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Jan22

China Supreme People's Court Interprets Rules Imposing Criminal Liability On Escaping Boss

A capable employer who refuses to pay or escapes may face imprisonment as long as seven years.

Employers in China who withhold workers' pay will face up to seven years in jail, according to an amendment to the nation's criminal code adopted at the 19th Session of the 11th National People’s Congress during late February. The crucial elements of the amendment include revisions to Article 276(1) of the Criminal Code to make intentional withholding of wages a criminal offense. The amendment defines the crime as follows:

1.The company has the means with which to pay the wages.
2.The company intentionally withholds payment of wages by either refusing to pay or by transferring assets to escape liability for payment.
3.The situation is serious or the effects are severe.

Today, the Supreme People's Court of China interprets the amount of payments to be RMB5,000 - 20,000 for a single employee and RMB30,000 - 100,000 for ten employees.

 
Jan22

General Rights and Obligations of Married Person Under P.R.C. Law

I

f you are going to marry a Chinese lady, you are recommended to know the rights and obligations of married person on China. We are China lawyers handling family law and divorce matters.

Personal rights and obligations:

  • Husband and wife have equal status in the family and are free to use his or her own surname and given name.
  • Either spouse has the freedom to work, to study and to participate in other social activities; neither party may restrict or  interfere with the other party.
  • Both have the duty to comply with birth control law.

Property Related Rights and Obligations

  • All property owned by either husband or wife is marital property is a default rule, unless the claimant can prove otherwise.
  • As a default rule of equitable distribution, marital property is split 50:50 between husband and wife.
  • Unless otherwise provided by written agreement, the property obtained by either husband or wife before the date of marriage is personal property and the other party is not entitled to share.
  • Unless otherwise provided by law or written agreement, any property obtained by either party is marital property that jointly owned by the spouses from the date of marriage.  There are several exceptions, such as gift by either party’s parent.
  • A prenuptial that is written is valid. Spouses may also enter into agreement in the course of marriage setting forth the ownership of property with few exceptions.
  • Most debts incurred by either husband or wife during their marriage burden both, unless creditors know the existence of an agreement between the spouses stipulating separate responsibility for debt.
  • Husband and wife have the obligations to support each other during marriage, while they usually do not have to support each other after divorce.  A spouse is obliged to “assist” the other party to support the other party’s parents.
  • Husband and wife have the right to inherit each other's estate by law.
 
Jan07

China Alternative Dispute Resoluation Practice

Alternative dispute resolution (ADR) in China includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation.We are China dispute resolution lawyers, and our China attorneys are experts in ADR practice.

It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; attendance that is, not settlement at mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of the use of mediation to settle disputes.

In the late 1980s and early 1990s, many people became increasingly concerned that the traditional method of resolving legal disputes in the United States, through conventional litigation, had become too expensive, too slow, and too cumbersome for many civil lawsuits (cases between private parties). This concern led to the growing use of ways other than litigation to resolve disputes. These other methods are commonly known collectively as alternative dispute resolution (ADR).

 
Dec14

CIETAC South China Branch Now Turns Out To Be A New Entity

As a renowned China dispute resolution lawyer, we have been keeping a close eye on the development of disputes between CIETAC Shanghai and Shenzhen branches. Now an update for those who are concerned: Shenzhen branch has declared independence.

South China International Economic and Trade Arbitration Commission (also known as the Shenzhen Court of International Arbitration; previously known as the China International Economic and Trade Arbitration Commission South China Subcommission, the China International Economic and Trade Arbitration Commission Shenzhen Subcommission; hereinafter the “SCIA”) was established in 1983 in Shenzhen Special Economic Zone. It is an arbitration institution founded to resolve the contract disputes and other property rights disputes amongst individuals, legal entities and other institutions from domestic China and overseas.

SCIA is the nationally first Arbitration Institution established by legislation with its legal person governance model. According to Regulation on the Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone of Shenzhen Special Economic Zone and Provisions on the Administration of Shenzhen Court of International Arbitration (for Trial Implementation), it adopts the advanced international commercial arbitration systems and implements the Council-centered management model with effective check-and-balance in Decision-making, implementation and supervision, to ensure the independence of the arbitration institution and arbitral tribunal.

 
Nov27

Nature and Scope of China Labor Union Law

 

Below is a brief introduction of China labor union or China trade union law by China employment lawyer.

Unionization status

A few years ago, the state-sponsored All-China Federation of Trade Unions (ACFTU), the umbrella union for the entire country of China, called for all foreign-invested companies in China to recognize its unions by the end of 2008, claiming it would ‘blacklist’ and take legal action against any foreign firms refusing to allow unionization.

As of the beginning of 2009, according to official reports, 313 labor unions have been set up in 83% of multinational corporations’ China headquarters. The future of those companies that have not yet complied remains uncertain.

Historically, because government officials and corporate managers had a common interest in keeping production levels high, there was little official support for dissatisfied workers. China’s state-owned companies had unions under ACFTU, which as a government-affiliated body…is more interested in enforcing worker discipline.

 
Sep29

China Non-disclosure Agreement

A non-disclosure agreement (NDA) in China, also known as a confidentiality agreement (CA), confidential disclosure agreement (CDA), proprietary information agreement (PIA), or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to or by third parties. It is a contract through which the parties agree not to disclose information covered by the agreement. An NDA creates a confidential relationship between the parties to protect any type of confidential and proprietary information or trade secrets. As such, an NDA protects nonpublic business information.

What is NDA For?


NDAs are commonly signed when two companies, individuals, or other entities (such as partnerships, societies, etc.) are considering doing business in China and need to understand the processes used in each other's business for the purpose of evaluating the potential business relationship. NDAs can be "mutual", meaning both parties are restricted in their use of the materials provided, or they can restrict the use of material by a single party.

It is also possible for an employee to sign an NDA or NDA-like agreement with an employer. In fact, some employment agreements will include a clause restricting employees' use and dissemination of company-owned "confidential information."

Non-Disclosure Agreements (“NDAs”) often get no respect. Business persons may plunge into negotiations, revealing confidential information with no agreement in place, or Legal may issue the same form agreement in every case, as if one-size-fits-all. Well, like any contract, the NDA can provide vital protection, but should be drafted with care. Here are 10 tips to consider.

 
Sep29

China Non-disclosure, Non-use, Non-Circumvention Agreement Drafting

Below is a sample Non-Circumvention, Non-Disclosure, and Non-use Agreement we drafted for our client. It contains essential terms and conditions for a Non-Circumvention, Non-Disclosure, And Confidentiality Agreement. Before you are going to disclose your confidential information to Chinese manufacturer, it is very important to ask them to sign such an agreement so as to protect your intellectual property rights. As China contract lawyer, we have extensive experience in helping our foreign clients drafting commercial contracts, purchase and sales agreement, confidentiality agreement and non-disclosure agreement, etc.

Non-Circumvention, Non-Disclosure, And Confidentiality Agreement

This agreement is hereby executed on this ___ day of ________, 2007 by and between _______________________________ and/or their corporations and subsidiaries, (hereinafter referred to as “Client”) and CANTRELL-VIALA & ASSOCIATES (hereinafter referred to as “Business Broker”), (“Client” and “Business Broker” collectively referred to as the “Parties”), whereby the parties hereby agree as follows:

Witness

WHEREAS, the parties hereto contemplate entering into, or participating in, one or more business transactions including the purchase of one or more of Business Broker’s Client businesses; and WHEREAS, the parties mutually recognize that in the transaction of the subject business each may learn from the other, including their agents and associates, the identity, address and/or telephone numbers of clients, agents, brokers, buyers, sellers, financiers and/or bank or trust contracts (hereinafter referred to individually or collectively as “confidential sources”) and/or information relating to bank accounts, transaction codes, participating banks and/or entities, business concepts, business plans, and business strategies, (hereinafter referred to individually or collectively as “confidential information”) which the other party has acquired by years of investment in time, expenses and effort; and

 
Sep29

China Manufacturing Agreement, China Manufacture Contract Drafting

Compared to domestic transactions, the risks associated with international sales are greatly multiplied. It is a rare international sales agreement that can rely on minor variations of standard terms, as is so often the case in domestic agreements. Especially when you are to sign a manufacturing agreement or manufacturing contract with a Chinese factory or manufacturer, it's essential to draft a very good manufacturing contract to protect your interest in case any dispute arise out of the transaction. Our China contract lawyer's assistance is vital for your success when you are doing business in China.

Foreign laws, export/import and currency exchange controls, treaties, transit issues, inspection of goods, insurance, tariffs—all these and more must be taken into account in contract negotiations.

We incorporate hundreds of model clauses designed to cover every contingency, including such factors as the following (and a great deal more), which are the essential terms and conditions should be included in a China manufacturing agreement:

  • definitions;
  • Incoterms;
  • price adjustments;
  • documentation;
  • labelling;
  • delivery dates;
  • transportation modes;
  • limitation of liability;
  • confidentiality;
  • arbitration; and
  • antitrust issues.


As an experienced attorney, John Miller have gradually developed a list of 60 practical contract-drafting tips. As a refresher, he routinely refer to my tip-sheet (as well as other checklists) just before he draft a contract. Additionally, he uses this list (as well as other checklists) when he review someone else’s contract. I think his advice is very helpful.

 
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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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This China Lawyer Blog is aiming at providing better knowledge and understanding of Chinese law for foreigners. Should you have any legal issue in China, do not hesitate to contact China Lawyer Blog for consultation. Preliminary consultation is free. Further legal service, however, will be charged in due rate and in due course.

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.