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Investing In China Proposed Labor Contract Law

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If you are considering setting up a company in the People’s Republic of China (the PRC) you should be aware that Chinese law is more protective of employees than the laws of many western nations, particularly the United States. The current PRC Labor Law was enacted in 1994; however, a new PRC Labor Contract Law, intended to supplement the Labor Law, is expected to come into force at the end of 2006. This new law contains both bad news and good news from the point of view of the foreign investor; however, in general it further strengthens the protection of employees.

The Bad News:

Severance Pay

Because it is difficult under the PRC Labor Law to terminate open-term labor contracts, employers usually prefer fixed terms. The Labor Contract Law will address this issue by requiring employers to pay severance compensation to employees on fixed term labor contracts if these contracts are not renewed at the end of the contract term. The proposed compensation is at least one month’s salary for each year of service.

Company Rules/Employee Handbooks

No provision in the employee handbook or other rules affecting the employee’s “personal interest” may be put into force absent consultation with the labor union or other employee representative body (under Chinese law, virtually all employees are required to be unionized).

A Shorter Probationary Period

Currently, the probationary period may be agreed between the employer and employee in the labor contract, but the maximum probation may not exceed 6 months. The Labor Contract Law shortens this period to one month for non-technical work and two months for most technical work (the six-month maximum is still retained for senior technical work, probably because these highly skilled employees are seen as less vulnerable in the employment market. This is significant because it easier to fire an employee during the probationary period than afterwards.

Non-Competition Clauses

Foreign invested companies in particular have tended to insert post-employment non-competition clauses into labor contracts in order to protect their intellectual property rights in China’s wild west business atmosphere. Although the Labor Contract Law allows post-employment non-competition restrictions, it will limit their enforceability to two years and restrict the geographical area of applicability to areas where actual competition is likely to occur. In this respect the reform will render Chinese law more similar to US law, since the current Labor Law does not impose any geographic restrictions at all (but does permits a maximum duration of up to three years). The Labor Contract Law goes even further, however, by requiring the employer buy a non-competition clause by paying a minimum compensation equal to the employee’s annual salary upon termination of the labor contract. It is still unclear what, if any compensation will be due the employee if the period of restriction is less than a year.

Contract Interpretation

Any ambiguous term in a labor contract will be construed in favor of the employee. This rule does little more that codify what has long been the prevailing practice in PRC courts.

Representative Offices

The current Labor Law requires Representative Offices to go through designated agencies such as FESCO (similar to Manpower in the United States) in order to hire employees. The new Labor Contract Law offers Representative Offices greater flexibility by allowing them to directly contract with employees for their first year of employment.

In summary, the new Labor Law will restrict foreign investor’s flexibility and make it more expensive for them to operate. The only good news is that Representative Offices will find it somewhat easier to operate. Typically, the new Labor Contract Law does not bother to define terms like technical, senior technical; and personal interest However, foreign investors have long been used to waiting months and even years for ambiguous terms in Chinese law to be defined through the further issuance of implementing regulations to supplement the main law; meanwhile the government’s actual implementation of the law in particular cases will be closely watched.

Rule 26(2) of the Central Excise Rules, Is it retrospective

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Vide Notification No. 8/2007 (N.T.) dated 01.03.2007, Rule 26 was amended and provision was added to penalize abatement of taking of inadmissible cenvat credit by making documents like invoices, transport documents etc. The Rule reads as, Rule 26(2): Any person, who issues – (i) an excise duty invoice without delivery of the goods specified therein or abets in making such invoice; or (ii) any other document or abets in making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made there under like claiming of CENVAT credit under the CENVAT Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater. The purpose of this paper to examine whether the rule can be applied retrospectively and can the past offences be penalized either through retrospective operation of these rules or on argument that such offences were already punishable under Rule 25 of the central Excise Rules, 2002. The Notification No. 8/2007 (N.T.) dated 01.03.2007 says that, After sub rule (1), the following sub rule shall be inserted:- The term -insert- has been defined in Webster Comprehensive Dictionary as -to put or place into something else-, -to introduce-. Oxford Dictionary also defines the term as -put something into something else-. A mere reading of the meaning of the term -insert- suggest that this is a new offence is being created and it cannot be applied retrospectively. The letter of the Joint Secretary (TRU) , explaining the changes states that, in clause 30(f) -A new sub rule (2) has also been inserted to provide for penal action against the person-.- It is seen that this is a new clause to -provide for- penal action. It is clear from this letter too that it is a new rule, which cannot be applied retrospectively. It is to be seen that the rule provides for penalty, a new burden on subjects. Whenever a new burden is imposed on the subjects, without amending the earlier clauses, it is presumed that the new burdens will operate retrospectively. While applying this principle of interpretation of statute the tribunal held in Cameo corporation [2008 (11) STR 161], -It is the consistent view of this Tribunal, where a new category of service is introduced for levy of service tax without amending the definition of a pre-existing category of service in which a given service answering the requisites of the new service is sought to be included by the Revenue for the prior period, there can be no levy of service tax in respect of the given service in the pre-existing category. This position has been made abundantly clear in umpteen number of decisions of this Bench also. In the result, the demand of duty on the gross amount collected by the assessee as consideration for what the Revenue considers as -Business Auxiliary Service- is set aside.- In view of this it is clear that the rules cannot be applied retrospectively. Further, as Rule 25 has not been amended, it cannot be argued that such offences were already part of Rule 25 of the Central Excise Rules. It is to be seen that penal statutes which creates offences or which have the effect of increasing penalties for existing offences will only be prospective by reason of the Constitutional restriction imposed by Article 20 of the Constitution . In Pyare Lal Sharma v. MD, J&K Industries Ltd. , the Supreme Court held that unauthorized absence as ground for termination applies only after the amendment making such ground. Unauthorised absence prior to the date of amendment cannot be considered for termination. It is further submitted that Rule 26 and its amendments are delegated legislation. In the field of subordinate legislation, the courts have taken a consistent view that while a legislature may enact laws with retrospective effect, a delegate cannot exercise a similar power and gives retrospectivity to the Rules made by it unless the parent statute gives it a power to do so either expressly or by necessary implication. In view of this this author is of the opinion that Rule 26(2) is prospective in operation and cannot be applied to past transactions.

Are Fake ID Cards Legal or Illegal

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We all know fake ID cards are available widely on the internet with many people believing that fake ID cards illegal but this isnt always the case. There are many websites that sell novelty ID cards that are called fake ID cards as this is the industry slang. These fake ID cards are legal to sell and legal to purchase as long as they are used for what they are intended.

In the eyes of the law it is not illegal to have a fake ID card like a fake driving license in your wallet, even if your fake driving license looks a like the original government issued document. As this is a novelty item the law cannot prove that you are using your fake ID card for anything other than novelty purposes. The companies that produce and sell fake ID cards often have disclaimers on their websites that you have to agree too, these say that you agree that your fake ID card will not be used for anything other than novelty purposes. They also point out that using your fake ID card for anything other than novelty use is illegal and they do not condone it. They can also refuse to sell you a fake driving license etc if you have implied that you will be using it for something other than a novelty ID card.

Purchasing a fake passport or fake driving license for anything other than novelty purposes is illegal and your punishment will depend on the extent of the crime. This can range from a hefty fine to a jail sentence. The law will have to prove the fake ID card is being used for something other than novelty purposes. Lets say an illegal immigrant or terrorist is found in possession of a fake ID card then there will be consequences for this type of crime.

Proving a company is selling fake ID cards for anything other than novelty purposes can be very hard. There will have to be proof that a company is corresponding with a criminal gang that are known for purchasing fake driving licenses to illegal immigrants before any prosecution can take place. Our advice is if you would like to purchase a fake ID card like a fake driving license or a fake student card then only purchase it if your intentions of use are for novelty purposes only.

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Necessary Points To Consider For Choosing Employment Lawyers

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There are times when employers are having a difficult time providing the needs of their employees. It is their responsibility, but you will find times when you must know your restrictions as well. Well, they are the assets of your firm, but there are situations and requests that must not be considered. It is why you need to look for the best employment attorneys. You should never disregard the employment laws and regulations even in case you are having a hard time understanding them. It is better if you will look at the different advantages that you could acquire by seeking the help of an employment lawyer.

Fundamentally, your employment lawyer will be dealing with all the legal issues related to your relationship with your workers. When you have any rules and regulations for the employees in your organization, you need to always consider the employment laws. You have to remember that almost all of the laws of the government are beneficial to the employees so a wrong move can cause lots of problems to your organization lawfully.

Having an employment lawyer will allow you to understand the basic law of employment. They will also give you the best plan of action for these difficulties. They will also take care of all the paper works associated to legal matters regarding your personnel.

Handling the complications of your staff may be quite easy for some employers, but you have to remember that your solutions should always be within the limitations of the employment law. If you don’t have any idea about these laws, will you really make the right choices? This is one of the most essential things that you must know before you say that you don’t need employment lawyers.

If you feel that you already know plenty of things about the laws for staff, then you can do everything on your own without a attorney. They are very important if you wish to make sure that you are making the right choices for your workers and for your company.

If you’re going to hire an employment attorney, you must know that they are going to deal with everything, specially when you are looking at your personnel. If you’re handling a few difficulties on your personnel, you need to let your lawyers find the best solution for it. They will make sure that you will make the right choice based on the employment laws.

It means that you could prevent any legal problems with your employees if they filed a complaint because everything is inside the employment law. It will also help you focus on the functions of your organization instead of worrying too much on these claims.

You’re not only hiring an employment attorney because you want to deal with the legal section of your company with regards to the workers. They will help guarantee that your organization will almost always be safe from legal complications coming from the employees.

The 5 Most Exciting Law Enforcement Jobs

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There are hundreds of law enforcement jobs accessible, and whereas any job within the law enforcement field is certain to be fascinating, some jobs are a bit additional exciting (and nerve-wracking!) than others. Browse on for an inventory of the five most adrenaline-pumping law enforcement jobs available.

Special Weapons and Ways (SWAT) Officers

Special Weapons and Ways (SWAT) officers are highly trained police officers who handle extraordinarily high-risk operations that normal cops aren’t equipped to address. SWAT groups may be asked to provide assistance on drug raids, give extra security at high-profile events, conduct hostage rescue missions, and more. Due to the violent dangers they usually face on the duty, SWAT team members have special protecting gear and firearms, including armored cars and assault rifles. This law enforcement job is adrenaline-jolting and unpredictable. If you’re part of a SWAT team, you’ll never understand what to expect once you head to work.

CIA Clandestine Services Core Collectors

CIA Clandestine Services Core Collectors are the CIA agents who work abroad, collecting intelligence data from foreign sources so as to assist maintain US safety and security. These agents travel internationally and interact with a variety of folks in hopes of obtaining clandestine data that they can report back to CIA headquarters. The task involves travel, danger, and intrigue. For the most half, CIA agents are needed to keep their true identities and purpose hidden while on and off the job. Unlike most other law enforcement jobs, CIA agents have to stay what they do for a living a secret from almost everybody they know, including friends.

Federal Bureau of Investigation (FBI) Special Agents

FBI special agents, like CIA agents, are responsible for investigating and maintaining US security. In contrast to internationally-serving CIA agents, however, FBI agents generally work on the national level. FBI agents are sometimes assigned to one specialty, which may embrace fields such as foreign counterintelligence, organized crime, cyber crime, and more. Irrespective of what their specialty, all agents should pass stringent government security clearance necessities, as most are aware about classified government information.

Transportation Security Administration (TSA) Federal Air Marshals

The TSA is that the US government organization responsible for keeping each side of US air transportation safe, from airports to airplanes. TSA Federal Air Marshals are on the front lines of this mission to keep US air travel free of terrorist threats. These armed law enforcement officers serve undercover in airports and on passenger flights to confirm the safety of air travel out and in of the United States. Working undercover, a federal air marshal must discretely monitor his surroundings for suspicious activity. Air marshals would like to know regarding everything from aviation medication to close-quarters self defense. They are conjointly held to higher standards of firearm accuracy than any other law enforcement jobs agency. Being a federal air marshal could be a high-pressure job which requires masses of your time traveling and constant alertness.

Drug Enforcement Administration (DEA) Agents

Law enforcement jobs with the DEA support the US government in its war against drugs. DEA special agents are primarily responsible for serving to to enforce the US Government’s drug and drug trafficking laws. The task of a DEA agent involves helping to analyze and prosecute drug traffickers. This often means that working undercover whereas investigating suspected traffickers and collecting intelligence info to assist convict those people who are breaking US drug laws. Like the opposite jobs profiled here, DEA agents typically interact with dangerous individuals and can be put in unpredictable situations.