China Laws and Regulations Update in August 2022

1. Decision to Abolish and Change a Number of Penalties

Promulgated by State Council

Promulgation date: 12 August 2022

Document number: SI[2022]15

The content of the Decision is comprised of three main parts.

First, abolition and modification of 53 penalties, including 29 ones abolished, 1 by the Ministry of Public Security, 12 by the Ministry of Transportation and 16 by the State Administration for Market Regulation, and 24 ones modified, 19 by the Ministry of Transportation and 5 by the State Administration for Market Regulation. The Decision sets forth names of, bases for creation of, decisions to deal with and regulatory measures that substitute such penalties.

Second, time limits on legislative work. Relevant departments should submit the draft amendments to administrative laws to the State Council for review and finish the work to amend and abolish authority’s rules within 60 days from the date of issuing the Decision. Authority’s rules to be amended according to the amended administrative laws should be amended and abolished within 60 days after the relevant administrative law is published.

Third, principles that should be followed to take regulatory measures as a substitute for the penalties. If regulatory measures are necessary to substitute the penalties abolished, relevant departments should legally conduct careful studies, strictly perform regulatory duties, create and improve regulatory policies, standardize regulatory procedures, make the regulatory work more scientific and accurate, enhance the efficiency of the regulatory work and give great support for high quality developments.

(Source: Chinese Government website)

2. Instructions on Further Regulating the Formulation and Management of the Benchmark against the Discretionary Powers of Administrative Authorities

Promulgated by State Council

Promulgation date: 17 August 2022

Document number: SOI[2022] 27

The instructions sets forth requirements about further regulation of the work on formulation and management of the benchmark against discretionary powers of administrative authorities. The instructions notes that the benchmark against discretionary powers mean law enforcement boundaries and criteria formed by specifying and quantifying principles or variables such as powers to administer law and the decision making scope, in law, rule or regulation, based on how the local department of an administrative body administers the area and facts and circumstances considered when making the decision, and published in a specific form. The Instructions explicitly states that job duties should be formulated in strict accordance with the benchmark against the discretionary powers and the power to set the benchmark should be strictly regulated. It notes that the benchmark should be applied in an appropriate way that is subject to change in case of inappropriate or unfair application of the benchmark or a change in the objective circumstances where the benchmark applies.

(Source: Chinese Government website)

3. Classic Cases of Business Compliance (Part III)

Promulgated by Supreme People’s Procuratorate

Promulgation date: 10 August2022

First, as in the case of illegal access to a computer information system between Company Z in Shanghai and Ms. Chen, etc., as to the data compliance procedures for internet startups, there are a variety of moves for the industry governance and smart public prosecution services are used flexibly to conduct “cloud hearings” during the Covid-19 pandemic to help work resumption. This is the first classic data compliance case cultivated in Shanghai under the direct guidance of No.4 Public Prosecution Department of the Supreme People’s Procuratorate. The practices and effect of the case were highly appreciated by deputies of the National Congress concerned. Second, as in the case of insider information disclosed by Ms. Wang and insider dealings by Ms. Jin, as to insider information confidentiality compliance procedures for non-listed companies on the capital market, third party supervision and evaluation organizations set quantitative evaluation and acceptance criteria for business compliance, achieving positive results. This is the first criminal securities case in China in which the business compliance procedures are applied. The case which was recently covered in depth by the People’s Daily deserves approval for its steady exploration of the complete case handling system with the compliance reform in criminal cases where the conviction may be severe. Third, as in the proof falsification case between Company F and Ms Yan and Ms. Wang, under simplified compliance procedures for small and micro agencies, in specific circumstances the person directly responsible for the case may be prosecuted instead of the business in dispute. What we could learn from this case is that the public prosecution authority, not a third party as in most similar cases, conducted compliance investigation against a small business. Forth, as in the illegal minging case involving twenty three businesses in the mining industry of Luchuang County, Guangxi, for the mining industry compliance, big data in public prosecution are used in creative ways for business compliance in the class A cases and public prosecution authorities should illegally perform their duties to prosecute in public interests. This case helps the work on the industry compliance to be well done and should be approved and advertised for the good results of using the new mechanism. Also, Guangxi should be applauded for its achievements in case cultivation as a non-pilot province in the preliminary phase. Fifth, as in the case of Company X in Sanming, Fujian, Ms. Yang and Ms. Wang colluding in a tender, for private-owned high tech businesses, there are a variety of moves to ensure substantive compliance rectification, especially frequent visits followed by the decision not to prosecute, which are helpful to consolidate the compliance rectification.

(Source: SPP website)

4. Insurance Assets Management Company Administration Regulations

Promulgated by China Banking and Insurance Regulatory Commission

Promulgation date: 28 July 2022

Implementation date: 1 September 2022

Document number: CBIRC Order No.2, 2022

The Regulations consists of seven chapters and eighty five articles, mainly 1. including a new chapter about corporate governance, 2. a chapter about risk management with comprehensive amendments to provisions relating to risk management systems and requirements, internal audit, subsidiary risk management, connected transactions, personnel management, risk provisions, emergency management, etc. in order to increase the risk management ability of insurance assets management companies and ensure the safety of long-term assets like insurance funds, 3. improvements of share structure design, 4. improvements of business operation principles and rules and 5. additional regulatory measures and ways to prevent misconduct. The Regulations notes that arrangements for the further opening up policy by the financial commission of the State Council should be implemented, Chinese and foreign funded insurance companies as shareholders of insurance assets management companies be treated equally and the upper limit on the proportion of shares held by foreigners be lifted.

(Source: CBIRC Website)

5. Regulations on Giving Priority to Use Assets of People Who Violate Securities Law to Pay

Damages in Civil Code

Promulgated by China Securities Regulatory Commission

Promulgation date: 29 July 2022

Implementation date: 29 July 2022

Document number: CSRC Announcement No.40, 2022

The Regulations mainly deals with the applicant, application deadline, application process, etc., setting forth the work mechanism in which administrative penalties paid by offenders are used to pay damages in civil code. The Regulations explicitly states that victims may file the application under the Regulations within one year after the court delivers the ruling deciding to terminate the enforcement and China Securities Regulatory Commission will dismiss the application if it is filed after the one-year period of time. If the offender is declared bankrupt by the court, victims may file the application under the Regulations within one year after termination of the insolvency or additional allocation process and CSRC will dismiss the application if it is filed after the one-year period of time. (Source: CSRC website)

6. Circular on Strengthening Collaboration between Administrative and Legal Authorities to Protect Equal Rights in Employment of Employees Who Recovered from Covid-19, Etc.

Promulgated by the Ministry of Human Resources and Social Security and the Supreme People’s Court

Promulgation date: 16 August 2022

Document number: Circular No.108, 2022 by MOHRSS

The Circular notes that if the employer discriminates the employee who recovered from Covid-19 in their job or illegally get unauthorized access to the employee’s Covid-19 test results, the employee can legally bring an action on the ground that the employer infringes their right to be equally employed, interests in personal information, etc. In job discrimination cases where the facts and legal relations are ascertained, the court should give them legal protection more efficiently by filing, hearing and closing such cases quickly and in all cases, impartially.

If the employee files a request for investigation and evidence collection with the court that meets the legal criteria, the court should actively conduct the investigation. During the hearings, the court should fully consider the ability to gather evidence of the parties involved, divide the burden of proof reasonably by following the principles of trustworthiness and fairness and protect the employee’s legal rights effectively.

(Source: SC website)

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