NPC Observer Monthly: August 2023
Expiring court reform. New law allowing suits against foreign states & other changes to transnational litigation. Plus: controversial public-order offenses law & 4 other bills open for public comment.
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 musings on an NPC-related topic that is in some way connected to the past month.
This newsletter is very much a work in progress. If you have feedback on how we can improve this new service, or if there’s anything you’d like us to discuss in future issues, please don’t hesitate to reach out. And if you enjoyed this issue, I hope you’ll consider sharing it. —Changhao
News of the Month
Before getting to last month’s news, a note on scheduling. In the rare event that an NPCSC session (like the latest one) spans two months (usually just a day or two into the second month), it makes sense for us to cover the session when recapping the month in which it starts. This means the newsletter for that month will go out much later than usual—after the session has concluded and we’ve had time to digest all the news.
On August 21, the Council of Chairpersons met to convene last month’s NPCSC session. Aside from deciding on the session’s agenda (which we will cover below), the Council also heard two reports that are of note (neither has been made public, however):
Government debt oversight: The first report concerns the establishment of a system whereby the NPCSC hears the State Council’s periodic reports on the management of government debts. The State Council could submit the first of such reports as soon as later this year. The move is consistent with recent reforms to strengthen the NPCSC’s oversight by (among other things) requiring the State Council to submit additional annual reports on important subject matters.
Termination of court reform pilot: The second report concerns the rare indefinite shelving of a pending bill, the draft amendment to the Administrative Litigation Law [行政诉讼法], and the consequent termination of the underlying reform pilot the bill would codify. That pilot, carried out under the Supreme People’s Court’s supervision since August 2021, aimed to reorient the adjudicatory roles of China’s four levels of courts. For our purposes, the reform means that retrial petitions challenging the rulings of provincial high courts will mostly be directed to those courts themselves. The Supreme People’s Court as a result will hear a much lower number of retrial cases and can thus focus on unifying the application of law. Apparently, the pilot was not popular among judges and litigants, especially its funneling of most retrial petitions to provincial high courts.
On August 28–September 1, the 14th NPCSC met for its fifth session, where it adopted four bills.
Administrative appeals reform. On September 1, the NPCSC approve a revision to the Administrative Reconsideration Law [行政复议法], effective January 1, 2024. Administrative reconsideration refers to the procedure whereby private parties challenge government actions through the government’s internal review. As my colleague Jamie Horsley succinctly explains, the revision “seeks to make reconsideration the preferred channel for resolving administrative disputes” and “hopes to accomplish this by both (1) enhancing the credibility of the reconsideration process to encourage aggrieved parties to try reconsideration first (the carrot), and (2) expanding the situations under which reconsideration is required as a precondition for litigation (the stick).” Here are her two posts on the revision’s October 2022 and June 2023 drafts, respectively. I was told English translation and analysis of the finalized revision are in the works, so keep an eye out!
Transnational litigation reform. The NPCSC also approved amendments to the Civil Procedure Law [民事诉讼法] and a new Foreign State Immunity Law [外国国家豁免法], both of which will take effect on January 1, 2024.
The Foreign State Immunity Law marks a historic change in China’s stance on foreign state immunity. It means, in short, “foreign states will be subject to suit in China in certain circumstances as provided in the Law in which they currently enjoy immunity,” to quote our summary of the law.
The Civil Procedure Law amendments, too, will bring about important changes to transnational litigation in China. They broaden the jurisdiction of Chinese courts over cross-border disputes (arts. 276–79 as amended), clarify rules for handling parallel litigation in Chinese and foreign courts (arts. 280–81), codify the doctrine of forum non conveniens (Latin for “inconvenient forum”) (art. 282), update or add rules on service of process and evidence collection in foreign-related litigation (arts. 283–84), and revamp the rules for recognizing and enforcement foreign judgments (arts. 297–304).
But that’s not the sole focus of the amendments. Other provisions also touch on matters such as recusal rules for judicial assistants and technical investigators (art. 47), punishments for filing “false lawsuits” [虚假诉讼] (art. 115), and procedures for appointing estate administrators (arts. 194–97)
Renewal of special GBA bar exam. Finally, the NPCSC renewed for three years (until October 4, 2026) a pilot program that has made it easier for eligible lawyers licensed in Hong Kong or Macao to practice mainland civil and commercial law in in nine cities in the neighboring Guangdong province—which, together with the two special administrative regions (SARs), makes up the “Greater Bay Area” (GBA) [粤港澳大湾区].
Under the pilot program, lawyers licensed in the two SARs who have practiced law for at least five years may choose to sit for a special “GBA Legal Professional Examination” instead of the mainland’s national bar exam and be directly admitted in the nine mainland cities. This provides an easier route for those experienced lawyers who want to handle only cross-border commercial matters, as the special bar exam is less demanding than the national one. Hong Kong and Macao lawyers who have passed the special bar exam may practice mainland law in only civil and commercial cases that are connected to the nine mainland cities in certain ways.
According to the Ministry of Justice, as of July 24, 2023, 341 Hong Kong and Macao lawyers had obtained a mainland law license, although they made up just more than half of those who had passed the special bar exam. Therefore, it is necessary to renew the program to fully realize its potential.
On September 1, the NPCSC, moreover, released the other five bills it had reviewed at the latest session for public comment through September 30, 2023:
draft revision to the Company Law [公司法];
draft Value-Added Tax Law [增值税法];
draft Preschool Education Law [学前教育法];
draft Academic Degrees Law [学位法]; and
draft revision to the Public Security Administration Punishments Law [治安管理处罚法].
The last bill, a proposed overhaul of what’s essentially China’s misdemeanors code, has engendered a strong backlash from the Chinese public, due to a provision that would punish clothing or speech that “is detrimental to the spirit of the Chinese people or hurts the feelings of the Chinese people” (art. 34). A number of Chinese legal scholars have penned public commentaries criticizing the proposed offense, and more are doing so. William Farris has translated a few at his Fei Chang Dao blog.
As of today (September 12), over 91,000 people have submitted over 112,000 comments on the bill, almost 100 times as many as the second most popular bill (draft Company Law revision) has received. Suffice it to say that this level of intense public participation is extremely rare.
Last month, the NPC released the official (but non-binding) English translations of seven laws (in reverse-chronological order of release):
Code of Conduct for Constituent Members of the NPCSC [全国人民代表大会常务委员会组成人员守则] (as revised and effective Apr. 26, 2023);
Animal Epidemic Prevention Law [动物防疫法] (as revised Jan. 22, 2021, effective May 1, 2021);
Vocational Education Law [职业教育法] (as revised Apr. 20, 2022, effective May 1, 2022);
Measures for Electing Delegates from the Chinese People’s Liberation Army to the National People’s Congress and Local People’s Congresses at or Above the County Level [中国人民解放军选举全国人民代表大会和县级以上地方各级人民代表大会代表的办法] (as amended Apr. 29, 2021, effective Apr. 30, 2021);
Foreign Trade Law [对外贸易法] (as amended and effective Dec. 30, 2022);
Seed Law [种子法] (as amended Dec. 24, 2021, effective Mar. 1, 2022); and
Futures and Derivatives Law [期货和衍生品法] (adopted Apr. 20, 2022, effective Aug. 1, 2022).
In case you missed it, I’ve already published my planned musings for last month in a separate post, in which I laid out my (still) tentative thoughts on whether the NPCSC may constitutionally remove a state councilor of the State Council. That question was, of course, part of the online debate following Qin Gang’s departure as China’s foreign minister in July.
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