Telecom fraud is a serious problem in China. During the first ten months of 2023, Chinese authorities indicted over 34,000 individuals for telecom fraud and more than 200,000 for related crimes, including aiding telecom fraud and concealing criminal proceeds, according to the Supreme People’s Procuratorate. In 2022, China’s top legislature, the Standing Committee of the National People’s Congress (NPCSC), passed the Law Against Telecom Network Fraud [反电信网络诈骗法] to bolster efforts to combat telecom fraud. The law, among other things, authorizes severe restrictions on scammers’ access to telecom and financial accounts and tools that are often implicated in fraud activities.
Some local governments went even further. They opted to penalize not only the telecom fraudsters themselves but also their immediate family members, including parents, spouses, and children. Consider, for example, the circular issued by a municipal district government in Quanzhou, Fujian on the right. The circular targeted “key personnel involved in fraud” [涉诈重点人员] (who need not be convicted, it seems), including individuals who took extended trips to overseas fraud hotspots (e.g., northern Myanmar) without registering with the police before they left. Among other penalties, the circular—
- suspended their family members’ eligibility for certain government healthcare subsidies;
- placed limits on their family members’ bank transactions and temporarily barred them from obtaining bank loans;
- denied their children access to urban schools (from preschool to grade 9) unless both parents showed up in person for enrollment; and
- presumptively banned their family members from public-sector employment (in the military, civil service, and state-funded public-service institutions).
While many welcomed such restrictions, some unnamed citizens challenged them as constituting “kin punishment” [连坐]—a form of collective punishment—before the national legislature. Under the NPCSC’s “recording and review” (R&R) [备案审查] process, its Legislative Affairs Commission (LAC) reviews the constitutionality of legislation and other official documents at the request of Chinese citizens. In this case, the LAC sided with the challengers. In its annual report on R&R to the NPCSC this week, the LAC disclosed the following conclusion:
After study, we believe that any legal responsibility for unlawful or criminal conduct must rest with the perpetrator him or herself, and must not be extended or attributed to others; such is one of the fundamental tenets of modern rule of law. By restricting multiple rights of the family members of those involved in crimes, the relevant circulars violated the principle of bearing responsibility solely for one’s own crimes, were inconsistent with the principles and spirits of the provisions in Chapter II of the Constitution concerning “citizens’ fundamental rights and obligations,” and were inconsistent with the principles and spirits of national laws and regulations governing matters such as education, employment, and social insurance.
我们研究认为，任何违法犯罪行为的法律责任都应当由违法犯罪行为人本人承担，而不能株连或者及于他人，这是现代法治的一项基本原则；有关通告对涉罪人员近亲属多项权利进行限制，违背罪责自负原则，不符合宪法第二章关于“公民的基本权利和义务”规定的原则和精神，也不符合国家有关教育、就业、社保等法律法规的原则和精神。
Because the LAC lacks formal authority to revoke unlawful government documents, it worked with the “relevant competent department” (presumably the Ministry of Justice, which houses the Bureau of Rule of Law Supervision) to “supervise and urge” [督促] the repeal of such local government circulars, according to the report.
Two observations are in order. First, this case confirms (or at least is evidence) that the LAC has de facto jurisdiction over all challenges brought under R&R that raise constitutional issues. On paper, the LAC may review only specific types of formal legislation, such as legislation enacted by local people’s congresses—not the kind of non-legislative government documents at issue here.
Second, this case shows that China’s embryonic constitutional review process focuses more on correcting identified errors in legislation than on explaining exactly what those errors are. Here, the LAC not only failed to elaborate on what the relevant “principles and spirits” derived from an entire chapter of the Constitution might be, but also further obscured the precise basis of its decision by citing unspecified statutes and regulations. On Friday, the NPCSC approved a mini law on R&R that calls for “accurately grasping and clarifying the relevant constitutional provisions and spirits.” (Our full analysis of the law is coming soon.) Whether this law will herald a change in the LAC’s approach to constitutional review remains to be seen.
We will say more about the LAC’s 2023 R&R report in the next issue of our monthly newsletter.
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