FLIA wins China’s Ministry of Civil Affairs research award

On March 8, 2016, at a time when amendments to the Foreign NGO Management Law and the Charity Law were being debated by the Chinese and Western media and scholarly communities, the Ministry of Civil Affairs issued a call for research proposals on the theme “The Construction and Governance of Chinese Social Organizations” (中国社会组织建设与管理) .

The call attracted submissions of research reports from 422 institutions for higher education, research institutes, departments, civil society organizations,  local government organs, and more than 2,500 scholars. After a rigorous short-listing process, and a blind peer review, the Ministry of Civil Affairs chose 65 research reports for publication in mainland China.

I am happy to announce that the research report produced by the Foundation for Law and International Affairs was one of the reports to be awarded a third prize, together with reports prepared by the China University for Politics and Law, and the Ministry of Civil Affairs Centre for Policy Research. The report was authored by Zhu Shaoming, Zhang Aisi, Wang Keren, Shan Gao, Larry Catà Backer, and myself.

The report’s cover page and index are reproduced below.

schermata-2017-02-18-alle-18-37-14

社会组织“走出去”政策体系研究

(一) 社会组织走出去的内部政策环境

1. 党的领导

2. 法律体系

(二)社会组织走出去的外部条件

1. 外国对于中国社会组织的不同看法

1.1 正面看法

1.2 方面看法

- 案例一: 美国科学促进会于中国科学技术协会的国际合作

- 案例二: 爱德基金会海外办公室

- 案例三:沃尔玛抗议活动

- 案例四:中国红十字会

2. 欧盟于美国社会组织国际化研究报告

1. 欧盟社会组织的国际化

2. 欧盟社会组织国际化的法律机制

3. 欧盟社会组织国际化经验总结

3. 美国社会组织国际化

1. 法律框架

2. 政策支持

3. 美国社会组织国际化经验总结

4. 一代一路张略下的社会组织

1. 建立求同存异的价值体系

2. 社会组织走出去的内部支持

3. 社会组织周出去外部协调

参考文献

Comments to the Security Administration Punishment Law (Draft) of the People’s Republic of China

Comments to

the Security Administration Punishment Law

of the People’s Republic of China (Draft)

The Security Administration Punishment Law of the People’s Republic of China represents one of the main pillars of China’s criminal justice system.

Together with the Criminal Law, the Criminal Procedure Law, the Law on Administrative Coercion, the Law on Administrative Punishments and other pieces of legislation, it brings an essential contribution to the goals of protecting the lawful rights and interests of physical and legal persons from infringement by private or public actors, guaranteeing safer neighbourhoods, regulating and guaranteeing the lawful conduct of public security organs and the People’s Police.

Its latest round of revision comes at a time when other important pieces of legislation have been amended, or are being drafted. These pieces of legislation include the People’s Republic of China Police Law, the People’s Republic of China Law on Community Correction, the Regulations on the Protection of Minors Online, but are not limited to them.

These comments are respectfully presented with the goal to examining the internal coherence of the Draft Security Administration Punishment Law, as well as its coherence with the broader political-legal framework within which this piece of legislation is situated.

Section I – General Principles

This section sets the general objectives to be achieved through the Security Administration Punishment Law. These objectives are preserving social order, protecting public safety, protecting the lawful rights and interests of citizens, legal persons, and other organizations, and ensuring that public security organs perform their duties in accordance with the law.

Each one of these objectives is fully coherent with the relevant principles set by the Preamble to the Constitution of the Communist Party of China and with those enshrined in the Constitution of the People’s Republic of China. In fact, paragraphs 15, 16, and 17 of the Preamble to the Constitution of the CPC list a series of governance objectives which should guide the activity of public security.

1. The construction of a rule of law with Chinese characteristics requires ruling the state in accordance with the law and with virtue (paragraph 16). The methods to rule the state in accordance with the law and with virtue include drawing a correct line between antagonistic and non-antagonistic contradictions (paragraph 17). The tools to correctly draw the line between antagonistic and non-antagonistic contradictions, and the weapons to defend this line are provided by articles 5, 28 and 33 of the Constitution of the People’s Republic of China. The Security Administration Punishment Law puts these tools and weapons in the hands of the public security organs. As the Police Law notices, the power to use these tools requires loyalty to the Party, the State, the People and their constitutions (Police Law, Draft, article 5: 人民警察必须忠于中国共产党、忠于国家、忠于人民、忠于宪法和法律)

Article 1 of the Security Administration Punishment Law may make a similar reference, and also mention the principles of articles 5, 28, and 33. This would be coherent with the development of criminal legislation, as the 1954 Security Administration Punishment Regulations (中华人民共和国治安管理处罚条例) already contained a direct reference to the Constitution.

Therefore, the following suggestions are made:

a. Article 1 could be amended as follows:

为维护社会治安程序, 保障公共安全, 维护公民, 法人和其他组织的合法权益, 规范和保障公安机关及其人民警察依法履行治安管理职责, 根据中华人民共和国 宪法第 条, 28 条, 33  指定本法.

b. A new article could be included in Section I:

公安机关必须忠于中国共产党、忠于国家、忠于人民、忠于宪法和法律

This amendment would be coherent with the second paragraph of article 5, Security Administration Punishment Law.

2. An important principle of Chinese law is “taking facts as the basis and law as a criterion” 以事实为根据, 以法律为准绳. This principle is the basis of judicial fairness, and it is implemented through substantive norms and norms of evidence.

The Security Administration Punishment Law fulfills the principle of judicial fairness in various different ways: it punishes those who fabricate facts to slander others (article 50), and those who wrongly accuse or frame others, and attempt to make others receive public security penalties (article 51). Additional punishments are set for those who pervert the course of justice by forging, concealing, destroying evidence, or providing false testimony (Article 79(2)). A further guarantee that public security proceedings be based on real facts, not on fabricated facts, is given by articles 100, 104, 107 paragraph 3, 142 and 145(1).

Fact can be fabricated to frame innocent persons, therefore the Security Administration Punishment Law prohibits to make decisions on public security punishment where the defendants confesses to the fact of a public security violation but, his confession is not supported by other evidence (Article 120). Public security punishments can be used only when the facts are clear, and the evidence is irrefutable.

The 2004 version of the Security Administration Punishment Law contained several substantive and procedural guarantees to the principle of judicial fairness. The current admendment has increased the level of protection of suspects.

The conditions are mature to fully quote the principle 以事实为根据, 以法律为准绳 in chapter 1 of the Security Administration Punishment Law. Article 7 of the Civil Code already applies this principle to civil adjudication, stating that: 人民法院审理民事按键, 必须以事实为根据, 以法律 为准绳.

Therefore, the following suggestion is made:

a. Article 5 paragraph 1 could be amended as follows:

治安管理处罚必须以事实为根据,以法律为准绳, 以证据为证明 与违反治安管 理行为的性质, 情节以及社会危害程度相当。

Section II – Types of Punishments and their Application

1. The Draft amendment to the Security Administration Punishment Law has removed all references to the deportation 驱逐出境 and repatriation 遣送出境 of non-Chinese nationals. Deportation and repatriation of foreign nationals are administrative punishments based on articles 81 and 82 of the Exit and Entry Administration Law of the People’s Republic of China. Exiting the territory of China within a time limit 限期出境 is an administrative punishment listed under article 8(7) of the Administrative Punishment Law.

Exiting the territory China within a time limit is a punishment used whenever non-Chinese citizens “engage in activities that do not correspond to the purpose or stay of residence, or otherwise violate the laws of regulations of China”. Violations of the laws and regulations of China can include the violation of the Public Security Administration Punishment Law.

To reinforce the links existing between the Public Security Administration Punishment Law and the Exit and Entry Administration Law, the following suggestion is made:

a. the following paragraph could be added to article 9 as paragraph (6), and be interpreted as referring to the Exit and Entry Administration Law:

– 法律规定的其他行政处罚。

2. Article 14 provides for the punishment of those who violate public security while in a state of intoxication, and then gives public security organs the possibility to adopt protective measures, or contact the suspect’s friends, relatives or workplace to take them back. Each one of the options listed can easily be enforced. However, due to the development of the economic system and labor market in China, it is difficult that the staff of a person’s workplace could take a suspect back and watch over them. This provision of the Security Administration Punishment Law dates back from the time when the economy of China was subject to state planning, and perhaps no longer corresponds to the current circumstances of China’s economic development.

Therefore, the following suggestion is made on amending article 14, paragraph 2:

醉酒的人在醉酒状态中, 对本人有危险或者对他人人身, 财产或者 公共安全有威胁的, 可以对其采用保护性措施至醒酒, 或者通知其家属, 亲友, 所属单位领回看管, 也可以送医院醒酒

3. One of the principles of China’s legislation on public security and by criminal legislation has been punishing the persons responsible for units that commit crimes, rather than the unit themselves. This principle, however, has evolved over time, and now the Security Administration Punishment Law and the Law on Administrative Punishment allow the use of orders to suspend production or operations, or the revocation of certificate or licenses on units, enterprises and other legal persons who violate public security.

Article 17 states that where a unit violates the administration of public security, the unit, its directly responsible person and other directly responsible personnel are to be punished. Then, it makes a series of distinctions on when units, enterprises and other legal persons can be punished. These distinctions are as follows:

a. if the Security Administration Punishment Law does not contain a punishment for a unit, then the unit shall be punished according to the Law on Administrative Punishments, the Law on Administrative Coercion etc.

b. if no rules exist that allow to punish units, then punishment is to be given to the persons who organized, planned or carried out public security violations.

In some circumstances, article 17 would allow to punish individuals, but units, enterprises and other legal persons would go unpunished for their violations of public security.

Therefore, it is suggested that this article be amended to provide for the legal responsibility of legal persons as well, and that the part where the article says “法律, 行政法规没有规定单位出发的, 对组织, 策划, 事实该违反治安管理行为人的依照本法和其他有关治安管理的法律, 法规的规定处罚。” be deleted.

4. Article 19 contains a list of aggravating circumstances. Before the amendment, retaliation against those who reported a public security case, and against witnesses in such cases was considered an aggravating circumstance. This is no longer the case.

Yet, the act of threatening, physically attacking or otherwise harming those who report a violation of public security brings an actual damage to social order. Also, fear of retaliation can induce people not to report violations of public security they are aware of.

While threats against whistleblowers, victims and witnesses have been removed from the list of aggravating circumstances, a new circumstance has been added: the use of IT networks to commit violations of public security.

IT networks are a mean of communication. An IT network is just one of the means that can be used to commit a public security violation, rather than a circumstance surrounding public security violations. The fact an IT network is used to commit a crime therefore should not be considered an aggravating circumstances. The Ministry of Public Security may want also to consider this scenario: where an IT network is used to violate public security, the responsible person is punished more severely according to article 19(3). But, if the same public security offence is committed through other means of communication, such as leaflets, newspapers, or even dazibao 大字报, then the responsible person will not be punished more severely.

These two internal contradictions can be eliminated by amending article 19 as follows:

(a) eliminate Paragraph 3 利用信息网络事实违反治安管理的行为

(b) reintroduce “对报案人, 控告人, 举报人, 整人打击报复的

Section III – Procedure

1. The rules of procedure contained in the Draft Security Administration Punishment Law are in for the most part complemented by the 公安机关办理行政案件程序规定. Then, procedural rules on public security punishments are posed also by the Law on Administrative Coercion, and the Law on Administrative Punishments.

Generally speaking, I could notice no contradictions or inconsistencies between the Draft Security Administration Punishment Law, the Law on Administrative Coercion, and the Law on Administrative Punishment.

The case of the 公安机关办理行政案件程序规定 is different, because these regulations were drafted and enacted in 1998 for the first time. They, they were amended in 2006 to keep the law in line with changed social circumstances.

Two approaches can be used to keep the law in line with circumstances. Existing legislation can be consolidated in a single national-level law, or older legislation can be amended to be brought in line with more recent legislation. China has chosen the second approach. Therefore, it is suggested that a close comparison be performed between the Draft Security Administration Punishment Law and the 公安机关办理行政案件程序规定 because there may be some inconsistencies between these two pieces of legislation. For instance:

(a) Amended article 100 of the Security Administration Punishment law has introduced the principle whereby evidence obtained illegally should not be used to determine a case. The second paragraph of article 100 contains a list of evidentiary materials public security organs gather during their investigation. This list is different from the list contained under article 25 of 公安机关办理行政案件程序规定. Article 25 公安机关办理行政案件程序规定 also contains 鉴定、检测结论勘验、检查笔录 among the evidence that can be excluded. But, the Security Administration Punishment Law does not.

(b) The 安机关办理行政案件程序规定 refers to persons who are suspected of a violation of public security, but have not been punished yet as “嫌疑人. This is in line with the Criminal Law of the People’s Republic of China, the Criminal Procedure Law of the People’s Republic of China and other relevant laws and regulations. The Draft Security Administration Punishment Law, however, uses a different language. The language used by the Draft Security Administration Punishment Law does not help to fulfil the principle of 以事实为根据, 以法律为准线. The word “嫌疑人” could be used instead.

(c) Article 100 in the Draft Security Administration Punishment Law prohibits the collection of evidence obtained through violence, threats and other illegal means. The use of the term 刑讯逼供 has been criticized because of its vagueness, and because it poses the risk of a subjective interpretation by a small number of low-quality law enforcement officials. Article 26 of 安机关办理行政案件程序规定 still contains a different language. Therefore, it is suggested that either article 26 of 安机关办理行政案件程序规定 is amended to bring it in line with the Draft Security Administration Punishment Law, or that the words “引诱、欺骗” be added to article 100 of the Draft Administration Punishment Law.