NPCSC Session Watch: Historical Nihilism Crackdown, People’s Assessor System Reform, State Council Reorganization & Shanghai Financial Court

The Council of Chairmen decided on Tuesday that the 13th NPC Standing Committee (NPCSC) will convene its second session from April 25 to 27. The three-day session will review draft laws and decisions involving increased protection for Communist “heroes and martyrs,” reform of China’s people’s assessor (or lay judge) system, implementation of the State Council reorganization plan, and the Shanghai Financial Court. The Council also approved the NPCSC’s 2018 legislative and oversight plans; we will publish our coverage and analysis after they are released in the coming weeks.

To begin, the draft Heroes and Martyrs Protection Law (英雄烈士保护法) returns for a second round of deliberations. It was first submitted to the NPCSC for review in December 2017, amidst the Communist Party’s ongoing campaign against what it terms “historical nihilism” (历史虚无主义) —skepticism of the Party’s account of past events. The Law follows the recently enacted General Provisions of the Civil Law (GPCL), which includes a provision providing for civil liability for infringement of the “name, likeness, reputation, or honor” of a hero or martyr.

Here we focus on two articles of the draft Law:

  • Article 24, in its first paragraph, includes language similar to that of the GPCL provision, creating a cause of action for the close relatives of heroes and martyrs whose names, likenesses, reputation, or honor is harmed. Where no such suit is brought, paragraph 2 of Article 24 authorizes the people’s procuratorates to initiate public interest litigation against tortfeasors.
  • Article 28 additionally authorizes public-security administrative and criminal penalties on “the occupation, damage, or vandalizing of heroes and martyrs memorial facilities” and “the insulting and defamation of heroes and martyrs.” A Criminal Law amendment is likely needed to formally criminalize the first set of conduct.

Given the short length of the draft Law and the fact that it was drafted pursuant to an “important instruction” (重要批示) by Xi Jinping, we expect the NPCSC to pass this Law at the upcoming session as there is likely not much disagreement over its provisions.

The draft People’s Assessors Law (人民陪审员法), also first submitted last December, likewise returns for another round of review. The Law is aimed at codifying the ongoing pilot reform of the people’s assessor system, currently mainly governed by a short 2004 NPCSC decision. The first draft of the Law are substantively similar to the implementing measures for the pilot reform (jointly issued in 2015 by the Supreme People’s Court (SPC) and the Ministry of Justice). We have previously summarized the content of those measures here; we expect to publish a summary of the Law after it is adopted.

Relatedly, the SPC submitted to the upcoming NPCSC session a report on the pilot reform, due to end later this month. As there is no indication that the SPC will request another extension of the pilots (it requested one in April 2017), it is probable that the NPCSC will adopt the Law next week to allow uninterrupted use of the new system by the 50 pilot courts.

The SPC also submitted a bill asking the NPCSC to establish a Financial Court (金融法院) in Shanghai. Under the People’s Courts Organic Law, the NPCSC has the sole authority to establish “special people’s courts” (专门人民法院)—for instance, the three Intellectual Property Courts in Beijing, Shanghai, and Guangzhou—and to prescribe the method for selecting their judges and their jurisdictions, among other matters. The South China Morning Post reported in March that the Shanghai Financial Court will occupy the same level as an intermediate people’s court, below provincial-level high people’s courts and the SPC. The plan for establishing the Financial Court was first approved at a meeting of the Party Central Committee for Comprehensively Deepening Reform in March. The official report of the meeting says that the Court will exercise “centralized jurisdiction over financial cases.” We expect the NPCSC to approve this decision next week.

Lastly, the Council of Chairmen submitted a draft Decision on Issues Concerning the Adjustment of the Legally Prescribed Functions of Administrative Agencies Involved in the Institutional Reform of the State Council (关于国务院机构改革涉及法律规定的行政机关职责调整问题的决定). Because the massive State Council reorganization plan approved by the NPC in March entails redistribution of the functions of various State Council agencies, many explicitly prescribed by national law, some of these changes would require the NPCSC’s approval before they can be lawfully implemented. Not all do because Chinese law generally does not refer to any State Council department by name (say, the Ministry of Agriculture), but instead uses unspecific terms such as “the competent State Council department for agriculture.” Thus, in this example, the new Ministry of Agriculture and Rural Affairs (which replaces the Ministry of Agriculture) is still “the competent State Council department for agriculture,” and there is thus no need to change the use of this phrase in national law.

An example of transfer of agency function that would require a corresponding change in the law involves the new Ministry of Ecology and Environment (MEE) and the now-defunct State Oceanic Administration (SOA). The SOA, or “the competent State department for oceanic administration,” was responsible for protecting marine environment under the Marine Environmental Protection Law. Such a duty has been given to the MEE, but most of the SOA’s other functions have been transferred to the new Ministry of Natural Resources (MNR). Because it is now the MNR, rather than the MEE, that is arguably the new “competent State department for oceanic administration,” the Law must be correspondingly amended.

The NPCSC has previously adopted a decision dealing with a similar issue arising from the 2003 State Council reorganization. That year, the NPC approved the establishment of the (recently abolished) China Banking Regulatory Commission (CBRC), to exercise the People’s Bank of China’s regulatory authority over banking institutions under the People’s Bank of China Law and the Commercial Banking Law. That NPCSC decision authorized the CBRC to exercise such authority and urged the State Council to expedite drafting of amendments to the two laws. The State Council submitted the amendments four months later (along with a draft Banking Supervision and Administration Law).

It is not yet clear if this time around the NPCSC will also name the relevant laws and agencies in its decision or will instead just give a blanket authorization without the naming the specifics. But we do expect it to approve this decision next week.

The NPCSC will also hear at its upcoming session the State Council’s report on the state of the environment and its environmental protection efforts in 2017.

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