NPCSC Passes New Criminal Law Amendment, Revises National Defense Law & Juvenile Delinquency Prevention Law & Establishes Hainan IP Court

The 13th NPC Standing Committee (NPCSC) concluded its 24th session on Saturday, December 26, 2020 and adopted six bills. Below, we will summarize them in varying levels of detail. Contrary to previous Hong Kong media reports, the NPCSC did not take any Hong Kong-related action at its session last week.

Criminal Law Amendment (XI)

The Criminal Law Amendment (XI) [刑法修正案(十一)] makes the first batch of major changes to China’s criminal code in over five years. It focuses the following areas that have been among the Chinese government’s top priorities, by both adding new crimes and raising penalties for existing ones:

  • public safety crimes (amendment arts. 2–4, 33);
  • food and drug crimes (id. arts. 5–7, 45);
  • financial and white-collar crimes (id. arts. 8–16, 29–39);
  • intellectual property (IP) crimes (id. arts. 17–24);
  • public health crimes (id. arts. 37–39); and
  • environmental crimes (id. art. 41–43).

A full English translation of the Amendment is now available on China Law Translate, which has also prepared a chart summarizing the Amendment as well as commentaries on select provisions.

The Amendment also makes an assortment of other changes to the criminal code, responding to recent hot-button social issues. For instance, following media reports that hundreds of high school graduates were denied admissions to universities between 1999 and 2006 because of identity thefts, the Amendment now makes it a crime to deprive another of the opportunity to enroll in an institution of higher learning by stealing or assuming the latter’s identity (art. 280-2 as amended). Another new provision lowers the age of criminal responsibility for certain crimes to 12, from 14, after report that a 13-year-old boy murdered a 10-year-old girl in late 2019 without facing criminal charges sparked public outcry. Juveniles between 12 and 14 can now be prosecuted for intentional homicide or assault, if the offense causes death or by “extremely cruel means” causes serious injury and disability, and if the Supreme People’s Procuratorate decides to indict (art. 17, para. 3 as amended).

Lastly, we want to note that the Amendment did not further reduce the number of capital crimes, breaking with a trend that started in 2011 with the Criminal Law Amendment (VIII).

The Amendment will take effect on March 1, 2021.

Juvenile Delinquency Prevention Law Revision

This revision gives the Juvenile Delinquency Prevention Law [预防未成年人犯罪法] its first substantive update since its adoption in 1999. The revised Law stresses the importance of “tiered prevention, intervention, and correction” of juvenile delinquency and categorizes juvenile misconduct as either “misbehavior” [不良行为] or “serious misbehavior” [严重不良行为] (art. 2).

“Misbehavior” refers to conduct by minors that is “not conductive to their healthy growth,” including smoking, drinking alcohol, running away from home without reason, internet addiction, gambling, and consuming materials that promote obscenity, pornography, violence, terrorism, or extremism (art. 28). Minors’ guardians as well as their schools, the police, and their neighborhood committees are all responsible for timely intervening in such misconduct (arts. 29–30). The schools, in particular, are authorized to take correctional measures such as requiring the minors to obey certain codes of conduct, to perform on-campus services, or to accept psychological counseling or behavioral intervention by professionals (art. 31).

“Serious misbehavior” includes two sub-categories: (1) otherwise criminal conduct for which minors cannot be criminally prosecuted because they are under the age of criminal responsibility; and (2) conduct that “seriously endangers the society” (but is not criminal), including carrying weapons or controlled knives, vandalism, theft, assault, distributing obscene materials, prostitution, and using drugs (art. 38). These two types of serious misbehavior will be handled differently under the revised Law:

  • For non-criminal serious misbehavior, the police will investigate and may take one or more “corrective and educational measures,” including admonishing the minors, ordering them to periodically report their activities, ordering them to receive counseling, and requiring them to perform community service (art. 41). In some circumstances, minors engaged in such misbehavior may be sent to “specialized schools” [专门学校] to receive “specialized education” [专门教育] (arts. 43–44). Specialized schools will carry out moral education, legal education, mental health education, and, if needed, vocational education (art. 47). They must ensure that that delinquent juveniles complete their nine-year compulsory education (id.).
  • For “criminal” serious misbehavior, the police and the education department may collectively decide to subject the minors to “specialized corrective education” [专门矫治教育]. Such education will be conducted at a special location within a specialized school that is subject to “closed-loop management” (art. 45). This system replaces the former practice of “custody and instruction” [收容教养] for delinquent juveniles who engage in conduct prohibited by the Criminal Law.

All decisions to send delinquent juveniles to specialized schools must be approved by a “specialized education guidance committee” [专门教育指导委员会], which will be established in every local government above the county level (art. 6, para. 1; arts. 43–45). These committees will be composed of representatives from various government agencies, the courts, the procuratorates, the Communist Youth League, the women’s federations, as well as lawyers and social workers (art. 6, paras. 2–3). Administrative decisions taken against juveniles with serious misbehavior are subject to administrative reconsideration and judicial review (art. 49).

The revised Law also enhances schools’ role in preventing juvenile delinquency. They are required to retain full-time or part-time teachers to educate students on the law as well as those who can offer mental health education (art. 19). Schools must also establish procedures to prevent, discover, and handle student bullying (art. 20). They, moreover, are encouraged to collaborate with social workers on various aspects of the education and on preventing and handling student bullying (art. 21).

Lastly, the revision emphasizes the protection of minors’ personal dignity and their lawful rights and interests (art. 3). It prohibits discrimination against delinquent juveniles in education or employment and provides for administrative sanctions, but does not provide for any private cause of action (arts. 31, 58, 62–64).

The revised Juvenile Delinquency Prevention Law has been translated in full at China Law Translate. It will take effect on the next Children’s Day, June 1, 2021.

National Defense Law Revision

The revision to the National Defense Law [国防法] brings China’s framework defense statute up to date for the first time since its enactment in 1997 by codifying China’s latest military policies and practices. To give a few examples: The revision adds the guiding ideologies for China’s defense activities (including the Xi Jinping Thought) and specifies that their goal is to “build strong national defense [capabilities] and powerful armed forces that are commensurate with China’s international status and compatible with China’s national security and development interests” (art. 4). The revision also formally codifies the Central Military Commission’s sole authority over the People’s Armed Police (PAP) (art. 15).

The revision, moreover, adjusts the roles of the components of China’s armed forces. The “mission and task” of the People’s Liberation Army (PLA) in the “New Era” is to “provide strategic support for consolidating the Chinese Communist Party’s leadership and the socialist system; defending China’s sovereignty, unity, and territorial integrity; safeguarding China’s overseas interests; and promoting world peace and development” (art. 22, para. 2). The PLA is no longer responsible for maintaining domestic social order. Instead, that responsibility now rests with the PAP, which is also in charge of carrying out guard duty, combatting terrorism, enforcing China’s maritime claims, providing disaster relief, and engaging in defensive operations (id. para. 3). The revision provides that the size of China’s armed forces must be “compatible with the needs to safeguard China’s sovereignty, security, and development interests” (art. 25). It also codifies the requirement that all servicemembers be loyal to the Communist Party (art. 59).

Finally, the revision includes the defense of the outer space, electromagnetic spectrum, cyberspace, and other “novel security fields” in the overarching concept of national defense and lays down the corresponding defense policies (see arts. 30–32).

The revised Law will take effect on January 1, 2021.

Yangtze River Protection Law

The Yangtze River Protection Law [长江保护法] is China’s first environmental statute aiming at protecting a specific geological feature. With 96 articles in nine chapters, the Law governs the environmental and ecological conservation and restoration as well as all business activities carried out in the “Yangtze River Basin,” defined as the relevant counties in 19 provinces that overlap the drainage area formed by the Yangtze River’s mainstream, tributaries, and connected lakes (art. 2, para. 2). The Law establishes a national-level group to coordinate the various ministries and provincial governments that oversee different aspects of the conservation of the Yangtze River (art. 4) and authorizes local governments to coordinate relevant legislation and law enforcement (art. 6).

The Law includes extensive provisions on the development planning, resource conservation, water pollution prevention and control, as well as environmental and ecological restoration in the Yangtze River Basin. For instance, it allows the relevant government agencies to ban or restrict navigation in important habitats of aquatic life, as well as sand excavation in designated areas and periods (art. 27–28). It also codifies the ten-year commercial fishing ban imposed as of the start of 2020 (art. 50).

The Yangtze River Protection Law will enter into force on March 1, 2021.

Hainan IP Court Decision

As part of the central government’s plan to build a Hainan Free Port, the NPCSC adopted a decision to establish the Hainan Free Trade Port Intellectual Property Court (“Hainan IP Court”), China’s fourth specialized IP court. An intermediate-level court, the Hainan IP Court will hear three types of cases: (1) first-instance civil and administrative IP cases that are “highly specialized and technical” [专业性、技术性较强的] (including patent cases); (2) other first-instance civil, administrative, and criminal IP cases that would have been heard by an intermediate court in Hainan; and (3) appeals from the rulings by Hainan basic-level courts in all IP cases. Appeals from the Hainan IP Court’s first-instance rulings generally lie in the Hainan High People’s Court, except that its rulings in “highly specialized and technical” cases are directly appealable to the Supreme People’s Court (SPC) under a 2018 NPCSC decision. The SPC will issue a judicial interpretation to further delineate the Hainan IP Court’s jurisdiction.

The Decision will take effect on January 1, 2021.

State Assets Oversight Decision

The NPCSC also adopted a decision on strengthening the oversight of state assets management to standardize and flesh out its oversight process. The decision tracks the NPCSC’s first five-year plan on the oversight of state assets management, which in turn implements the Party’s 2017 opinion on establishing a system where the State Council reports to the NPCSC on its management of state assets. We have previously discussed those two policy documents. In essence, these documents establish a reporting scheme under which the State Council, as the owner and manager of state assets, submits two annual reports on its management of state assets to the NPCSC: a comprehensive report that “comprehensively and accurately reflects the basic situations of all types of state assets and their management”; and a special report that each year focuses on a single type of state assets (art. 2). Besides codifying this scheme, the decision also prescribes the procedures to be followed by the different government bodies involved in the process, the roles of the legislature’s subordinate bodies, and the tools the NPCSC can use to supplement the reporting scheme.

On Saturday, the NPCSC also decided to convene the 13th NPC’s fourth plenary session on March 5, 2021. Next year, the full NPC will review and approve the Outline of the 14th Five-Year Plan for National Economic and Social Development and Long-Range Objectives Through 2035, as well as amendments to the NPC Organic Law [全国人民代表大会组织法] and NPC Rules of Procedure [全全国人民代表大会议事规则].

We expect the NPCSC to soon solicit public comments on the other twelve bills it also reviewed at last week’s session.

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