Nov. 10 – China’s Social Insurance Law provides that foreigners working in the country are required to participate in the national social insurance scheme. In September 2011, the MHRSS further promulgated the Interim Measures for Participation in the Social Insurance System by Foreigners Working within the Territory of China (Interim Measures), which became effective on October 15, 2011 and laid out the specifics of the requirement.

According to the Interim Measures, foreigners working in China should participate in the five insurances, i.e., pension, medical, work-related injury, unemployment and maternity insurance programs in accordance with the law, with the social insurance premiums contributed by both themselves and their employers. “Foreigners working in China” refer to individuals who:

• Do not have Chinese nationality;
• Have obtained the Employment Permit for Foreigners, the Certificate of Foreign Experts, the Press Card for Foreign Resident Correspondents and other employment permits and residence permits for foreigners pursuant to the law;
• Hold a Permanent Residence Permit for Foreigners; and
• Are lawfully working within the territory of the People’s Republic of China.

Individuals from Taiwan, Macau and Hong Kong are included. Foreigners who are dispatched to work in branches or representative offices duly registered in mainland China after having entered into employment contracts with overseas employers are also required to participate in these insurance programs, with the social insurance premiums to be contributed by themselves and the domestic entities.

If the foreigner leaves China prior to reaching the prescribed statutory age for pension withdrawal, his/her social insurance personal account will be retained, and the contribution years will be calculated on a cumulative basis if he/she comes back to China to work again in the future. Alternatively, upon submitting a written application for terminating the social insurance relationship, the in-charge social insurance agency can make a lump-sum payment of the money deposited in the social insurance personal account to him/her.

Foreigners who reside outside China and receive monthly social insurance benefits should, on a yearly basis, submit to the in-charge social insurance agency a certification of existence issued by a Chinese embassy or consulate, or one that is notarized or certified by the relevant authority of his/her resident country and then certified by the relevant Chinese embassy or consulate. The balance remaining in the personal social insurance account of a deceased foreigner can be inherited pursuant to the law.

It has been two years since the requirement for foreigners to participate in social insurance in China has been enacted. Currently, this requirement has been at least partially implemented in 25 major cities including Beijing, Chengdu, Qingdao, Suzhou, Wuhan and Tianjin. However, it has yet to be mandatorily implemented in other cities that have a concentrated number of foreign-invested enterprises (FIEs) such as Shanghai, Dalian, Dongguan and Wenzhou. Since the social insurance contribution of foreigners can add as much as 40 percent to the salary of a foreign employee, it is becoming a burden for FIEs, which is the reason why these cities are reluctant to implement the program as it may affect their ability to attract foreign investment.

Many foreigners question the requirement to contribute to China’s pension fund because many of them do not intend to stay in China for longer than 15 years – the threshold number of contribution years required in order to be eligible for receiving pension. Although the law states that the pension payment can be taken out in a lump-sum when the foreigner leaves the country, the procedures for doing so are still unclear. In addition, if a foreigner working in China under a work permit becomes unemployed, he/she will usually be required to leave the country. This puts into question the efficacy of the requirement for foreigners to contribute to an unemployment insurance fund, since they are not likely to be able to enjoy unemployment benefits.

The Interim Measures also provide that expatriate employees who are nationals of countries that have entered into bilateral or multilateral social security agreements with China should make social insurance payments in accordance with these agreements. Currently, only Germany and South Korea have entered into social insurance agreements with China.

According to Korea’s agreement with China, for example, personnel dispatched to the other country are exempt from pension contributions for a period of five years. Currently, China is under negotiations with Japan, the U.S., Singapore and several EU countries including France, Sweden, Belgium, Finland and Spain to enter into bilateral social insurance treaties.