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[ChinaChao]

We pobably won't be able to receive the 6,000rmb for the visa we are owed because they have the receipts.  Our school gave them to the Jinan office thinking they would pay us back.  We didn't care because mind you, this was supposed to be the schools money.

They breached contract where it says we will be sponsored for a Z visa within one week of landing in China.  They didn't even have a license.

However our contract states they will pay for:
Our original visa, which was 2700rmb. 
Full airfare if they breach the contract, approx. 8,000rmb (Our school put us in a bad situation where they made us sign for one way airfare but only gave us 2/3 of our oneway.  my boyfriend signed it because he didn't think we had ANY legal grounds to recover anything if they didn't give us anything).  The thing is, we won't be leaving China for another year, can we still be awarded our return if we work in China for another company?
And a $100 (One hundred)USD penalty for breach of contract as stipulated in the contract.

1. Could we receive the expense of our Z visa we got in Hong Kong?  I mean it is an expense we wouldn't have bared if they didn't breach.
2. Our contract states we will be paid 2000rmb over our winter vacation, Could we recover half of this since we did complete 1/2 the contract?

[Lotus Eater]

Again so much depends on what the school officials will say.  They may say that they wanted you to finish the contract, that they were working towards getting you a visa, that they asked you to do XYZ to get the visa, that in fact YOU breached the contract by not returning.  If they can convince another Chinese official that you breached the contract, then they may say you were very lucky not to be fined on top of them not having to pay for documents etc because they will argue you did not act in good faith.

I was not intending to scare you, just to warn you of what MAY happen.  Any investigator worth his/her salt would want to interview you.  If I investigated this, I would want to see the contract you signed with the school and the recruiter, I would want to see any receipts, and emails etc between you and any other party involved, any diary notes you made etc.  I would do the same for the school officials who dealt with you, and the recruiting company.  If the courts convict on hearsay evidence or even an affidavit, then I would be concerned about the legitimacy of that decision.  I would think that maybe, just maybe, the gov't officials there didn't like the school in the first place.      But, if the local gov't officials are friends with the school boss, then they may go to all sorts of lengths to protect that boss.  We are not operating in a system that can be seen as open, accountable and fair.

If the school is employing more foreigners illegally, then it does have enough guanxi in town to remain open - even if its not quite enough to get that residence visa - and a few more baijiu parties with the PSB or a free year or two of education for his grandchild and they will probably have that as well.

You've had a rough few months, you've learned a costly lesson - but think about how much money that is over a year that you have lost?  One or two months pay, maximum.  You now have another job, a different place, you can start over, make more money, and you can warn people.

Why waste more time and energy on this??

[друг всего мира]

I polite take strong issue with the above post.

The school now has no legal leg to stand on, so to speak, so that the previous poster's comments about "the school was trying" to arrange an illegal situation carries no legal standing in China because under Chinese law, and under provincial law for Shandong Province, they were responsible for causing a Z visa to be issued to each of you before you entered China.

Again, this canard about "investigating you" is a moot question at this point.  Any investigation that is done will be done under the direction of the investigating magistrate in the People's Court whose powers are far greater than those of a judge in the common law countries.  Please, please, please Chin Chao do not be cowered by these kind of remarks.  I have found many foreign teachers in China to be very, very big on the mouth and a lot less courageous in the action. 

You will need proof for everything that you write and claim, in one manner or another.  You can make and submit a generalized claim to the People's Court but you will need airline tickets, bank books, payroll slips, or at least a calculation of something based upon your contract.  You should expect to be question closely by the investigating magistrate.  And you will need to stress and stress the fact that you demanded and demanded again and again that they legalize your situation.  A good part of the onus here is on you.

Regardless of the advice of the other Chamberlains (the British Prime Minister who in 1939 basically advised Britain to capitulate in the war) on this Board, I would hold firm, be tough, file the claim and then just start my new job with peace of mind.  The claim will work its way slowly through the system and will take at a good minimum a full calendar year.

Again, do not be frightened by those who are easily cowered.  Now that you have your legal status in hand, and if you have free time available to do it, well, by all means, do the battle.  I really, really believe your previous school will rethink the situation, even mentioning the People's Court causes most Chinese to go white, so to speak, because it is an arm of the police.  And they know it.

[Lotus Eater]

We are not saying that the actions CANNOT be taken, we are suggesting that the mafan involved in taking such actions is not worth the time and energy, and the the likely outcomes are not worth the mafan.

None of us know the relationships between the school and local officials, why/how the school is still illegally hiring FTs, the relationship between the school and the extremely dodgy recruiting company, or the company relationships with local and provincial gov't officials, including PSB.  These complex inter-relationships will affect all sorts of things.  Who promised whom what, which party is responsible for what will depend on contracts that CC will not have seen, between the agency and the school.

I am glad you agree that CC and her boyfriend will have to prove everything, and IN court, not just via a letter or affidavit.  This means at some stage, sooner or later, they will have to take leave from their new jobs, because it is highly unlikely that a court will convene during the holidays just to suit a couple of FTs who are working.  

And for 5,500Y each - is it worth it?  

IF CC wants the school shut down, then she is going about it the right way.  Other companies have been fined for employing FTs illegally, and next day continued to advertise, because the fine comes out of the bucketloads of money parents pay to have their darlings taught by FTs.  Nothing changes.

But, if she warns FTs and potential FTs loud and clear, then they will stay away from the school, no FTs = NO bucketloads of money from parents.  Then the school bosses have to figure out a better solution to the problem.  They don't like giving up the expensive baijiu and the fancy holidays.

This is a much better plan of action than pursuing a court action that may or may not have the desired results, given that CC and her boyfriend also did not complete the contract.

Standing on principle is good - but making sure that initial analysis of the situation is comprehensive and correct, and the actions taken will achieve the principle and desired end is more important.

[Stil]

So if you win, and the Court awards you RMB 10,000 plus RMB 2,000 in damages (standard format), that is RMB 12,000 and then the Court will usually punish the others with additional RMB 36,000 (3x your amount) for their having disturbed the Court, Court fees, your lawyer fees, etc., etc. for a total of RMB 50,000.  And no, not like in the States, they can't promise to pay at a later date...they pay now or they sit in jail until they can come up with the money.  It's harsh justice but it works.

Hey dude with the cyrillic name, what happens if CC loses? The same penalty for disturbing the courts, court fees, lawyer fees, etc, etc, etc?

[друг всего мира]

To Lotuseater above who writes that "this is a much better plan of action"...is this a much better plan of action because it is your plan of action?  Sorry but I couldn't agree less with your better plan of action.

You are presuming that this lightweight of a school has great guanxgi with all levels of officials and that this allows for them to operate ultra vires and for all of these reasons China Chao should essentially cower and be frightened off and . With this kind of a line of thought, you are essentially pandering to them.  They would love for China Chao to believe you write, just love it.

Resort to your "better plan" of action which in my opinion is exceptionally placebo-like.  She can paste announcements all over the Internet.  Some future FTs may find them, others may not, and in most case, it all depends if the sites where posts them link regularly to the major search engines.  Most FT's, those without credentials and/or experience coming to China, know nothing or precious little about searching for a school.  They know less about how to evaluate the results of what they find.  Thus, in my very, very humble opinion, your "better solution" is a totally passive and virtually ineffective one in instant case.

As Voltaire wrote in Candide, "il faut cultiver son propre jardin" and this is exactly what I would recommend to China Chao.  Firstly, in her shoes I would decidedly go through the motions of trying to enter a claim in the No. 2 Commercial Court Section of the People's Court.

You write that she would loose time off from work and it is the holiday period now.  It is 1,000% certain that no court in China would move so quickly as to give China Chao a hearing within the window that you have mentioned.  Additionally, once the case has been docketed and remanded for a hearing, she has, even in China, some latitude about the date and the schedule.  If she cannot appear on the chose date, either she or her proxy only need make an entrance and file a request to have the date changed.

You write that all of this is about measly RMB 5,000 x 2 (for her and her friend).  That amounts to a "measly" RMB 10,000, which IMHO, is not so measly at all.  Indeed not at all.  The Court most likely, upon her request for exemplary and punitive damages (she already would have received what is known as compensatory damages under Chinese law) award several thousand more RMB, perhaps in the end, RMB 15,000.  I would hardly sniff at this kind of money.

Frankly, as I wrote, I have a rather (polite) but harsh criticism here.  It is so easy, and I have seen it again and again and again here in China, for FT's to complain vociferously about something and then in the end to only wimp away. This is not directed at China Chao.  Frankly, in the Chinese undertanding of things, if you are going to go eye-to-eye with someone then either you do it or you don't.

In closing, I couldn't agree less with the other advice that she has received here.  It is extremely passive / aggressive.

[ChinaChao]

We just wanted the 6,000rmb (3,000 each), but they are scumbags and won't pay us what they promised to us on multiple occasions.  I can't prove the 6,000rmb but there are other things in our contract that I can.  For instance breach penalty, this says they pay us 100USD + full airfare.  This accounts to much much more than the 6,000rmb.  One way airfare to America is 8,000rmb - 10,000rmb alone.  The court may even make them pay for our LEGAL visa run to Hong Kong for our school we currently work for.  All and all if this legal thing works then I have more than enough proof.  I actually come from a legal background in the States so its just natural for me to save all emails and text messages of me reminding them we want our Z visa and what they are doing is illegal.  Hell I already saved every typed conversation I have from email + Skype to three different sources.

One question, is an attorney required?  I could probably file myself, but if we got to appear an attorney would probably be required?  How much would an attorney charge for this?

[ChinaChao]

That last email was from Lucy's boyfriend by the way.

[The Local Dialect]

CC and CC's boyfriend, here is the thread I was thinking of, indeed it was in the Library. http://raoulschinasaloon.com/index.php?topic=3631.0. It sounds like a similar situation, visas promised, visas never materialized. You guys might be past this point already but it seems he had some success in getting his school into a bit of trouble.

I still am not sure the amount your suing for would be worth the time and possible money involved to bring it to court, but maybe that's just me being a wimp.    If you go for it, I wish you luck.

[друг всего мира]

In the current state of things, I would hardly recommend this approach to either China Chao nor to her boyfriend.

China Chao, I also read that post.  His approach was naive at best and time consuming at worst, a kind of "write-your-senator-oh-so-American" approach.  In your own personal case, I want to keep you OUT OF TROUBLE.

I worked with a Chinese American in another city here in China.  He had the same problems as the poster mentioned by Local Dialect.  He rather followed that advice.  First, he was fired from his job ipso facto and then after having written every official in China under the sun, he was hauled, not invited, hauled into the PSB and treated as if he were a s p * given the fact that he spoke Chinese, was of that race, and had caused such a "furore" as the Italians write.

What I would do, however, is to go see them very gently with a big pile of papers and tell them, Chinese style, that you are very sorry that you and they can't agree...and since you can't agree, you are just on your way to the People's Court and that they will need to go to the People's Court to settle this.  Let them know very gently that you are going to ask the People's Court for RMB 50,000 or some large figure.  Do it Chinese style, smiling all the way through as you pile the cow manure on them, do not get red faced, do not raise your voice, use the sorry sorry ten thousand times, and just let them know again that you are off to the People's Court.  Repeat the story two or three times and then make a quiet exit.

I bet you and your boyfriend a dinner that they may react to this. But remain calm, cold, smiling and do it the Chinese way, non confrontionally but just lob the manure (for lack of wanting to use the more appropriate word).

[The Local Dialect]

I just thought that the thread in the library was an interesting firsthand account of a foreign teacher taking action against a Chinese school and actually getting somewhere with it. Maybe the fact that the teacher was white and not a Chinese American made a difference, I don't know. You read the thread. Most of the posters were skeptical at first, but it worked for him. As you yourself have said in other threads, in China there are no absolutes.

You never clarified whether or not CC and her boyfriend would have to pay up if they lost their court case. If I were CC that would make a huge difference to me. I think everyone here is in agreement that it would be awesome if CC could get the money she was owed, and if some extra for her time, but I would really hate to see her ending up on the losing end and in a worse place than where she started. If I were the powers that be, the first thing I would ask CC would be why did she agree to come over and start working on an L visa in the first place, contract or not. Why did she continue working at the school and agree to apply for an F visa when it became apparent the L visa wasn't coming? I mean, if the contract is based on an illegal premise in the first place -- that the teacher will work on an L visa while "waiting" for the correct papers, then doesn't that invalidate the entire contract? I'm honestly asking here, would CC not possibly get herself into more trouble by taking this matter to court?

I do think you have a point that just threatening the school could be enough to get them to cough up what is owed. But threatening to sue and actually following through on your threats are two completely different things.

CC and her boyfriend have only been in China for less than a year, don't speak Mandarin, and have just gotten themselves out of a pretty desperate situation. друг всего мира, I just worry that a court case might be more than they can handle. I know I got a bit sarcastic in my previous post, mostly because I dislike the insinuation that people who are advising CC to just drop it are new to China (I've been here for 7 years, which may be less than you, I don't know, but I'm certainly not fresh off the plane) or cowardly. I certainly don't think that foreigners should just lie down and take it in China, but I also think there is a valid reason why you don't often here many cases of foreigners succeeding in sticking it to the Chinese man -- we're at a disadvantage in this system, always. In another thread back in January you yourself advised CC to drop the matter, and said pretty much the exact same thing that most of us in this thread have said. So I suppose I don't get the hostility towards the idea that maybe CC taking this thing to court is not the best idea. What am I missing? I'm asking honestly, not sarcastically or just to be contrary.

[Day Dreamer]

I must agree. When I worked for Tian Shou (an agency)last year, many FT did not get all their money at contract termination. All the yelling and screaming didn't change that.

I went in fully prepared, every hour logged, pro-rated moneys owed, and 3 different signed letters from the schools who closed without notice, yet said they will pay my wages. I spoke quietly and asked how much money will she give me? I was first shorted a large amount. I pulled out all my documents and asked her to start agian.

The next time, there was another error and I told her to do it again. I noticed she double credited me some hours. It took her 3 attempts to figure out she was giving me too much money. I only told her she erred. She was shocked!

I did it the Chinese way.

[Lotus Eater]

Doing things the Chinese way is usually much better.

However, CC and her boyfriend have now left the province they were in, and to do as is now suggested is going to mean that they have to go back to their former province (train/plane fare each way, hotel cost, days off their new work if they plan on going when the school is in session - ie when administrators are there).  This means they are outlaying more money in the HOPE that a school or a recruiter will feel threatened and pay up.  How rich are they?

CC says her main aim is to get the school closed down.  This is NOT going to happen.

I too find it interesting that the advice has dramatically changed. 

In the current state of things, I would hardly recommend this approach to either China Chao nor to her boyfriend.

  Firstly, in her shoes I would decidedly go through the motions of trying to enter a claim in the No. 2 Commercial Court Section of the People's Court.

In closing, I couldn't agree less with the other advice that she has received here. 

друг всего мира  What changed so dramatically between the 8th and the 13th?  CC gave us no additional information to make such a change of advice.  I'm pleased you are no longer suggesting that she take this road, because as so many experienced China-hands have said, it can easily badly backfire.

[друг всего мира]

Lotus Eater, The Local Dialect

In reference to my take on China Chao's options, nothing has changed on my end.

Initially she and her boyfriend were in a visa situation here that was decidedly ultra vires.  If she had pursed any option at that point, it would have backfired against them, as a given, and they might have ended up being deported as a worst-scenario.

In the meantime, CC and her boyfriend have secured a legal status now in China.  As I mentioned previously, this leaves her and his entire pasts "blanchis" as they say in French.  At present, her status here is in full compliance with the law.

Thus she has the option of focusing on legal measures for remedy and she should do just that.  It is not the purview of the People's Court to try for immigration infractions, perceived or otherwise.  She should present the case, and I am sure that any Chinese lawyer will tell her that, as a breach of contract / fraud / intent to commit fraud commercial case in the commercial section of the People's Court.  She should take a narrow view of the case and eliminate anything that is not germane to her action.

So no, as you write, my advice to her has not changed.  It is her status that has changed and which allows for her greater legal intervention.

She should gather all prima facie supporting evidence together clearly and carefully and discard (but still preserve) any material that would be secondary or of no consequence.

Under Chinese law, a breach of contract case needs to meet three basic standards in order to be "received" by the Clerk of the People's Court:

1.  The contract must be a legally enforceable document.  In the case of this employment contract, it is easily a legally enforceable document.

2.  The breaches of contract that were committed must have been committed without full legal justification.  If the contract says "x", and Party A does not perform "x", without a well standing legal justification, then there is a breach.

3.  The final remedy (ies) for the breaches that are being sought from the People's Court must be a or the direct result(s) of the breach of contract.  In other words, the damages just flow from the contract, as IMHO, they do in CC's case.

For specific questions, please see my new post concerning Chinese contract law.