NPCSC Codifies Three-Child Policy, Expands Legal Aid & Updates Military Service Law and Physicians Law

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The NPC Standing Committee (NPCSC) concluded its 30th session on Friday, August 20, with the adoption of seven bills. The headline item was, of course, the new Personal Information Protection Law [个人信息保护法], China’s first comprehensive national data privacy legislation. We decided not to add to the already extensive global coverage of that Law—see, for instance, the excellent analysis by the Stanford DigiChina Project—but will focus on the other bills that are no less important.

Population and Family Planning Law Amendment

This amendment to the Population and Family Planning Law [人口与计划生育法] focuses on codifying some of the measures laid out in a recent central policy document that aims to “optimize birth policies and promote long-term balanced population growth.” Most notably, the amendment formally writes into law the Communist Party’s decision to allow each couple to have three children (art. 18, para. 1 as amended). In a related change, the amendment abolishes the so-called “social upbringing fees” [社会抚养费], hefty fines imposed on couples who exceed birth quotas under China’s prior birth-control policies. The amendment also eliminates the penalties employees would face at work—including terminations of employment—for violating birth restrictions. Thus, in effect, there is now no penalty for having four or more children under national law.

The amendment introduces a raft of other measures to boost childbirths. It encourages localities to provide for parental leave [父母育儿假] (art. 25, para. 2). It vows to provide employment services to women whose jobs have been affected by childbirths (art. 26, para. 1) and to ease the burden of childbirths, childrearing, and education on families through supportive measures including tax, insurance, housing, and employment (art. 27). The amendment, moreover, directs local governments to establish “inclusive childcare service systems” [普惠托幼服务体系] to increase the “accessibility and fairness” of childcare services (art. 28). Finally, it directs local governments to build adequate playgrounds for babies and young children and requires public places and “employers with relatively large numbers of female employees” to install facilities for nursing mothers (art. 30).

The amendment already took effect on August 20. We expect provincial legislatures to in the next few months accordingly amend their local family-planning legislation and put those new policy measures in more concrete terms.

Legal Aid Law

The legal aid system in China was established in 1996 to improve underprivileged citizens’ access to justice. In 2015, central authorities released a dedicated Opinion on Improving the Legal Aid System (关于完善法律援助制度的意见) and launched multiple pilots in several provinces. The new Legal Aid Law [法律援助法] marks the first comprehensive update of the legal aid system since its creation.

The Law defines legal aid as “a system established by the State to provide citizens with financial hardship or parties that meet the legally prescribed requirements with free legal consultation, representation, criminal defense, and other legal services” (art. 2). The legal aid system forms part of the “public legal service system” (id.) and is required to be accounted for in plans for socioeconomic development and government budgets (art. 4).

Local governments at or above the county level are required to establish legal aid institutions [法律援助机构], which are responsible for, among others, overseeing local legal aid work, accepting and reviewing legal aid applications, and appointing legal aid personnel (art. 12). While lawyers and “grassroots-level legal service workers” [基层法律服务工作者] (who provide more limited legal services) have a duty to provide legal aid services (and receive tax-exempt subsidies for them) (arts 16, 52), the new Law also encourages “legal aid volunteers” [法律援助志愿者] from educational or research institutions to participate (also with tax-exempt subsidies) (arts. 17, 52). For example, law students and law school faculties may provide legal consultation or drafting services “under the guidance of [local justice departments]” (art. 17).

The Law significantly expands the availability of legal aid services. An accused in a criminal case who has not already retained a defender is now automatically entitled to a legal aid lawyer if the accused (1) is a minor; (2) has a vision, hearing, or speech disability; (3) lacks full mental capacity; (4) is tried in absentia; (5) might be sentenced to indefinite imprisonment or death; or (6) has a death sentence on review and has applied for legal aid (art. 25, para. 1). Legal aid lawyers representing the last two types of criminal defendants must have three or more years of relevant experience in practice (art. 26). (Persons subject to compulsory medical treatment applications are also automatically eligible for legal aid. (art. 28)). For other criminal defendants, a court may in its discretion request the local legal aid institution to appoint a defense lawyer (art. 25). Responding to legislators’ concerns over the government appointing legal aid lawyers against criminal defendants’ will, the Law requires that, when appointing legal aid lawyers, criminal justice organs must not “restrict or harm” an accused’s right to retain a defender of his or her choice (art. 27).

The Law emphasizes the role of “duty lawyers” [值班律师] in the legal aid process. It clarifies that the assistance provided by duty lawyers is a form of legal aid (art. 22, item 5). Duty lawyers—who may be stationed at detention centers, courts, and prosecutors’ offices (art. 14)—are authorized to provide such services as legal consultation, recommendations on the selection of procedures (e.g., ordinary or summary procedures), applications for changing compulsory measures (e.g., bail applications), and offering opinions on behalf of the detainees (art. 30). They may also assist the detainees with applying for full representation by legal aid lawyers (art. 39, para. 2).

In non-criminal cases, traditionally, parties may apply for legal aid in cases involving state compensation, social insurance benefits or social assistance, child support or alimony, or unpaid wages, if they demonstrate financial hardship. Under the new Law, parties with financial hardship may additionally apply for legal aid in cases involving workers’ compensation, traffic accidents, food or drug safety accidents, medical malpractice, or environmental damages (art. 31). Importantly, the Law waives the financial-hardship requirement for the following parties: (1) the next of kin of “heroes and martyrs” in disputes over the latter’s personality rights; (2) “Good Samaritans” sued for their actions; (3) criminal defendants who have been exonerated after a retrial, claiming state compensation; and (4) victims of abuse, abandonment, or domestic violence (art. 32). The financial-hardship requirement will also be deemed satisfied for, among others, minors, the elderly, and disabled persons who lack a fixed source of income; recipients of social assistance; and migrant workers who claim unpaid wages or workers’ compensation (art. 42).

The Law also lays down procedures for requesting legal aid and for reviewing legal aid applications. Where an accused in a criminal case automatically qualifies for legal aid, the criminal justice organs (the police, procuratorates, and courts) must notify the corresponding legal aid institution within three days, and the latter must then appoint a legal aid lawyer within three days (art. 36). In other cases, the criminal justice organs must promptly inform a party’s right to apply for legal aid (art. 35). Upon receiving an application, a legal aid institution must make a decision within seven days (art. 43). If the application is denied, the applicant may challenge the denial through administrative processes or in court (art. 49).

The Legal Aid Law will take effect on January 1, 2022.

Physicians Law

The new Physicians Law [医师法], though adopted as a new law, is in fact the first-ever comprehensive revision of the statute previously titled License Physicians Law [执业医师法]. Here we highlight some of the more important changes in the view of Chinese medical professionals.

First, the revision raises the minimum level of education required for physicians to China’s equivalent of an associate degree. Graduates of secondary technical schools [中等专业学校] are no longer allowed to sit for the Physician Qualification Examination, a requisite for becoming a physician. But the revision grandfathers those who have graduated from those schools before its effective date, March 1, 2022, as well as those who graduate during a grace period after that date (to be set by national health and education authorities) (art. 64, para. 2).

Second, the revision imposes new obligations on physicians. It requires physicians to explain to the patients their conditions and the medial care they receive, and, in the case of special procedures like surgeries, the risks involved and any alternative treatment (art. 25). It also expands physicians’ reporting obligations to include “infectious diseases, sudden diseases of unknown causes, and abnormal health incidents,” in light of the Covid-19 pandemic (art. 33, item 1). The revision bars physicians from taking advantage of their positions to solicit or illegally accept gifts or money from others (art. 31). It also prohibits physicians from prescribing unnecessary tests or treatments (id.). The revision, finally, authorizes lifetime bans on medical practice or clinical research by those who seriously violate professional and medical ethics, thereby “causing a heinous social impact” (art. 58).

Third, the revision aims to afford great autonomy and job protections to physicians. It expressly authorizes, subject to the patient’s informed consent, off-label prescribing of drugs, when there is no known or better treatment and the off-label (i.e., unapproved) use is supported by evidence-based medicine (art. 29, para. 2). The revision also adds a new chapter on providing safeguards to physicians, including requirements that local governments ensure the security of medical institutions and that medical institutions purchase malpractice insurance, implement paid time off for physicians, and safeguard their occupational safety (arts. 49–52). The revision, moreover, shields physicians from all civil liabilities when they voluntarily provide first aid to someone in a public place, but cause the latter harm (art. 27, para. 3).

Finally, the revision promotes the integration of traditional Chinese and Western medicine by expressly allowing physicians to engage in cross-disciplinary practice after training and certification in their secondary discipline (art. 14, para. 4).

As mentioned, the Physicians Law will take effect on March 1, 2022.

Military Service Law Revision

The revision to the Military Service Law [兵役法] overhauls the Law that was first adopted in 1984 and extensively amended in 1998 and 2011. On a conceptual level, the most important change made by the revision is the re-characterization of China’s military service system as one that “combines” compulsory service with voluntary service but is “mainly based” on the latter (art. 3). Between 1984 and 1998, the system was said to be “mainly based” on compulsory service; and since 1998, the Law notes the mixed nature of China’s military service system without emphasizing either component. This change merely reflects the reality, however, for the conscription requirement has “been rarely enforced in recent years as plenty of volunteers have stepped forward for spots” in the Chinese military. Further recognizing the reality that the military now primarily recruits from college graduates, the revision requires institutions of higher learning to establish bodies responsible for military recruitment (art. 9, para. 3).

To recruit—and retain—technically proficient volunteers, the revision raises the maximum age for prospective volunteers with graduate degrees to 26 (from 24) (art. 20, para. 1), and also toughens the punishments for those who enlist but then decide to quit military service (art. 57, para. 2). Those who do so will be barred from working at state-owned enterprises or public institutions and will be placed on the “list of seriously untrustworthy entities” who fail to perform national defense obligations and subject to joint disciplinary action under China’s social credit system (id.). Existing penalties include a bar on becoming civil servants as well as two-year bans on entering higher-level schools (or resuming one’s prior studies) and on leaving mainland China (id.).

The revision has deleted two chapters that respectively governed the Militia [民兵] and the Reserve Service [预备役]. According to an accompanying explanatory document, those two components of the Chinese armed forces will be the subject of separate statutes that are currently in the works.

The revised Military Service Law will enter into force on October 1, 2021.

Very Briefly

Supervision Officials Law [监察官法]: This Law governs “supervision officials” [监察官], a corps of officials responsible for auditing all exercise of public power. The Law covers all supervision personnel, including those who work at the various levels of supervision commissions and those who are dispatched by the supervision commissions to other public or quasi-public bodies, including state-owned enterprises. Among other matters, the Law provides for the duties and rights of supervision officials; their qualifications, appointments, and removals; as well as the evaluations and oversight of those officials. The Law will take effect on January 1, 2022.

Court reform authorization: The NPCSC approved a decision authorizing the Supreme People’s Court (SPC) to carry out pilot projects at the SPC itself and in twelve provinces to reposition the adjudicatory roles of China’s four tiers of courts. The pilot will run for two years once the SPC releases detailed measures for the pilot, likely in September. Neither the NPCSC’s decision nor its accompanying explanation has offered much detail on the pilot, but it appears to include four components:

  • reforming the tier-based jurisdiction of courts over civil and administrative cases;
  • reforming the rules by which higher-level courts take jurisdiction over certain “special types of cases”;
  • reforming the rules for petitioning the SPC to rehear cases; and
  • reforming the way the SPC conducts hearings.

We plan to write separately about this pilot project once the SPC clarifies its contents.

Deferred votes on Annex III decisions: The NPCSC unexpectedly did not act on two draft decisions that would have applied the Anti­–Foreign Sanctions Law [反外国制裁法] to Hong Kong and Macau by adding it in Annex III to the two cites’ Basic Laws. There has been no official explanation of the postponement; some speculate that the central government might be concerned about the potential impact of the Law on the businesses and financial institutions in Hong Kong and chose to study the matter further. It is unclear if the NPCSC would take up the decisions at a future session or if they have been shelved indefinitely.

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