The foreign-related labor contract dispute in China, where the labor contract is performed, means that the subject of the labor contract has foreign factors, that is, one party to the labor contract is a foreign enterprise or a foreign natural person (referring to a person with foreign nationality or a stateless person). There are three types: 1, the employer is China enterprises (including foreign-invested enterprises), and the workers are foreign natural persons, that is, foreigners who usually work in China; 2. The employer is a foreign enterprise and the employee is a person with China nationality; 3. The employer is a foreign enterprise and the laborer is a foreign natural person. In addition, in the case of illegal work, is it appropriate for the judicial organ not to accept the request of the parties? The legal effect of the applicable provisions of labor contract law is worth studying.
1, China's labor laws and regulations apply to foreigners' employment in China.
Article 2 of China's Labor Law clearly stipulates that China's enterprises, individual economic organizations and laborers who form labor relations with them shall be governed by China's Labor Law. The enterprises referred to here include state-owned enterprises, collective enterprises, foreign-invested enterprises, private enterprises and foreign enterprises; The workers here include foreigners. According to the Regulations on the Employment of Foreigners in China jointly issued by the Ministry of Labor, the Ministry of Public Security, the Ministry of Foreign Affairs and the Ministry of Foreign Trade and Economic Cooperation 1996, foreigners employed in China shall conclude labor contracts with employers in China according to law. Any labor dispute between the employing unit and the employed foreigner shall be handled in accordance with the Labor Law of People's Republic of China (PRC) and the Regulations on Handling Labor Disputes of Enterprises in People's Republic of China (PRC).
However, at present, foreigners in China cannot participate in social insurance and enjoy social insurance benefits. It is reported that only Suzhou has begun to provide social insurance for foreigners. Although the labor contract stipulates that the employer will provide foreigners with comprehensive insurance such as pension, unemployment, medical care and provident fund, there are many conditions attached to commercial insurance, which sometimes prevents foreigners from obtaining compensation for medical expenses. Should the employer bear such expenses in the event of a dispute between the two parties? How to bear it often becomes a difficult problem in the trial.
Although China's labor law stipulates that foreign-related labor contract disputes between foreigners and employers in China should be handled by China's labor law, there is actually no legal basis for foreign-related labor contract disputes because of the extremely imperfect labor laws and regulations.
The author thinks that in the case of foreign-related labor contract disputes between foreigners and employers in China, foreign workers should enjoy social insurance benefits no less than those of China nationals. As for judicial practice, it is normal that there is no legal basis due to imperfect laws. We know that the development of society always promotes legislative activities. For these new types of cases at this stage, our judges need to be bold and innovative, formulate laws, correctly understand, apply and develop the basic principles of laws, so as to adapt to the developed society and finally make positive judgments on cases.
2. Disputes over foreign-related labor contracts between foreign enterprises and workers in China shall be handled according to the employment relationship.
According to Article 2 of China's Labor Law, the Labor Law is applicable to the labor contract disputes arising from the performance of labor contracts between Chinese enterprises and laborers. As mentioned above, the enterprises in China mentioned in Article 2 of this Law include foreign enterprises (that is, foreign enterprises or representative offices of foreign economic organizations in China, etc. Therefore, it is generally believed that the labor contract disputes between foreign enterprises and workers in China belong to the scope of adjustment of China's labor law. However, Article 4 of the Draft for Comment on Judicial Interpretation of the Supreme Law on the Trial of Labor Dispute Cases issued by the Supreme Law on June 5438+ 10, 2004 "The following disputes arising from the provision of services or services by employees who do not meet the requirements of Article 2 of the Labor Law shall be handled according to the employment relationship, and (5) disputes between the permanent representative offices of foreign enterprises or other organizations in China and the employed citizens of China." Although the above-mentioned judicial interpretation has not been formally adopted and taken effect, there has been a breakthrough in the provisions of Article 2 of the Labor Law, and its legislative intention is very clear.
It can be seen that the labor contract disputes between foreign enterprises and workers of China nationality in China are handled according to the laws of China, but not as labor dispute cases, and the labor laws and regulations of China are not applicable, but tend to be handled according to the employment relationship, and the legal provisions of the employment relationship are applicable.
3. The principle of closest connection applies to foreign enterprises and foreign workers.
When a dispute arises between a foreign enterprise and a foreign worker during the performance of a labor contract in China, one party brings a lawsuit to the judicial organ of our country. How to apply the substantive law? Traditionally, China's labor law is applicable to foreign-related labor contract disputes between foreign enterprises and foreign natural persons in China, on the grounds of the provisions of Article 2 of the Labor Law. However, we can see that the draft interpretation of the labor law by the Supreme Court has made a breakthrough in the legal application of labor contract disputes between foreign companies and China citizens.