Recognising a Foreign Employee's Labour Relationship in a Chinese Court: Interpretation (II) Article 4 and What Is Left of Interpretation (I) Article 33

Delta Law Expat Services Desk　｜　Interpretation on the Application of Law in the Trial of Labour Dispute Cases (II)（关于审理劳动争议案件适用法律问题的解释（二）），法释〔2025〕12号, current version in force from 2025-09-01, read together with Interpretation (I)（解释（一）），法释〔2020〕26号, in force from 2021-01-01 — article 33 of which is not repealed and stays part of the picture.

1. The document at a glance

2. Scope and who is caught

Both interpretations sit inside the general labour-dispute framework: a labour dispute (劳动争议) is a dispute between a worker (劳动者) and an employer (用人单位) arising out of performing, existing, or ending an employment relationship, and both instruments apply once a court has accepted a case after arbitration. Article 33 of Interpretation (I) narrows the class it speaks to — 外国人、无国籍人 (foreign nationals and stateless persons) who signed a contract with a China-based employer. Article 4 of Interpretation (II) uses the same class, 外国人 (foreign nationals), for its own three-item test, set out in Section 3.

Who can be sued, and who can be joined, is also addressed directly in this round of interpretation — a point relevant wherever the employer side of the relationship is a foreign enterprise's China office rather than a Chinese company.

A representative office does not itself hold PRC legal-person status, and before this article the question of whether it — rather than its foreign parent — was the correct party was resolved case by case. Article 5 settles both directions: the office can be sued, or can sue, in its own right, and where a claimant applies to join the foreign parent, the court must support the application. This fixes who a foreign employee working out of a representative office is actually litigating against, and who a judgment can later be enforced against.

3. The provisions, side by side

Two provisions do the substantive work of deciding whether a foreign employee has a labour relationship a Chinese court will recognise. Read them in the order they were written — the older rule first — because the newer one does not simply replace it; it sits alongside it.

Two paragraphs, two functions. Paragraph one is a negative bar: no lawful employment documents behind the contract, no recognised labour relationship, regardless of how the work was performed. Paragraph two is a narrow positive door, open only to holders of both a Foreign Expert Certificate and a Foreign National's Work Permit for Employment in China. Everyone else, under Interpretation (I) alone, had only the negative rule — the gap Interpretation (II) Article 4 was written to close.

Article 4 is a positive list, not a bar, and it reaches wider than Article 33(2) in two respects. Item (1) adds a category Interpretation (I) never addressed — permanent residence status. Item (2) restates the work-permit route without naming a specific certificate: 已取得工作许可且在中国境内合法停留居留 (has obtained a work permit and is lawfully staying or residing in China) reads, on its face, wider than Article 33(2)'s two named documents. Item (3) is an open catch-all pointing to whatever procedure the state prescribes elsewhere. None of the three items requires holding specifically a Foreign Expert Certificate, the document Article 33(2) insists on.

This amendment, effective 2024-12-23, did not touch either interpretation — it revised a different instrument, the Interim Measures for Participation in Social Insurance by Foreigners Employed in China 在中国境内就业的外国人参加社会保险暂行办法. It is quoted here because it shows how unsettled the paperwork terminology still is. Interpretation (I) art. 33(2) names 《外国专家证》(Foreign Expert Certificate) and 《外国人来华工作许可证》(Foreign National's Work Permit for Employment in China); this 2024 amendment instead names 《中华人民共和国外国人工作许可证》(Work Permit for Foreigners in the People's Republic of China) and 《外国常驻记者证》(Foreign Resident Correspondent Certificate); and art. 8 of the separate Regulations on the Administration of Employment of Foreign Nationals in China 外国人在中国就业管理规定 still uses 《外国人就业证》(Foreigner's Employment Certificate). Three currently effective texts, three overlapping but not identical names — quoted here each in its own wording, without treating any one as authoritative for the other two.

4. Two regimes, one map: where each rule reaches

The repeal clause in Interpretation (II) is where the biggest misreading happens, so it is worth quoting in full rather than summarising.

Read this clause narrowly, because it is drafted narrowly. It names exactly one provision for express repeal — Article 32(1), which deals with workers already drawing a pension or retirement benefit, not with foreign nationals at all. Article 33 is not named, so it remains formally in force after 2025-09-01.

That said, Article 21's third sentence does real work wherever the two rules genuinely conflict on the same facts. Article 33(1)'s negative bar and Article 4's positive list do not conflict — they answer different questions, mapped below. Article 33(2) and Article 4(2) do overlap, and where they diverge, Article 4 — later, and Article 21's expressly named tie-breaker — is the one a court applies.

5. What follows: recognised, or not

A recognition finding is not the end of a case — it decides which body of law the rest of the dispute runs on, and this is where the officially published record gets thin on one side.

6. Who runs into this, and how it is used

Three groups use these two provisions: a foreign employee whose employer disputes that a labour relationship ever existed; an employer trying to work out, before a dispute starts, whether a given foreign hire's paperwork will hold up if challenged; and a representative office (or its foreign parent) working out whether it, or the parent, is the correct party if a claim is filed.