2020 Legal Inquiry Responses: Marriage Age for Ethnic Minorities, Rescheduling Local People’s Congress Elections & More

Photo by Andy Wong (Associated Press), via NYT

On April 1, the NPC Standing Committee’s Legislative Affairs Commission (Commission) made public six of its “responses to legal inquiries” [法律询问答复] from 2020. It last released a batch of such responses from 2018 and 2019 in September 2020, after a thirteen-year hiatus. As we wrote then, these responses to legal inquiries can be considered a form of “soft law”: they answer other governmental bodies’ requests to clarify the applicable law in real-world scenarios and can function like the NPC Standing Committee’s legislative interpretations. The inquiring governmental bodies tend to follow the responses, but they do not bind anyone else. Still, they are considered highly persuasive because of the Commission’s pivotal role in lawmaking. The responses released on Thursday touched on a few different subjects: postponing local legislative sessions due to Covid-19, governance of for-profit private schools, ethnic autonomous regions’ legislative authority, terms of supervision commissions, and rescheduling elections for local people’s congresses. We will summarize and explain these Q&As below.

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

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, says 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. 3: Are Parrots Bred in Captivity Still “Wild”?

Photo by Magda Ehlers from Pexels.

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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Scholarship Highlight: The NPCSC Legislative Affairs Commission and Its “Invisible Legislators”

The Legislative Affairs Commission (LAC; 法制工作委员会) under the NPC Standing Committee (NPCSC) is such a unique institution that one can hardly find an equivalent in another country’s legislature. Consisting mostly of unelected and unidentified members, the LAC works in secrecy, making all decisions behind closed doors. In fact, there is not even a website detailing its functions and organizational structure. The LAC’s employees outnumber NPCSC members, and unlike the latter cohort, they all work full-time and include more legal experts than the staff of any other NPC body (Lu 2013). Their decisions play significant roles throughout the legislative process, from the agenda-setting stage to deliberations—and even after laws are enacted. One Chinese scholar thus aptly dubs the LAC staff “invisible legislators” (隐形立法者) (Lu 2013, p. 74). Some even worry that they may have usurped the powers of elected NPCSC members, thus becoming de facto legislators (Chu 2017).

Here in the third installment of Scholarship Highlight, we provide an overview of the LAC—an essential yet peculiar institution under the NPCSC—and its roles in the legislative process.

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

Editor’s Note (Sept. 2, 2020): This post is NOT up to date 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.

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