China Laws and Regulations Update in May 2023

1. Interpretation of Several Issues Concerning Law Application in Criminal Cases Arising from Adolescent Rape or Obscenity

Promulgated by Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security and Ministry of Justice

Promulgation date: 25 May 2023

Implementation date: 1 June 2023

Document number: SAMR Order 72

The Interpretation consists of sixteen articles in six parts.

First, circumstances where child rapists should be sentenced to heavier penalties. In Article 1 of the Interpretation, there are six circumstances where “heavier penalties at a higher level” should be given to child rapists in criminal law, including rape by violence, force, etc., or in a house or dormitory. It also sets out that adults who committed adolescent rape or obscenity and pleaded guilt should be sentenced to lenient penalties with severity.

Second, criteria for deciding adolescent rape and child rape in “serious circumstances”. In Article 2 of the Interpretation, there are seven circumstances where aggravated penalties should be given to “woman and child rapists” in criminal law. For instance, illegal detainment or use of illegal drugs to trick or control victims are “serious circumstances” where aggravated penalties should be given. In Article 3 of the Interpretation, “child rape causing injuries” defined in criminal law as one of the circumstances where aggravated penalties should be given is further specified, for which tougher penalties should be given.

Third, sexual assaults committed by people responsible for looking after the victim in circumstances where aggravated penalties should be given. In Article 5 of the Interpretation, criteria for deciding aggravated penalties for sexual assaults committed by people responsible for looking after the victim in “serious circumstances”, a new crime added to criminal law are set out in terms of time, number of criminals, means, outcomes, etc. In Article 6 of the Interpretation, people with special responsibility for female adolescents who forced them to have sexual relationship with them by using their position or taking advantage of their loneliness should be convicted of rape for which heavier penalties should be given. The convictions should be legal, correct and effective.

Fourth, child obscenity in the circumstances where aggravated penalties should be given. Articles 7 and 8 of the Interpretation further specify two aggravated circumstances where child obscenity causing injuries or other serious outcomes or in harmful ways or other serious circumstances. For instance, aggravated penalties should be given for child obscenity causing minor injuries or physical abuse by the child himself or herself or threatened with recording of obscene acts.

Fifth, law application in special circumstances. In Article 9 of the Interpretation, special obscene acts such as coercing or cheating adolescents into chatting online with no clothes on, asking adolescents for nude photos or videos should be found as child obscenity or forced obscenity, for which in case of more than one count, heavier penalties should be given.

Sixth, medical expenses connected with adolescent rape or obscenity. Article 14 includes provisions relating to compensation for physical damage arising from such cases and reasonable expenses necessary for mental or psychological treatment as evidenced by examination results, diagnosis, etc., which a Chinese court may legally award to show special care and protection for adolescents and help them recover and come back to normal life as soon as possible. (Source: SAMR website)

2. Guide to Work on Dealing with Intellectual Property Cases by the People’s Procuratorate

Promulgated by Supreme People’s Procuratorate

Promulgation date: 26 April 2023

Implementation date: 26 April 2023

The Guide consists of forty five articles, including general principles and intellectual property crime, civil and supervision of administrative action and public interests action procedures. Its main contents are 1. duties of prosecutors in charge of intellectual property cases, 2. tougher attacks on intellectual property infringement crimes, 3. improvements in prosecution and supervision of civil and administrative intellectual property cases, 4. technical issue resolution mechanism and 5. work connection mechanism. Considering the special characteristics of the appeal mechanism for intellectual property related technical cases and monopolistic cases, supervision powers of prosecution authorities at different levels should be clarified. In Article 23 of the Guide the Supreme Procuratorate should be responsible for dealing with protests over and review of court decisions in such cases. To fully implement the precise supervision principles, Article 25 sets out factors that should be considered when deciding whether an intellectual property case “should be put under supervision”. (Source: SPP website)

3. Instructions on Strengthening Regulation of Medical Cosmetology

Promulgated by State Administration for Market Regulation

Promulgation date: 4 May 2023

Document number: GSJGF[2023]22

The Instructions deals with moves to regulate and promote the medical cosmetology industry to strengthen regulation of the industry. Here are its contents. First, based on the bottom line of protecting the people’s lives and health, it explicitly provides that medical cosmetology services are medical activities that must be done in compliance with health industry entry laws. Second, it stresses cross-department regulation and formation of a coordinated and effectively connected industry regulation system under the framework of existing laws in connection with registration, review of qualifications, sharing of certificate and license information, reporting and consultation, cooperation in random inspections, coordination in regulation work, connectivity between administrative and criminal procedures, etc. Third, to integrate regulation rules and accelerate development and after full deliberations over the rule and characteristics of the medical cosmetology industry, provisions are formulated in connection with improvement of the industry entry conditions, market entity registration services and information disclosure and credit rules, etc. (Source: SAMR website)

4. Administrative Punishment Rules for Ecological Environment (Revised Edition)

Promulgated by Ministry of Ecological Environment

Promulgation date: 16 May 2023

Implementation date: 1 July 2023

Document number: MEE Order 30

The main differences between this Rules and its previous editions are (1) types of penalties, (2) investigation and evidence collection related rules, (3) discretionary powers to give administrative penalties, (4) administrative punishment procedures, (5) the new provisions relating to disclosure of administrative penalty details, and 6. limited periods of time and amounts of penalties. In addition, the section “Disclosure” is added to Chapter III “General Procedures” of the Rules, including specific provisions relating to disclosing persons, disclosed contents, circumstances where no disclosure is allowed, privacy protection, limited period of time for disclosure, withdrawal of disclosure, etc. (Source: MEE Website)

5. Business Code Regulations (Revised Edition)

Promulgated by State Council

Promulgation date: 24 May 2023

Implementation date: 1 July 2023

Document number: SC Order 760

The main contents of the Rules involve 1. business code management systems, 2. business code technology innovation and standards, 3. business code inspection and certification systems, 4. electronic certification service used code and electronic government and certification service management, 5. business code import and export management and 6. business code applications. Based on business code import and export regulations in secret code law and Chinese export control and dual use item import and export regulations, the Rules explicitly sets out the business code import and export license and export control list, including the approval procedures. In addition, the Rules encourages citizens, legal persons and other organizations to legally use business codes to protect cyber and information security, supports online products and services using business codes for security purposes and sets out business code use and state security inspection rules for key information infrastructure. (Source: Chinese Government website)

6. Typical Labor Cases Connected with New Forms of Employment (Third Issue)

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

Promulgation date: 26 May 2023

Document number: MOHRSS CN [2023]36

The Classic Cases covers major types of industry and common ways to employ people in the platform economy, in which the rule of “facts first” is followed to decide whether there is employer-employee relationship between the business and its employee. It specifies the way to decide whether there is employer-employee relationship based on the fact of one person being subordinate to the other and its elements, in which it is necessary to evaluate the employee’s discretion to decide work hours and workload and other elements of employment with the platform, perform a comprehensive analysis of the fact of the employee being subordinate to the business in personal, financial and organizational terms, make a full assessment of labor management levels, define circumstances where the employee-employer relationship is established and correct illegal activities of avoiding employer’s obligations by executing a cooperation agreement in civil law, “employing people under the disguise of outsourcing”, tricking employees into registering as individual business, etc. to protect employees’ legal rights. (Source: SPC website)

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