Wednesday, July 19, 2017

Guide to Legislative Interpretation in China (Prof Hualing Fu)

In this short guide, I examine legislative interpretation by the Standing Committee of the National People’s Congress (NPC). I make two related points: 
   (1) It may not be possible to distinguish legislative interpretation from legislative amendment. While they are conceptually distinct, it is a distinction without differences as a matter of legislative practice; and 
 (2) Because of the fuzziness between interpretation and amendment, legislative interpretation, unless otherwise stated, does not have retrospective effect. 
     According to the Decision on Legal Interpretation Work, promulgated by the NPC Standing Committee in 1981, where a law or decision that has been promulgated by the NPC needs further clarification or supplementary regulations, the NPC Standing Committee may give interpretations or make regulations through decisions.
     Although the Decision on Legal Interpretation Work refers to both clarification (明确界限) and supplementary regulation (补充规定), it is not clearly stated whether an interpretation is limited to clarification of a legal provision (and supplementation can only be done through a new enactment) or a legal interpretation can both clarify and supplement a legal provision. 
     The uncertainty in the 1981 Decision may have contributed in a commonly held view that, in the Chinese legal system, a legislative interpretation may both clarify and supplement a legal provision. The Constitution 1982 specifies the law-making powers of the NPC and that of its Standing Committee. The Constitution refers to three ways through which the Standing Committee may act in relation to a law that has been promulgated by the NPC. 
     Article 67 (3) states that the Standing Committee can “supplement and amend” laws that have been promulgated by the NPC; and Article 67 (4) states that the Standing Committee has the power interpret law.
     While Standing Committee 67 (3) may supplement and amend laws on the condition that the supplementation and amendment do not violate the basic principles of the legal provisions to be supplemented and amended, there is no such condition imposed on interpretation, implicitly because interpretation, being different from supplementation and amendment, is limited to the clarification of the meaning of law which it already has.
     The Constitution does not delineate the boundaries between supplementation and amendment on one hand and interpretation on the other, but it says clearly that interpretation, conceptually, is not supplementation. 
      It is the Legislation Law that finally sets a clear perimeter for legislative interpretation. Under the Legislation Law, legislative interpretation has two meanings: 1) further clarification of a legal provision, and 2) the application of an existing legal provision to a new situation.  But is this a real distinction between interpretation and supplementation, or a distinction with a difference, as the Court of Appeal in Chief Executive v President of the Legislative Council [2017] 1 HKLRD 460, [55] doubted?  I have looked at the matter and I regret I cannot answer the question with any confidence. 
     There are to date over 10 Legislative Interpretations by the Standing Committee on China’s Criminal Law and most of the Interpretations, in form, aim to clarify the meaning of terms or provisions. 
     The 1st interpretation, given by the Standing Committee on April 2002, related to the circumstances in which members of the Village Committee, a statutory authority exercising self-governing power within a village, are deemed to be civil servants and subject to China’s anti-corruption law. There were different legal views on the applicability of anti-corruption law on members of village villages and the 2002 Interpretation specifies the circumstances in which the law applies to Village Committee members. Under the Interpretation, village committee members are deemed to be civil servants and punishable under the anti-corruption law when they exercise a number of enumerated public functions on behalf of the government.  Most of the legislative interpretation thus “explains” the meaning of a legal term in similar ways. 
     Another 2002 Interpretation, for example, clarifies the meaning of misappropriating public funds for “personal use” by giving three examples which should be regarded as “personal use”. Under the Interpretation, “for personal use” is given a broad interpretation to include a personal decision to allow the fund of one organisation to be used by another, even though the relevant decision-maker did not personally use the fund as such. 
     Yet another 2002 Interpretation on persons with capacity to commit an offence of dereliction of duty, stating that anyone who is entrusted by the state to perform public services can be charged with the offence regardless of whether that person concerned is a properly enlisted state functionary. 
     A 2004 Interpretation tries to clarify the meaning of credit card within the meaning of criminal law. According to the Interpretation, credit card “refers to the electronic payment cards issued by the commercial banks or other financial institutions, which possesses all or some of the functions of consumption payment, receiving loans, transfer account settlement, cash deposit or withdrawal.” Effectively, credit card within the meaning of Criminal Law includes debit cards and other bank cards.
     A 2005 Interpretation clarifies the meaning of “other invoices for tax rebate or tax offset” and defines them as “any receipt, payment voucher or tax payment voucher that are not the special invoices for value-added tax but may be used for tax rebates or tax offset.” 
     Clarification of law can go into great detail that would otherwise, in the Mainland legal tradition, have been left to the Supreme People’s Court (SPC) and the Supreme People’s Procuratorate (SPP). Those questions are returned to the Standing Committee for clarification largely because of the failure on the part of the SPC and SPP to achieve a consensus, which is often required in the Chinese criminal process. 
     The Interpretation of Article 313 of the Criminal Law is a good example. Article 313 relates to the enforcement of a court order and punishes anyone who is able to but refuses to comply with such an order. The Standing Committee provides a list of the types of decisions that will be deemed as court orders, including mediation agreement that is legally effective and arbitral award. The Interpretation further provides a long list of circumstances, which can be regarded as satisfying the test of being able to comply with a court order but refusing to do so. That seems clearly a function that should have done by the SPC, but in the Mainland case where a competent judiciary is occasionally absent, the legislature has to step in to fill the vacuum. 
      Legislative interpretation thus provides a dispute resolution function and a coordination function. The disagreement on the definition of organised crime between the SPC and the SPP is illustrative. The SPC was of the view, as expressed through its own judicial interpretation, that, as an element of the offence of organised crime, there must be the existence of the so-called “protective umbrella”, that is illegal protection of a criminal organisation by government officials, making the crime hard to prove. The police and prosecution disagreed and their disagreement escalated and finally reached the Standing Committee, as the 1981 Decision demanded. In a 2002 Interpretation, the Standing Committee clarified Article 294 of the criminal law to the effect that a “protective umbrella” is one of sufficient conditions for organised crime. But it is not a necessary condition. 
     The meaning of “new situation” in the second limb of the Legislative Law is not clear. It may be “new” in the sense that a new type of criminal activities has emerged and it is uncertain whether the existing criminal law can be extended to punish those new offences. Local practices vary, disagreement abounds and an authoritative determination is needed, often on an urgent basis. An interpretation by the Standing Committee is needed to confirm whether an existing criminal provision can be extended to the new situation. Are “fossils of ancient vertebrates and ancient humans of scientific significance” “cultural relics” within the meaning of provisions of the Criminal Law? A number of articles in the criminal law punish any person who smuggles, steals, damages, sells or illegally transfers cultural relics. Without any elaboration, the Standing Committee says relevant article protecting cultural relics cover “fossils of ancient vertebrates and ancient humans of scientific significance”. Can the criminal offence of defrauding public and private property be used against the newly emerged offence of cheating on social security schemes? The Standing Committee issued an Interpretation in 2014 and answered the question in the positive. More crimes are being committed in the name of a corporation, an organisation or otherwise a work unit. Should corporate liability, which exists as a general principle, be extended to a specific offence which does not expressly allow corporate liability? The Standing Committee said "no" in a 2014 Interpretation excluding corporate liability unless it is specifically provided for in relation to a particular offence. 
     It may be “new” in the sense that legal change elsewhere has taken place and is having an impact on criminal law and an interpretation is needed to reflect the change. Criminal offences in relation to companies are subject to legal requirements in other legislation pertinent on company registration and operation. Legal changes in the Company Law would cause corresponding changes in the Criminal law and an interpretation may be needed to reflect that “new situation.” Thus, according to a 2014 Interpretation “company” within the meaning of Articles 158 and 159 of the Criminal Law refers only to companies that are subject to a paid-in capital requirement for company registration. Before 2014, Chinese company law required a certain amount of capital to be properly deposited before a company could be properly registered and Articles 158 and 159 of the criminal law punishes, inter alia, the offence of falsifying paid-in capital. That interpretation was made in response to the change in the Company Law, which waived the paid-in capital requirement for most companies. 
     So far so good. But the difficulty is this: there is no reasoning in these interpretations to distinguish an interpretation from a supplementation. When the Standing Committee decides that credit card includes debit card, cultural relic includes fossils of ancient vertebrates, and court order includes a mediation agreement, it, in its typical manner, does not offer explanations. It tells what it is but not why it is. Without adequate reasoning, it is impossible to second-guess where an interpretation ends and where a supplementation begins, and it is difficult to say the formal distinction between interpretation and supplementation has much substance in Chinese law. 
     Chinese law does have a design to curb any potential interpretative excess and abuse, however. That is to disallow any retrospective impact of an interpretation and treat an interpretation as legislation. While the Standing Committee has never stated explicitly and clearly whether a legal interpretation has retrospective effect, the SPC, with clear endorsement from the Standing Committee, has enacted Several Provisions on the Work of Judicial Interpretation in 2007. Article 25 (2) states that a legal interpretation takes effect on the day of its promulgation, unless the legal interpretation states otherwise. Legal interpretation is an integral entity and governed by the same rules. The interpretation rules of the SPC, I submit, apply to all legal interpretation in China, and, therefore, legislative interpretation does not have retrospective effect under Chinese law unless the Standing Committee of the NPC explicitly states the contrary.  Written by Professor Hualing Fu.

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