Source: Lawyer Liu Honglin

Introduction

Jun A plans to enter the web3 track There is a problem in starting a business: because the business entities of some entrepreneurial projects are overseas and the main team members are in China, how to pay wages to team members has become a problem, so Mr. A thought about using virtual currency to pay wages to domestic employees. , will there be legal risks?

The answer to this question is actually very complicated. Before answering, we need to clarify the following questions:

01  Who is the contracting party?

There are several different situations here: first, the business entity where the project is located (such as xxx limited liability company) and the employees are all in the country; second, the business entity is overseas and the employees are in the country. Domestic; third, the business entity is domestic and the employees are overseas; fourth, the business entity and employees are both overseas. The above different situations correspond to different legal solutions, the most common of which is the situation where the business entity is overseas and the employees are in China. This article also focuses on analyzing this situation.

02 Labor contract or labor service contract

Overseas company When hiring employees in China, should I sign a labor contract or a labor service contract? Lawyer Liu suggested that it is best to sign a labor contract.

Because according to China's "Labor Law", "Labor Contract Law", "Labor Contract Law Implementation Regulations" and other regulations, if a foreign enterprise does not obtain a Chinese business license, it does not have the right to employ people in the sense of my country's labor law. Unit qualifications, that is, without salary-paying qualifications, cannot sign labor contracts with Chinese workers. Even if it is actually signed, it does not have legal effect in the sense of labor law (of course, civil law, especially civil contracts, will have different considerations), so overseas companies can choose to sign a labor contract.

If domestic employees need to sign a labor contract based on social security, provident fund and other considerations, overseas companies can consider using domestic legal labor dispatch agencies to do so.

Even if a labor contract is signed, overseas companies and domestic employees need to take seriously the jurisdiction, taxation agreements and other provisions when disputes may arise in the future.

03 Can I use virtual currency to settle wages?

For employers and workers who have signed a labor contract, according to current judicial practice, both parties can only settle wages in currency. According to the "About Further Prevention According to the provisions of "Notice on Dealing with Speculation Risks of Virtual Currency Transactions" (hereinafter referred to as the "9.24 Notice"), virtual currencies do not have the same legal status as legal tender and cannot be circulated or used in the market as currency. At present, virtual currency can only be recognized as a virtual commodity at best. Therefore, the use of virtual currency for wage settlement has no legal effect and even violates current regulatory regulations.

In practice, it is very likely that even if an employee receives virtual currency as salary, he may still go to the relevant institutions (labor arbitration committee, labor inspection brigade, court, human resources and social security department, The provident fund management department, etc.) advocate corresponding remuneration. At this time, the company will not get the support of the relevant agencies if it proves that it has paid wages in the form of virtual currency, and it is likely to have to pay wages again in the form of legal currency;

For If an employer that signs a labor contract uses virtual currency as payment for labor services, it will not directly violate the current legal provisions of mainland China. However, in view of the unfriendly attitude towards virtual currency in regulatory documents such as the "9.24 Notice", if the company and employees It’s okay if there is no dispute, and everyone is happy; if a dispute arises between the company and the employee during the performance of the labor contract, it will be difficult for the court to accept the contract that stipulates that labor remuneration will be paid in virtual currency, even if it is under the jurisdiction of the courts in mainland China. , so this may be detrimental to the company and employees (at least to one party).

04 Mankiw’s lawyer suggests

For now, If the company signs a labor contract with its employees, a safer way is to stipulate in the contract a payment method that coexists with legal currency and virtual currency. At the same time, the party with the option can decide to use legal currency or virtual currency as the main payment method according to its actual situation. In addition, it is best to explain the valuation method of virtual currency (for example, whether to refer to the exchange rate of foreign virtual currency exchanges), but you must also pay attention to avoid the regulations in the "9.24 Notice" that strictly prohibit the exchange business of virtual currency and legal currency.