Answer: Your age has exceeded statutory retirement age. After the employer hires you and signs employment contract, the relation between both sides depends on whether you receive basic pension insurance payment (do not include insurance of urban social pension insurance of new-style rural insurance). If you already receive the basic pension insurance, even if you have signed an employment contract with the employer, the relationship between the two parties is employment relationship.¹Article 32 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I) (Fashi 2020 No.26) and Article 44 (2) of the Employment Contract Law of the People’s Republic of China both stipulate that new employees and current employees who receive pension insurance benefits are under, or are converted to, contractor relationships.

If you exceeds the statutory retirement age and have not received the pension insurance payment, there are different judicial practices in different places: the first is that the court examines whether the employer is at fault for the employee’s failure to receive the pension insurance payment. If the employer is at fault, the relationship between the two parties is an employment relationship, otherwise it is a contractor relationship.²Mou Dianqing and Shandong Chenghui Property Management Co., Ltd. Civil Ruling on Employment Dispute Civil Application for Retrial Review Civil Ruling of Shandong High Court (2022) Lu Min Shen No.6437. ¡°In this case, the Applicant was over 50 years old when she came to work for the Respondent and was over the statutory retirement age, and her failure to receive the basic pension insurance benefits was not due to the Respondent. Therefore, it was not improper for the first-instance decision to determine that the work relationship between the two parties was a contractor relationship.¡± Wang Xiaohai, Heilongjiang Hongbo Human Resources Service Co., Ltd. and other civil applications for retrial of Employment Disputes Civil Ruling of Heilongjiang High Court (2022) Hei Min Shen No.145. Employment Dispute retrial between Xuzhou Hanli Ecological Agriculture and Livestock Development Co., Ltd. and Min Min Civil Ruling of Jiangsu Provincial People¡¯s High Court (2020) Sumin Shen No.1478. Xuzhou Tongshan District Highway Management Station and Hu Yonglan Employment Dispute Appeal and Application Civil Ruling Jiangsu Provincial People¡¯s High Court Civil Ruling (2020) Sumin Shen No.3168. The court held that the age of the employee should not be considered, but the nature of the relationship between the two parties should be considered. Tianjin yuancheng Property Service Co., Ltd. and Zhang Fucai and other Employment Disputes and Civil Servant Disputes retrial Tianjin High Court Civil Ruling (2020) Jin Min Shen No.293. The court held that the recruitment of employees over the statutory retirement age is not an obstacle to employment relations.The other is to directly identify the relationship between the two parties as a contractor relationship, regardless of whether the employer was wrong about the employee’s inability to receive pension insurance payment.³Article 18 of the Answers of the Civil First Division of Sichuan Provincial People¡¯s High Court on Several Difficult Questions Concerning the Trial of Employment Dispute Cases stipulates that “when an employer employs a worker who has reached the statutory retirement age but has not yet enjoyed the basic pension insurance treatment or received the pension, the work relationship between the two parties shall be handled as a contractor relationship”. Civil Ruling of the High Court of Inner Mongolia Autonomous Region (2021) Nei Min Shen No.741 Civil Ruling of Zhang Tuanzhong, Zhang Yu and other civil applications for retrial of Employment Disputes. The court held that the employer that recruited an employee who had not yet received pension insurance benefits but was beyond the retirement age constituted a contractor relationship with the employee. Civil Ruling on Employment Dispute Retrial Review and Trial Supervision between Peng Dingjun and Beijing Xinkang Wanjia Food Science and Technology Co., Ltd. Civil Ruling of Beijing High Court (2020) Jing Min Shen No.4872.

If the relationship between the two parties is recognized as a contractor relationship, the worker will not be able to obtain some employment rights under employment law, such as double-wage damages in the absence of a written employment contract, but it should be noted that the employee may still be entitled to some employment law rights according to supreme court’s judicial interpretation or special provisions of the law, such as some work injury entitlements.

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Mr. Wangdong

Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.

Email: wangdong@royalaw.com

• 1
  Article 32 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I) (Fashi 2020 No.26) and Article 44 (2) of the Employment Contract Law of the People’s Republic of China both stipulate that new employees and current employees who receive pension insurance benefits are under, or are converted to, contractor relationships.
• 2
  Mou Dianqing and Shandong Chenghui Property Management Co., Ltd. Civil Ruling on Employment Dispute Civil Application for Retrial Review Civil Ruling of Shandong High Court (2022) Lu Min Shen No.6437. ¡°In this case, the Applicant was over 50 years old when she came to work for the Respondent and was over the statutory retirement age, and her failure to receive the basic pension insurance benefits was not due to the Respondent. Therefore, it was not improper for the first-instance decision to determine that the work relationship between the two parties was a contractor relationship.¡± Wang Xiaohai, Heilongjiang Hongbo Human Resources Service Co., Ltd. and other civil applications for retrial of Employment Disputes Civil Ruling of Heilongjiang High Court (2022) Hei Min Shen No.145. Employment Dispute retrial between Xuzhou Hanli Ecological Agriculture and Livestock Development Co., Ltd. and Min Min Civil Ruling of Jiangsu Provincial People¡¯s High Court (2020) Sumin Shen No.1478. Xuzhou Tongshan District Highway Management Station and Hu Yonglan Employment Dispute Appeal and Application Civil Ruling Jiangsu Provincial People¡¯s High Court Civil Ruling (2020) Sumin Shen No.3168. The court held that the age of the employee should not be considered, but the nature of the relationship between the two parties should be considered. Tianjin yuancheng Property Service Co., Ltd. and Zhang Fucai and other Employment Disputes and Civil Servant Disputes retrial Tianjin High Court Civil Ruling (2020) Jin Min Shen No.293. The court held that the recruitment of employees over the statutory retirement age is not an obstacle to employment relations.
• 3
  Article 18 of the Answers of the Civil First Division of Sichuan Provincial People¡¯s High Court on Several Difficult Questions Concerning the Trial of Employment Dispute Cases stipulates that “when an employer employs a worker who has reached the statutory retirement age but has not yet enjoyed the basic pension insurance treatment or received the pension, the work relationship between the two parties shall be handled as a contractor relationship”. Civil Ruling of the High Court of Inner Mongolia Autonomous Region (2021) Nei Min Shen No.741 Civil Ruling of Zhang Tuanzhong, Zhang Yu and other civil applications for retrial of Employment Disputes. The court held that the employer that recruited an employee who had not yet received pension insurance benefits but was beyond the retirement age constituted a contractor relationship with the employee. Civil Ruling on Employment Dispute Retrial Review and Trial Supervision between Peng Dingjun and Beijing Xinkang Wanjia Food Science and Technology Co., Ltd. Civil Ruling of Beijing High Court (2020) Jing Min Shen No.4872.