Category: Recording & Review

“Recording & Review” is a series that focuses on the NPC Standing Committee’s eponymous oversight process, whereby its Legislative Affairs Commission reviews the validity of various types of normative documents, including local regulations and judicial interpretations.

Recording & Review Pt. 6: NPCSC Launches Online Platform for Citizens to Request Legality or Constitutionality Review

If you were looking to read another case in which the Legislative Affairs Commission (LAC) of the NPC Standing Committee (NPCSC) reviewed the legality or constitutionality of a regulation or a judicial interpretation, you will be disappointed. But in this new installment of our Recording & Review series, we will introduce a new development in the NPCSC’s review of sub-statutory legal documents that is no less important than any substantive action by the NPCSC.

On December 4, the NPCSC officially launched a new online platform for citizens, legal persons, and other organizations to submit requests for review. Previously, they must mail their suggestions to the LAC’s Office for Recording and Reviewing Regulations [法规备案审查室]. We tested the new platform and felt that it is relatively easy to use, though not without several significant limitations. Below we will offer a brief tour of the platform (with screenshots), after a quick introduction of the review process.

Continue reading “Recording & Review Pt. 6: NPCSC Launches Online Platform for Citizens to Request Legality or Constitutionality Review” →

Recording & Review Pt. 5: “Freedom and Privacy of Correspondence”

Photo by Acharaporn Kamornboonyarush from Pexels

An institute affiliated with China’s top court reported in 2017 that using cellphones while driving was one of the main causes of traffic accidents in China. Between 2012 and mid-2017, according to the report, distracted driving caused about 11% of all traffic accidents that led to civil lawsuits, even though such behavior had been outlawed since at least 2004. Enforcement is lacking, however, because distracted driving is relatively hard to detect (even with China’s ubiquitous surveillance cameras).

To combat this problem, several provinces decided to lend the police a hand. They passed what we call “phone-search provisions”: regulations that allow the police to inspect the communication records of motorists involved in accidents. Those records could provide the definitive proof of whether a driver was using cellphone just before an accident, thereby helping the police determine the liability of each party and punish the cellphone use itself.

Granting the police such authority seems like a sensible enough policy. But is it legal?

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Recording & Review Pt. 4: The Last Days of “Custody & Education”

Editor’s Note: On December 28, 2019, the NPCSC voted to abolish C&E. For more information, please see this post.

The red umbrella is the international symbol for sex workers’ rights. Photo by Kosta (licensed under CC BY-NC-SA 2.0).

Five years after the NPC Standing Committee (NPCSC) abolished the reeducation-through-labor [劳动教养] system, another form of extrajudicial administrative detention is now on the chopping block. On Monday, the NPCSC Legislative Affairs Commission [法制工作委员会] recommended the abolition of the “custody and education” (C&E) [收容教育] system—a form of administrative punishment for prostitution. Finally.

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Recording & Review Pt. 3: Are Parrots Bred in Captivity Still “Wild”?

Photo by Magda Ehlers from Pexels

Are parrots bred in captivity still “wild”? Common sense would answer no. But the Supreme People’s Court (SPC) disagreed—according to its interpretation of a Criminal Law provision that punishes trade in “rare and endangered wild animals.” A Shenzhen man, convicted in 2017 under this provision for buying and selling parrots he himself bred, contested this interpretation before the NPC Standing Committee’s Legislative Affairs Commission (LAC)—the body charged with reviewing judicial interpretations (among other types of documents) at the request of citizens for any inconsistency with statutes. The Commission recently informed the man that the SPC would amend the interpretation. Yet it is far from clear that he won this battle. In this third installment of Recording & Review, we will tell the story of Wang Peng [王鹏] and his parrots.

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Recording & Review Pt. 2: The Demise of “Conditional Arrest”

Supreme People’s Procuratorate building. Photo by SPP, via Sohu.

In the first installment of the Recording & Review series, we presented a comprehensive introduction to the recording and review (R&R) [备案审查] process in the NPC Standing Committee (NPCSC). Beginning with this installment, we will examine cases where citizens and organizations successfully challenged the legality of normative documents using the R&R procedure. While these cases might not be new, a close examination of them will still offer us important insight into the R&R system—on how it actually operates and what its limitations are.

In July 2017, the Southern Metropolis reported that the Supreme People’s Procuratorate (SPP) had recently discontinued a controversial type of arrest after the NPCSC—more specifically its Legislative Affairs Commission (LAC)—reviewed its constitutionality and legality at the request of Mr. Miao Yongjun, an Inner Mongolian lawyer. Before recounting Mr. Miao’s encounter with the R&R system, we will first briefly introduce the now-abolished type of arrest invented by the SPP.

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Recording & Review: An Introduction to Constitutional Review with Chinese Characteristics

Editor’s Note (Sept. 2, 2020): This post is outdated and has been superseded by a more recent introduction to “recording and review,” which discusses the latest governing rules.

On October 18, 2017, halfway through his mind-numbing three-hour report to the Communist Party’s 19th National Congress, President Xi Jinping called for “advancing the work of constitutional review” [推进合宪性审查工作]. We then noted, and Chinese media later confirmed, that it was the first time such expression appeared in Party documents. While the expression might be novel, the concept of constitutional review is not—it has been an inherent part of “recording and review” (“R&R”) [备案审查] since at least 1982. For purposes of our discussion,1 R&R is a process whereby various governmental entities with lawmaking powers record the legislation they enact with the NPC Standing Committee (NPCSC), and the NPCSC then, through several established mechanisms, review such legislation for potential violations of the Constitution and national laws and take appropriate actions. The primary goal is to ensure uniformity in the hierarchical legal system.

Continue reading “Recording & Review: An Introduction to Constitutional Review with Chinese Characteristics” →