The 13th NPC Standing Committee (NPCSC) concluded its 25th session on Friday, January 22 and adopted four bills. As usual, we will summarize them below in varying levels of detail. As of this post’s publication, the NPCSC has yet to release all associated legislative records, but when it eventually does, the records will be accessible from the relevant bill pages (linked below).
Coast Guard Law
The Coast Guard Law [海警法] is a fairly comprehensive organic statute for China’s coast guard, a formerly civilian agency that since March 2018 has been part of the People’s Armed Police and under the Central Military Commission’s command. After the 2018 reorganization, China’s coast guard now wears three hats: (1) as part of China’s armed forces, it enforces China’s maritime claims; (2) as an administrative agency, it enforces China’s customs, marine environmental protection, fisheries, and other relevant laws; and (3) as the maritime police, it investigates maritime crimes (see art. 12). The new Law outlines the coast guard’s four-tier organizational structure (with the China Coast Guard [中国海警局] at the top) (see art. 2, para. 2; art. 10) and prescribes its powers and duties under each of its roles (see Chs. III–V).
Under article 3, the Law applies to the coast guard’s official activities in China’s “jurisdictional waters” [管辖海域], a term that seems to have been intentionally left undefined. The Law’s previous public draft did define the term as China’s “internal seas, territorial sea, contiguous zone, exclusive economic zone, continental shelf, and other waters under the PRC’s jurisdiction” (Nov. 2020 Draft art. 74, item 2). “Internal seas” [内海] was further defined as the seas on the landward side of China’s maritime baselines (id.).
The coast guard’s duties as a military organization include patrolling China’s jurisdictional waters, guarding key islands and reefs as well as maritime boundaries, and “preventing, stopping, and eliminating acts that endanger China’s sovereignty, security, and maritime rights and interests” (art. 12, item1). It may verify the identities of foreign vessels inside China’s jurisdictional waters and may follow and monitor those suspected of unlawful activities (art. 16). It may order foreign vessels that illegally enter China’s territorial sea and internal waters to leave immediately, or may detain, expel, or tow them away by force (art. 17). It is further authorized to “take all necessary measures, including firearms,” to stop foreign organizations or individuals from violating, or posing “an imminent danger” of violating, China’s sovereignty, sovereign rights, and jurisdictional rights (art. 22).
Chapter VI lays down a graduated scheme for the coast guard’s use of force. First, coast guard officers may use non-firearm weapons (1) to forcibly bring vessels to a halt in the course of boarding, inspection, interception, or pursuit; (2) to forcibly expel or tow away vessels; (3) to respond to obstruction faced in performing their duties; or (4) to stop other unlawful activities (art. 46). Second, the officers may use hand-held firearms, if a prior warning has been ineffective, (1) when evidence indicates the other vessel harbors suspects or illegally possesses firearms, ammunition, state secrets, or drugs, but refuses to halt; or (2) when foreign vessels enter China’s jurisdictional waters to conduct illegal operations, and other measures have failed to secure compliance with requests to board and conduct inspections (art. 47). Third, coast guard officers may use shipborne or airborne firearms, besides hand-held ones, when (1) performing counterterrorism duties; (2) handling “serious violent incidents” at sea; or (3) countering attacks on law enforcement vessels or aircraft (art. 48). The officers may use firearms directly if there is no time to issue a warning or if a warning may lead to more serious consequences (art. 49). Finally, article 50 requires the officers to “reasonably assess the extent of necessity in using firearms,” according to the “nature, extent, and urgency” of the danger posed by the unlawful activities and offenders, to avoid or minimize unnecessary casualty or property loss (art. 50). A previous version of article 50 required coast guard officers to avoid shooting below the other vessel’s waterline when opening fire at it (Nov. 2020 Draft art. 46). This provision was not included in the final version, however.
The Law also prescribes rules governing the coast guard’s roles as an administrative agency and the maritime police. They mostly clarify the application of existing statutes (e.g., the Criminal Procedure Law [刑事诉讼法]) to the coast guard, but also includes new provisions specially tailored to the coast guard’s maritime setting. For instance, where a party seeks to evade administrative penalties by dumping evidence overboard, thereby making it difficult for the coast guard to adduce evidence, the agency may, in light of other evidence, presume that certain facts are established, unless the party presents evidence sufficient to rebut that presumption (art. 35). The Law makes it clear that the China Coast Guard has rulemaking authority (like other ministries) (art. 82) and that the coast guard’s administrative actions are subject to administrative reconsideration and administrative litigation (art. 76).
The Coast Guard Law will take effect on February 1, 2021.
Administrative Penalties Law Revision
The Administrative Penalties Law [行政处罚法] governs, well, administrative penalties—the government’s most commonly used tool to punish unlawful conduct (think traffic tickets). Specifically, the Law provides for the types of administrative penalties, delineates various governmental bodies’ authority to prescribe administrative penalties, and most importantly, lays down the procedures for imposing and enforcing administrative penalties. Last Friday’s revision was the first comprehensive update of the Law since its enactment in 1996. Here is a quick look at some of the key changes:
- Definition & types of penalties: The revision defines “administrative penalties” for the first time, to mean administrative organs’ acts to penalize private entities for violating “the order of administrative management” by reducing their rights or increasing their obligations (art. 2). The revision also introduces five new types of administrative penalties: circulating notices of criticism [通报批评], downgrading qualifications, limiting business activities, ordering closures, and limiting employment in a certain field (art. 9). (Other penalties include warnings, fines, and administrative detention.)
- Legislative authority: The revision enlarges both the State Council’s and local legislatures’ authority to prescribe administrative penalties. Where a statute (for whatever reason) has not prescribed any administrative penalty for an unlawful conduct, the State Council can now implement the statute by providing for supplemental penalties (art. 11, para. 2). Similarly, a local legislature can now prescribe supplemental penalties for conduct prohibited—but not penalized—by a statute or an administrative regulation (art. 12, para. 2). Previously, the State Council and local legislatures were barred from supplementing higher legislation this way—a restriction that local legislatures have complained of for decades. Now they can, but before doing so, they must “widely solicit opinions” by holding hearings or discussion sessions (art. 11, para. 2; art. 12, para. 2).
- Procedures
- The revision codifies three ongoing administrative procedure reforms. First, it requires the public disclosure of the agencies responsible for imposing penalties, bases for starting a case, procedures, and remedies (art. 39). Second, it requires the entire course of administrative law enforcement to be recorded in writing or audio (art. 47). Third, it requires proposed administrative-penalty decisions to undergo legality review in one of four circumstances: (1) when the cases implicate major public interests; (2) when the parties’ or third parties’ significant interests would be directly affected, and a hearing was held; (3) when the cases involve complicated factual or legal issues; and (4) when the review is otherwise required by statutes or regulations.
- The revision also expands the use of hearings. It allows a party to request a hearing when the proposed penalties would be (1) the confiscation of a larger amount of illegal proceeds or illegal property of a larger value; (2) downgrading qualifications; (3) business closure or limitation on employment in a certain field; or (4) other more serious administrative penalties (art. 63). The revision also requires that, when a hearing has been held, the subsequent administrative-penalty decision be made “on the basis of the hearing record” (art. 65).
- Application of penalties: The revision adds a number of new general rules on the application of penalties. It, for instance, introduces additional “double jeopardy” protections: when one unlawful conduct violates multiple legal norms, punish only the violation that would result in a larger fine (art. 29). And if a party has been criminally fined for a violation, the administrative agency must not give a fine for the same conduct (art. 35). The revision Law also recognizes two new mitigating circumstances: a first-time offender who has caused only minor harm and made immediate corrections may be exempted from punishment (art. 33, para. 1). A party can also avoid punishment if they can prove they were not subjectively at fault (i.e., had no guilty mind) (id. para. 2). Finally, the revision creates a special five-year statute of limitations (compared to the general two-year one) for punishing unlawful conduct that involves “the people’s lives and health or financial security” and has harmful consequences (art. 36).
The revision also adds a raft of other new provisions—including general rules on jurisdiction, evidence, recusal, and retroactivity—that aim at making this Law more complete and self-contained.
The revised Administrative Penalties Law will take effect on July 15, 2021.
Animal Epidemic Prevention Law Revision
The Animal Epidemic Prevention Law [动物防疫法], last revised in 2007, is the first statute to undergo a major overhaul in response to the COVID-19 pandemic. The revision was originally a lower-priority project in the 13th NPCSC’s five-year legislative plan, but has been prioritized since last April. This Law is quite technical, and we lack the expertise to get into the details here. If any of our readers do have the expertise to offer a summary or an analysis, please contact us.
Here, we will mention one particular new article, article 30, which for the first time regulates pet dogs at the national level. It requires all dog owners to periodically vaccinate their dogs against rabies and to register their proofs of vaccination with the local authorities (art. 30, para. 1). Failure to vaccinate will carry a fine of up to 1,000 RMB (art. 92, item 3). It also requires that dogs wear tags and be put on a leash when they go out in public (art. 30, para. 2). Recognizing that pets are largely a local issue, this article expressly authorizes the provinces and cities to formulate more specific implementing rules, e.g., on how often pet dogs should be vaccinated (id. para. 3). According to an official with the NPCSC Legislative Affairs Commission, 11 provinces and 105 cities have already enacted local legislation on pet dogs.
The revised Animal Epidemic Prevention Law will take effect on May 1, 2021.
Beijing Financial Court Decision
The NPCSC on Friday also decided to establish a Beijing Financial Court [北京金融法院], effective January 23, 2021. This new specialized court is modeled on the Shanghai Financial Court, established in April 2018. As an intermediate-level court, the Beijing Financial Court will hear four main types of cases:
- first-instance civil finance cases that would have been heard by a Beijing intermediate court, such as securities, trusts, and insurance disputes;
- first-instance administrative finance-related cases that would have been heard by a Beijing intermediate court in which a financial regulator is the defendant;
- all non-criminal finance cases in which a “financial infrastructure institution” [金融基础设施机构] domiciled in Beijing is the defendant or a third party, but only if the dispute involves the institution’s role as such; and
- appeals from the rulings by Beijing’s basic-level courts in non-criminal finance cases.
Appeals from the Beijing Financial Court’s first-instance rulings lie in the Beijing High People’s Court. The Supreme People’s Court is expected to issue a judicial interpretation to further delineate the Beijing Financial Court’s jurisdiction.
The NPCSC reviewed an additional six bills at last week’s session. We expect it to release them for public comments later this month.
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