medical observation;
(5) Dismiss the employee who has been working for 15 years consecutively with the employer and will retire in less than five years;
(6) Any other dismissal that is unlawful or prohibited by law.
2. When You Are NOT Entitled To Severance Pay？
However, the severance pay shall not be payable in the following circumstances:
(1) The employee does not satisfy the recruitment criteria during the probationary period;
(2) The employee commits serious violation of the company rules and regulations.
(3) The employee commits gross negligence in duties or malpractice, thus causing significant damage to the employer;
(4) The employee simultaneously works for another company without consent of the current employer, which seriously affects the fulfillment of the current employer’s work tasks, or who refuses to rectify the situation upon the employer’s request;
(5) Where the labor contract is rendered void under the circumstances stipulated in item (1) of the first paragraph of Article 26; or
(6) The employee has been held criminally liable pursuant to the law.
3. Are You Entitled To Severance Pay Even If The Termination Is Initiated By Yourself.
Under Article 38 of LCL, the employee is also entitled to severance pay of “N” even if the termination is initiated by the employee in the following circumstances:
(1) The employer fails to provide labor protection or working conditions as defined in the labor contract
(2) The employer fails to pay remuneration in full and on time;
(3) The employer fails to pay social security premiums for employees;
(4) The rules and procedures of the employer are contrary to laws and regulations to the detriment of the employee’s rights and interests.
(5) The employer induces the employee enter into the labor contract against the employee’s true intention by illicit means such as fraud, coercion, or taking advantage of the employee’s unfavorable position, which ultimately leads to the invalidity of the labor contract;
(6) If an employer forces an employee to work by means of violence, threat or unlawful restriction of personal freedom, or if an employer violates the safety regulations and instructs an employee to engage in hazardous work and that jeopardizes the employee’s personal safety, the employee may terminate the employment contract immediately without prior notice to the employer.
(7) Other circumstances stipulated by laws and regulations.
If you would like us to assess whether you are entitled to severance pay, please feel free to contact us.
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
Help ! Someone Punched Me In The Face.
If you were assaulted by someone in China, what would you do first? Sara (pseudonym) faced this problem just last month.
Sara was a foreign teacher in an international school until she received a termination notice from the school where she had been working for almost one year.
“However, when I arrived at the school for the handover, I found that the termination and compensation agreement was totally different with the one that I had signed a few days earlier, some pages were replaced. I was so angry that I wanted to tear up the agreement. When I grabbed the agreement, the HR punched me in the face!” Sara said, showing me a photo of her bruised face.
As an English-speaking lawyer specialized in providing legal services for expats in China (see my profile), I instructed her to press charges at police station and try to reach a settlement for compensation if possible. Although the HR denied punching Sara, through negotiation and the mediation of the police officer, both parties eventually agreed on compensation of RMB 10,000.
Sara may be just one of those cases. This article will give you some guidance on what to do if you are assaulted in China.
1. First step: reporting to the police
The first step is to go to the local police station nearest to the place where you were assaulted to report the assault. In most cases, the policeman may not understand English, you can hire an English-speaking lawyer to visit the police station with you (find our contacts in the website) and ask for the lawyer’s support.
If you are unable to visit the local police station for the reason that you are too injured to move or you are afraid of the assailant running away, then you may also call 110 (the police emergency number) and report the assault. The police officer will usually show up within 30 minutes and help you file a report.
2. Provide Information to the police
At the police station, the officer will require you to provide the following details about the assault and assailant:
(1) Your name, nationality, passport number, address.
(2) The assailant’ name, ID number, phone number; if you don’t know the above information, then provide his appearance description as accurately as possible.
(3) When and where the assault occurred.
(4) What happened during the assault (the course of events).
(5) Whether you were injured, and show the injuries.
(6) Whether there were any witnesses.
(7) Anything else about the assault.
3. Collect necessary evidence
- Obtain a hospital report on injury
If you’ve suffered a physical injury from the assault, you’d better go to hospital for examining the injury and getting a hospital report on injury. It can prove the severity of the injury and therefore, to some extent, affect the punishment that the assailant may receive if no medicolegal expertise is taken.
- If necessary, apply for medicolegal expertise
If necessary, you may apply to the police for medicolegal expertise and request a medico-legal report in order to preserve evidence. For an assault case, unlike the hospital diagnostic report, the medicolegal expertise can provide an authoritative assessment of the severity of injury and directly determine whether the assailant will face criminal or administrative sanctions.
- Gather potential witnesses
If the assault took place in the presence of witnesses, contact those witnesses and ask them to testify to the assault, their testimony will be vital for police to investigate the case.
- CCTV camera footage
Find out if there is a CCTV camera that recorded the entire assault, try to obtain the footage or ask the policeman to investigate the footage. It will help you to prove the assault when the assailant denies it.
4. Possible penalties of assault
- Administrative penalty for minor assault
For the minor assault that does not meet the criteria for a criminal offence, the assailant shall be detained for not more than 10 days and shall, in addition, be fined not more than 500 RMB, pursuant to Article 43 of Law on Administrative Penalties for Public Security (Revision 2012).
However, under the following circumstances: (i) gang-fighting; (ii) assaulting a disabled person, pregnant woman, or a person who is under 14 years old or over 60 years old; (iii) assaulting for more than two times, or assaulting more than two persons once, the assailant shall be detained for not less than 10 days but not more than 15 days, and shall be fined more than 500 RMB but less than 1000 RMB.
- Criminal penalty for serious assault
If the police determines that the injury resulting from the assault has constituted minor injury in criminal concept after inspection or medicolegal expertise, which has constituted the crime of intentional injury, the assailant shall be sentenced to fixed-term imprisonment of up to three years, criminal detention or public surveillance. However, for the assault causing severe injury, disability or even death, the assailant shall be sentenced to fixed-term imprisonment of more than three years, or even life imprisonment or death penalty.
5. Compensation from the assailant
- Settle with the assailant at police station
In the case of minor assault that does not meet the criteria for a criminal offence, the police officer will, if necessary and possible, try to persuade both parties to reach a settlement. Typically, the settlement will involve the assailant paying compensation to the victim, and victim withdrawing the charge against the assailant. The compensation usually includes the hospital treatment expense for injury and other compensation determined by both parties. Once the settlement agreement is reached and the assailant pays the compensation, the assailant will not face any penalties.
- File a civil case
If the parties fail to reach a settlement on compensation, the victim may file a civil case against the assailant. The compensation may include the cost of hospital treatment, nursing care, transportation and nutritional fee, hospital meal allowances, the reduction of income due to the injury, as well as compensation for mental injury (not exceeding RMB 5,000), the disability compensation (if disability results) or death compensation (if death results).
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
How Can A Company Deal With Counterfeit Products in China?
Consumers and manufacturers are facing a growing problem of counterfeits in China. Counterfeits not only deceives consumers but also threaten brand manufactures. It leads to sales decrease, reputation damage, market chaos for brand manufactures. This article will offer some legal strategies for manufacturers to combat counterfeits and protect their own products.
1. Registering Trademark and Patent is The First Step
- Trademark
A trademark is a distinctive word, graphics, logo, letters, three-dimensional sign, numbers, color combinations and sounds that is used to identify a particular product or service and which serves to distinguish it from its competitors.
In China, trademarks are generally protected through registration, following an application filed with the Trademark Office of China National Intellectual Property Administration (Online Application Website: https://sbj.cnipa.gov.cn/sbj/wssq/).
Registration entitles the registrant to legally and exclusively own all the trademark rights, and to prevent anyone from using the trademark on the same or similar products without the registrant’s consent. Otherwise, the infringer will be liable for unauthorized use (compensation, penalties, etc).
- Patent
A patent is an exclusive right granted for an invention, utility model or appearance design. It refers to a new technical solution or a practical design for a product, process, or improvement thereof.
Same as trademark, registering a patent in the Patent Office of China National Intellectual Property Administration (Online Application Website: https://cponline.cnipa.gov.cn/), confers exclusive rights on the Patentee. In other words, once the patent granted, the Patentee can stop anyone from making, using, selling, offering for sell, or importing the product or technology in which the patents are held.
2. Preserving Evidence Will Give Your Company an Edge
When counterfeits are discovered on the market, the most urgent step is to preserve and notarize the evidence in order to avoid the infringer destroying the counterfeits before we take legal action.
In this case, you can buy the counterfeit products under the witness of a notary and with a video recording of the whole process, and keep the counterfeit product, contract or purchase order, invoice, payment slip. The final notarial certificate can be used as evidence.
3. Complaints to the Market Supervisory Administration are the Most Time-saving and Cost-effective Way
Market Supervisory Administration is the official authority that regulates protection and infringement of intellectual property. When counterfeits are found, anyone can report them to the local Market Supervisory Administration through the hotline number 12315 or the official website: https://www.12315.cn/ for complaints.
Once the infringement is recognized by the Market Supervisory Administration, the infringer will be required to immediately stop the infringements, destroy all counterfeits and pay a fine. In the case of a serious infringement, a criminal penalty (a fixed-term imprisonment) might also be imposed on the infringer.
4. Filing a Lawsuit is Also the Most effective Way
Irrespective of the penalty imposed on the infringer, it is vital for the brand manufacturer to make up for the loss of revenue and reputation resulting from the infringement. If the infringer refuses to pay any compensation, the brand manufacturer will have to file a lawsuit in Intellectual Property Court.
- How much compensation can the infringed party claim for?
(1) Either the actual losses suffered by the infringed party or the actual interests obtained by the infringer as a result of the infringement.
(2) If neither the actual losses nor interests can be determined, the compensation shall be the reasonable multiplier of the royalty of the trademark or patent.
(3) If the infringement is intentional and serious, the compensation may be determined at not less than double and not more than five times the amount determined in accordance with the above method.
(4) The compensation may also include reasonable expenses incurred in preventing infringements, such as notarization fee, certification fee, lawyer’s fee, investigation fee, translation fee, etc.
5. Other Simple Strategies for Counterfeits
- Complain to the e-commerce platform where the counterfeits are sold:
Many well-known e-commerce platforms have set up an intellectual property protection and complaint channel. The Intellectual Property Protection Platform of Alibaba is one of such channel, which aims to provide a channel for complaints and resolution of IP disputes.
- Adopt anti-counterfeiting measures:
In a nutshell, anti-counterfeiting is the application of covert or overt protection measures on packaging, authentication certificates, or directly on the products themselves. These measures often include technology to track, trace, and verify the authenticity of an item. With anti-counterfeiting measures in place, the consumers can distinguish the counterfeits and counterfeiters won’t be able to trick consumers into believing that items are authentic.
If you need more information about how to deal with the counterfeit products in China, please feel free to contact us.
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
