On June 20, the NPC Standing Committee approved the Law on Governmental Sanctions for Public Employees [公职人员政务处分法] (Law or Governmental Sanctions Law). An unofficial English translation of the Law is available here. This Law is a companion statute of the 2018 Supervision Law [监察法], which established the supervision commissions [监察委员会] and empowers them to “give . . . decisions on governmental sanctions to public employees who have broken the law in accordance with legally prescribed procedures” (art. 45, para. 1, item 2). The Law, with 68 articles in seven chapters, implements this provision by laying down a set of both substantive and procedural disciplinary rules tailor-made for all public employees. Its core provisions start by setting forth the types of governmental sanctions and the general rules on their use, then provide for a long list of unlawful conduct and the corresponding sanctions, and end with the procedures for giving and reviewing sanctions decisions. The following summary will proceed in the same manner.
As its title suggests, the Governmental Sanctions Law regulates the conduct of “public employees” [公职人员]. It borrows the Supervision Law’s definition of this term, which includes the following six categories of persons (art. 2, para. 3):
- civil servants [公务员] and “persons managed with reference” to the Civil Servants Law [公务员法]. They encompass most of the civilians in the party-state, including, among others, leaders of the various levels of Communist Party committees, leaders of the various levels of standing committees of people’s congresses, government officials (including those working at certain organizations that are nominally “public institutions” [事业单位], like the China Securities Regulatory Commission), judges, and procurators. Part-time legislators (among others) are explicitly excluded from this category under the Central Department of Organization’s rules.
- persons engaged in public affairs at organizations that manage public affairs as authorized by laws, regulations, or state organs. They mostly include the employees of those public institutions that do not fall within the first category, such as centers for disease control and prevention.
- management of state-owned enterprises.
- persons engaged in management in public education, scientific research, culture, healthcare, sports, and other such institutions.
- persons engaged in management at urban residents’ committees or villagers’ committees.
- other persons who perform public duties.
As a companion statute of the Supervision Law, the Governmental Sanctions Law naturally applies to the giving of governmental sanctions by the supervision commissions (art. 2, para. 1). But that is not all. Chapters II and III of this Law—the substantive provisions on sanctions and offenses—also apply to the giving of “sanctions” [处分] by the public employees’ own employers (or in the Law’s wording, their “recruiting organs or units” [任免机关、单位]) (id. para. 2). The terminology can be confusing: “governmental sanctions” refers only to the external punishments meted out by supervision commissions, whereas “sanctions” alone refers to the internal punishments imposed by a state (or quasi-state) employer, such as the disciplinary actions a court takes against its own judges.
It is clear that both supervision commissions and state employers can apply this Law’s substantive provisions to punish a public employee for unlawful conduct. It is also clear, however, that they must not both punish the employee for the same violation (art. 17). How to determine which organization is to act in an individual case, then? Is it simply a race between them? The Law does not answer these questions. To make matters more confusing, the supervision commissions can also give semi-binding “suggestions” to other state employers when they find that the latter have failed to sanction an employee, or have given inappropriate sanctions (art. 3, para. 3; art. 55, para. 1). The two groups will need to work these issues out as they implement this Law.
General Rules on Governmental Sanctions
The Law provides for six types of (governmental) sanctions (see art. 7). They are listed below, along with their respective time periods (arts. 8, 26):
- “warnings” [警告]: 6 months;
- “demerits” [记过]: 12 months;
- “major demerits” [记大过]: 18 months;
- “demotions” [降级] (or more accurately, reductions in ranks without change in positions): 24 months;
- “removals” [撤职] (or more accurately, reassignments to a lower position): 24 months; and
- “dismissals” [开除]: employment relationship terminates on the day when the dismissal decision is made.
The sanctions carry various consequences for their recipients. First, sanctioned public employees will not be eligible for any sort of promotion (whether in position, rank, or salary) during the sanction periods (see arts. 19–23). Those subject to removal will even have their salaries and other benefits decreased (id.). Second, sanctioned public employees’ illegal gains and personal property used for illegal purposes will be confiscated or, if applicable, returned to their rightful owners (art. 25). Third, employees who are dismissed will forever be barred from serving as civil servants or those managed with reference to the Civil Servants Law (art. 24).
Generally, the sanctions given should be commensurate with the “nature, circumstances, and degree of harm of the unlawful conduct” (art. 4). But the Governmental Sanctions Law also recognizes some mitigating circumstances (e.g., voluntary confession, playing only a secondary role) and aggravating circumstances (e.g., recidivism, destruction of evidence) (see arts. 11–13). Criminal convictions with one of the following circumstances will lead to automatic dismissals (art. 14, para. 1):
- the employee committed the crime intentionally and was sentenced to any restraint on personal liberty (i.e., from controlled released to indefinite imprisonment), including suspended sentences;
- the employee committed the crime negligently and was sentenced to more than three years of imprisonment;
- the employee was deprived of political rights, either alone or with other penalties .
Criminal negligence resulting in restraint of personal liberty of up to three years will ordinarily also lead to dismissal, except in “special circumstances” as decided by the supervision commissions (id. para. 2). More minor crimes, for which the employees received fines alone or were exempted from prosecution or penalties, will generally lead to removals (id. para. 3).
The sanctions (except dismissals) will automatically expire at the end of their respective periods, if the employees have repented and have not reoffended (art. 26, para. 2). The employees will become eligible again for promotions and raises, but will not be restored to their prior ranks, positions, or salary levels, if they have been demoted or removed (id.).
The Governmental Sanctions Law prescribes a litany of sanctionable conduct. All but a few are briefly summarized in the table below.
||art. 28, para. 1|
||art. 31, para. 1|
All these offenses carry different penalties for violations of different severity. But there also a few other more serious offenses that are not so graded. Any public employee who “publishes articles, speeches, declarations, and statements opposing the State’s guiding ideologies established in the Constitution, the leadership of the Communist Party, the socialist system, or ‘reform and opening’” will be automatically dismissed (art. 28, para. 3). The following conduct (apparently regardless of severity) will result in either removal or dismissal (art. 31, para. 2; art. 40, para. 2):
- obtaining foreign citizenships or permanent (or long-term) residency permits outside mainland China, in violation of rules;
- taking narcotics;
- organizing gambling; or
- organizing, supporting, or participating in prostitution or other “lewd and lascivious activities.”
The Law stresses that public employees must not be given governmental sanctions for reasons other than those legally prescribed (art 6).
The Law requires the supervision commissions to follow some bare-bones procedures before imposing governmental sanctions. First, all investigations should be conducted by at least two investigators (art. 42, para. 1). Second, the investigators must not collect evidence through threats, enticement, or fraud (id. para. 2). Illegally collected evidence must not be used as the basis for governmental sanctions (id.). Third, the supervision commissions must give employees under investigation notice of their alleged offenses, the factual basis for them, and the sanctions to be imposed (art. 43). They must give the employees an opportunity to defend themselves; any such defense must not be used to increase the sanctions given (id.). Finally, governmental sanctions decisions must be in writing, with a recitation of the facts found, the sanctions given, and the relevant legal authorities (among other information) (art. 45).
When a public employee has been convicted of a crime, the supervision commission can sanction him or her directly on the basis of the relevant judicial ruling, without having to conduct its own investigation (art. 49, para, 1). The supervision commission can similarly rely on an administrative penalty decision, but must first verify the facts and circumstances recited in the decision (id. para. 2). During the pendency of an investigation, the employee may be suspended, and may not leave mainland China or resign without the supervision commission’s permission (art. 52).
Public employees can challenge their governmental sanctions decisions by first petitioning the very supervision commissions that have made those decisions for a “reconsideration” (art. 55, para. 1). If their petitions are denied, they can then apply to the next higher-level supervision commissions for “review” (id.). Judicial review is not available, however. The original sanctions will not be suspended while they are under reconsideration or review, and must not be increased after reconsideration or review (art. 56). The higher-level supervision commissions may vacate and remand the original decisions, or issue new decisions, when the original decisions, for instance, were based on “unclear” facts or “insufficient” evidence, had procedural deficiencies, were ultra vires, did not correctly apply the law, or gave improper sanctions (see arts. 57–58). The original decisions should otherwise be affirmed, if they were based on “clear” facts and correctly applied the law (art. 59).
Where the public employees have their sanctions modified or vacated on reconsideration or review, their positions, ranks, salaries, and other benefits should accordingly be modified or restored, and they should be compensated for losses of salary and benefits (art. 60).
The Governmental Sanctions Law will take effect on July 1, 2020. It will not apply to sanctions decisions that come on reconsideration or review after it enters into force (art. 67). Nor will it apply to cases in which no initial sanctions decisions have been made, unless the conduct at issue is considered legal or carries lesser penalty under this Law (id.).