In a recent case decided by Beijing No.1 Intermediary Court, an American (hereinafter “A”) who is 66 years old, resigned from his general manager’s position and claimed salary, mobile fees and bonus, which were agreed with his employer in the Employment Contract. The Company refused to pay the said salary, mobile fees and bonus on the grounds that A did not perform his duty in accordance with the Employment Contract when he resigned from the Company. The judge held that the retirement age (55 years old for female, 60 years old for male) is also applicable to foreigners working in China. Since A was at least 60 years old when he joined the Company, A could not establish an employment relationship with the Company, and the “Employment Contract” shall be regarded as a service contract regulated by the Contract Law rather than the Labor Contract Law. Since no national laws expressly indicate that the retirement age of Chinese citizens is also applicable to foreigners working in China, it is advisable that global employers should pay attention to the local practices on this issue.
China