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

Editor’s Note (Feb. 6, 2023): The draft amendments to the Legislation Law went through a second review in December 2022. We will publish an overview soon. The provisions discussed in this post have not been changed.

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.

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

NPC Calendar: November 2022

The NPC Standing Committee (NPCSC) is soliciting public comments on the following bills through November 29:

The NPCSC will convene for its next regularly scheduled session in late December.

NPCSC Seeks Public Comments on Bills on Lawmaking Reforms, Accessibility, Administrative Reconsideration & Military Reservists

The NPC Standing Committee (NPCSC) is soliciting public comments on the following four bills through November 29, 2022:

Draft NameChinese TextExplanatory Document
Legislation Law (Draft Amendment)
立法法修正草案
PDF Δ
(English)
PDF
Barrier-Free Environments Development Law (Draft)
无障碍环境建设法草案
PDFPDF
Administrative Reconsideration Law (Draft Revision)
行政复议法修订草案
PDF ΔPDF
Reservists Law (Draft)
预备役人员法草案
PDFPDF

English translations will be provided if and when available. All explanatory documents are in Chinese.

To submit comments online, please refer to this guide. Comments can also be mailed to the NPCSC Legislative Affairs Commission [全国人大常委会法制工作委员会] at the following address:

北京市西城区前门西大街1号 邮编: 100805
No. 1 West Qianmen Avenue, Xicheng District, Beijing 100805

Please clearly write “<Draft Name in Chinese>征求意见” on the envelope.

Update (Oct. 31, 2022): A prior version of this post noted that the NPCSC’s online public consultation system was requiring users to provide a name. That requirement no longer exists.

NPCSC Session Watch: Women’s Rights, Accessibility, Administrative & Lawmaking Reforms, Military Reservists & More

Photo by Jakub Pabis on Unsplash

The Council of Chairpersons decided on Thursday, October 13 to convene the 37th session of the 13th NPC Standing Committee (NPCSC) from October 26 to 30, shortly after the Communist Party’s upcoming 20th National Congress (to open on October 16) closes. Seven bills are on the tentative agenda, which we preview below.

Continue reading “NPCSC Session Watch: Women’s Rights, Accessibility, Administrative & Lawmaking Reforms, Military Reservists & More”

NPC Calendar: October 2022

The NPC Standing Committee (NPCSC) is soliciting public comments on a draft revision to the Wild Animals Protection Law [野生动物保护法] and on a draft Qinghai–Tibet Plateau Ecological Conservation Law [青藏高原生态保护法] through October 1.

The 20th National Congress of the Communist Party of China opens on October 16; it will elect the 20th Central Committee. The day after the Party Congress closes, the new Central Committee will meet for its First Plenum to select members of the next Politburo (among other positions). The second- or third-ranking member of the new Politburo Standing Committee is expected to become the Chairperson of the 14th NPCSC next spring.

The 13th NPCSC is expected to convene for its 37th session shortly after October 23, when the First Plenum is expected to close. The Council of Chairpersons will likely meet immediately after the National Day holiday (ending on October 7) or after the final plenum of the outgoing 19th Central Committee (expected to end on October 12) to decide on the agenda and dates of the session.

The session is expected to review the following bills:

It is also likely to review a draft revision to the Administrative Reconsideration Law [行政复议法]. The draft revision to the Company Law [公司法] and the draft Emergency Response and Management Law [突发事件应对管理法] may return for further review as well.

Recording & Review: Ensuring Single Women’s Equal Access to Maternity Insurance (Updated)

UPDATE (Nov. 8, 2022): We have posted a full English translation of Prof. Liang’s request for review.

Image by xiongwu from freepick

Maternity insurance [生育保险] is one of the five programs that make up China’s social insurance system. Funded by employer contributions, maternity insurance reimburses women for pregnancy- and childbirth-related medical expenses and offers them a source of income during maternity leave. In all provinces except Guangdong, however, single women have been ineligible for maternity insurance benefits. Local legislation requires claimants to provide their marriage license or some other government-issued document available only to married couples, in effect barring single women from obtaining the benefits. In a legal battle that spanned four years, Zou Xiaoqi, a single mother from Shanghai, repeatedly challenged the city’s discriminatory policy in court but ultimately to no avail. (In late 2020, Shanghai suddenly dropped the marriage requirement, but reversed course just a few months later.)

Continue reading “Recording & Review: Ensuring Single Women’s Equal Access to Maternity Insurance (Updated)”

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.

Continue reading “Legislation Summary: China’s New Law to Fight Telecom and Internet Fraud”

NPCSC Releases Wildlife and Tibetan Plateau Legislation for Public Comments, But Withholds Draft Counterespionage Law

The NPC Standing Committee (NPCSC) is soliciting public comments on the following bills through October 1, 2022:

Draft NameChinese TextExplanatory Document
Wild Animals Protection Law (2nd Draft Revision)
野生动物保护法修订草案二次审议稿
PDF
(English)
PDF
Qinghai–Tibet Plateau Ecological Conservation Law (Draft)
青藏高原生态保护法草案
PDFPDF

English translations will be provided if and when available. All explanatory documents are in Chinese. The NPCSC also reviewed a draft revision to the Counterespionage Law [反间谍法] at this week’s session, but did not release it for public comments today.

Continue reading “NPCSC Releases Wildlife and Tibetan Plateau Legislation for Public Comments, But Withholds Draft Counterespionage Law”

NPC Calendar: September 2022

The NPC Standing Committee (NPCSC) is in session through September 2. It is reviewing the following bills:

The NPCSC is expected to solicit public comments on any of these bills that remains pending after the session closes.

It will convene for its next regularly scheduled session in late October.

“State of Emergency” and Enforcement of China’s “Zero-Covid” Policy

Photo by Jida Li on Unsplash

China’s stringent “dynamic zero-Covid” policy, despite its great human and economic costs, is here to stay. The policy relies on mass testing, movement controls via “health codes,” strict lockdowns, and quarantine mandates to stamp out outbreaks. Noncompliance with those restrictions is fairly common, and the police’s preferred enforcement tool has been Article 50 of the Public Security Administrative Punishments Law (PSAPL) [治安管理处罚法]. This provision authorizes a warning, a fine of up to 500 RMB, or 5–10 days in administrative detention for those who flout official anti-Covid “decisions or orders,” depending on the severity of their violations.

To the police, Article 50 is more useful than criminal-law alternatives. The “crime of obstructing the prevention and control of infectious diseases” [妨害传染病防治罪], for instance, requires the defendant to actually spread Covid-19 or create a “serious risk” of its transmission.[1] This charge therefore cannot be brought against someone who, say, refuses mass testing but otherwise has no Covid-19 symptoms or close contact with someone who has tested positive. In addition, as the police may enforce Article 50 alone, they are relieved of the procedural and evidentiary burden that comes with criminal prosecutions.

There is, however, one precondition for invoking Article 50: the government “decisions or orders” violated must be issued in a “state of emergency” [紧急状态]. Law professor Tong Zhiwei [童之伟], among many other scholars, has argued in a since-censored open letter that the phrase in Article 50 refers to a constitutional state of emergency, which may be declared only by the NPC Standing Committee (NPCSC) or the State Council.[2] Because neither has done so, the argument goes, the police could not lawfully use Article 50 to penalize noncompliance with Covid restrictions.

Below, we first delve into the debate over the scope of “state of emergency” in Article 50, before examining how Article 50 has been used in practice and why the issue persists.

Continue reading ““State of Emergency” and Enforcement of China’s “Zero-Covid” Policy”