Recently, the Haimen Court in Jiangsu Province accepted a case in which a foreign employee sued a technology company in China for wages, and the court ultimately determined that the foreign employee had a labor contract relationship with a certain company in a certain country, rather than a Chinese company, and rejected the plaintiff's lawsuit.

近日，江苏省海门法院受理了一起外籍员工起诉中国某科技公司讨要工资的案件，法院最终认定该外籍员工与某国某公司而非中国某公司存在劳动合同关系，驳回了原告的起诉。In 2018, a Chinese technology company signed a contract with Joseph, a citizen of a certain country, agreeing that Joseph would assist the technology company to establish a subsidiary in a certain country to assist in the purchase of machinery and equipment and expand the market in that country, and appointing Joseph as the vice president of the company. During company's start-up period, another company in a certain country would pay insurance, salary and taxes for Joseph. In September 2019, the subsidiary was officially established, which paid insurance, salary and taxes for Joseph. In January 2020, the two parties had a dispute over business issues and the subsidiary sent a termination notice to Joseph. Joseph believed that the subsidiary had terminated the contract in violation of regulations and filed a lawsuit in a court of the certain country in July 2020, demanding that the subsidiary pay the unpaid wages and assume liability for compensation.

2018 年，中国某科技公司与某国公民约瑟夫签订合同，约定约瑟夫协助该科技公司在某国设立子公司，协助购买机器设备，拓展该国市场，并任命约瑟夫为公司副总经理。在公司启动期间，某国的另一家公司将为约瑟夫支付保险、工资和税款。2019 年 9 月，子公司正式成立，由子公司为约瑟夫支付保险、工资和税金。2020 年 1 月，双方因业务问题发生争执，子公司向约瑟夫发出终止通知。约瑟夫认为子公司违反规定解除合同，于2020年7月向某国法院提起诉讼，要求子公司支付拖欠工资并承担赔偿责任。The lawsuit lasted for one and a half years and was not concluded, and in March 2022, Joseph hired a Chinese lawyer to file a lawsuit with the Chinese court, believing that Joseph's real employer was the Chinese technology company and that the unpaid salary should be paid by the Chinese technology company.

官司打了一年半也没有结果，2022 年 3 月，约瑟夫聘请了一名中国律师向中国法院提起诉讼，认为约瑟夫的真正雇主是中国科技公司，欠薪应由中国科技公司支付。The court heard that the actual payment of insurance, salary and taxes for Joseph is the subsidiary of the certain country, and when Joseph filed the lawsuit in the court of the certain country in July 2020, the responding subsidiary also recognized Joseph as an employee of the company, so Joseph's employer should be deemed to be the subsidiary of the certain country. In addition, during Joseph's tenure from 2018 to 2020, his annual salary was converted into RMB 1.2 million, which was paid directly to the tax department of the certain country by the certain company on Joseph’s behalf. Joseph had not paid any income tax to the tax department of China, which further confirmed that there was no employment relationship between Joseph and the Chinese technology company, so the final judgment dismissed Joseph's claim.

法院审理认为，为约瑟夫实际缴纳保险、发放工资、缴纳税款的是某国子公司，且约瑟夫于2020年7月向某国法院提起诉讼时，应诉子公司也认可约瑟夫为该公司员工，故应视约瑟夫的雇主为某国子公司。此外，约瑟夫在 2018 年至 2020 年任职期间，年薪折合人民币 120 万元，由某某公司直接代约瑟夫向某某国税务部门缴纳。约瑟夫未向中国税务部门缴纳任何所得税，这进一步证实约瑟夫与中国科技公司之间不存在雇佣关系，因此终审判决驳回约瑟夫的诉讼请求。

Judicial Interpretation

司法解释

In this case, the subsidiary of the certain country is actually controlled by the Chinese technology company, and during the period after its preparation and establishment, the subsidiary did not actually operate, and ultimately bear the cost of Joseph’s work is actually the Chinese technology company. However, the parent and subsidiary companies are independent legal entities, and the subsidiary company should assume its legal obligations with its own liability and property.

本案中，某国子公司实际由中国科技公司控制，在其筹备成立期间，子公司并未实际经营，最终承担约瑟夫工作费用的实际是中国科技公司。但母子公司是独立的法人实体，子公司应以自己的责任和财产承担法律义务。Joseph filed a lawsuit in a certain country, and a year and a half later, he filed a lawsuit in China without completing the lawsuit, which itself raises the problem of double jeopardy, although during the litigation Joseph claimed that he could ask the court of the certain country to terminate the litigation and have it heard by a Chinese court. However, the Chinese technology company was not Joseph's direct employer and had not paid any compensation to Joseph.

约瑟夫在某国提起诉讼，一年半后又在中国提起诉讼，但诉讼并未结束，这本身就存在一罪二审的问题，虽然在诉讼过程中约瑟夫声称可以要求某国法院终止诉讼，由中国法院审理。然而，该中国技术公司并非约瑟夫的直接雇主，也未向约瑟夫支付任何赔偿。If the Chinese company is identified as Joseph's employer, according to the Individual Income Tax Law of the People’s Republic of China and Announcement No.34 and No.35 of the State Administration of Taxation in 2019, Joseph, as a non-resident taxpayer with no domicile in China, should pay individual income tax on income derived from China.

如果中国公司被认定为约瑟夫的雇主，根据《中华人民共和国个人所得税法》和国家税务总局2019年第34号、第35号公告，约瑟夫作为在中国境内无住所的非居民纳税人，应就来源于中国境内的所得缴纳个人所得税。In this case, the Chinese technology company has not paid income tax to the tax department of China for Joseph, so it should not be considered that that Joseph's remuneration was received from the Chinese technology company, and he should still ask the court where he pays taxes to protect his legitimate rights and interests.

本案中，中国科技公司并未为约瑟夫向中国税务部门缴纳个人所得税，因此不应认定约瑟夫的报酬是从中国科技公司处取得的，约瑟夫仍应向纳税所在地法院请求保护自己的合法权益。