NPCSC to Consider New Criminal Law Amendment, Apply National Anthem Law to SARs & Hear Judicial Reform Reports

The NPC Observer turns one today! Many thanks to our readers, subscribers, and Twitter followers for the amazing past year. By the way, we are now on Facebookbecause. . . why not?


UPDATE (Oct. 30, 2017): The finalized agenda and daily schedule of the session are released. One new item—a draft decision to carry out pilots to reform the state supervision system in an additional 28 provinces*—was added to the agenda just a day after the Communist Party announced that it had made such a decision. We will report on the details of the NPCSC decision either tomorrow when the full NPCSC hears an explanation of it or when the NPCSC passes it on November 4.

*The reform will therefore be carried out in 31 of 32 of China’s provincial-level administrative divisions (excluding Hong Kong and Macau).


Buried in the pre-19th Communist Party Congress propaganda frenzy was a bland official report on the Council of Chairmen’s latest meeting on October 16. The Council decided that the 30th—and third last—session of the 12th NPC Standing Committee (NPCSC) would take place from October 30 to November 4, consistent with our earlier predictions. This post is a (fairly detailed) rundown of the items on the Session’s agenda.

Legislations

Starting with returning draft laws. Draft revisions to both the Law Against Unfair Competition and the Standardization Law are scheduled for their third—and (almost certainly) final—reading. They were both deliberated during the 12th NPCSC’s last session, which ended just over a month ago. We have previously reported on the contents of the Law Against Unfair Competition revision here and here and of the Standardization Law revision here and here. Previous drafts of the revisions can be found on this page.

The draft Public Libraries Law, initially submitted in June 2017, will return for its second reading. It is possible that the upcoming session will pass it. The first draft of the law can be found here.

The draft E-Commerce Law is also scheduled for a second round of deliberation. It was first submitted ten months ago in December 2016. Such an unusually lengthy period (>6 months) between its initial and second readings—which puts the E-Commerce Law in the group that includes the revised Environmental Protection Law (10 months) and the Cybersecurity Law (1 year)—is a sign of both the law’s importance and perhaps major disagreement over certain provisions. At least one more round of deliberation awaits the E-Commerce Law. Its first draft can be found on this page.

Four new legislative bills have been submitted for deliberation to the upcoming session.

First, the Council of Chairmen submitted a draft Criminal Law Amendment X. Normally it would be practically impossible to divine the contents of a proposed Criminal Law amendment. But this time it is fairly certain that the new amendment will criminalize the conduct described in Article 15 of the newly enacted National Anthem Law. We also expect the tenth amendment to include other provisions, as it has been three years since the last amendment was submitted. One thing to watch is whether the tenth amendment will continue to reduce the number of capital crimes, a trend first started with the eighth amendment in 2011.

Second, the NPC Agriculture and Rural Affairs Committee submitted a draft amendment to the Rural Land Contract Law—a top-priority project in the 12th NPCSC’s five-year legislative plan (see sidebar for links). The amendment is likely to codify the reform of separating ownership, contracting, and management rights (所有权、承包权、经营权分置) over rural land, detailed in a 2016 policy document issued by the General Offices of the Communist Party Central Committee and the State Council. We expect this amendment to undergo the regular three-deliberation process.

Third, the State Council submitted a draft Vessel Tonnage Tax Law, also a first-tier project in the five-year legislative plan. The State Council solicited public comments on an earlier draft of the law in late 2016; the draft can be found on this page.

Lastly, the State Council also submitted another bill which includes amendments to the Accounting Law and ten other laws. We expect this bill, like past such bills also consisting of amendments to various laws, to streamline administrative approval process—and, specifically, to implement these five State Council decisions. The NPCSC will most certainly pass this bill at the end of the six-day session.

Decisions on Legal Issues

Decisions on legal issues (有关法律问题的决定), though having the force of law, are not subject to the procedural requirements of the Legislation Law. In other words, we expect the NPCSC to pass the following four draft decisions after a single round of deliberation, instead of the two or more usually required for national laws.

First, the Council of Chairmen submitted two draft decisions to add the National Anthem Law to Annexes III to the Basic Laws of Hong Kong and Macau—that is, to apply that national law to the two special administrative regions. (The titles of the draft decisions do not explicitly mention the National Anthem Law, but we anticipate its listing in Annexes III because the NPCSC has indicated it would do so.) But as we have explained before:

The Law, however, won’t become enforceable in Hong Kong and Macau automatically. Instead, it must first be either promulgated by the cities’ government—that is, applied as written by the NPCSC—or implemented by way of local legislation, so that it could be adapted to the two cities’ distinct legal systems.

[Because] both the National Flag Law and the National Emblem Law were applied by way of local legislation[, w]e expect … that the National Anthem Law will be implemented in Hong Kong in such a way as well. One key reason is that police-imposed administrative detention [provided for in Article 15] “is not lawful in Hong Kong” … We presume Macau would use the same method to implement the Law.

Second, the State Council requests an extension of a reform pilot that was authorized by the NPCSC in February 2015 and is set to expire at the end of 2017. That reform has made threefold changes to the statutory scheme by allowing the transfer of the right to use collectively owned land for construction (集体建设用地使用权); by adjusting the approval authority over land for building houses (宅基地); and by revising the standards for compensating the expropriation of collectively owned land. Such changes are somewhat reflected in a draft amendment to the Land Management Law that was released by the Ministry of Land and Resources for public comments last May. See this article (in Chinese) by a Chinese law professor for the limitations of that draft amendment.

Third, the State Council and the Central Military Commission jointly sought a decision that would authorize them to “adjust the application of relevant legal provisions during the reform of the People’s Armed Police Force”—worded similarly as a 2016 authorization concerning reform of the military officer system (discussed here). At this point, we don’t know what the reform or the authorization will entail.

Lastly, the official report of the Council of Chairmen’s meeting seems to suggest, by including the magic word “等,” that the Council has submitted additional bills, potentially—and we say this with around 30% certainty—also concerning Hong Kong and/or Macau. (“审议委员长会议关于提请审议关于增加香港特别行政区基本法附件三所列全国性法律的决定草案的议案、关于增加澳门特别行政区基本法附件三所列全国性法律的决定草案的议案”) In every previous instance where Xinhua has included “等” (or “et cetera”) in such a report, a new bill appeared in the final agenda of that particular NPCSC session. We will know whether this rule holds this time in ten days.

Reports

As required by the NPCSC’s 2017 oversight plan, the Supreme People’s Court and the Supreme People’s Procuratorate will each submit a report on “comprehensively deepening judicial reform” to the upcoming session. The focus of each report is set out in the oversight plan, partially translated and analyzed here.

Starting with the upcoming October session (and continuing into the December session), the various special committees under the NPC will report the results of their deliberations over the bills (514 in all) submitted by NPC delegates during this year’s NPC session. This year’s reports are particularly worth paying attention to because, as it is the last year of the 12th NPCSC’s term, the committees will likely suggest whether to add certain proposed new laws or include some existing laws for revision in the 13th NPCSC’s five-year legislative plan. While the committees’ suggestions are in no way final, they are nonetheless given considerable weight in the formulation of the legislative plan. (We base this assertion on the research we have done before. But because it seems that the NPC’s website has removed content before a certain date, we don’t have access to the data needed to verify that assertion at this moment.)


If you enjoy this Blog, please consider subscribing to our blog posts, following us on Twitter, or liking us on Facebook!

2 thoughts on “NPCSC to Consider New Criminal Law Amendment, Apply National Anthem Law to SARs & Hear Judicial Reform Reports

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s