The NPC Standing Committee (NPCSC) unanimously approved the Law on Safeguarding National Security in the Hong Kong Special Administrative Region [香港特别行政区维护国家安全法] (Law) on the morning of Tuesday, June 30. That afternoon, the NPCSC separately listed the Law in Annex III to the Hong Kong Basic Law so that it can be enforced in the city. The Law took effect in Hong Kong later that day, at 11 p.m., when it was made public for the first time. The NPCSC previously released (via Xinhua) an excerpted explanation of the Law, which we have summarized here. For now, we will not restate what we already covered in that prior summary, in the interest of time. Instead, here, we will focus on the criminal provisions of the Law (which have heretofore been withheld) and other significant provisions that were not previously disclosed.Continue reading “Legislation Summary: Hong Kong National Security Law”
The following laws take effect on July 1:
- Community Corrections Law [社区矫正法];
- revised Forest Law [森林法]; and
- Law on Governmental Sanctions for Public Employees [公职人员政务处分法].
The NPC Standing Committee (NPCSC) is soliciting public comments on the draft Veterans Support Law [退役军人保障法] and draft Rural Revitalization Promotion Law [乡村振兴促进法] through July 21, 2020. We also expect it to seek public comments on the following bills early this month:
- draft amendment to the Patent Law [专利法];
- draft revision to the Minors Protection Law [未成年人保护法];
- draft Export Control Law [出口管制法];
- draft Criminal Law Amendment (XI) [刑法修正案（十一）];
- draft revision to the Administrative Penalties Law [行政处罚法]; and
- draft Data Security Law [数据安全法].
The NPCSC will meet for its next regularly scheduled session in late August.
After having kept its 2019 legislative plan a secret, on Saturday, June 20, the NPC Standing Committee (NPCSC) released its legislative plan for 2020. This plan is divided into four parts. The first part, as usual, lists bills that are scheduled for review this year, while the other three lay down some all-encompassing guiding principles for the NPCSC’s legislative work in 2020. We will discuss only the first part below.Continue reading “NPC Standing Committee Releases 2020 Legislative Plan”
On Saturday, June 20, the NPC Standing Committee (NPCSC) disclosed some details of the highly anticipated draft Law on Safeguarding National Security in the Hong Kong Special Administrative Region [香港特别行政区维护国家安全法]. It did not release the draft that it reviewed this week. Rather, the state-run Xinhua News Agency published an excerpt from the explanation of the draft; an unofficial translation of part of the excerpt is available here. As of this writing, the NPCSC has not officially solicited public comments on the draft. Below, we will introduce the main contents of the draft Law (as summarized by the explanation), with brief analysis of certain provisions.Continue reading “NPCSC Releases Some Details of Draft Hong Kong National Security Law, But Withholds Information on Criminal Provisions”
UPDATE (May 28, 2020): The NPC adopted this Decision on Thursday with 2878 votes in favor, one against, and six abstentions. Its explanation is available here, and an unofficial English translation is available here. We have updated this explainer in accordance with the Decision’s final text. There are two main changes to the draft: (1) the preamble is longer; and (2) and the scope of authorization under article 6 has been extended to “activities” [活动]—in addition to “conduct” [行为]—that endanger national security. Without further evidence, we do not believe the latter change is significant, however.
Readers would probably know by now that the ongoing NPC session’s agenda includes a new draft Decision on Establishing and Improving the Legal Systems and Implementation Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region [关于建立健全香港特别行政区维护国家安全的法律制度和执行机制的决定]. This new bill was reviewed once by the NPC Standing Committee (NPCSC) on May 18 and had been kept a secret until Thursday night. We have studied the draft Decision and its accompanying explanation, and now offer the following explainer in Q&A format, focusing on the Decision’s contents and the legal questions it raises. We may add new Q&As in the coming days.Continue reading “2020 NPC Session: NPC’s Decision on National Security in Hong Kong Explained (Updated)”
UPDATE (July 5, 2020): The NPC adopted the Civil Code on May 28 with 2879 votes in favor, 2 against, and 5 abstentions. We have updated this guide (including all citations and quotations) in accordance with the Code’ final text. We also discussed some of the final substantive changes to the prior draft: additions made in response to the COVID-19 pandemic are listed under the heading “COVID-19 Update,” while other new provisions are incorporated into the summary itself and are indicated in red.
As the NPC comes into session today to review a draft of the People’s Republic’s first Civil Code [民法典], a legislative marathon will soon come to an end. The Code is a massive piece of legislation. Its latest draft includes 1260 articles, teeming with arcane legal terminology. Thus, if you want to read it for yourself, you might find the task daunting. In this post, we hope to make the Code just a bit more accessible. But our task here is a moderate one: we will not (and cannot) do a deep dive into the Code. Instead, we will give a brief overview of the Code’s drafting history, explain its significance, and provide a quick introduction to each of the Code’s subdivisions. We will focus on the new rules in the Code that have caught our attention, as well as issues that have engendered the most heated (sometimes quite public) debates.
All citations to the Code below are to its final version; other sources are not always cited. You can find all relevant legislative documents and prior drafts on this page.
A civil code is a codification of private laws that regulate property and personal rights, including laws on contracts, property, marriage, and torts. China’s previous four attempts at one were all unsuccessful. The first two tries occurred in the 1950s and 1960s, but were both derailed by political campaigns of the time. The NPC Standing Committee (NPCSC) started anew in 1979, after China had just launched market-oriented economic reforms. But the legislature dropped the project again, having concluded that China’s rapid societal and economic transformations rendered the project unripe. The fourth attempt in the early 2000s was halted for similar reasons.
Instead, the legislature opted for a “retail” rather than “wholesale” approach. Since the 1980s, it has enacted a series of standalone civil laws in hopes of codifying them in the future. Those separate statutes currently include the 1980 Marriage Law [婚姻法] (amended in 2001); 1985 Inheritance Law [继承法]; 1986 General Principles of Civil Law [民法通则] (amended in 2009); 1991 Adoption Law [收养法] (amended in 1998); 1995 Security Law [担保法]; 1999 Contracts Law [合同法]; 2007 Rights in Rem Law [物权法]; and 2009 Tort Liability Law [侵权责任法].
The Communist Party ordered the current attempt at a civil code in 2014. The legislature then designed a two-step process. It would first adopt the Code’s General Part—a set of general principles of civil law—which the NPC enacted as the General Provision of the Civil Law [民法总则] (GPCL) in 2017. The legislature would then draft the remainder of the Code, referred to as the Separate Parts. In August 2018, all six Separate Parts were submitted to the NPCSC, which then reviewed one or more of them at six separate sessions thereafter. Last December, it combined the General Part and the Separate Parts into a complete draft Code and submitted it to this year’s NPC session for a final review.
The Code is important for several reasons. First, to the general public, it affects their lives in the most direct and intimate manner. As evidence, the Code has received close to 900,000 public comments during the legislative process, a level of intense public engagement that is rarely seen. Second, the Code would be China’s first statute styled as a code, a symbol that China’s legal system has come a long way in the past several decades. Third, the Code would reduce the inconsistencies between the standalone civil statutes enacted over the years, and would also settle some of the novel legal issues that have since arisen. Finally, the Party can claim the Code as a political achievement: that thanks to its leadership, China’s social, economic, and legal institutions have become sufficiently sophisticated such that it is now feasible to enact a Civil Code that embodies uniquely Chinese values.
The seven Parts are introduced below in the order of their appearance in the draft Code.
General Part [总则编]
Except for a few changes in wording, the General Part is identical to the GPCL. This Part generally includes two types of provisions: ones that apply to the whole Code, and ones that are further fleshed out in the Separate Parts. For instance, there are provisions on the ages at which individuals have no, limited, or full capacity to engage in civil activities—say, making an online purchase or getting married. There are also provisions that, for example, simply list the types of “civil rights” [民事权利] available (not to be confused with political rights like the freedom of speech), which are then elaborated on later in Code. Among other topics, the General Part prescribes rules on the three types of civil entities (natural persons, legal persons, and unincorporated organizations), agency relationships, civil liabilities, and limitations periods.
COVID-19 Update: A new paragraph in article 34 requires local authorities to “arrange necessary measures for a ward’s temporary care” when his guardian is unable to perform her duties in an emergency (e.g., when she is under mandatory quarantine), leaving the ward unattended.
Part on Rights in Rem [物权编]
The Part on Rights in Rem is based on the current Property Law and Security Law. It addresses the rights over res [物] (or things), which the General Part defines as real property (or immovables) [不动产] and personal property (or movables) [动产] (art. 115). The Part on Rights in Rem is organized in five subparts. Subpart I lays down general rules of property law, including provisions on real property registration and the types or relief available when rights in rem are infringed upon.
Subparts II to IV each addresses one of the three broad categories of rights in rem: ownership [所有权], usufructs [用益物权], and security interest [担保物权].
- Subpart II: ownership is a property owner’s right to “possess, use, benefit from, and dispose of” her own property (art. 240). This Subpart addresses expropriations and requisitions, as well as state, collective, and private ownership. It also prescribes rules on several special circumstances of private ownership: homeowners’ condominium ownership [业主的建筑物区分所有权] (think a homeowner’ right over her own home in a high-rise and over the part of the building that is shared with other homeowners); neighboring relations [相邻关系] (think adjacent lands with different owners); and co-ownership [共有].
- Subpart III: a usufruct is one person’s right to “possess, use, or benefit from” another’s property (art. 323). After setting forth some general provisions, this Subpart prescribes more detailed rules on five types of usufructs: right to land contractual management [土地承包经营权]; right to the use of land for construction [建设用地使用权] (think businesses’ right to use state-owned land for real estate development); right to the use of house sites [宅基地使用权] (or rural residents’ right to use land to build homes); right of habitation [居住权]; and easements [地役权]. The first three types are important in the Chinese text because of state and collective ownership of all lands.
- Subpart IV: a security interest essentially gives a creditor a priority right to be paid with specific assets of a borrower, in the event that the borrower defaults on her payment obligations (see art. 386). This Subparts provides for three types of security interest: mortgage [抵押权] (the borrower possesses the assets, which the creditor takes ownership of upon default); pledge [质权] (the creditor possesses the assets and can dispose of them upon default); and lien [留置权] (the creditor possesses the assets and continues to retain them upon default).
Subpart V governs possession [占有], a legal fact (but not a property right) that enjoys some legal protections.
There are three sets of changes worth noting.
First, this Part introduces a new usufruct: the right of habitation, or a person’s right to “occupy and use” another’s residence for dwelling (art. 366). The right may be created by agreement or by will (arts. 367, 371). Compared to the contractual rights a tenant has under a rental agreement, the in rem right of habitation gives the rightsholder greater autonomy over the pertinent part of the residence and greater legal protections against the owner and third parties. The circumstances in which the right of habitation would apply include public affordable housing and reverse mortgage (whereby elderly homeowners could tap into the value of their homes to support themselves, but would still be guaranteed a place to live). The right of habitation cannot be transferred or inherited, and extinguishes upon the rightsholder’s death (arts. 369–70).
Second, this Part seeks to strengthen homeowners’ rights. It adds a provision requiring a vote by all homeowners in a residential building before shared parts of the building may be used for a different purpose or put to commercial use (art. 278, para. 1, item 8). Any proceeds generated by the shared parts are to be jointly owned by all homeowners (art. 282). This Part also makes it easier for homeowners to use their public maintenance fund for building repairs by lowering the approval threshold from a three-fourths majority to a simple majority (art. 278, para. 2). For emergency reparations, the homeowners’ assembly or committee may also petition to use the fund “in accordance with law” (no further detail is provided, however) (art. 281, para. 2).
Third, this Part includes a new, controversial provision that concerns renewal of the right to use land for residential construction—that is, the right to occupy the land underneath a private residence. Typically, the government grants residential land use rights for a maximum of seventy years. What happens when that period expires? The current Property Law provides simply that it would “automatically renew” (art. 149, para. 1). But the Part on Rights in Rem adds a new wrinkle by adding that “[t]he payment or reduction of renewal fees are to follow the provisions of statutes and administrative regulations,” suggesting that renewal of the land use rights is not “automatic”—free and unconditional—after all (art. 359, para. 1). This clause would by one estimate affect 700 to 800 million urban residents.
COVID-19 Update: The Code’s final version makes clear that “epidemic prevention and control” is a ground for emergency requisitions (art. 245). It also requires property-management service providers and homeowners to comply with the emergency measures lawfully ordered by the government (art. 285, para. 2; art. 286, para. 1).
Part on Contracts [合同编]
The Part on Contracts in based on the Contracts Law and includes many new provisions. With 526 articles, it is the longest among the Code’s seven Parts. This Part is divided into three subparts.
Subpart I, again, prescribes general rules on contracts. And because China’s Code, unlike other major civil codes in the world (such as France’s or Germany’s), does not dedicate a part to the law of obligations [债权], Subpart I also prescribes rules applicable to all sources of obligations, not just contracts. (Under the General Part, an obligation gives one person (the obligee) the right to demand another (the obligor) to act or refrain from acting, because of a contract, a tort, or another source of obligations (art. 118, para. 2).) This Subpart is further divided into eight chapters; Chapters II to VII generally follow the stages of a transaction:
- conclusion of contracts (Chapter II);
- validity of contracts (Chapter III);
- performance of contracts (Chapter IV);
- protection of contracts (Chapter V), including rules on an obligee’s legal recourse when the obligor transfers his assets to avoid performing his obligations;
- modification and assignment of contracts (Chapter VI);
- termination of contractual rights and duties (Chapter VII); and
- liability for breach of contract (Chapter VIII).
Subpart II sets forth more detailed rules for nineteen types of “typical contracts,” including sales contracts, gift contracts, leasing contracts, technology contracts, storage contracts, and partnership contracts.
Subpart III provides for two forms of quasi-contracts [准合同]: negotiorum gestio (or management of affairs) [无因管理] and unjust enrichment [不当得利]. A management of affairs occurs when one person (the manager), without any statutory or contractual obligation, manages another’s affairs to protect the latter’s interests (art. 979). The latter then has an obligation to reimburse the manager for her expenses, unless the manager’s action contradicts the owner’s true intention (id.). Unjust enrichment occurs when one person, without any legal basis, acquires unjust benefits at the expense of another, who then has a right to demand return of the benefits acquired by the former (art. 985).
The Part on Contracts has not been particularly controversial. New provisions could be roughly placed in four groups. First, some aim to generally bring the 1999 Contracts Law up to date in light of “the development in the theory and practice of contract law,” including two new provisions on the formation and performance of e-contracts (see art. 491, para. 2; art. 512). Second, some provisions seek to strengthen protections for weaker contracting parties. For instance, a party asked to sign a contract with standard clauses [格式条款] can choose to void such a clause that is adverse to her interests, if the party supplying the contract fails to notify her of, or adequately explains to her, that clause (art. 496, para. 2). Usury is also outlawed (art. 680, para. 1). Third, because the Code lacks a part on obligations, as explained above, additional general provisions on obligations are added in Subpart I, and a new Subpart III is added. Fourth, new chapters are added in Subpart II to govern additional types of typical contracts, including guaranty contracts [保证合同], property management services contracts [物业服务合同], factoring contracts [保理合同], and partnership contracts.
There is one issue over which there is some disagreement: whether lending contracts should be distinguished between financial lending contracts and private lending contracts and to create separate rules for them. Some legislators thought that private lending has “brought many negative consequences to the financial and economic order as well as social life,” so that “targeted provisions” should be written. The Constitution and Law Committee was more cautious and suggested additional research, on the ground that private lending “implicates numerous issues such as China’s financial regulatory regime, social credit system, and economic policy.”
COVID-19 Update: The Code’s final version makes clear that the government can issue “purchase orders” [订货任务] or “mandatory assignments” [指令性计划] as necessary for epidemic prevention and control (art. 494).
Part on Personality Rights [人格权编]
The Part on Personality Rights is the only part without a corresponding standalone statute. It builds upon a few provisions in the 1986 General Principles of the Civil Law and has also incorporated provisions from pertinent judicial interpretations and administrative regulations.
This Part has generated many debates. The most fundamental challenge to it is that it should not exist at all. Opponents (primarily legal scholars) argue that this Part is an amalgamation of provisions that should have been included in other parts of the Code, in particular the Part on Tort Liability. This Part thus destroys the Code’s structural coherence. The legislature, on the other hand, and backed by another group of scholars, has taken the view that including a separate part on personality rights—civil entities’ “most fundamental and basic important rights”—is consistent with the Party’s relevant policies and serves to implement the constitutional protection for “personal dignity.”
Personality rights are defined to include five sets of rights: (1) rights to life, body, and health; (2) rights of name and title; (3) likeness right; (4) rights of reputation and honor; and (5) right to privacy (art. 990, para. 1). Individuals also “enjoy other personality rights and interests created based on physical liberty and personal dignity” (art. 990, para. 2). Personality rights cannot be “relinquished, transferred, or inherited” (art. 992), although rightsholders may allow others to use their names, titles, or likeness (art. 993). This Part also creates several special rules for personality rights:
- Most forms of injunctive relief for infringement of personality rights are not subject to statutes of limitations (art. 995).
- When a party’s breach of contract infringes on another’s personality rights, the injured party may demand compensation for emotional harm caused by that breach, even though such compensation is ordinarily available only in tort actions (art. 996).
- An injured party may seek preliminary injunctive relief for actual or imminent infringement of her personality rights, upon a showing of irreparable harm (art. 997). Such relief is not generally available in civil cases under Chinese law.
Chapter II governs the rights to life, body, and health. The right to life [生命权] protects the “security and dignity” of individuals’ lives (art. 1002); the right to body [身体权] protects individuals’ “physical and psychological integrity” and their “freedom of action” (art. 1003); and the right to health [健康权] protects individuals’ “physical and psychological health” (art. 1004). In particular, this Chapter outlaws the trade in human cells, tissues, organs, or remains (art. 1007); requires the test subjects’ informed consent before clinical trials can begin (art. 1008); and imposes civil liability on illegally confining others and illegally searching others’ bodies (art. 1011). It also creates a cause of action for sexual harassment, and requires employers (including government agencies, businesses, and schools) to adopt measures to prevent, accept complaints of, and investigate workplace harassment (art. 1010). The Code’s final version clarifies that written texts or images alone, in addition to spoken words or conduct, may also amount to sexual harassment (id.).
Chapter III governs the rights of name and title. The right of name [姓名权] protects natural persons’ right to “decide on, use, change, or authorize others to use” their names, if consistent with “public order and good morals” [公序良俗] (art. 1012). The right of title [名称权] is the analogous right of legal persons and unincorporated organizations vis-à-vis their titles (art. 1013). This Chapter requires children to have their mother’s or father’s family name, but in limited circumstances allows the use of another person’s family name, for instance, that of an elder direct blood relative (art. 1015, para. 1). Ethnic minorities may follow their ethnic traditions and customs (art. 1015, para. 2). This Chapter also grants aliases (including pennames and abbreviations) the same level of protection as it does names and titles, if they have sufficient “social name recognition so that use by others can cause public confusion” (art. 1017).
Under a previous draft, after a couple divorces, the parent with custody of their minor child may change the child’s family name to his or her own, unless the other parent has legitimate reason to object (Aug. 2018 Draft art. 795). This provision was later deleted, however, because many were of the view that issues concerning the change of a minor child’s family name are “relatively complex” and that this provision could not resolve all such issues in practice. But this provision did not return in the end, despite many public comments focusing on this question.
Chapter IV protects the likeness right [肖像权]. “Likeness” is defined as the “exterior image” of a specific natural person as reflected in such media as images, sculptures, or drawings from which that person can be identified (art. 1018). This Chapter subjects a range of conduct to civil liability, including defacing, defiling, or creating deepfakes of another’s likeness; and creating, using, or publicizing another’s likeness without her consent (art. 1019). It does also carve out some exceptions to the rightsholder-consent rule, for instance, when another’s likeness is used for educational purposes (if already publicized), in news reporting (if unavoidable), or necessary to the lawful performance of official duties (art. 1020).
Chapter V covers the rights of reputation and honor. A civil entity’s “reputation” refers to “social assessment of [its] character, prestige, talent, credit, and so forth” (art. 1024, para. 2). The right of reputation [名誉权] protects its holder from insult, defamation, or other forms of infringement (art. 1024). Two articles in this Chapter—on the relationship between news reporting and “public opinion oversight” [舆论监督] on the one hand, and the right of reputation on the other—have been heavily criticized. Generally, news reporting and public opinion oversight (which is essentially individuals’ collective action of expressing their opinions on current affairs) are shielded from suits for infringement of right of reputation, when done “in the public interest” (art. 1025). But journalists or members of the public will be liable when:
- they fabricate or distort the truth;
- they fail to meet the “obligation to reasonably verify” [合理核实义务] “grossly untruthful” [严重失实] information provided by others; or
- they “disparage” [贬损] others’ reputation by using “insulting” [侮辱性] language (art. 1025).
In determining whether a journalist or a member of the public has met her obligation to perform reasonable verifications, this Chapter requires courts to consider six factors, including the credibility of the source of the second-hand information, whether the defendant has conducted the necessary investigation into information “that may clearly lead to controversy,” and the defendant’s capacity to conduct verifications and the costs of verification (art. 1026). The Code’s final version removes a provision that inversed the burden of proof. Thus, a plaintiff must now prove that the defendant (e.g., a journalist) breached her obligation, whereas under that prior provision, the defendant would have to prove she has met the obligation. Finally, a civil entity’s right of honor [荣誉权] protects it against the illegal removal of its honorary titles and from the denigration or disparagement of its honor (art. 1031).
Chapter VI, the final chapter of this Part, governs the right to privacy [隐私权] and the protection of personal information. “Privacy” means an individual’s “peace of private life” [私人生活安宁] as well as her private space, private activities, and private information that she does not want others to know (art. 1032, para. 2). “Prying, harassment, leaking, disclosure” and other means that intrude on others’ privacy are prohibited (art. 1032, para. 1). In particular, this Chapter outlaws, absent contrary legal provisions or the rightsholders’ consent, harassing their peace of life with spam calls, texts, emails, and flyers; entering, filming, or peeping into their private spaces; filming, peeping into, eavesdropping on, or disclosing their private activities; filming or peeping at their private body parts; and collecting or handling their private information (art. 1033).
The remainder of this Chapter deals with the protection of “personal information,” defined as any information, whether recorded electronically or in some other fashion, that can identify specific individuals either by itself or when combined with other information (art. 1034). Specifically, such information includes individuals’ names, birthdates, ID numbers, biometric data, addresses, phone number, email addresses, health information, and information on their whereabouts (id.). There are then additional provisions on the principles and conditions of handling personal information (art. 1035); individuals’ rights vis-à-vis their personal information (art. 1036); the obligations of those that handle personal information (art. 1038); and circumstances that exempt civil liability for collecting or handling personal information (art. 1037). These provisions will likely be superseded by a planned Personal Information Protection Law [个人信息保护法], which is scheduled to be submitted to the NPCSC this year.
Part on Marriage and Family [婚姻家庭编]
The Part on Marriage and Family combines the Marriage Law and the Adoption Law, and has five chapters.
Chapter I establishes general principles, for instance, that marriage is between one man and one woman, that bigamy and domestic violence are prohibited, that family members should care for each other, and that adoption should be in “the best interests of the child” (arts. 1041–1044). Chapter II governs marriage. It provides for the marriage age, the marriage registration process, and grounds on which a marriage is invalid or may be voided, among other issues. Chapter III covers family relationships, including spousal relations (with an emphasis on the scope of marital property), parent-child relationships, and relationships between other close family members. Chapter IV deals with divorce, setting forth rules on uncontested and contested divorces as well as post-divorce matters, including child custody, child support, alimony, visitation, and division of marital property. Finally, Chapter V covers adoption, laying down rules on the substantive and procedural requirements for adoptions and issues relating to the dissolution of adoptive relationships.
This Part includes several hotly debated provisions.
First, this Part limits marriage to opposite-sex couples. Despite hundreds of thousands of public comments advocating the legalization of same-sex marriage, the NPCSC has ruled out that possibility, with a spokesperson saying that the current rule “conforms to China’s national conditions and historical and cultural traditions.” Relatedly, this Part includes no provision on nonmarital cohabitation, although some legislators have repeatedly urged that it be given legal recognition. According to the same spokesperson, the Chinese society has yet to generally accept nonmarital cohabitation, affording it legal protections would have a “major impact” on the institution of marriage, and there is also no consensus over the many legal issues relating to nonmartial cohabitation, including property division and child custody.
Second, a new provision instituting a cooling-off period for divorces has been much criticized. Under article 1077, after a couple applies for divorce, either spouse could withdraw the application within thirty days of filing. The application is also deemed withdrawn if the couple does not show up at their local civil bureau to request a divorce certificate within thirty days after the cooling-off period expires. According to a legislative report, this rule is added because the current divorce-filing procedures are too “simple” and have led to an increase in “rash” divorces, thus destabilizing families. An NPCSC spokesperson has noted that the cooling-off period does not apply to contested divorces arising from, say, domestic abuse.
Third, this Part includes a new provision on community debt—debt that may be incurred by only one spouse, but for which both spouses are liable. That provision itself has not proven particularly controversial (so far). It provides that community debt includes debt that both spouses sign off on or one spouse ratifies after the fact, as well as debt incurred by one spouse during the marriage to meet the needs of the family’s everyday life (art. 1064, para. 1). Community debt does not include the debt incurred by one spouse that exceeds those needs, unless the creditor can prove that the debt benefits both spouses or that both have agreed to it (id. para. 2). This provision originates from a 2018 Supreme People’s Court interpretation on community debt, which has superseded a prior interpretation on the same issue. Under that prior interpretation, debt incurred by one spouse alone is presumed community debt, unless the other spouse can prove that the creditor and the first spouse had a contrary understanding. Under this old rule, many divorcees have been ordered to pay the (usually massive) debt their ex-spouses had incurred during the marriage without their knowledge.
Part on Inheritance [继承编]
The Part on Inheritance is the shortest of all seven Parts, and is based on the Inheritance Law.
This Part has four chapters. Chapter I, as usual, prescribes general rules, including provisions dealing with the simultaneous deaths of people at least one of whom may inherit the estate of another, as well as with circumstances that may lead to disinheritance (when an heir or beneficiary murdered the deceased, for instance). Chapter II governs intestate succession [法定继承], which applies when the deceased dies without a valid will or when the will does not address part of the estate, among other circumstances (see art. 1154). Among other things, this Chapter provides for the line of inheritance—generally, the deceased’s spouse, children, and parents are the first in order, and his siblings and grandparents second (art. 1127)—and rules for distributing the estate among heirs of the same order. Chapter III covers testamentary succession [遗嘱继承] and bequeathal [遗赠]. The difference between the two is whether the will’s beneficiaries would be among the deceased’s heirs had he died intestate (art. 1133, para. 2). This Chapter provides for different types of wills—such as wills written by the testator himself or by some else, printed wills, wills in the form of audio or video recordings, and oral wills—and the conditions each must meet to be valid. Finally, Chapter IV governs the disposition of the estate, including rules on the division of estates.
Main changes in this Part include the following. First, this Part recognizes two new forms of wills: printed wills and wills in the form of video recordings (arts. 1336–1137). Both require the presence of two witnesses, their and the testator’s signatures (or appearances in the video), and a record of the date on which the will is made (id.). Second, the Part creates the role of estate administrators and prescribes rules on their appointment, duties, and rights. When there is an executor of a will, he will also act as the administrator (art. 1145). If not, the beneficiaries or heirs can name one, become co-administrators, or request a court-appointed one in the event of a dispute (art. 1145–1146). The administrator is responsible for making an inventory of the estate, preventing damage to the estate, handling the deceased’s claims and debts, and dividing the estate, among other duties (art. 1147). He may be paid according to law or agreement (art. 1149). Third, this Part broadens the use of bequest-support agreements [遗赠抚养协议] to “meet the needs for diversified means of eldercare” and to “promote the eldercare industry.” Under such an agreement, the supporter agrees to support the bequeather during his lifetime and attends to his interment after his death, in return for the right to a bequest (art. 1158). The 1985 Inheritance Law limits such supporters to individuals and organizations under collective ownership (art. 31). But the new provision expands that term to include any individual or organization that would not otherwise be a beneficiary of the bequeather’s estate (id.).
Some legislators and scholars have expressed concern over a provision allowing only a small group of people to become heirs when a person dies intestate. That group includes only the person’s spouse, children, parents, siblings, and grandparents (art. 1127). Any part of an estate that is not inherited will belong to the state (art. 1160), however. To avoid this result and to better protect private property, some have argued, more individuals, such as great-grandchildren, should be eligible to become heirs. Their views did not make it into the Code’s final version, however.
Part on Tort Liability [侵权责任编]
The Part on Tort Liability is based on the Tort Liability Law, with some adjustments to the Law’s structure and removal of provisions now covered by the General Part. A “tort” (or “delict” in some jurisdictions) is an infringement of another’s civil right (other than under a contract) that leads to civil liability, including both fault-based liability (for intentional torts and negligence) and non-fault-based (or strict) liability (arts. 1165–1166).
This Part is divided into ten chapters. Chapter I sets forth general principles, including rules for determining liability when there are multiple tortfeasors or when the victim is also at fault. Chapter II governs damages, including the types of loss that may be included in damages, and the ways to calculate damages. Chapter III prescribes special liability rules applicable to particular entities, including guardians of persons with diminished capacity, employers, internet service providers (ISPs), and educational institutions. Chapter IV to X each addresses a special (perhaps common) type of tort, including products defects, traffic accidents, medical malpractice, environmental or ecological damage, and injury by animals. These Chapters provide for the applicable liability rules, the defenses available to alleged tortfeasors, the burden of proof, and such other issues.
We want to highlight three sets of new provisions in this Part.
First, Chapter I codifies two new doctrines: the “assumption of risk” doctrine and “self-help” doctrine. Under the former, one who voluntarily participates in recreational or sports activities with certain risks will be deemed to have assumed such risks, and thus cannot hold other participants liable for any injury, unless the latter acted with intention or gross negligence (art. 1176). Under the self-help doctrine, the victim of an alleged tort (e.g., a restaurant owner) may, if necessary for protecting her lawful rights, seize the property of the tortfeasor (e.g., a diner refusing to pay) or take similar actions, when the situation is urgent, protection by authorities is not available, and the victim would suffer irreparable harm if she refrains from acting (art. 1177).
Second, Chapter II supplements the “safe harbor” provisions for ISPs. Under current law, a rightsholder may notify an ISP of allegedly tortious conduct by one of the latter’s users. If the ISP fails to take prompt remedial actions (say, taking down allegedly infringing contents), it would be held jointly and severally liable for any additional injury to the rightsholder. While keeping these provisions in place, Chapter II also allows the ISP to forward the notice of infringement to the user, who can then send a counter-notice to the rightsholder via the ISP, denying any infringement (arts. 1195–96). If the rightsholder does not take further legal action after receiving the counter-notice, the ISP must cease any remedial action taken, but will be shielded from liability (art. 1196, para. 2). To deter abuse of this notice-takedown process, a new provision also holds rightsholders liable for tortious notices (art. 1195, para. 3).
Third, Chapters IV to X include new rules on various types of tort. For instance, a new provision reduces the liability of noncommercial carpool drivers for the injury caused to carpooling passengers in traffic accidents, unless the drivers acted with intention or gross negligence (art. 1217). According to a legislative report, this provision seeks to encourage carpools while attending to the victim’s needs for legal recourse. But this Part does not address the legal liability arising in a related context: commercial ridesharing services. According to an NPCSC spokesperson, interested parties disagree over the sort of liability ridesharing platforms and their drivers should each bear, and it would be inappropriate for the Code to lay down any rules without a “basic consensus.”
The most controversial provision in this Part concerns the liability for injury caused by objects falling out of buildings. Under current law, when an object is thrown from or falls out of a building and causes injury, but the tortfeasor is hard to locate, all residents in the building who could have done so (presumably everyone living above the ground floor) will be held liable, unless they can prove that they are not, in fact, the tortfeasor. Although this provision offers the victims of falling objects (who often suffer serious injuries and even death) a path to relief, the residents complain that this rule is not fair to them. This Part has thus made the following changes. First, it makes clear that the “tortfeasor pays” is the rule (art. 1254, para. 1). Second, after such an accident occurs, the police and other government agencies must promptly investigate and locate the person responsible (id. para. 3). Only when such an investigation fails to identify the tortfeasor may residents in the building be required to pay (id. para. 1). Lastly, the building’s manager now has a duty to take the necessary safety measures to prevent such accidents from happening, and will be held liable if it breaches that duty (id. para. 2).
On Wednesday, April 29, the NPC Standing Committee (NPCSC) released a special legislative plan in response to the COVID-19 pandemic that is devoted to improving China’s public health legislation. According to an NPCSC spokesperson, the pandemic has exposed the “gaps” in and the “weaknesses” of the current legal scheme. Because to fix those problems many laws need to be enacted or updated, the authorities thought it appropriate to formulate a legislative plan to proceed in a coordinated manner. The spokesperson also said that the legislature would approach different laws in different ways: some would need complete overhauls, while some (like newer ones) would need only “targeted” changes. Finally, as expected, the NPCSC will focus on public health legislation in the near future, and other legislative projects would be deprioritized as a result.Continue reading “Translation: NPCSC’s New Public Health Legislative Plan in Response to COVID-19”
On Thursday, April 9, the Hong Kong Court of Appeal (Court or COA) affirmed in part and reversed in part a lower court ruling from last November that partially invalidated the city’s “mask ban”: a prohibition on wearing facial covering that prevents identification in certain public gatherings. In sum, the Court upheld the colonial-era emergency law serving as the legal basis for the ban and allowed the government to enforce the ban in unauthorized public gatherings. Below we will focus on a section of the COA’s opinion that held that Hong Kong courts may strike down laws enacted before Hong Kong’s 1997 handover to China that are later found to violate the Hong Kong Basic Law, notwithstanding a prior determination by the NPC Standing Committee (NPCSC) to the contrary.Continue reading “Hong Kong Appeals Court Affirmed Judiciary’s Power to Invalidate Unconstitutional Pre-Handover Laws Despite Contrary NPCSC Decision”
Even as China now officially reports few domestic COVID-19 cases everyday, the situation is still fluid in light of the steady influx of imported cases and over a thousand cases of asymptomatic infections. It is therefore hard, if not impossible, to predict the NPC’s legislative activities this month.
Reuters reported in mid-March that the NPC’s delayed annual session had been “tentatively” scheduled for “late April or early May.” If that is still the official plan, we expect the NPC Standing Committee (NPCSC) to meet by mid-April to set a date for the NPC’s meeting and to also discuss a draft of its annual work report and other documents to prepare for the NPC’s annual gathering. The Council of Chairpersons could meet as soon as this week to decide on the agenda and dates of the NPCSC’s pre-NPC session.
The NPCSC was scheduled to convene for a regular bimonthly session in late April, but that is now unlikely to take place given the reported schedule of the NPC session. The NPCSC may choose to combine this scheduled “full” session (where multiple bills are usually considered) with the shorter, pre-NPC session (where, as noted above, only preparatory work for the NPC session is usually done) for a longer pre-NPC session. If so, some of the following bills may return for further review:
- draft revision to the Law on the Prevention and Control of Environmental Pollution by Solid Waste [固体废物污染环境防治法];
- draft amendment to the Patent Law [专利法];
- draft Law on Governmental Sanctions for Public Employees [公职人员政务处分法];
- draft Biosecurity Law [生物安全法];
- draft revision to the Archives Law [档案法];
- draft revision to the Minors Protection Law [未成年人保护法]; and
- draft revision to the Juvenile Delinquency Prevention Law [预防未成年人犯罪法].
This post will be updated if the NPC’s 2020 session is scheduled to start this month.
The NPC Standing Committee (NPCSC) held a one-day session on Monday, February 24 and adopted two decisions that we will discuss below. It is worth mentioning that 57 legislators “attended” the session via videoconferencing (113 others showed up in person), and they voted by a show of hands in lieu of the usual electronic voting system.Continue reading “China Postpones 2020 NPC Session “As Appropriate” & Imposes Near-Total Ban on Consuming Wild Animals”