29th Session Watch Pt. 2: NPCSC Passes New Laws, Institutes New National Legal Profession Qualification Exam

The 12th NPC Standing Committee (NPCSC) concluded its 29th session last Friday. Regarding legislation, it passed a National Anthem Law and a Nuclear Safety Law, revised the Small and Medium-sized Enterprises Promotion Law, and amended eight laws to replace the current national judicial exam with a unified national legal profession qualification exam.

The Nuclear Safety Law was enacted to “prevent and handle nuclear accidents, to use nuclear energy safely, to protect the safety and health of industry workers and the public, [and] to protect the environment.” With 94 articles in eight chapters, the Law establishes a range of statutory schemes relating to the safety of nuclear facilities, nuclear materials, and radioactive waste. During the legislative process, members of the NPCSC and other interested parties could not agree on whether the Law should—and if so, to what extent—prescribes rules governing the compensation for nuclear damage. The Law as ultimately passed only provides for third-party immunity and situations where nuclear facility operators are not liable for damage caused to persons, property, and the environment.

The Law will take effect on January 1, 2018. The following are several relevant official documents:

The National Anthem Law (PDF), with 16 articles, will take effect on October 1, 2017. We have previously posted a translation of the first draft of the Law here. In the same post, we predicted that the first draft will “be amended to include a reference to the Criminal Law”—which is exactly what the NPCSC has done. Article 15 now reads (as compared to the previous version):

Whoever maliciously deliberatively alters the lyrics or the score of the national anthem, or performs or sings the national anthem in a deliberately distorted or derogatory manner, or insults the national anthem in any other manner, in a public venue, damaging the solemn image of the national anthem, is to be warned or detained for up to 15 days by the public security organs; criminal responsibility is pursued where a crime is constituted.

(The NPC Law Committee resisted calls to remove the reference to “public venue” in the article above, citing the use of similar expressions in comparable provisions in the National Emblem Law, National Flag Law, and Criminal Law.)

As we have explained before, this article itself does not criminalize the conduct described therein. Such conduct will be criminalized only when the Criminal Law is correspondingly amended.

Because the Criminal Law was last amended in 2015, and because on average Criminal Law amendments are enacted three years apart, we don’t expect a new amendment—therefore criminalization of national anthem abuse—for another year or two.

Regarding the application of the Law to Hong Kong and Macau, the NPC Law Committee recommends in a report that the NPCSC deliberates at its next session in October decisions to list the Law in Annexes III to the two cities’ basic laws. When that happens, the Law still won’t be enforceable in the two special administrative regions until their legislatures implemented it by way of legislation, as we have explained in the post linked above.

Other important changes made to the first draft:

  1. The national anthem is additionally required to be played and sang at the various levels of congresses of all political parties and mass organizations.
  2. Public interest advertisements are now exempt from the provision banning the use of the national anthem in advertisements.
  3. Provincial-level, in addition to central, radio and televisions stations are required to play the national anthem at prescribed times on a shorter list of statutory holidays and anniversaries.

Official documents related to the National Anthem Law:

According the NPC Law Committee, the revised Small and Medium-sized Enterprises Promotion Law responds to the pressing issue of financing difficulties facing China’s small and medium-sized enterprises by adding a new chapter titled “Financing Promotion” and prescribing “specific measures” relating to fiscal and tax support, entrepreneurial support, interests and rights protection, and other aspects. The revised Law will take effect on January 1, 2018. Relevant legislative records are as follows:

Lastly, in order to implement a reform set out in the Communist Party’s 2014 Fourth Plenum Decision, the NPCSC amended the following eight laws to institute—or at least to provide the legal basis for—a new unified national legal profession qualification exam (国家统一法律职业资格考试), officially retiring the current unified national judicial exam (国家统一司法考试) established in 2001:

  • Judges Law
  • Procurators Law
  • Civil Servants Law
  • Lawyers Law
  • Notarization Law
  • Arbitration Law
  • Administrative Reconsideration Law
  • Administrative Penalty Law

The amendments expand the types of legal professions required to obtain legal profession qualifications by passing the new exam to include the following nine (#5–#9 are new):

  • (1) First-time judges (初任法官)
  • (2) First-time procurators (初任检察官)
  • (3) Lawyers
  • (4) Notaries
  • Civil servants in administrative agencies who work for the first time on
    (5) review of administrative penalty decisions (行政处罚决定审核),
    (6) administrative reconsideration (行政复议),
    (7) administrative adjudication (行政裁决), or
    (8) legal advising (法律顾问)
  • (9) Arbitrators

Persons already licensed or hired to work in those positions are exempt from the new qualification and examination requirement. The amendments also leave it to the Ministry of Justice and other relevant government entities to carry out the exams, including prescribes rules therefore.

The amendments are currently being translated at China Law Translate. Here are their explanation and the related NPC Law Committee report.

* * *

At its past session, the NPCSC also deliberated the following draft laws, which we expect to be released for public comments soon:

  1. People’s Courts Organic Law (Revision)
  2. People’s Procuratorates Organic Law (Revision)
  3. Standardization Law (Revision)
  4. Law Against Unfair Competition (Revision)
  5. Tobacco Leaf Tax Law

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