劳动合同和派遣函为外国人办理就业证，有何差异？

劳动合同和派遣函为外国人办理就业证，有何差异？
To apply for a work permit for foreigners in China with a labor contract or a dispatch letter, what is the difference?
外籍人士申请办理来华工作许可，通常情况下，可以采用向地方外国专家局提交其与境内公司签订的劳动合同或者提交跨国公司总部或地区总部（“境外派遣方”）向境内接收单位（“境内接收方”）出具的派遣函两种方式进行。那么，外籍人士与境内公司之间的法律关系是否会因上述两种方式而有所差异？
Generally speaking, a foreigner may apply to the local administration of foreign expert affairs for the work permit in China by submitting, among others, a labor contract signed by and between the foreigner and a domestic company, or instead by submitting a dispatch letter issued by the offshore headquarter or regional headquarter of a multinational company (“Overseas Dispatching Entity”) to the domestic accepting entity (“Domestic Accepting Entity”). Then the question is whether the foregoing two options will lead to differences in the legal relationship between the foreigner and domestic entity?
方式一：与境内公司订立劳动合同
Option 1: To conclude a labor contract with the domestic company
如果该外籍人士直接与境内公司签署劳动合同，并据此办理就业证，则外籍人士与境内公司被认定存在劳动关系，进而受中国劳动法律法规约束的可能性较大。在这种情况下，境内公司将承担作为用人单位的法定责任，包括为外籍人士缴纳社会保险、劳动合同解除须受劳动法的特殊规制（即只能依据法定的理由解除，不能仅提前通知而无理由的解除）。
If the foreigner conclude a labor contract with the domestic company directly and therewith applies for the work permit, it is probable that the employment relationship is deemed having been established between the foreigner and the domestic company, which then shall be subject to the Chinese labor laws and regulations. In this case, the domestic company shall bear the statutory obligations as an employer, including that the domestic company is obligated to contribute to social insurance for the foreigner, and that termination of the labor contract shall be subject to special stipulations of the labor laws, i.e. the labor contract can only be terminated under statutory grounds and termination is prohibited solely by providing a prior notice without just causes.
方式二：境外派遣方出具派遣函
Option 2: To issue a dispatch letter by the Overseas Dispatching Entity
与方式一不同的是，被派遣外籍人士并未与境内接收方签订劳动合同，其仍与境外派遣方保持劳动关系，其在境内接收方工作仅是履行与境外派遣方之间的劳动合同的一种方式。因此，被派遣外籍人士与境内接收方之间被认为存在劳动关系进而受中国劳动法律法规调整的可能性较小。
Unlike the situation under Option 1, the dispatched foreigner does not enter into a labor contract with the Domestic Accepting Entity in this case. The dispatched foreigner still maintains the employment relationship with the Overseas Dispatching Entity while his/her service in the Domestic Accepting Entity is only a form to perform the labor contract between the foreigner and the Overseas Dispatching Entity. Therefore, it is less likely that the dispatched foreigner and the Domestic Accepting Entity will be deemed having established employment relationship and shall be subject to the Chinese labor laws and regulations.
实践中，存在被派遣外籍人士要求确认其与境内接收方存在劳动关系的争议，劳动仲裁机构与法院的观点较为一致，倾向于认为被派遣外籍人士与境内接收方不存在劳动关系。例如，上海市第二中级人民法院认为，由于为办理来华工作许可而由境外公司出具的派遣函已对外籍人士在派遣期间的身份作了明确约定，其仍为境外公司的员工，且外籍人士的劳动报酬亦非境内接收方支付，因此外籍人士与境内接收方之间不存在劳动关系（见（2019）沪02民终782号案）。在（2016）京01民终2265号案中，北京市第一中级人民法院也持有相似观点，认为派遣的前提是境外派遣方与外籍人士之间存在雇佣关系，在此条件下，外籍人士与境内公司不存在劳动关系。
In practice, there are cases that the dispatched foreigners require to confirm the existence of employment relationship between them and the Domestic Accepting Entities. The labor arbitration commissions and the courts tend to share similar views, holding that there is no employment relationship between the dispatched foreigners and the Domestic Accepting Entities. For example, Shanghai No. 2 Intermediate People’s Court reasoned that no employment relationship was established between the dispatched foreigner and the Domestic Accepting Entity, given that, on the one hand, the dispatch letter issued by the Overseas Dispatching Entity for the purpose of work permit application in China had explicitly stated the status of the foreigner during the dispatching period, stating that the dispatched foreigner would still be an employee of the Overseas Dispatching Entity; and on the other, the labor remuneration of the foreigner was not paid by the Domestic Accepting Entity (see (2019) Hu 02 Min Zhong No. 782). In the case of (2016) Jing 01 Min Zhong No. 2265, Beijing No. 1 Intermediate People’s Court held a similar view that it was the precondition for dispatch that there existed employment relationship between the foreigner the Overseas Dispatching Entity, thus no employment relationship would be established between the foreigner and the Domestic Accepting Entity.