On July 11, 2022, the NPC Standing Committee’s Legislative Affairs Commission (Commission) released two of its “legal inquiry responses” [法律询问答复] issued during the past year. As we have discussed in depth in this post, such responses clarify the applicable law in real-world scenarios at the request of central governmental bodies or provincial legislatures. They are not universally binding, but are considered highly persuasive—hence a form of “soft law”—because of the Commission’s pivotal role in lawmaking. The batch released on Monday is smaller than those released in previous years, but most likely only represents a minuscule portion of all legal inquiry responses the Commission issued in 2021. The two selected responses concern, respectively, the enforcement of a new statutory prohibition on entertainment venues near kindergartens and the extent of a municipal legislature’s authority to promote the private sector of the local economy. We explain them in turn below.
1. The overhaul of the Minors Protection Law [未成年人保护法] in 2020 initiated an ongoing “revolution in [China’s] legal framework relating to children.” The revised Law prohibits the establishment of “venues for activities not suitable for minors,” including for-profit entertainment venues, bars, and internet cafés, on “the periphery” [周边] of schools and kindergartens (art. 58). Compared to prior versions of the Law, this provision both adds new types of prohibited business establishments and also broadens the scope of protected educational institutions to include kindergartens. In March 2021, several months before the revised Law took effect, a State Council department asked the Commission two questions: (1) how to define “the periphery” of a kindergarten; and (2) whether business establishments that now exist near kindergartens but fall within the new statutory prohibition may renew their business licenses after they expire.
As to the first inquiry, the Commission explained that the Law did not specify the limits of the “periphery” of kindergartens because the actual situation varies greatly across regions. Local authorities may therefore make specific rules based on local circumstances. As to the second question, the Commission replied that, after the revised Law took effect on June 1, 2021, its new prohibition must be “earnestly implemented” in renewing or modifying the licenses of existing entertainment venues near schools or kindergartens. In other words, the Commission essentially opined that that those businesses may not continue to operate after their current licenses expire.
2. The landmark 2015 amendment to the Legislation Law [立法法] granted over 200 municipal-level people’s congresses the authority to enact local legislation, but at the same time narrowed that grant with one important restriction. It confined municipal legislative authority to three subject matter areas: (1) urban and rural construction and management, (2) environmental protection, as well as (3) historical and cultural protection. These ill-defined limitations have continued to generate headaches for local legislatures, for if they overstep their authority, their legislation faces rejection by provincial legislatures when submitted for approval, or even rebuke by the NPC Standing Committee itself when filed for recording.
In an effort to offer some clarity to local lawmakers, Li Shishi [李适时], then head of the Commission, explained at a legislative conference in fall 2015 that “urban and rural management,” for instance, encompasses not only the “management of urban appearances and municipal affairs,” but also the “services for and management of urban and rural individuals and organizations, and the regulation of administrative management matters.”
One city in a certain province (we have been unable to ascertain its identity) sought to enact local legislation to “create a better development environment for private businesses.” The legislation would touch on not only “the provision of services to and the social management of urban and rural persons and organizations,” but also the issues of “market access, financial credit support, and credit regulation.” In June 2021, the provincial legislature inquired on behalf of the city whether the latter had the authority to enact the proposed legislation.
Citing its long-standing view on the scope of the “urban and rural management” clause, as reflected in Li’s 2015 speech, the Commission first concluded that proposed provisions on serving and managing local private businesses would be within the city’s legislative authority. As for other provisions, if they implement or supplement national law and policy, or engage in local experimentation on their basis, they, too, would be permissible. If there are any provisions that are beyond the city’s authority but still need to be enacted, the Commission recommended that the provincial legislature adopt the proposed legislation in its own name as a workaround, instead of using the simpler approval procedure. This way the legislation would be a provincial enactment and free from the subject matter restrictions imposed on municipal legislatures.