Below you can find the translated English version of the Regulation of Shanghai Municipality on Labor Contract. The regulation was issued on November 11th, 2002, by the Shanghai Municipality People’s Congress.
Chapter I General Principles
Article 1 The present Regulation has been enacted according to the Labor Law of the People’s Republic of China and other pertinent laws and regulations and by taking the practical situation of this municipality into consideration for the purpose of regulating labor relationships, establishing and safeguarding the labor contract system that suits the socialist market economy.
Article 2 The present Regulation shall be applicable to the labor contractual relationships that are established or formed between the employing entities including enterprises, individual economic organizations and state organs, public institutions, social organs, etc. (hereinafter referred to as employing entities) that are situated within the administrative region of this Municipality and the laborers.
Article 3 A labor contract is an agreement that establishes the labor relationship between the laborer and the employing entity and specifies the rights and obligations of the parties concerned.
Article 4 A labor contract shall be concluded in written form with the exception of those for which there are special provisions in the present Regulation.
Article 5 The principle of equality, willingness, negotiation-based consensus shall be abided by in the conclusion and modification of labor contracts and the contracts shall be in conformity with the relevant provisions of the laws, regulations, and other relevant rules.
A labor contract shall be legally binding once it is concluded and the parties concerned shall perform their respective obligations as provided in the labor contracts.
Article 6 Trade s shall give guidance and help to laborers in terms of labor contracts and shall supervise the performance of labor contracts by the employing entities. In case any employing entity infringes upon the lawful rights and interests of the laborers, the trade unions shall have negotiations with the employing entities on behalf of the laborers concerned so as to safeguard the lawful rights and interests of the laborers in the conclusion and performance of labor contracts.
Article 7 The administrative departments of labor and social security shall be responsible for guiding, supervising, and inspecting the implementation of the labor contract system.
Chapter II Conclusion of Labor Contracts
Article 7 Any premium paying entity shall carry out social insurance registration at the local social insurance agency and participate in social insurance.
The registration items shall include the name and domicile of the entity, its business place, type of the entity, its legal representative or person-in-charge, its account at the account-opening bank and other items prescribed by the administrative department for labor and social security under the State Council.
Article 8 An enterprise shall, when making registration, undergo the formalities for social insurance registration at the same time.
A premium paying entity other than those as prescribed in the preceding paragraph shall, within 30 days after its formation, apply for social insurance registration to the local social insurance agency.
Article 9 If any of the social insurance registration items of a premium paying entity changes or a premium paying entity is terminated according to law, the formalities for change or cancellation of the social insurance registration shall be carried out at the social insurance agency within 30 days as of the date of change or termination.
Article 10 Any premium paying entity shall, on a monthly basis, report to the social insurance agency the amount of social insurance premiums payable and pay its social insurance premiums within the prescribed time limit upon assessment of the social insurance agency.
If a premium paying entity fails to report the amount of social insurance premiums payable according to the provisions, the social insurance agency shall provisionally set the amount payable at 110 per cent of the premium amount paid in the preceding month. If it did not make a premium payment in the preceding month, the social insurance agency shall provisionally set the amount payable according to the entity’s business situation, its number of employees and other such relevant conditions. After a premium paying entity has retroactively carried out its declaration procedures and paid the social insurance premiums according to the sum as assessed, the social insurance agency shall settle the accounts according to the provisions.
Article 11 If the people’s government of a province, autonomous region, or municipality directly under the Central Government has determined that the social insurance premiums shall be collected by the tax authorities, the social insurance agency shall promptly provide the tax authority with the relevant information about the social insurance registration, change of registration, cancellation of registration and premium payment declarations of the premium paying entities.
Article 12 Premium paying entities or individuals shall pay their social insurance premiums in cash and in full amount.
The social insurance premiums payable by the premium paying individuals shall be withheld from their wages and paid for them by their work entities.
No social insurance premium may be reduced or exempted.
Article 13 If a premium paying entity fails to pay its own social insurance premiums or to withhold and pay those for its employees according to the provisions, the administrative department of labor and social security or the tax authority shall order it to make payments within the prescribed time limit; if it fails to do so within the time limit, it shall, in addition to paying the sum it owes, pay a late payment fine of 0.2 per cent per day computed from the date when the amount becomes overdue. Late payment fines shall be consolidated into the social insurance funds.
Article 14 The social insurance premiums as collected shall be deposited into a special public finance account for social security funds opened by the department of public finance at a State-owned commercial bank.
The social insurance funds shall be respectively established as the basic old age insurance fund, basic medical insurance fund, and unemployment insurance fund according to the scope of premium payers for the risk concerned. Separate and independent accounts shall be established for each type of social insurance funds.
No tax or fee shall be calculated or levied on social insurance funds.
Article 15 If the people’s government of a province, autonomous region, or municipality directly under the Central Government has determined that the social insurance premiums shall be levied and collected by the tax authority, the tax authority shall promptly provide the social insurance agencies with the premium payment information of the premium paying entities and individuals. The social insurance agencies shall consolidate the relevant data and report them to the administrative departments of labor and social security.
Article 16 Social insurance agencies shall establish premium payment records. Of such records, those that pertain to basic old-age insurance and basic medical insurance shall contain a record of the personal accounts according to the provisions. Social insurance agencies shall be responsible for keeping the premium payment records and ensuring their completeness and security. Social insurance agencies shall issue to the premium paying individuals the notices concerning their personal accounts of basic old-age insurance and basic medical insurance at least once a year.
Premium paying entities or individuals shall be entitled to access to their premium payment records according to the provisions.
Chapter III Supervision and Examination
Article 17 Any premium paying entity shall, on an annual basis, announce to its employees the information about its payment of social insurance premiums for the whole year, and be subject to the supervision of its employees.
Social insurance agencies shall regularly inform the general public of the data on the levy and collection of social insurance premiums, and be subject to the supervision of the general public.
Article 18 According to the provisions of the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government on the collecting agencies of social insurance premiums, when an administrative department of labor and social security or a tax authority conducts an examination on the premium payment data of an entity according to law, the entity being examined shall provide such information relevant to the payment of social insurance premiums as employment details, payrolls, and financial statements, etc., and truthfully report them, and shall not refuse the examination or make false or deceptive reports. The administrative department of labor and social security or the tax authority may make a written record, audiotape, videotape, photograph, or copy of the relevant materials; however, it shall keep the secrets of the premium paying entities to itself.
When exercising the functions mentioned in the preceding Paragraph, the functionaries of the administrative department of labor and social security or the tax authority shall show their official certificates.
Article 19 When an administrative department of labor and social security or a tax authority investigates the illegal acts related to the collection and payment of social insurance premiums, the relevant departments and entities shall offer their support and cooperation.
Article 20 Social insurance agencies may, upon the strength of the authorization of the administrative departments of labor and social security, conduct the examinations and investigations related to the collection and payment of social insurance premiums.
Article 21 Any organization or individual shall have the right to tip off illegal acts related to the collection and payment of social insurance premiums. The administrative department of labor and social security or the tax authority shall promptly investigate the tip-off, handle it according to the legal provisions, and keep the secret to itself for the person making the tip-off.
Article 22 The social insurance funds shall be subject to separate management in terms of receipts and expenditures, and be subject to the supervision of the department of public finance.
The auditing department shall supervise over the conditions about the revenues and expenditures of the social insurance funds.
Chapter IV Penalty Provisions
Article 23 If a premium paying entity fails to carry out social insurance registration, change its registration or cancel its registration according to the legal provisions, or fails to report the amount of social insurance premiums payable according to the legal provisions, the administrative department of labor and social security shall order it to make correction within the prescribed time limit; where the circumstance is serious, the principals and other persons held to be directly responsible shall be imposed on a fine of 1,000 yuan up to 5,000 yuan; and where the circumstance is extremely serious, the principals and other persons held to be directly responsible shall be imposed on a fine of 5,000 yuan up to 10,000.
Article 24 If a premium paying entity violates the relevant financial, accounting or statistics laws or administrative regulations or the relevant State regulations, or forges, alters or intentionally destroys the relevant accounts or materials, or fails to establish accounts, and thus makes it impossible to determine the base for the collection and payment of social insurance premiums, it shall not only be subject to administrative punishments, disciplinary sanctions and/or criminal penalties in accordance with the relevant laws and administrative regulations, but also make payment in accordance with Article 9 of this Regulation. If it delays the payment, the administrative department of labor and social security or the tax authority shall decide to impose on it a late payment fine in accordance with Article 12 of this Regulation and impose a fine of 5,000 yuan up to 20,000 yuan on the principals and other persons held to be directly responsible.
Article 25 If a paying premium entity or individual is not satisfied with the penalty decisions made by the administrative department of labor and social security or the tax authority, it or he may apply for reconsideration. If the entity or individual is still not satisfied with the decision made upon reconsideration, it or he may file a lawsuit according to law.
Article 26 If a premium paying entity refuses to pay its social insurance premiums or late-payment fines beyond the time limit, the administrative department of labor and social security or the tax authority shall apply to the people’s court to enforce the payment according to law.
Article 27 If any of the functionaries of an administrative department of labor and social security, social insurance agency or tax authority abuses his powers, seeks for private interests, resorts to cheats, or neglects his duties, and thus causes any loss to the social insurance premiums, the administrative department of labor and social security or the tax authority shall recover the lost social insurance premiums; if any crime is constituted, the aforesaid functionary shall be subject to criminal liabilities; if no crime is constituted, he shall be imposed on the administrative punishments.
Article 28 If any entity or individual misappropriates the social insurance funds, the misappropriated social insurance funds shall be recovered; if there are illegal incomes, they shall be confiscated and consolidated into the social insurance funds; if any crime is constituted, the aforesaid entity or individual shall be subject to criminal liabilities; and if no crime is constituted, the principals and other persons held to be directly responsible shall be subject to administrative punishments according to law.
Chapter IV Supplementary Provisions
Article 29 The people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government may, according to their respective actual situations, determine whether this Regulation shall be applicable to the collection and payment of work-related injury insurance and maternity insurance premiums within their respective administrative areas.
Article 30 The tax authorities and social insurance agencies shall not take any commission from the social insurance fund for the purpose of covering the expenses incurred in their levy and collection of social insurance premiums. The necessary expenditure shall be listed into the budget and be allotted by the public finance.
Article 31 This Regulation shall enter into force as of the date of promulgation.