“Chinese” in the legal context
The term “Chinese” is legally relevant in various ways and acquires a specific meaning in different areas of law. In both international and domestic law, it usually refers to a person who holds Chinese citizenship or originates from the People’s Republic of China. Further meanings arise from questions of nationality, affiliation with an ethnic group, and with regard to immigration status outside China. This article examines the different facets of the term “Chinese” from a legal perspective and presents relevant national and international legal bases.
Citizenship and Nationality Law
Chinese citizenship
Chinese citizenship is governed by the Chinese Nationality Law (introduced in 1980). The principle of ius sanguinis, meaning descent by blood, is central. A person is thus considered Chinese if at least one parent is a Chinese citizen at the time of birth, regardless of where the birth takes place. Chinese citizenship can also be acquired through naturalization, although very strict legal requirements apply.
Special regulations on multiple citizenship
Under Chinese law, dual citizenship is generally not permitted. Acquiring a foreign citizenship results in the revocation of Chinese citizenship according to Article 9 of the Chinese Nationality Law. In practice, however, violations are sometimes tolerated, which can lead to complex legal questions regarding recognition and revocation of citizenship.
Legal understanding outside of China
Residence law and foreign nationals law
In other countries, especially in Germany or the member states of the European Union, the term “Chinese” in the legal sense primarily includes persons with Chinese citizenship, regardless of their actual place of residence or residence status. In the context of residence and immigration law, Chinese citizenship is decisive for questions such as entry, visa approval, residence permits, and potential grounds for expulsion.
Anti-discrimination law
Anti-discrimination law provides special protection against disadvantages due to ethnic origin, nationality, or race. The term “Chinese” becomes relevant in national prohibitions of discrimination (e.g., the General Equal Treatment Act in Germany, AGG) as well as in international conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Discriminatory measures or regulations against “Chinese” may therefore be unlawful and lead to claims for damages or injunctive relief.
Particularities in international law
Protection of Chinese citizens abroad
Within the framework of consular protection, embassies and consulates of the PR China are obliged to provide assistance and support to Chinese citizens living abroad. The bases here are the Vienna Convention on Consular Relations (1963) and bilateral agreements with the country of residence.
Status as a minority
In certain countries, ethnic Chinese live who do not (any longer) possess the citizenship of the People’s Republic of China. The treatment of ethnic minorities is regularly governed by national minority laws and international agreements on the protection of minorities (e.g., UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities).
“Chinese” in German law
Use in immigration law
In the German Residence Act (AufenthG) and other immigration regulations, nationals of the People’s Republic of China are referred to as “Chinese”. The treatment under residence law is primarily determined by citizenship, for example when applying for residence permits, work permits, or integration measures.
Protection against discrimination
The designation “Chinese” must not lead to disadvantages under German law. Relevant discrimination may be sanctioned according to the General Equal Treatment Act (AGG).
Civil law aspects
Personal rights and name law
The use of the term “Chinese” is relevant in a civil law context when it refers to a person’s ethnic affiliation. In these cases, the personal rights of those concerned, especially with regard to dignity and the protection of their good reputation, must be observed.
Criminal law aspects
Racially motivated crimes
Racially motivated crimes against Chinese (meaning nationals or persons of Chinese descent) are considered particularly reprehensible in many countries, including Germany (§ 46 para. 2 StGB), and can be considered as aggravating factors in sentencing.
International context
International law conventions
The definition of “Chinese” can vary, especially in the context of international court proceedings or international legal documents. The definition becomes relevant, for instance, in international civil procedure law, in questions of state immunity, or in international investment protection law, when Chinese citizens or companies assert legal claims abroad.
Summary: The term “Chinese” is a multifaceted concept in law, whose precise meaning varies depending on the context. Key reference points are citizenship, but also descent and self-identification with Chinese culture or origin. In virtually all areas of law—from citizenship and immigration law to civil and criminal law, and extending to international law—the legal definition of “Chinese” is of central importance for interpreting individual rights and obligations.
Frequently asked questions
What legal requirements apply to opening a Chinese restaurant in Germany?
To open a Chinese restaurant in Germany, numerous statutory requirements must be observed. First, a business registration with the competent trade office is necessary, whereby the intended activity must be described in detail. Under restaurant law, a restaurant license must be obtained if alcoholic beverages are to be served. This license is only granted if reliability can be demonstrated, which is usually substantiated by a police clearance certificate and a certificate of no tax arrears from the tax office. In addition, specific hygiene requirements according to the Infection Protection Act (IfSG) and the EU Hygiene Regulation (Regulation (EC) No 852/2004) must be adhered to. Operators and employees must participate in a health department briefing and document this. In employment law, requirements regarding minimum wage, working hours, and, if applicable, residence and work permits for non-EU citizens must be considered. Construction law provisions also apply, for example regarding fire protection, ventilation, and barrier-free access. Finally, allergen and additive labeling in accordance with the Food Information Regulation (LMIV) is mandatory.
What are the specific requirements for importing Chinese food products into Germany?
The importation of Chinese food products is subject to strict legal regulations, especially regarding food safety and product compliance. All imported foods must comply with the EU Food Regulation (Regulation (EC) No 178/2002) as well as specific individual regulations. Central to this are hygiene and maximum residue regulations as well as requirements for additives. Products containing animal components may only be imported through approved border inspection posts and require veterinary checks. Plant products may be subject to additional phytosanitary inspections. Labels must be in German and comply with the LMIV, particularly noting allergens and specifications of origin. Products that are not appropriately declared, incorrectly labeled, or unsafe can be withdrawn from the market by authorities. Certain goods, such as soy sauces with high 3-MCPD levels or products containing prohibited preservatives, are subject to special import bans or restrictions.
What legal requirements must be observed when labeling and declaring Chinese dishes?
The legal requirements for labeling and declaring Chinese dishes are primarily governed by the Food Information Regulation (LMIV). Restaurants and food service establishments are obliged to list menu items with exact descriptions that reflect the actual ingredients. Unlawful statements, such as “without flavor enhancers” when monosodium glutamate is used, are considered misleading and may be penalized as administrative offenses. For pre-packaged foods as well as unpackaged goods, there is an extensive obligation to provide information on contained allergens and additives (Annex II LMIV). This information must be provided clearly, visibly, and in German. Ethnic designations like “Chop Suey” or “Spring Roll” are permitted as long as they do not mislead consumers and the actual ingredients are correctly represented.
How is the protection of traditional dishes as a trademark or design handled?
Traditional Chinese dishes as such do not enjoy copyright or trademark protection, as they are considered part of culinary heritage. Trademark registration is only possible if a dish or its name is sufficiently distinctive and does not merely constitute a descriptive indication of a food item. For example, the term “Peking Duck” cannot be protected as a trademark. The situation is different for specially created names for individual restaurant chains or product lines, which can then be protected as word or figurative marks at the German Patent and Trademark Office. Design protection (design patent law) generally only applies to innovative forms of packaging or presentations of dishes, but not to taste, recipes, or arrangements that are traditional or common.
What employment law peculiarities exist for Chinese employees in Chinese restaurants?
For Chinese employees who wish to work in Chinese restaurants in Germany, German employment and residence regulations must generally be observed. Non-EU citizens require a residence permit with a work permit, granted under the Skilled Workers Immigration Act or through employment commonly referred to as “guest work.” Employment contracts must comply with German standards, in particular regarding minimum wage, working hours, vacation entitlements, and social security obligations. Violations of these obligations can result in substantial fines. In addition, it is important to verify qualifications and, if necessary, recognition procedures, especially if specific roles (for example, culinary arts as an “Asian chef”) are involved. Finally, employees coming directly from China must register with the relevant immigration authorities.
Are there any special tax rules for Chinese food businesses?
From a tax perspective, Chinese restaurants are subject to the same regulations as other food businesses in Germany. Income from business operations must be declared, and proper bookkeeping is required. In terms of VAT, food and beverages are generally subject to the reduced rate for takeaway and the regular rate for on-premises consumption, with current special rules (for example, regarding the COVID-19 pandemic) to be observed. Many Chinese restaurants are family-run; in these cases, the exact distinction between employment relationships, positions subject to social security, and possible bogus self-employment is important for tax purposes. For imports of goods from China, import VAT also applies. Finally, there are reporting obligations for cash transactions (cash register management, GoBD compliance), as tax authorities have intensified audits in this area.
What statutory provisions apply regarding copyright when using Chinese music or decorations?
When Chinese music is used in a restaurant, applicable copyright law must be observed. If music is played publicly—for example, as background music in a restaurant—a license from the performing rights society GEMA is required, regardless of whether the works are Western or Chinese. No license is needed for public domain traditional Chinese folk music, but many arrangements, recordings, and modern compositions are indeed protected. Decorations such as wall paintings, sculptures, or specifically designed characters can be subject to copyright protection if they reach the required level of creativity. Copying copyrighted artworks without permission is not permitted and may result in claims for damages or injunctions.
What are the regulations for advertising and pricing in Chinese restaurants?
The general statutory provisions of the Act Against Unfair Competition (UWG), the Telemedia Act (TMG), and the Price Indication Ordinance (PAngV) apply to advertising by Chinese restaurants. Advertising measures may not be misleading, especially regarding the quality, origin, or prices of food and beverages. Prices on menus and in external advertising must always show the final prices including all incidental costs, taxes, and additional services. For offers or “all-you-can-eat” buffets, all conditions and additional costs must be specified clearly and transparently. When digital media are used (websites, online orders), an imprint in accordance with § 5 TMG is mandatory. Offers specifically targeting children are subject to special advertising restrictions when it comes to products high in fat, sugar, or salt, in accordance with youth protection provisions and Regulation (EU) No. 1169/2011.
