Constitutional Review in Lawmaking and Emergency Legislation: A First Look at Draft Amendments to China’s Legislation Law

Cover of a hard copy of the Legislation Law

Last month, China’s national legislature, the NPC Standing Committee (NPCSC), reviewed draft amendments to the Legislation Law [立法法] (Draft), an important statute with semi-constitutional status. The Law, in sum, has three functions: it demarcates the authority of various law/rule-making bodies; regulates (to varying extent) their legislative procedures (in particular those of the national legislature); and prescribes a hierarchy of legal norms, along with attendant rules on how to apply conflicting norms and mechanisms for resolving such conflicts (the so-called “recording and review” [备案审查] process). Today, to engage with China’s legal developments—whether as part of research, commentary, reporting, advocacy, or doing business—it is increasingly crucial to understand the type of legislative power a governmental body has and the process whereby it issues binding rules.

The Draft would bring about changes in all three areas: authority, procedure, and hierarchy. Some of the changes are technical, some are substantive but not ground-breaking, others are confusing and require clarification, while a few do deserve attention now, especially from those interested in submitting comments (the comments period closes on November 29). Below we highlight two that fall in the last category. As the Draft may undergo moderate to substantial revisions, we will publish a more thorough summary after its second review, expected in December. A final review by the full NPC is expected next March.

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Legislation Summary: China’s New Law to Fight Telecom and Internet Fraud

Photo by Anna Tarazevich from Pexels

Telecom and online fraud has grown rampant in China in the past decade. According to the Supreme People’s Court (SPC), scammers have defrauded victims of more than 35 billion RMB (~5 billion USD) in 2020 alone. In 2021, public security organs nationwide cracked over 394,000 cases of telecom and online fraud and arrested over 630,000 suspects. Meanwhile, the crime of aiding criminal activities on information networks (including telecom and online fraud) has become the third most-prosecuted crime in China, the Supreme People’s Procuratorate (SPP) recently disclosed.

At the same time, fraudsters continue to upgrade their tactics and operations. They take advantage of new technologies to reach more potential victims and to evade prosecution. Relying on leaked or stolen sensitive personal information, they also target susceptible victims with precision by impersonating police officers and other government officials or by exploiting the victim’s personal circumstances. As domestic crackdown intensifies, many scammers have moved their operations overseas to regions such as northern Myanmar, Cambodia, and Laos. According to the SPC, as of mid-2021, more than 60% of telecom- and online-fraud cases now originate from overseas “hotspots.”

Since 2020, national criminal justice authorities, telecom regulator, and the central bank have launched multiple joint operations to crack down on the illegal trade in SIM cards as well as bank cards and other payment accounts. The Ministry of Public Security (MPS) has also worked with immigration authorities to break up rings that smuggle people overseas to become scammers. In addition, the SPC, SPP, and MPS have released two joint opinions to clarify the application of related crimes and criminal procedural rules in telecom- and online-fraud cases.

The new Law Against Telecom and Online Fraud [反电信网络诈骗法], adopted by the NPC Standing Committee on September 2, is the latest official action to tackle such crimes. It supplements criminal statutes by prescribing administrative punishments for those who organize or otherwise directly participate in less serious cases of telecom and online fraud (art. 38, para. 2). The bulk of its provisions, however, focus on preventing such fraud from occurring in the first place. Below we take a close look at this new law.

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Building Capacity Through Procedure

On June 24, the NPC Standing Committee (NPCSC) approved the first set of amendments to its Rules of Procedure (Rules) [全国人民代表大会常务委员会议事规则] in over a decade. The Rules are a national law that governs how the NPCSC conducts business. They regulate the convening and conduct of sessions, the submission and deliberation of bills and reports, debate and voting procedures, and other technical procedural matters.

The latest amendments came at what in retrospect could be a pivotal moment for the NPC. The Communist Party held its first-ever conference on improving the people’s congress system last October, and subsequently issued a policy document on the same subject (so far available only in summary form). Meanwhile, the national legislature has been undertaking a systematic effort to codify or update rules governing its powers and procedures, including the NPC’s organic statute and procedural rules as well as standalone instruments on the NPCSC’s oversight of the central budget, state-owned assets, and economic planning. For the most part, the amendments to the Rules reiterate key provisions in those laws and memorialize some of the NPCSC’s other existing practices.

Viewed in that larger context, the amendments make up part of a conscious effort to subtly enhance the NPCSC’s capacity as a lawmaking and oversight body—one that follows the Party’s commands itself and, acting as the Party’s agent, also ensures other state organs do the same. The amended Rules therefore leave room for both deliberation and efficiency in the legislative process, and institutionalize procedural tools that enable more rigorous NPCSC oversight.

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NPC Standing Committee Authorizes Property Tax Pilots (with Translation of the Authorization)

On Saturday, October 23, China took an important, albeit small, step toward enacting a nationwide “real estate tax” [房地产税], commonly called “property tax” (we will use these terms interchangeably below). The NPC Standing Committee (NPCSC) adopted a decision authorizing the State Council to carry out property tax pilots in selected, as yet unspecified, regions, for at least five years. Reflecting the ongoing intense debates within the party-state, the decision lacks essential details about the proposed new tax and the pilots, and instead grants the State Council broad authority to design them.

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Legislation Summary: Hong Kong National Security Law

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.

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