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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II ESTABLISHMENT OF INTERMEDIARY AGENCIES CHAPTER III OPERATION AND MANAGEMENT CHAPTER IV RESERVE FUND CHAPTER V RULES FOR PUNISHMENTS CHAPTER VI MISCELLANEOUS CHAPTER I GENERAL PROVISIONS Article 1. In order to regulate the intermediary activities for overseas employment and safeguard the legitimate rights and interests of the personnel under overseas employment, these Provisions have been formulated in accordance with the Labor Law of the Peoples Republic of China and the relevant provisions of the State Council. Article 2. These Provisions shall be applicable to the administration of the intermediary activities for overseas employment within China. The overseas employment used in these provisions shall refer to the employment activities in which Chinese citizens sign labor contracts with overseas employers, provide labor abroad and get remunerations for their work. The intermediary activities for overseas employment used in these Provisions shall refer to the activities of providing relevant service for Chinese citizens' overseas employment or overseas employers' employing of Chinese citizens to work abroad. The agencies approved to engage in such activities are intermediary agencies for overseas employment. Article 3. Intermediary activities for overseas employment shall be subject to an administrative license system. Without approval and registration, no organ or individual may engage in the intermediary activities for overseas employment. Article 4. The departments of labor security shall be responsible for the administration, supervision and inspection of overseas employment activities. The public security organs shall be responsible for the administration of the entry and exit of border involved in intermediary activities for overseas employment. The departments of industry and commerce administration shall be responsible for the registration of intermediary agencies for overseas employment and the supervision and administration of the economic order of intermediary market for overseas employment. CHAPTER II ESTABLISHMENT OF INTERMEDIARY AGENCIES Article 5. An agency shall meet the following conditions to engage in the intermediary activities for overseas employment: (1) meeting the conditions for the establishment of business corporations; (2) having full-time staff members with the professional qualification for law, foreign language or accounting, having sound work system and staff rules; (3) having a reserve fund of not less than RMB500,000; and (4) other conditions provided for by laws and regulations. Article 6. An agency applying for conducting intermediary activities for overseas employment (hereinafter referred to the applicant agency) shall file an application with the administrative department of labor security at the provincial level of the place where it is located, and after passing the preliminary review and with the consent of the public security organ at the same level, the application shall be submitted to the Ministry of Labor and Social Security for examination and approval. The Ministry of Labor and Social Security shall make a reply within 60 days from the day of receiving the application. The intermediary agency for overseas employment to be established shall, before the application is submitted to the Ministry of Labor and Social Security for examination and approval, make the registration of beforehand examination and approval of corporate name with the department of industry and commerce administration. The Ministry of Labor and Social Security shall, after examining and approving the application and sending a copy to the Ministry of Public Security, issue the license for intermediary activities for overseas employment (hereinafter referred to the license) to that agency. The license shall be valid for 3 years from the date of issuance. Overseas agencies, individuals and foreign institutions stationed in China may not engage in intermediary activities within China. Article 7. An applicant agency shall submit the following documents and materials to the examining organ: (1) the filled-in application form for the qualification for intermediary activities for overseas employment; (2) the notice for beforehand examination and approval of the corporate name; (3) the resumes and relevant qualification certifications of the legal representative or the legal representative to-be, and of the main staff members or the persons to be employed; (4) the report on the verification of capital issued by a capital verification agency with legal qualification; (5) the articles of association and the relevant internal rules and systems of the agency; (6) the report on the administrative area in which the intermediary activities for overseas employment are to be carried out and the report on feasibility; (7) the certification for the place of residence and the use of business place; (8) the certification for the deposits of reserve fund recognized by the administrative department of labor security at the provincial level; and (9) other materials provided for by the Ministry of Labor and Social Security. Article 8. The applicant agency shall, within 30 days from drawing the license, make the registration of establishment or alteration of business corporation with the department of industry and commerce administration, and shall, within 10 days from the ratification of the registration of establishment or alteration, put on record the registration concerned at the administrative department of labor security and the public security organ at the provincial level of the place where it is located. CHAPTER III OPERATION AND MANAGEMENT Article 9. An intermediary agency for overseas employment may engage in the following businesses according to law: (1) providing overseas employment information and consultation to Chinese citizens; (2) accepting the entrustment of overseas employers and recommending the personnel meeting their requirements; (3) giving before-exit training to the personnel under overseas employment, and assisting them in the handling of the notarization of the relevant professional qualification certificates and other procedures; (4) assisting the personnel under overseas employment in handling the procedures and certificates such as passport, visa, notarization materials, physical examination, epidemic prevention injection, etc. required in the exit of border; (5) purchasing social insurance for the personnel under overseas employment; and (6) assisting the personnel under overseas employment in safeguarding their legitimate rights and interests through conciliation, arbitration or litigation, etc. Article 10. An intermediary agency for overseas employment shall perform the following obligations according to law: (1) checking the legal certifications for practice and credit worthiness of the overseas employer, the certifications for approval for employing foreign personnel granted by the immigrant department or other relevant governmental authorities of the country or region where the overseas employer is located; and (2) assisting and instructing the personnel under foreign employment in signing labor contracts with the overseas employers, and making confirmation of the contents of the labor contracts. The labor contract shall include the terms such as the contract period, work place, work specifics, work time, labor conditions, labor remuneration, social insurance, labor protection, rest and vacations, accommodation conditions, conditions for alteration or cancellation of the contract, settlement of labor dispute and liabilities for breach of contract, etc. Article 11. An intermediary agency for overseas employment shall sign an agreement on intermediary service for overseas employment with the person under overseas employment. The agreement shall expressly provide the rights and obligations of the two parties, service items, charging standards, liabilities for breach of contract and compensation terms, etc. Article 12. An intermediary agency for overseas employment shall submit the agreement on intermediary service for overseas employment signed by it and the labor contract of overseas employment confirmed by it to the administrative department of labor security at the provincial level for record. If the administrative department of labor security at the provincial level raises no objection within 10 days, the intermediary agency for overseas employment may issue an employment confirmation letter to the person under overseas employment. The public security organ shall, in accordance with the relevant provisions and on the basis of the confirmation letter of overseas employment, handle the certificates for entry and exit for the person under overseas employment. Article 13. Where an intermediary agency for overseas employment wishes to establish branches, it shall go through the procedures for examination and approval, registration and record in accordance with the provisions of Chapter II of these Provisions. Article 14. An intermediary agency for overseas employment may not, through contracting, subcontracting or other forms, let other unapproved intermediary agencies or individuals conduct the intermediary activities for overseas employment. Article 15. An intermediary agency for overseas employment may not organize any illegal entry and exit of border, or organize Chinese citizens to conduct any unlawful or criminal activities prohibited by Chinese laws. Article 16. The release of any advertisement in connection with intermediary service for overseas employment shall be subject to the prior approval of the administration of industry and commerce of the province, autonomous regions or municipality directly under the Central Government where the intermediary agency is located. And no advertisement shall be released without the documents of approval. Article 17. An intermediary agency for overseas employment may take reasonable charges for the intermediary service, which shall be subject to the supervision of the local price department, from the personnel under overseas employment or the overseas employers. Article 18. An intermediary agency for overseas employment shall clearly display at its service place its legal license, service items, charging standards, names of the supervisory organs and supervisory phone numbers, etc., which shall be subject to the supervision and inspection by the administrative department of labor security and other relevant departments. Article 19. Where the name, the place of residence or the business place, or the legal representative of an intermediary agency for overseas employment is altered, the agency shall make the alteration of the license according to the handling procedures provided for by these Provisions, and shall apply to the organ in charge of registration of the original corporation for the registration of alteration on the basis of the new license. When alteration of name is involved, the agency shall, when applying for the new license, submit the certifications for approval of the department of industry and commerce administration for the alteration of name. Alteration of other registered matters shall be handled according to the relevant present provisions on the administration of enterprise registration. Article 20. Where an intermediary agency for overseas employment wishes to continue the intermediary activities for overseas employment after the license expires, it shall, within 90 days before the expiration of the license, go through the procedures for replacement of license in accordance with the handling procedures provided for in these Provisions. If the intermediary agency for overseas employment fails to apply for replacement after the expiration of the license, the Ministry of Labor and Social Security shall write off the license. Article 21. Intermediary agencies for overseas employment shall be subject to a system of annual examination. An intermediary agency for overseas employment shall submit the report on its operation status of the last year and other relevant materials to the administrative department of labor security at the provincial level of the place where it is located. With respect to the intermediary agencies for overseas employment failing the examination, the administrative department of labor security at the provincial level shall report to the Ministry of Labor and Social Security, which shall write off their licenses, and shall circulate a notice to the public security organ and the department for industry and commerce administration. Article 22. Before bankruptcy or dissolution, an intermediary agency for overseas employment shall file a written application with the administrative department of labor security at the provincial level for the writing-off of the license and handling of the matters arising afterwards, and shall go through the procedures for writing off the license. Article 23. A license issuing organ shall notify the public security organ and the department of industry and commerce administration of the writing-off of the business qualification of an intermediary agency for overseas employment. The intermediary agency for overseas employment of which the qualification has been written off shall, within 10 days from the day receiving the notice of writing-off of the qualification, return the license to the license issuing organ, and apply to the original registration department for writing off the registration or making the registration of alteration. Article 24. Where the license for intermediary activity for overseas employment of an agency is written off due to violation of these Provisions, the legal representative and the persons of principal responsibility may not engage in the intermediary activities for overseas employment within 3 years. CHAPTER IV RESERVE FUND Article 25. Intermediary agencies for overseas employment shall be subject to a system of reserve fund. The reserve fund shall be used for the compensation and the payment of fines and pecuniary penalties for the damages to the legitimate rights and interests of the customers due to the responsibilities of an intermediary agency for overseas employment. Article 26. An intermediary agency for overseas employment shall, according to the provisions, deposit the reserve fund in its special account in the state-owned commercial bank designated by the administrative department of labor security at the provincial level, and the fund shall only be used for the specific purposes mentioned above. Article 27. The reserve fund and the interests thereon shall be subject to the supervision of the administrative department of labor security at the provincial level of the place where the intermediary agency for overseas employment is located. No organ or individual may use the reserve fund without permission of the supervisory department. Article 28. The reserve fund and the interests thereon shall belong to the intermediary agency for overseas employment. Upon the bankruptcy or dissolution of the intermediary agency, the reserve fund and the interests thereon shall be taken as part of the assets of the intermediary agency, and shall be disposed of in accordance with the relevant provisions. Article 29. Where an intermediary agency for overseas employment is incapable of making compensation or paying the fines or pecuniary penalties in the ruling of an arbitration institution or the judgment of a people's court, it may file a written application to the supervisory organ for using the reserve fund and the interests thereon. Where an intermediary agency for overseas employment refuses to pay the fines or pecuniary penalties, or refuses to execute the ruling or judgment of an arbitration institution or a people's court, the execution department shall conduct forcible execution. Article 30. Where the reserve fund is insufficient for compensating the economic losses resulted from the damages to the legitimate rights and interests of the customers, the intermediary agency for overseas employment shall bear the civil liabilities in accordance with the relevant provisions of the State. Article 31. Where the reserve fund goes below the amount specified in these Provisions after being used, the intermediary agency for overseas employment shall make up the reserve fund to the prescribed amount within 60 days, those failing to do so within the time limit may not carry out the intermediary business for overseas employment. Article 32. Where an intermediary agency for overseas employment is dissolved, goes into bankruptcy or the license of which is written off, and there is no complaint or lawsuit filed against that intermediary agency within 2 years, it may draw the reserve fund and the interests thereon from the deposit bank on the basis of the certification issued by the supervisory department of the reserve fund. CHAPTER V RULES FOR PUNISHMENTS Article 33. Where any organ or individual engages in the intermediary activities for overseas employment without the approval of the administrative department of labor security and the registration by the department of industry and commerce administration, the administrative department of labor security and the department of industry and commerce administration shall jointly ban it, confiscate its operational articles and illegal earnings. Whoever causes any damage to a party concerned due to illegal conduction of intermediary activities for overseas employment shall bear the liabilities for compensation. Article 34. Where an intermediary agency for overseas employment, in violation of these Provisions, commits any of the following acts, the administrative department shall order it to correct the act, impose on it a fine of not more than RMB10,000 if there is no illegal earnings; or, if there is any illegal earnings, impose on it a fine of not more than 3 times of the illegal earnings, however, the sum shall not be more than RMB30,000; if any damage is caused to a party concerned, it shall bear the liabilities for compensation; if a crime has been constituted, criminal responsibilities shall be investigated for according to law: (1) providing false materials for the license; (2) letting other intermediary agency or individual carry out the intermediary activities for overseas employment through contracting, subcontracting or other forms; (3) refusing to perform the obligations provided for in Article 10 of these Provisions; (4) failing to sign the agreement on intermediary service for overseas employment with the customer; (5) carrying out intermediary business for overseas employment without making up the reserve fund within the time limit; or (6) seriously impairing, in violation of these Provisions, the legitimate rights and interests of the personnel under overseas employment. Article 35. Whoever, in violation of the provisions of Article 12 of these Provisions, fails to put on record the agreement on intermediary service for overseas employment and the labor contract shall be imposed on a fine of not more than RMB1,000 by the administrative department of labor security. Article 36. Where any intermediary agency for overseas employment fabricates information for others or provides false certifications for entry and exit certificates in intermediary activities, if there is no illegal earnings, the public security organ at the level of county or above shall impose on it a fine of not more than 10,000 yuna; if there is any illegal earnings, they shall be confiscated, and a fine of not more than 3 times of the illegal earnings shall be imposed on the agency, however, the sum shall not go beyond RMB30,000; if a crime has been constituted, the criminal responsibilities shall be investigated for. Article 37. Any intermediary agency for overseas employment violates the regulations of industry and commerce administration, the department of industry and commerce administration shall be responsible for the investigation and punishment according to law. Whoever releases advertisements for intermediary services for overseas employment without approval shall be ordered by the department of industry and commerce administration to stop that act, and be imposed on a fine of not more than RMB10,000 if there is no illegal earnings; or, if there is any illegal earnings, be imposed on a fine of not more than 3 times of the illegal earnings, however, the sum shall not go beyond RMB30,000. CHAPTER VI MISCELLANEOUS Article 38. The application form for the qualification for intermediary activities for overseas employment and the license for intermediary activity for overseas employment shall be formulated by the Ministry of Labor and Social Security uniformly. Article 39. Those that have drawn the licenses for intermediary activities for overseas employment prior to the implementation of these Provisions shall file an application over again for the license and registration within 90 days from the date of implementation of these Provisions. Article 40. The Ministry of Labor and Social Security shall promulgate the list of the intermediary agencies for overseas employment of which the licenses have been written off to the public timely. Article 41. The administrative departments of labor security of the provinces, autonomous regions, municipalities directly under the Central Government may, together with the public security organs and departments of industry and commerce administration at the same level, formulate the implementation methods for these Provisions, and submit them for record to the Ministry of Labor and Social Security, the Ministry of Public Security and the State Administration for Industry and Commerce. Article 42. These Provisions are not applicable to the intermediary services provided to citizens in the mainland for employment in the Special Administrative Region of Hong Kong, the Special Administrative Region of Macao and the Taiwan area. Article 43. These Provisions shall come into force as of July 1, 2002. The Provisions on the Administration of Service Agencies for Overseas Employment promulgated by the Ministry of Labor on November 14, 1992 shall be repealed at the same time. |
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