China Laws and Regulations Update in December 2020

1.(Eleventh)Amendment to Criminal Law 

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 26 December 2020

Implementation date: 1 May 2021

Document number: No.66 Chinese President Order

The Amendment changes the age of criminal responsibility, providing that a person aged 12 or above and less than 14 years old should take criminal responsibility for murder or assault causing death or serious injury or disability very violently in serious circumstances subject to approval of the Supreme People’s Procuratorate for pursuing their criminal responsibility.

The Amendment gives stronger safeguards against crimes in public health by amending provisions on the crime of jeopardizing prevention and treatment of infectious diseases, further stating that the above provisions apply to covid-19 and other infectious diseases legally treated as Class A infectious diseases and including provisions on crimes of illegally editing human genes, cloning embryos, seriously harming the safety of national human genetic resources and illegally treating alien species in connection with Biological Safety Law.

The Amendment increases levels of punishment for share issuance fraud, bond related crimes, major disclosure or non-disclosure crimes and other offenses and crimes on the capital market, improves illegal fund raising clauses, increasing the highest level of punishment for the crime of illegally absorbing public savings from 10 years in prison to 15 years in prison, imposes severe punishment for illegal acts of collecting debts and improves provisions on money laundering crimes, making greater efforts to pursue escaped criminals and illegal money in foreign countries and clearly defining “automatic money laundering” following a serious crime as a crime.

In addition, the Amendment increases levels of punishment for sexual assault on juveniles, makes great efforts to attack “underground manufacturers” of drugs, includes acts of throwing objects from a high position, grabbing the steer wheel of a bus, attending a university under a false name in criminal law and imposes severe punishment for intellectual property crimes and pollution crimes.

(Source: Xinhua News)

http://www.xinhuanet.com/legal/2020-12/27/c_1126911651.htm

2.Law against Juvenile Offenses (Revised)

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 26 December 2020

Implementation date: 1 June 2021

Document number: No.64 Chinese President Order

The amendment is admired for being consistent with amendments to the juvenile protection law, setting out principles and mechanism for preventing juvenile offenses, clearly defining meanings of misconduct and serious misconduct, strengthening intervention of families, schools and the society in juvenile misconduct and rectification of serious juvenile misconduct conducted by police departments and education administrations and holding police departments, public prosecution authorities, courts and judicial authorities more fully responsible for preventing juveniles from committing crimes repeatedly.

(Source: Xinhua News)

http://m.xinhuanet.com/2020-12/27/c_1126911646.htm

3.Yangtze River Protection Law

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 26 December 2020

Implementation date: 1 June 2021

Document number: No.65 Chinese President Order

Yangtze River Protection Law consists of 96 clauses and 9 chapters of general principles, planning and control, resource protection, water pollution prevention and treatment, restoration of ecological environment, green development, safeguards and monitoring, legal responsibilities and supplementary provisions.

The law imposes a complete ban on fishing for business in aquatic animal conservation areas related to Yangtze River. Fishing for business is completely banned from natural resources in the fishing industry in main streams and tributaries of Yangtze River, large lakes through which people can reach Yangtze River, designated areas near the river mouth or in other designated places within the state prescribed period of time.

The law requires strict control of sand excavation areas, the total amount of sand excavated and the number of sand excavators in sand excavation areas, prohibits sand excavation in non-excavation areas related to Yangtze River and sets out co-work on administration of law against illegal sand excavation.

The law includes green development provisions that require dangerous chemical manufacturers in designated areas be relocated and transformed more quickly and set out punishment for illegal activities to protect our mother river. (Source: Xinhua News)

http://m.xinhuanet.com/2020-12/27/c_1126911654.htm

4.National Defense Law (Revised)

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 26 December 2020

Implementation date: 1 January 2021

Document number: No.67 Chinese President Order

The amendments are mainly about the role of Xi Jinping’s thought on socialism with Chinese characteristics for a new era, changes in state organs’ powers in national defense considering reforms in the party, state organs, national defense and troops, accountability of the president of the military commission, amendments to tasks and aims of construction of armed forces, needs to defend activities and interests in new areas of safety, defense policy in major areas of safety, improvement of the national defense education and mobilization system based on the reform of the national defense education and mobilization leadership and management system, stronger protection of soldiers’ status and interests with the aim to “make soldiers respected by the whole society”, amendments to policies and rules on foreign military relations in a holistic approach to national security and Xi Jinping’s thought on diplomatic affairs. (Source: Website of Xinhua News)

http://www.xinhuanet.com/politics/2020-12/27/c_1126911647.htm

5.Provisions of the Supreme People’s Court on Retroactivity of Civil Code

Promulgated by the Supreme People’s Court

Promulgation date: 30 December 2020

Implementation date: 1 January 2021                         

Document number: L.I.2020 [15]

The Regulations has four parts, general provisions, specific provisions on retroactivity, specific provisions on application of related law and supplementary provisions.

Legal interpretation on retroactivity sets out two exceptions based on legislative law and experience in civil trials by following the basic principle of “non-retroactivity of law”.

One exception is “retroactivity of beneficial provisions”. For example, if a contract established before the Civil Code took effect should be deemed as void according to law and legal interpretation then in effect but is valid according to the Civil Code, the contract should be governed by the Civil Code. This provision is more agreeable with their autonomy in deciding what to and helps to promote and close deals.

The other exception is retroactivity of new provisions. In civil trials, to maintain fairness, justice and consistency in application of law, courts may deal with a matter that the old law does not mention and the new law clearly deals with by using the new law based on academic studies and practical experience in trials, for example, factoring agreement related provisions in Civil Code. Not all new provisions are retroactive. New provisions that prejudice legal rights of, create legal obligations on or are beyond reasonable expectation of parties involved are not retroactive.

In addition, if an old law or legal interpretation only includes principles and Civil Code includes specific provisions, the court can apply the principles in the old law or legal interpretation and give reasons for its judgement based on the specific provisions in Civil Code. (Source: Website of the Supreme People’s Court)

http://www.court.gov.cn/fabu-xiangqing-282051.html

6.Supreme People’s Court’s Interpretation on Application of Security Rules in Civil Code

Promulgated by the Supreme People’s Court

Promulgation date: 30 December 2020

Implementation date: 1 January 2021

Document number: L.I.(2020) No.15   

“Legal Interpretation of Security Rules” consists of 71 clauses, mainly including four parts of general provisions, guarantee, security interest and atypical security.

The part of general provisions consists of 24 clauses, including provisions on application scope, accessory nature of security, prerequisites for security, company security for external parties, joint security, legal consequences of invalid security, connections between security and bankruptcy and other matters. Joint security related provisions follow the rule that security providers cannot generally claim compensation against each other and grants parties involved that clearly agree or are presumed to agree to pay compensation to each other the right to claim compensation against each other by following the principle of respecting their autonomy in deciding what to do.

The part of guarantee consists of 12 clauses, including provisions on identification of different types of guarantee, parties involved in a general guarantee action, effect of enforceable notarized credit right documents, criteria for non-performance of an legally enforced debt, relative effect of a creditor’s exercise of its rights in the joint guarantee, term of guarantee on amounts within an upper limit, effect of cancellation of an action on the term of guarantee, effect of invalidity of a guarantee contract on the term of guarantee, facts related to the term of guarantee that should be ascertained, guarantee on debts after the statute of limitations expires, nature of credit enhancement measures. Criteria for distinguishing different types of guarantee are divided into rules of presumption and construction, in addition to specific provisions on atypical guarantee. This part clarifies issues of how to apply and connect the term of general guarantee and the statute of limitations, providing that the court should deal with the issue of whether the term of guarantee expires as a basic fact that should be ascertained. There are uniform provisions on the frequently disputed issue of how to calculate the term of guarantee on amounts within an upper limit based on practical experience in trials.

The part of security interest consists of 26 clauses, providing that mortgage on a property whose owner is unclear or questionable should be treated as unauthorized assignment under the rule of good-faith acquisition. The part of pledge of rights is aimed to address problems of “abuse of warehouse receipts” in pledge of warehouse receipts, apportionment of the burden of proof on non-existing or falsified receivables, helping to standardize pledge of rights procedures.

The part of atypical security consists of 8 clauses, including provisions on reservation of ownership, finance lease and factoring in Civil Code and security transfer and guarantee deposits. As stated therein, Legal Interpretation only applies to factoring with recourse and provides that courts can accept cases brought by factors against creditors and debtors of receivables together. (Source: Website of the Supreme People’s Court)

http://www.court.gov.cn/zixun-xiangqing-282721.html

 

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