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The Interim Measures on Participation in Social Insurance by
Foreigners Working in China (the "Interim
Measures") were issued by the Ministry of Human
Resources and Social Security on 6 September 2011 and will come
into force on 15 October 2011. The draft of the Interim Measures
was previously released for public comment on 10 June 2011.
The salient provisions of the Interim Measures are summarized as
follows:
Despite the various controversies during the consultation
period, the Interim Measures adopt the principle that foreigners
working in China (except for nationals of foreign countries that
have entered into bilateral or multilateral social insurance
exemption treaties with China) shall participate in PRC social
insurance scheme, including basic pension insurance, basic medical
insurance, work injury insurance, unemployment insurance and
maternity insurance.
"Foreigners working in China" are defined under the
Interim Measures as those non-PRC nationals who hold (a) work
permits (e.g. Alien Work Permit, Foreign Expert Certificate, and
Resident Foreign Journalists Certificate) and alien residence
permits, or (b) Alien Permanent Residence Permit, and are lawfully
employed in China, including:
foreigners who are legally employed by enterprises, public
institutions, social groups, privately owned non-enterprise units,
foundations, law firms and accounting firms etc., lawfully
incorporated or registered in China ("PRC
Employers"); and
foreigners who enter into employment contracts with overseas
employers and are then seconded to work in branch or representative
offices lawfully incorporated or registered in China
("PRC Engaging Units").
The PRC Employer/PRC Engaging Unit shall, on its own
initiative, arrange for social insurance registration for the
relevant foreigner working in China within 30 days upon issuance of
his/her work permit.
The provision that citizens from Hong Kong Special
Administrative Region ("HK"), Macau
Special Administrative Region ("Macau")
and Taiwan who are working in the mainland China shall also
participate in the social insurance scheme which appears in the
draft of the Interim Measures has been taken out from the final
version. As a result, whether citizens from HK, Macau and Taiwan
who are working in the mainland China are required to participate
in the social insurance scheme remain unclear. It is yet to see
whether any specific regulations regarding citizens from HK, Macau
and Taiwan will be issued and how local social insurance
authorities will implement the Interim Measures in this
respect.
If a foreign employee leaves China before reaching his/her
retirement age, he/she may:
retain his/her personal social insurance account, which may be
re-activated for social insurance contribution purpose if he/she
returns to and takes up an employment in China again; or
terminate his/her PRC social insurance account by serving a
written application, and receive one-off payment of the balance of
his/her personal social insurance account.
If a foreign employee passes away, the balance of his/her
personal social insurance account can be inherited pursuant to the
relevant laws.
If a foreign employee has become qualified to enjoy his/her PRC
social insurance benefits on a monthly basis (e.g. pension) after
leaving China, he/she shall provide a certificate confirming he/she
is alive to the relevant PRC social insurance authority at least
once every year. Such a certificate should be (i) issued by the PRC
embassy or consulate, or (ii) notarized by the relevant authority
of the country in which he/she resides and legalized by the
relevant PRC embassy or consulate. Such a certificate can be
exempted if the foreign employee is able to attend at the relevant
PRC social insurance authority in person to prove that he/she is
still alive.
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