Middle Kingdom Life recently reported that there was no existence of the so-called “5-year rule” in China. It turns out we were not entirely correct. There is in fact an SAFEA advisory guideline that stipulates (based on a literal translation): "Foreign experts who come to China cannot stay more than five years. If rehired, it must be after a two-year period." (We’ve attached a copy of the guidelines in Chinese. The relevant stipulation is highlighted in red.)
It is interesting to note, however, that we could not find one provincial government official in either Jilin or Hainan province who had even heard of this guideline. In Guangzhou, Guangdong province, section chiefs at two different university foreign affairs offices denied any awareness of this advisory guideline and a third reported “hearing rumors” to this effect but could not confirm it either way.
As one director of the foreign expert bureau in Jilin City stated with 100% certainty: "Foreigners can live in China for as long as they want with legal documents unless they have criminal records." We based our original report on information received from no less than three different PSB directors who, as it turns out, were technically wrong—although certainly not wrong in a practical sense. If this sounds like double-talk to you, you haven’t lived and worked in China for very long.
How is it possible that an SAFEA regulation can exist that not even the directors of the PSB and provincial Foreign Expert Bureaus are aware of? The answer to this question was finally extrapolated after two weeks of exploration that involved the legwork and efforts of many. In order to understand this apparent inconsistency, it is first necessary to know something about the specific role of the State Administration of Foreign Expert Affairs (SAFEA), as well as the social function of the law in China.
The SAFEA is an advisory branch of the Central Government. Its mission is to develop and then recommend guidelines to the provincial and municipal legislatures in regard to the administration of foreign experts, as well as approve and issue licenses to schools for the purpose of hiring foreign teachers. What you need to keep in mind is that no one particular province or municipality is obligated to adhere to these guidelines: They are strictly advisory.
According to Article 35 of the 1996 Rules for the Administration of Employment of Foreigners in China, each province, autonomous region and municipality is free to formulate and implement their own rules:
Article 35 The labor administrative authorities of the provinces, autonomous regions and municipalities directly under the Central Government may formulate their own rules for implementation of these Rules in conjunction with the public security and relevant authorities in the locality, and report it to the Ministry of Labor, Ministry of Public Security, Ministry of Foreign Affairs and the Ministry of Foreign Trade and Economic Cooperation for putting on record.
Does a “5-year rule” exist? If you replace the word “rule” with “guideline” then, yes, it does exist in a purely advisory sense. Are there any particular provinces or municipalities that are uniformly adhering to it? The answer to that very specific question is a resounding no. It appears that even where that guideline has been adopted, there are far more many exceptions being made to it than there are specific enforcements of it. To understand the reason for this, one must first appreciate the fundamental purpose of the law in China.
According to Prof. Gao Fuping, “To some degree, the law is considered by the government as an instrument to control social order or to achieve the goal of social development.”* Compare this definition to the one offered by Merriam-Webster, as it is also the one that comes to mind when most Westerners think about the law: “a rule or principle stating something that always works in the same way under the same conditions.”
The problem is that we, as Westerners, desperately try in vain to apply our Western logic and our perception of the social function of law to investigating and reporting China's regulations and procedures, and the truth is such an approach just doesn’t work. In the Middle Kingdom, the particular needs of the community good will usually (if not always) trump the enforcement of the specific letter of the law. Thus even where certain SAFEA guidelines have been adopted into law by various provincial or municipal legislative bodies, that reality does not specifically inform us as to how that regulation will be interpreted and applied by those in power. ((There would be no way for any Western organization, including MKL, to specifically verify which guidelines have been passed into law without first obtaining a translated copy of the laws pertaining to foreign experts in every single province, autonomous region and municipality. Obviously, such a task is impossible as a practical matter and, despite that, doing so would not appear to inform us about what foreign teachers should expect.)) For example, the needs of a prestigious key national university will usually and probably supersede the mandates of any particular regulation regarding the employment of foreign experts: Exceptions can and will be made if doing so is in the best interest of “social development” as understood by the various officials with the power to make that decision at the time. This is the nature of day-to-day life and law in China, whether or not we as foreigners can fully wrap our minds around this concept (and it’s only taken me five years to do so).
In regard to a 2-year, 3-year and/or 5-year rule (in addition to all other “rules” that are anecdotally reported on various Internet forums), the real question is not whether these regulations exist or not. The only truly salient issue or question is how they are going to be interpreted and enforced by various officials (assuming they do exist)—and the bottom line is, there really is no reliable way for any foreigner in China to know the answer to that question.
For one thing, the answer is never a definite one because it is typically treated and responded to on a case-by-case basis. In the West “a rule is a rule, is a rule.” In China “a rule is a rule, when it is in the best interest of social order and social development depending on____“ (the appropriate provincial or municipal leaders will fill in the blank).
Ten foreign teachers will report “’Such and such’ is definitely a requirement. I guarantee it.” Then an eleventh foreign teacher will write: “No, it’s definitely not a requirement. My friend Bill just received his foreign expert certificate and residency permit and he’s 74 years old and has lived in China continuously for 12 years!” Were the ten foreign teachers who attested to the presence of a law or requirement wrong in what they wrote? No, not necessarily, because of the manner in which law is interpreted and enforced in China.
Here is the bottom line: If your school needs or wants you badly enough and they have established the proper social relationships with the right people (and they always have), it truly doesn’t matter whether your particular municipality or province has “officially” adopted any one particular guideline into law or not. The converse is also true. Even if your local or provincial legislature has not officially adopted any given SAFEA guideline, that doesn’t mean that it won’t be cited against you if it suits the perceived needs of the school at that time. As Westerners, we spend an inordinate amount of time discussing and debating the existence of various rules and regulations that affect foreign teachers when, in fact, it would be far wiser (not to mention efficient) to discuss how to maintain key interpersonal relationships with those who are necessary for our continued success in China. And, in China, someone is always necessary for continued success. The Chinese instinctively know this, while foreigners naively point to their contracts and suggest to each other that those with problems should call the local Foreign Expert Bureau.
SAFEA guidelines and contracts in China primarily protect the schools, not the foreign teachers. Your best assurance against "violations" does not lie with government agencies or in the specific wording of, for example, paragraph 31 of your SAFEA contract addendum but, rather and almost entirely, in establishing good relationships with the very people who determine whether you are necessary for the good of the school, the community, and—ultimately—China itself.
If you are a foreign teacher in China, don’t worry about the 5-year, 60-year, or any other “rule” that you might read about. Instead, invite your FAO out to dinner and present him or her with a gift (an expensive carton of cigarettes is good for men, if they smoke, and maybe a nice box of imported chocolates will do nicely for the women). Be sure to sincerely compliment them several times and indicate how much you appreciate their hard work and all their efforts on your behalf. Do the same with your immediate supervisor or school owner—and, then, file your employment contract and addendum at the very bottom of your desk drawer, along with any of the documents you may have downloaded from this article, together with the rest of the unnecessary papers you tend to keep but that you’ll never really need to ever refer to again.
Related Article: Understanding Mianzi and Guanxi
*Gao Fuping. "Who Makes The Law in China?" Retrieved October 10, 2008 from www.temple.edu/iilpp/images/TextFilesUploaded/WhomakesLawinChina.doc
**Chinese boxes is a metaphor that refers to a story that is contained inside another story, that is then contained inside another story, and so on and so forth.