Understanding Chinese Legislature’s New Five-Year Legislative Plan: Part I

On September 7, China’s national legislature, the 14th NPC Standing Committee (NPCSC), released its five-year legislative plan (Plan or New Plan), setting the contours of its legislation through 2028. As a refresher, the Plan includes 79 top-priority projects in Category I, 51 lower-priority projects in Category II, and about a dozen topics for potential legislation in Category III. Starting with this post, we will take a close look at the Plan in a two-part analysis. Below, we will first discuss the principles of agenda-setting embodied in the Plan (and the relevant legislative tasks), then examine the fate of the uncompleted projects in the 13th NPCSC’s five-year legislative plan (Old Plan), and finally look at the areas of law that are featured prominently in the New Plan. The second part will take a primarily quantitative approach and evaluate the same metrics we used to analyze the Old Plan several years ago.

Note on translation: We generally translate the term “修改” as “modification” (and abbreviated as “Mod.”)—a broader term that encompasses both “修正” (amendment) and “修订” (revision), which are the two distinct forms of statutory changes in China. But when the specific method of modification is known, we will correspondingly translate “修改” as either “Amdt.” (short for “amendment”) or “Rev.” (short for “revision”). If not shortened, “revision” is not necessarily used in its technical sense.

Legislative Planning, NPC-Style

Flexibility. The NPCSC’s five-year legislative plans are somewhere between binding authorities and mere recommendations, though closer to the former than the latter. In the words of current NPCSC Chairman Zhao Leji:

The [New] Plan is the basis for doing a good job on the legislative work during this current five-year term, but at the same time the Plan is also aspirational and guiding in nature, and may be dynamically adjusted according to actual needs. As for the Plan’s Category I and II projects, we should prioritize them based on relative importance and urgency, with high priority given to urgently needed ones, and make progress in a planned and methodical manner. As for Category III projects and projects not listed in the Plan, where practice so requires and the conditions are ripe, they may be listed in annual legislative plans or promptly scheduled for review.

In other words, the New Plan does not set the 14th NPC’s five-year legislative agenda in stone, though the legislature will try to follow it closely. Thus, we can expect that most of the bills it reviews this term will be Category I projects, with a sizable minority coming from the other two Categories and from outside the Plan. The previous two NPCs on average completed—that is, reviewed but not necessarily passed—about 75% of Category I projects and 25% of Category II projects, in addition to a handful of Category III and unlisted projects—we believe we can expect a similar output from the 14th NPC.

As further evidence of the New Plan’s built-in flexibility, its Category I ends with a paragraph that explicitly leaves room for the consideration of unlisted projects in several broad areas, including “advancing . . . the healthy development of artificial intelligence.” Similar language first appeared in the Old Plan, and the 13th NPC as a result passed a fair number of bills on military and defense as well as national security, two of the areas listed in the Old Plan. This does not mean, however, that the 14th NPC will definitively consider a law on artificial intelligence (among other issues), but only that such legislation will be prioritized just like any other Category I project.

Coordination. Since late 2021, the Communist Party leadership has directed the NPC to legislate in a more “coordinated” way—a requirement that was written into the Legislation Law [立法法] in March. Consistent with this command, the New Plan makes more extensive use of a planning technique first employed by the 13th NPC: pairing a project with one or more “secondary projects.” Such a project is described as “being considered together” [一并考虑] with a primary project that is closely related in substance.

The New Plan includes 11 such pairs, while its predecessor included only three. Of the three, two groups passed during the last NPC: amendments to the NPC Organic Law [全国人民代表大会组织法], to the NPC Rules of Procedure [全国人民代表大会议事规则], and to the NPCSC Rules of Procedure [全国人民代表大会常务委员会议事规则] as one; and revisions to the Minors Protection Law [未成年人保护法] and to the Juvenile Delinquency Prevention Law [预防未成年人犯罪法] as the other. Each group was drafted in tandem and generally submitted to the legislature together (though did not always pass at the same time).1 By considering closely related legislation together, the legislature can avoid the inconsistency or overlap that could otherwise result if the bills were enacted separately.

Legislation clean-up. According to the New Plan, the legislature will “launch efforts to clean up laws at the appropriate time” during this term—the first time a five-year legislative plan included a task unrelated to specific legislation. A “clean-up of laws” [法律清理] serves to identify inconsistencies among existing statutory provisions as well as provisions that are grossly out of step with reality. For issues that are easier to fix (e.g., outdated statutory cross-references), the legislature may pass the necessary amendments or repeals in one go soon after the clean-up is completed. The NPCSC last cleaned up its laws in 2008–09, ahead of the anticipated establishment of the “socialist system of laws with Chinese characteristic” in late 2010, and resulted in the immediate repeals of 8 laws and minor amendments to 59 others.

Codification. The New Plan also for first time included an open-ended task to “actively study and promote the compilation of an environmental ([or] ecology and environmental) code and other codes in areas where the conditions are ripe.” The Communist Party leadership considers the enactment of the Civil Code [民法典] in 2020 is a major legal and political accomplishment and has been pushing for the codification of additional areas of law. The 14th NPC’s goal in this respect is in fact a lot more ambitious than what the New Plan suggests: according to Chairman Zhao, the legislature will strive to enact one code and deliberates another (without necessarily also passing it) during this term.

NPC as legislature. Though not specified in the New Plan itself, its drafter disclosed that it had made arrangements for the bills to be reviewed by the full NPC this term, without elaborating. The full NPC has passed legislation annually since 2015—the second longest streak in NPC history (the longest one lasted from 1988 to 1997). This stands in contrast to the practice during the first 14 years of the century when the NPC legislated in only five of those years. Having the full NPC review legislation is now cited as one way in which the legislature implements whole-process people’s democracy.

The 14th NPC already amended the Legislation Law in March 2023, so it most likely will review only four more bills, one at each of its remaining sessions. What might they be? Based on past practice, they should all be Category I projects and involve either revisions to laws the NPC itself adopted or new laws of fundamental importance in a certain area (recent examples include the 2016 Charity Law [慈善法], 2018 Supervision Law [监察法], and 2020 Civil Code).

It appears to us that the top candidates are proposed changes to the State Council Organic Law [国务院组织法], Law on Delegates to the NPC and Local People’s Congresses at All Levels [全国人民代表大会和地方各级人民代表大会代表法], Criminal Procedure Law [刑事诉讼法], and Law on the People’s Bank of China [中国人民银行法] (enacted by the NPC in 1982, 1992, 1979, and 1995, respectively); as well as a proposed new Law on National Development Plans [国家发展规划法] (which likely implicates the NPC’s own power to approve such plans).2

Continuity and Change

At the end of the 13th NPC’s term, 15 bills were still pending and 50 projects in the Old Plan remained uncompleted, including 17 (24.6%) in Category I and 33 (70.2%) in Category II. All the pending bills have since been included in the New Plan as Category I projects, except for the recently withdrawn amendment to the Administrative Litigation Law [行政诉讼法]. With a few exceptions, the 50 uncompleted projects were also all relisted in the New Plan, and approximately a dozen among them have been recategorized as detailed below.

Dropped projects. The following seven3 uncompleted projects from the Old New have been dropped:

  • Military-Civil Fusion Development Law [军民融合发展法]: Military-civil fusion (MCF), which “blurs the distinction between the military and civilian application of many leading technologies,” seems alive as a national strategy. But other countries have viewed MCF with suspicion, and the United States in particular responded with an arrange of measures to contain it. The Chinese leadership therefore might have determined that a dedicated MCF law would attract too much unwanted attention and have chosen instead to address MCF issues across multiple laws (in the planned Space Law [航天法], for instance). Or the MCF law could be covered by “national defense and military development”—a prioritized area mentioned in the paragraph at the end of the New Plan’s Category I; it could thus still be on the agenda, just less visibly so.
  • Arctic Activities and Environmental Protection Law [南极活动与环境保护法]: The NPC Environmental Protection and Resource Conservation Committee reported in October 2022 that it had finished a draft of the law and suggested that it was almost ready for legislative review. It is thus unlikely that the project had been abandoned completely; maybe it will be enacted as part of the environmental code.
  • Real Estate Tax Law [房地产税法]: In October 2021, the NPCSC authorized the State Council to conduct property tax pilots for at least five years. Since they have yet to start, a law on this matter clearly will not be ready during this NPC.
  • Urban Real Estate Administration Law (Mod.) [城市房地产管理法]: According to the housing ministry, it had completed an initial draft by October 2022, but also suggested that revisions to the Law must wait until after the State Council has the laid the groundwork by issuing regulations on related matters such as property sales and leasing.
  • Environmental Impact Assessment Law (Mod.) [环境影响评价法]: This Law has not been substantially revised since its enactment in 2002, so it is unclear why it has been shelved, if at all. We think it more likely that it would be updated as part of the process to enact an environmental code.
  • Grassland Law (Mod.) [草原法]: By October 2022, the National Forestry and Grassland Administration had completed a draft and circulated it among its local counterparts for comment, so it seems a revision was still in the works. Again, because the Law is considered part of China’s environmental legislation, it could end up being incorporated into the environmental code and updated in the codification process.
  • Law on the Protection of the Rights and Interests of the Elderly (Mod.) [老年人权益保障法]: This Law was last overhauled in 2012. The relevant state institutions all agreed that it was necessary to “carry out research” on another round of revisions in light of China’s rapid population aging, according to an October 2022 report by the NPC Social Development Affairs Committee, but the report also suggested that the conditions were not yet ripe. Also, the proposed Eldercare Services Law [养老服务法] in the New Plan might make it less urgent to revise the elder rights law during this NPC.

Recategorized projects. The following 17 uncompleted Category II projects in the Old Plan have been upgraded to Category I projects in the New Plan. This is not surprising as 13 of them (at the top of the list) have had a draft open for public comment, and a fourteenth (revision to the Enterprise Bankruptcy Law) had been tentatively scheduled for deliberation before it was taken off the agenda at the last minute (for reasons unknown).

In addition, five Category III areas in the Old New have been prioritized and (with one exception) become the following formally titled projects in the New Plan:

  • Category I: legislation to “advance . . . the healthy development of artificial intelligence”; and Territorial Spatial Planning Law [国土空间规划法].
  • Category II: Law on Industry Associations and Chambers of Commerce [行业协会商会法]; Social Credit Development Law [社会信用建设法]; and Law on Protecting the Rights and Interests of Overseas Chinese [华侨权益保护法].

Finally, the proposed Cultural Industry Promotion Law [文化产业促进法], formerly in Category I, has been downgraded to a Category II project in the New Plan. Such a law was expressly required by the Central Committee’s 2014 Fourth Plenum Decision, and two separate drafts were released for public comment in 2019. Per the relevant NPC special committee, the Ministry of Justice and the Ministry of Culture and Tourism were still revising the draft as of October 2022.

Themes and Projects to Watch

The New Plan’s 130 projects touch on a diverse range of legal issues, but the following eight areas of law appear the most prominent. We included several representative projects for each area below, but the list is no replacement for reading the New Plan itself. And defining the areas and categorizing the projects is no science, of course; some projects are relevant to multiple areas of law, and we placed each in the category that we think is closest to its primary focus. (Bill pages are not available for all projects.)

  1. Of the first group, the amendments to the NPC Organic Law and the NPC Rules of Procedure were both submitted in August 2020 and passed in March 2021, whereas the amendment to the NPCSC Rules of Procedure was submitted in December 2021 and passed in June 2022. Of the second group, the revised Minors Protection Law passed in October 2020, two monthly earlier than the revised Juvenile Delinquency Prevention Law. ↩︎
  2. The Charity Law was also scheduled for revision in Category I, but it is not as likely as the ones discussed in text because a draft revision to it was already submitted in December 2022, so does not fit the typical legislative timeline for legislation heading to the NPC. ↩︎
  3. The Territorial Spatial Development and Protection Law [国土空间开发保护法], a Category II project in the Old Plan, was not included in the New Plan, either. But that project appears covered by the Territorial Spatial Planning Law [国土空间规划法] in the latter, for “territorial spatial plans” are defined as “arrangements made for the development and protection of the territorial space in a certain area” (our emphasis). ↩︎

Comments & Pingbacks

Leave a Reply