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Article 1. These Measures are formulated in accordance with the "Foreign Trade Law of the People's Republic of China" and other relevant regulations in order to strengthen the administration of labor service cooperation with foreign parties, regulate the market operation order of labor service cooperation with foreign parties, maintain the lawful rights and interests of the labor workers sent abroad, enhance the quality and management level of labor service cooperation with foreign parties, and promote the healthy development of labor service cooperation with foreign parties. Article 2. These Measures shall apply to the administration of the operational qualifications for the enterprises registered inside the Mainland of China to engage in labor service (including trainees) cooperation with foreign parties. Article 3. Labor service cooperation with foreign parties means the economic activities conforming to these Measures that domestic enterprise legal persons conclude contracts with foreign or overseas companies, intermediary institutions or private employers which are permitted to recruit or employ foreign labor workers, and recruit, select and dispatch Chinese citizens abroad (or out of the mainland) in an organized way to provide foreign employers with labor services pursuant to the contractual stipulations, and carry out the management accordingly. Article 4. An enterprise may not carry out business activities of labor service cooperation with foreign parties until permitted by the Ministry of Commerce and having, in accordance with these Measures, obtained the operational qualification for labor service cooperation with foreign parties, as well as having obtained the "Operational Qualification Certificate of the People's Republic of China for Labor Service Cooperation with Foreign Parties" (hereinafter referred to the "Qualification Certificate"). No overseas enterprise, natural person or foreign institutions dispatched in China shall directly recruit labor workers inside the Mainland of China. Article 5. An enterprise applying for the operational qualification for labor service cooperation with foreign parties must: (1) be an enterprise legal person lawfully registered for no less than 3 years, with its registered capital to be no less than RMB 5 million Yuan (or, if located in middle and western regions, no less than RMB 3 million Yuan); (2) have adequate operational capability, no more than 50% of the liability/asset ratio, and no records on ill acts; (3) have a fixed business place, with the office area to be no less than 300 square meters; (4) have well-developed management systems, and to have passed ISO9000 Quality Management System Certification; (5) be able to pay the full amount of contingent fund for labor service cooperation with foreign parties; (6) have no less than 5 professionals in the field of labor service cooperation with foreign parties who have the educational qualification of specialized college or upwards or who hold the posts of professional technical posts of mid-level or upwards, no less than 2 training managers and 2 financial staff, and no less than 1 legal professional; (7) have the capabilities in market extension and on-site management; and (8) have certain working basis, and to have dispatched no less than 300 labor workers to enterprises with the operational qualification for labor service cooperation with foreign parties in the latest three years. Article 6. An enterprise applying for the operational qualification for labor service cooperation with foreign parties must submit the following documents: (1) an application report; (2) a photocopy of the business license of enterprise legal person, and the original of bank credibility letter; (3) a photocopy of the enterprise capital verification report, annual financial report, and balance sheet issued by an accounting firm, and the original of the tax payment documentation issued by the taxation organ; (4) a photocopy of the property right certificate of the business place or the documentation on lease of the fixed site; (5) a photocopy of the corporate articles of association, management systems, ISO9000 Quality Management System Certificate; (6) photocopies of the credentials of relevant professionals prescribed in Item 6 of Article 5 of these Measures; (7) a feasibility report for the country or region where labor service cooperation with foreign parties will be carried out; (8) the original of testimonial issued by the enterprise with the operational qualification for labor service cooperation with foreign parties on the number of dispatched labor workers; and (9) other documents required by laws and regulations. Article 7. An enterprise that intends to apply for the operational qualification for labor service cooperation with foreign parties shall file a written application to the competent authority for commerce of the province, autonomous region, municipality directly under the Central Government, or city directly under state planning, where the registration place is located (hereinafter referred to "the local competent authority for commerce"). Article 8. The local competent authority for commerce shall, within 10 working days after receipt of all the enterprise's application documents, complete the preliminary examination, and submit the opinions from the preliminary examination along with all the enterprise's application documents to the Ministry of Commerce. Article 9. The Ministry of Commerce shall, within 15 working days as of receipt of the opinions of the local competent authority for commerce from its preliminary examination and all the enterprise's application documents, make an official reply on whether granting the permit of operational qualification for labor service cooperation with foreign parties, and send copies to relevant departments. If it does not grant the permit, it shall state the reason thereof. Article 10. An enterprise shall, within 30 days as of obtaining the permit of operational qualification for labor service cooperation with foreign parties, pay the contingent fund for labor service cooperation with foreign parties in accordance with the "Interim Measures on Contingent Funds for Labor Service Cooperation with Foreign Parties" promulgated by the former Ministry of Foreign Trade and Economic Cooperation and the Ministry of Finance (Decree No. 7 in 2001), and the Decision promulgated by the Ministry of Commerce and the Ministry of Finance on Amending the "Interim Measures on Contingent Funds for Labor Service Cooperation with Foreign Parties" (Decree No. 2 in 2003), and shall apply to the local competent authority for commerce for obtaining the "Qualification Certificate". Article 11. An enterprise shall, within 30 days after obtaining the "Qualification Certificate", apply to the original enterprise registration organ for modification registration. Article 12. Where an enterprise with the operational qualification for labor service cooperation with foreign parties changes its name, registered capital and business place, it shall apply in accordance with the law to the original enterprise registration organ for modification registration, and shall, within 30 working days after registration, report to the local competent authority for commerce and the Ministry of Commerce for archival purposes. Article 13. An enterprise approved by the Ministry of Commerce to have the operational qualification for undertaking contracting projects from foreign parties, may dispatch needed labor workers to the overseas contracting project on which it has concluded a contract with the foreign party. Article 14. Where a foreign-funded job recommendation institution or a Chinese-foreign joint venture talent intermediary institution which is approved to be established recruits talents and dispatches them abroad, it shall, in addition to submitting relevant documents in accordance with Article 6 of these Measures, submit a photocopy of the approval certificate of foreign-funded enterprise and of the business license of foreign-funded enterprise. Article 15. For the industries listed by the State as particular specialties, the Ministry of Commerce shall separately set forth the conditions for operational qualification jointly with relevant departments. Article 16. An enterprise which has obtained the operational qualification for labor service cooperation with foreign parties must fulfill the conditions prescribed in these Measures within one year as of the entry into force of these Measures. Article 17. After an enterprise with the operational qualification for labor service cooperation with foreign parties has been lawfully revoked or cancelled, its operational qualification shall be invalidated automatically. Article 18. The local competent authority for commerce shall strengthen the supervision over the enterprises with the operational qualification for labor service cooperation with foreign parties, and shall require those failing to conform to Items (1) through (7) of Article 5 of these Measures to fulfill the conditions accordingly within one month, and may report those which still fail to meet the conditions to the Ministry of Commerce for revocation of their operational qualification. Article 19. If any enterprise with the operational qualification for labor service cooperation with foreign parties violates in its business activities the provisions of the State for administration of labor service cooperation with foreign parties, it shall be warned or fined by the Ministry of Commerce; if a crime is constituted, it shall be subject to criminal liabilities. Article 20. If any enterprise with the operational qualification for labor service cooperation with foreign parties violates in its business activities the provisions of the State on industrial and commercial administration or the provisions of the State on entry and exit administration, and thus is investigated by the administration for industry and commerce and the public security organ in accordance with the law, it shall be warned by the Ministry of Commerce. Article 21. If any enterprise unlawfully carries out activities of labor service cooperation with foreign parties without obtaining the operational qualification for labor service cooperation with foreign parties, or without lawfully applying for industrial and commercial registration, it shall be investigated by the competent authority for commerce and the administration for industry and commerce at the level concerned; if a crime is constituted, it shall be subject to criminal liabilities. Article 22. The Ministry of Commerce shall, by regular or irregular intervals, announce the name list of the enterprises with the operational qualification for labor service cooperation with foreign parties, and the information on penalties, as well. Article 23. These Measures shall come into force 30 days after their promulgation. The provisions in the "Notice Concerning the Issues on Adjusting the Qualification Conditions for Enterprises to Apply for the Right of Undertaking Labor Service Contracting from Foreign Parties and on Strengthening Post-stage Administration, etc." (Letter No. 748 [1999] of MOFTEC concerning Political Examination) and the "Notice on Partially Adjusting the Operational Qualification Conditions for Undertaking Contracting Projects from Foreign Parties or Carrying out Labor Service Cooperation with Foreign Parties" (Letter No. 735 [2001] of the Development Department of MOFTEC) promulgated by the former Ministry of Foreign Trade and Economic Cooperation regarding permission of the operational qualification for labor service cooperation with foreign parties shall be repealed simultaneously. Article 24. The power to interpret these Measures shall remain with the Ministry of Commerce jointly with the State Administration for Industry and Commerce. |
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