2020 Legal Inquiry Responses: Marriage Age for Ethnic Minorities, Rescheduling Local People’s Congress Elections & More

Photo by Andy Wong (Associated Press), via NYT

On April 1, the NPC Standing Committee’s Legislative Affairs Commission (Commission) made public six of its “responses to legal inquiries” [法律询问答复] from 2020. It last released a batch of such responses from 2018 and 2019 in September 2020, after a thirteen-year hiatus. As we wrote then, these responses to legal inquiries can be considered a form of “soft law”: they answer other governmental bodies’ requests to clarify the applicable law in real-world scenarios and can function like the NPC Standing Committee’s legislative interpretations. The inquiring governmental bodies tend to follow the responses, but they do not bind anyone else. Still, they are considered highly persuasive because of the Commission’s pivotal role in lawmaking. The responses released on Thursday touched on a few different subjects: postponing local legislative sessions due to Covid-19, governance of for-profit private schools, ethnic autonomous regions’ legislative authority, terms of supervision commissions, and rescheduling elections for local people’s congresses. We will summarize and explain these Q&As below.

1. Postponing local legislative sessions. The organic statute of local people’s congresses requires the standing committees of local people’s congresses to meet at least once every two months (art. 45). During the early phase of the Covid-19 epidemic in China, many local standing committees were unable to meet in-person, but some also lacked the capacity to hold teleconferences. A provincial legislature thus asked in February 2020: May a local standing committee’s chairpersons’ meeting [主任会议]—the convener of standing committee sessions—decide to delay a session?

The Commission answered in the affirmative. It acknowledged that no law clearly provided for delaying local legislatures’ meetings. But the chairpersons’ meeting’s role as convener of standing committee sessions entails the authority to set their dates and to delay them when necessary. The Commission added that “emergency matters (such as personnel appointments and removals)” may be dealt with in “a special and flexible way,” but did not elaborate.

2. For-profit private schools’ decisionmaking bodies. Under the Private Education Promotion Law (PEPL) [民办教育促进法], a private school’s “decisionmaking body” [决策机构] is its board of governors or directors (art. 20). Private schools can be non-profit or for-profit; for-profit schools must be registered as companies. Under the Company Law [公司法], however, a company’s board is accountable to its shareholders’ meeting, which is the ultimate “organ of power” [权力机构] (arts. 36, 98). A State Council department (likely the Ministry of Education) in April 2020 asked the Commission to clarify the decisionmaking authority of a for-profit private school’s board vis-à-vis its shareholders’ meeting.

According to the Commission, the PEPL’s “special provisions” govern the decisionmaking bodies of for-profit private schools, referring to the principle that a special legal provision trumps a general provision on the same subject. The schools’ boards thus hold the ultimate decisionmaking power, except in situations where the PEPL expressly follows the Company Law: the disposition of a school’s surplus or of its remaining assets after liquidation. Under the Company Law, the Commission explained, board decisions on those matters must be approved by the shareholders’ meeting.

3. Ethnic legislative authority over marriage age. Under the now-repealed Marriage Law [婚姻法] and its successor, the Civil Code [民法典], the marriage age in China is 22 for men and 20 for women. Article 50 of the Marriage Law allowed ethnic autonomous areas [民族自治地方] to adopt “adaptive provisions” [变通规则] based on the local ethnic minorities’ marital and family customs. In accordance with this authorization, four of China’s five provincial-level autonomous regions—Inner Mongolia, Ningxia, Tibet, and Xinjiang—as well as numerous sub-provincial ethnic autonomous areas all enacted local rules lowering the marriage age of ethnic minorities to 20 for men, and 18 for women. Because the Civil Code has not codified article 50, a provincial legislature asked in August 2020 whether the local rules adapting the Marriage Law would still be effective.

Yes, the Commission answered. It explained that article 50 was not codified because it would simply repeat other statutory provisions on the legislative authority of ethnic autonomous areas. The Regional Ethnic Autonomy Law [民族区域自治法] and the Legislation Law [立法法] both broadly authorize ethnic autonomous areas to enact regulations to “adapt” [变通] the provisions of national law on the basis of local ethnicities’ “political, economic, or cultural characteristics.” Hence the local rules lowering the marriage age for ethnic minorities would continue in force after the Marriage Law’s repeal.

4. Terms of supervision commissions. A department of the State Supervision Commission posed this short question in November 2020: must local supervision commissions undergo term changes [换届]?

Not quite, said the Legislative Affairs Commission. The Supervision Law [监察法] provides that the term of office of the chairperson of a local supervision commission is the same as that of the people’s congress at the same level—that is, five years (art. 9, para. 3). Thus a new chairperson must be elected at the end of each five-year term, but this requirement does not apply to the vice chairpersons and other members of the supervision commission.

5. Rescheduling local people’s congress elections. In China, the core official institutions—Communist Party committees, people’s congresses, people’s governments, and Chinese People’s Political Consultative Conference committees—all serve five-year terms. A people’s government’s term is the same as that of the corresponding people’s congress, but the latter might not be in sync with the terms of other official institutions. This was apparently an issue to the central Party leadership, for it quietly directed localities to synchronize term changes at each level of government. (In other words, elections for a new local people’s congress would occur around the same time as a new local Party leadership is chosen.)

To achieve synchronized term changes, an autonomous region (which, according to our research, should be Inner Mongolia) wished to shorten the terms of all incumbent sub-provincial people’s congresses, whereas a province wanted to extend the terms of two incumbent municipal people’s congresses. They both asked the Commission if they could do so.

Yes, but within certain limits, it replied. The Commission first emphasized that local people’s congresses should “generally” serve the full five-year terms. But the incumbent congresses’ terms (and thus the timing of the next elections) may be adjusted to synchronize term changes among official institutions—though not by more than a year. If the elections are to be brought forward, a majority of sitting delegates (whose terms of office would be shortened) must give consent. In addition, the rescheduled direct elections for the next county- and township-level people’s congresses must fall within the period for electing new grassroots-level people’s congresses nationwide—which starts sometime this year and will continue into early 2022.

Leave a Reply