June 2024: Post-Covid Revisions to China's Emergency Response and Border Health Laws
Five bills for public comment, including new draft of public-order offenses law. First batch of "recording and review" (R&R) guiding cases of 2024. Plus: belated analysis of latest R&R legislation.
Welcome back to NPC Observer Monthly, a monthly newsletter about China’s national legislature: the National People’s Congress (NPC) and its Standing Committee (NPCSC).
Each issue will start with “News of the Month,” a recap of major NPC-related events from the previous month, with links to any coverage we have published on our main site, NPC Observer. If, during that month, we have also written posts that aren’t tied to current events, I’ll then provide a round-up in “Non-News of the Month.” Finally, depending on the month and my schedule, I may end an issue with discussions of an NPC-related topic that is in some way connected to the past month.
If you’re enjoying the newsletter, I hope you’ll consider sharing it. —Changhao
I apologize for the delay in getting this issue out: I traveled to Chongqing earlier this month for a conference on Chinese constitutional law and came back with some respiratory infection that put me out of commission for the next few days. It would’ve been apt for this newsletter if I came down with Covid-19, but I’m glad to report that I’ve managed to escape the coronavirus for four years and counting.
News of the Month
On June 1, the Law on Ensuring Food Security [粮食安全保障法] (adopted on Dec. 29, 2023) took effect.
On June 3, the NPCSC Legislative Affairs Commission released the first batch of “recording and review” [备案审查] guiding cases of 2024—which I will return to at the end of this post.
On June 25–28, the 14th NPCSC convened for its tenth session, convened by the Council of Chairpersons on June 17. At the end of the four-day session, the NPCSC passed five bills.
First, it passed an amendment to the Accounting Law [会计法] (which took effect on July 1); and a new Rural Collective Economic Organizations Law [农村集体经济组织法] (effective May 1, 2025). This is the extent I will touch on these two bills (for lack of time and expertise), but will discuss the other three in more detail.
Second, the NPCSC adopted a decision authorizing the State Council to temporarily modify two provisions of the Food Safety Law (FSL) [食品安全法] in the Hainan Free Trade Port. This authorization concerns two types of “strictly” regulated “special foods” [特殊食品] under the FSL: dietary supplements [保健食品] and foods for special medical purposes [特殊医学用途配方食品]. In short, the authorization allows designated medical institutions in the Hainan Bo’ao Lecheng International Medical Tourism Pilot Zone to—with the Hainan government’s approval—“temporarily import” those foods in certain circumstances for in-house use, when the foods otherwise must be registered with the State Administration for Market Regulation. Because lawmakers were apparently concerned about the authorization’s potential food-safety risks, the NPCSC approved it only after a rare second review and after imposing several limitations on the requested authority. The authorization will run for five years starting on October 1, 2024.
Finally, the NPCSC revised the Emergency Response Law [突发事件应对法] (effective Nov. 1, 2024) and the Border Health and Quarantine Law [国境卫生检疫法] (effective Jan. 1, 2025). Both projects were placed on a special legislative plan in April 2020 to remedy the “gaps, weaknesses, and shortcomings” that Covid-19 had exposed in China’s public-health legislation. In my view, those two bills, along with the (pending) revision to the Law on the Prevention and Control of Infectious Diseases [传染病防治法], are the three projects most crucial to achieving the plan’s goal.1
The revisions therefore naturally codified measures taken to respond to Covid-19. Below I will discuss a few such measures that made it into each law as well as some that did not.
Revised Emergency Response Law
The Emergency Response Law, enacted in 2007, is China’s general statute for dealing with emergencies, which it divides into four categories: natural disasters, accidents, public health incidents, and public security incidents. While the revision was prompted by Covid-19, the changes it has made will apply to all types of emergencies. Here, I’ll highlight just three.
General principles of emergency response. The 2007 Law laid down the general proportionality requirements that emergency-response measures “correspond to the nature, extent, and scope of the social harm that may be caused by the emergency” and that, where multiple measures are available, those “conducive to maximally protecting the rights and interests” of private entities be chosen. The revision further provides that the chosen measures must also cause less harm to third-party rights and the environment, and must be “promptly adjusted according to the circumstances” to ensure that they are “sound, precise, and effective” (art. 10). In addition, the revision requires the government to offer “special and priority protections” to certain vulnerable groups, including minors, the elderly, people with disabilities, pregnant and nursing women, and those who need prompt medical care (art. 11). These are laudable improvements, but there is reason to doubt that they’d be faithfully followed in an actual emergency, considering some of the more drastic measures taken during the Covid-era.
Information flow and control. The 2007 Law tasks the responsible government with promptly releasing accurate information on emergencies and emergency response to the public. The revision adds that, when the relevant government and its agencies discover “false or incomplete information that affects or is likely to affect social stability, or disrupts the order of social and economic management,” they must “promptly release accurate information to clarify” the situation (art. 7, para. 2). The revision also requires local governments, when capable, to report likely or actual emergencies to their superiors using “web-based direct reporting” or “automated rapid reporting” systems (arts. 17, 64, 69), and bars government officials from instructing others to delay, falsely report, or conceal information, or preventing another from making a report (art. 61, para. 2). Lastly, the revised Law calls for “establishing and improving a system for emergency-related press interviews and coverage,” without providing specifics (art. 8, para. 1), and newly requires the press to “timely, accurately, objectively, and fairly” report on emergencies (art. 8, para. 2).
Data privacy and security. Likely responding to the leaks and abuses of personal “health code” data during Covid-19, the revision adds a new provision making clear that personal information gathered to respond to emergencies cannot be used for any purpose other than emergency response, and such information must be destroyed upon the completion of emergency-response efforts (art. 85). Where it is necessary to retain the information or postpone its destruction because it is used as evidence or for “investigations and evaluations,” the revision requires legality, necessity, and security reviews and the use of “appropriate protective and treatment measures” to ensure the information is “used strictly according to law” (id.). The revision, moreover, requires government agencies to “keep strictly confidential” the information they collect from private parties for emergency-response purposes and to “protect the citizens’ freedom and privacy of correspondence according to law” (art. 83). Curiously, the revise Law does not impose a penalty for violating this obligation.
Revised Border Health and Quarantine Law
The Border Health and Quarantine Law is aimed at stemming the cross-border spread of communicable diseases. It was first enacted in 1986 but had never been comprehensively updated until last month. The revision more than doubled the Law’s number of articles, which now stands at 57.
The revision bolsters the authority of the General Administration of Customs and its subsidiaries over health inspections at China’s ports of entry. Many such changes were informed by Covid-era experiences. For example, the revision authorizes customs to board vehicles to conduct health inspections (art. 14); and to deny entry to, or order the destruction of, goods that pose a risk of spreading listed communicable diseases but cannot be effectively sanitized, and to halt the importation of such goods altogether if they “may pose a significant risk to” domestic public health safety (art. 20).
The finalized revision somewhat limits the health-inspection measures authorized against cross-border travelers. Customs may require all travelers to submit truthful health declarations and subject them to temperature checks and may inspect their travel documents “when necessary” (art. 11, para. 1). But more intrusive measures—such as requiring proofs of vaccination, epidemiological surveys, and medical examinations—may be taken only “depending on the circumstances” (id. para. 2). The first draft of the revision would have authorized all available inspection measures for all travelers without differentiation. The revised Law also provides that inbound foreign travelers who refuse to submit to health-inspection measures may be denied entry (id. para. 3).
Finally, the revision adds a chapter on “emergency management,” which applies in the event of “major communicable disease outbreaks” [重大传染病疫情].2 This chapter authorizes the State Council to deploy a series of emergency-response measures that should now be familiar to most, such as subjecting people traveling from specific jurisdictions to sampling and testing; banning the exit or entry of specific goods; and closing certain ports of entry or parts of the Chinese border (art. 36).
What I find more interesting are the measures that ultimately did not make it to this chapter—which was explicitly drafted to sum up “the effective experiences and practices in the prevention and control of Covid-19.” First, the final version does not expressly allow the State Council to subject all inbound travelers to centralized medical observations and deletes a companion provision requiring local governments to cooperate with customs in conducting “closed-loop management” [闭环管理], whereby inbound travelers are transported directly from ports to centralized quarantine venues without coming into contact with the society at large.
Second, the legislature has removed an article authorizing even more drastic restrictions. Here is the deleted article in full:
According to the needs of emergency response to major communicable disease outbreaks, the relevant State Council departments may, with the State Council’s consent, take the following measures according to their duties and functions:
(1) deciding to reduce the number of inbound or outbound voyages or routes or suspend specific routes, or limit the number of passengers that may be carried by a vehicle;
(2) requiring inbound travelers to undergo relevant tests overseas and to board vehicles with certificates of passing the tests and take the necessary personal protection measures; and may bar those who refused to undergo testing or provide the certificates from boarding the vehicles;
(3) restricting the entry of foreigners from specific countries or regions, or restricting Chinese citizens from traveling to specific countries or regions;
(4) suspending the issuance of exit and entry documents;
(5) implementing prophylactic health treatment measures for specific merchandise or articles entering or leaving the mainland territory;
(6) other necessary measures.
It is unclear why this article was cut; the relevant legislative report says not a word about what seems to be a quite major change. But the legislative intent was probably not to withhold such authority from the State Council. Indeed, under the revised Law, the State Council may order “other necessary emergency-response measures” to deal with major outbreaks (art. 36, para. 1).
On June 28, the NPCSC released the following bills for public comment through July 27:
draft revision to the Mineral Resources Law [矿产资源法];
draft revision to the Cultural Relics Protection Law [文物保护法];
draft revision to the Public Security Administration Punishments Law (PSAPL) [治安管理处罚法];
draft Preschool Education Law [学前教育法]; and
draft Financial Stability Law [金融稳定法].
The new draft of the PSPAL revision includes myriad provisions that deserve attention, and I do intend to cover the bill in depth at some point. But for now I’ve only had time to offer a quick update on what happened to the proposed provision that would punish clothing or speech that “hurts the feelings of the Chinese people.” If you read Chinese, I highly recommend this six-part commentary by Peking University law professor Shen Kui [沈岿]: i, ii, iii, iv, v, and vi.
Last month, the NPC released the official (but non-binding) English translations of three laws:
Sports Law [体育法] (as revised June 24, 2022, effective Jan. 1, 2023);
Agricultural Products Quality and Safety Law [农产品质量安全法] (as revised Sept. 2, 2022, effective Jan. 1, 2023); and
NPCSC Decision on Improving and Strengthening the System of Recording and Review [关于完善和加强备案审查制度的决定] (adopted and effective Dec. 29, 2023).
Non-News of the Month
Speaking of the Decision on Improving and Strengthening the System of Recording and Review, I published an analysis of it on Verfassungsblog (lit. “Constitution Blog”) and cross-posted the piece on our main site. Here’s an excerpt from the article’s introductory paragraphs:
In December 2023, China’s national legislature, the Standing Committee of the National People’s Congress (NPCSC), adopted the Decision on Improving and Strengthening the System of Recording and Review (Decision), a major bill aimed at reforming “recording and review” (R&R)—China’s system of parallel processes for resolving legislative conflicts. Under R&R, an enacting body—that is, a governmental body authorized to issue documents of a legislative nature—must file its legislation with the designated reviewing body for subsequent review. . . . [For a time], R&R operated entirely behind closed doors and was widely seen as ineffective. . . . [But since 2013], the NPCSC has implemented a series of reforms aimed at making R&R more powerful, transparent, and accessible to the public.
Those reforms culminated in last December’s Decision. It is the first statutory authority on R&R that is comprehensive in scope, albeit not exhaustive in details. For this reason, Chinese commentators have termed it a “mini law” on R&R [小备案审查法], though it is nothing short of a milestone in R&R history. It simultaneously concludes one phase of R&R reform while starting a new one. The two verbs in its title reflect this dual role: The Decision “strengthens” R&R by elevating into law core existing components of the system. It is a symbol that China has built a relatively mature statutory framework for a unique legislature-centric process for resolving legislative conflicts—one that emphasizes consultation with and self-correction by enacting bodies. At the same time, the Decision “improves” R&R by introducing a raft of novel elements to address weaknesses in the system. Some would give more teeth to the rectification process so that enacting bodies do not abuse the latitude they enjoy. How the new measures would work in practice and whether they would achieve the intended goals, however, remain to be seen.
First R&R Guiding Cases of 2024
Now back to last month’s R&R guiding cases I mentioned at the top.
For this batch of guiding cases the NPCSC Legislative Affairs Commission (LAC) included the decisions of three local people’s congresses. In introducing the cases, the LAC wrote that the purpose of the R&R guiding case system [备案审查案例指导制度] is to publicize “typical cases that reflect common issues in local legislation and have guidance value.” The three cases are chosen for their “strong timeliness and relevance” and can serve as “direct references” for local legislative and R&R work, according to the LAC.
Because the cases all involved relatively clear-cut violations of superior legislation that I . . . do not find particularly interesting, I will just briefly summarize the legal issues and outcome of each case instead of providing more in-depth coverage.
Guiding Case 2024 No. 1-1: The Guangdong3 provincial government’s rules on urban water supply (1) laid down the principle that commercial water use [经营用水] was to be charged at double the ordinary rate [加倍收费]; and (2) provided that late payments of water bills would result in fines, late fees, and, after two months, disconnection of service. Upon review, the Guangdong provincial legislature concluded that (1) the rate for commercial water use violated the State Council’s Urban Water Supply Regulations [城市供水条例], which requires instead “reasonable” pricing for such use; and that (2) Guangdong government no longer had the legislative authority to prescribe the penalties for late payments at issue because the State Council amended its Regulations in 2020 to eliminate identical penalties. The Guangdong government repealed the rules in 2022.
Guiding Case 2024 No. 1-2: Between August 2021 and June 2022, the municipal government of Jinhua, Zhejiang issued three regulatory documents to restrict the resale of newly purchased housing for about a year. The upshot was that, although such restrictions on newly built housing were fully lifted in June 2022, second-hand housing purchased during that period still could not be resold until after the buyer had acquired title for three years. Upon review, the Jinhua municipal legislature concluded that the resale restrictions on second-hand housing purchased during the relevant period “constituted differential treatment of the real estate transactions of some citizens during a specified period of time, unduly restricted the exercise of property rights by civil entities, were patently unfair and unjust, were not reasonable or appropriate, and were also inconsistent with the provisions of the Civil Code [民法典] and relevant laws.” The Jinhua government lifted the remaining restrictions in August 2023.
Guiding Case 2024 No.1-3: After several gas explosions shocked the nation in late 2021 and early 2022, the municipal government of Puyang, Henan issued a non-legislative regulatory document (1) requiring all natural gas users to switch to gas pipes of a particular material and gas equipment with specific functionalities; and (2) authorizing gas utilities to disconnect customers who tamper with gas equipment or use gas in an unauthorized manner and who refuse to cure the violations. Upon review, the Puyang municipal legislature concluded that (1) the requirements likely violated the State Council’s Urban Gas Management Regulations [城镇燃气管理条例] and the Puyang government’s own gas-management legislation by turning what used to be the government’s recommended equipment into gas users’ “mandatory obligations”; and that (2) the document unlawfully dispensed with various preconditions for service disconnection that are required by national, provincial, and municipal legislation, including written notice to the violator, asking the latter to rectify, and an assessment that the violation may lead to a safety accident. The Puyang government subsequently amended the document.
That’s all for this month’s issue. Thanks for reading!
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Zhu Chentuo & Wang Qi provided research assistance for this post
An even more pertinent Public Health Emergency Response Law [突发公共卫生事件应对法] was soon placed on the NPCSC’s agenda as well, though for some reason wasn’t included in the special legislative plan.
This term was defined in the first draft as the “domestic or overseas outbreaks or epidemics of communicable diseases” [境外或者境内传染病暴发、流行], but is left undefined in the finalized revision.
The LAC anonymized all the local documents at issue; any identified locality was the result of our own research based on the information disclosed by the guiding cases.