Anti-Espionage Law (Draft) 8-31-2014

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The "Espionage Law of the People's Republic of China (Draft)" was initially reviewed at the 10th meeting of standing committee of the 12th National People's Congress. The "Espionage Law of the "Espionage Law of the People's Republic of China (Draft)" is hereby released to the public on the Chinese National People's Congress website for collection of public comments. The public can directly log in to the NPC website (www.npc.gov.cn))and provide comments; and may also mail comments to the Legislative Affairs Committee of the Standing Committee of the National People's Congress, (1 West Qianmen Avenue, Xicheng District, Beijing 100805) [in Chinese: 北京市西城区前门西大街1号,邮编:100805. Please clearly indicate on the envelope that it is a comment on the Espionage Act draft. Comments Deadline: September 15, 2014.

spyvspy People's Republic of China Espionage Act (draft)

Chapter I: General provisions

Article 1: This Law is formulated in accordance with the Constitution for the purpose of preventing,stopping and combating espionage; safeguarding State security; protecting the State power of the People's Republic of China's people's democratic dictatorship and socialist system; and ensuring the smooth progress of reform, opening-up, and the socialist modernization.

Article 2: Counter-espionage efforts adhere to the leadership of the party, and adhere to the principles of combining open and secret works, combining specialized agencies and the mass line, active defense, and punishment in accordance with law.

Article 3: State security organs are the competent authorities in charge of counter-espionage efforts.

Public security, secrets administration and other relevant departments follow their profession divisions of labor to closely collaborate with the relevant military departments, to do their work well in accordance with law.

Article 4: Citizens of the People's Republic of China have a duty to preserve national security, honor and interests; and must not endanger national security, honor or interests.

All State organs, armed forces, political parties and public groups, and all enterprises and organizations, have the obligation to preserve national security.

State security organs must rely on the support of the people in counter-espionage efforts, mobilizing and organizing the people to prevent and stop conduct threatening state security .

Article 5: Where institutions, organizations or individuals outside the territory carry out, instigate or financially support others to carry out espionage activities endangering state security; or where they are carried out by an organization or individual within the territory colluding with an institution, organization or individual outside the territory; it must be subject to legal liability.

Article 6: The state provides protection for organizations and individuals who support and assist state security work and gives rewards to those who make a major contribution to preserving state security.

Chapter II: Functions and Powers of State Security Organs in Counter-Espionage Efforts

Article 7: In counter-espionage work, state security organs carry out investigations, detention pre-trial and enforcement of arrest as well as other powers granted by law.

Article 8: When employees of state security organs are performing tasks in accordance with law, upon presenting appropriate identifications, they have the right to examine Chinese citizens' or foreigners' proofs of identifications; and make inquiries into relevant circumstances to relevant organizations and individuals.

Article 9: When state security organ personnel are performing tasks in accordance with law, they may enter relevant venues upon presentation of the appropriate documents; and on the bases of relevant national regulations, and upon approval and presentation of appropriate documents, they may enter relevant restricted regions, venues or units, to inspect or read relevant archives, materials or items.

Article 10: Upon presentation of appropriate documents, state security organ personnel lawfully carrying out urgent tasks may have priority use of public transportation and have priority access when encountering traffic obstructions.

As needed for counter-espionage efforts, state security organs may, in accordance with national regulations, have priority use of state organs', groups' enterprises' institutions', organizations' or individuals' transportation, communications tools, locations and buildings; and when necessary, may set up relevant work sites, equipment, and facilities. After use they shall be promptly returned and appropriate fees paid, or returned to their original condition. Compensation shall be made where there are damages.

Article 11: As needed for investigation of espionage activities, and on the basis of national provisions, state security organs may employ technological investigative measures upon strict formalities for approval.

Article 12: State security organ may inspect organizations' and individuals' electronic communications tools, instruments and other equipment and facilities, as needed for counter-espionage efforts. Where possible threats to national security are found during an inspection, the state security organ order may order or lead a rectification; where rectification is refused or where after rectification, requirements are still not met, they may be sealed or seized.

Article 13: As needed for investigation of espionage activities, and on the basis of national provisions, state security organs may petition customs, border patrol or other inspection organs waive exemptions for certain individuals, materials or equipment. The relevant inspection organs shall provide assistance.

Article 14: State security organs may lawfully seal, seize or freeze property related to espionage activities such as tools, funds, venues and materials with the permission of the responsible person at a state security organ for the community at the municipal level or above.

Article 15: To prevent and stop espionage activities, state security organs, together with relevant departments,draft technical protection standards for counter-espionage, and guide the relevant departments in implementing counter-espionage technical protective measures, an in departments with hidden danger, upon strict approval procedures, counter-espionage technical protection reviews and tests may be carried out.

Article 16: State security organs and their personnel shall strictly handle matters in accordance with law when working, and must exceed or abuse their authority, and must not infringe the lawful rights and interests of organizations or individuals.

Article 17: State security organs personnel lawfully performing their duties receive legal protections.

Chapter III: The Duties and Rights of Citizens and Organizations

Article 18: State organs, groups and other institutions shall educate their units' personnel on the maintenance of State security, and mobilize and organize them to prevent and stop espionage activity.

Article 19: Citizens and organizations shall provide conditions to facilitate state security work and other assistance.

Article 20: Citizens discovering espionage activity shall promptly report it to the state security organ, either directly or through their organization.

Article 21: When state security organs investigate to learn of espionage conduct or gather relevant evidence, relevant organizations and individuals shall truthfully provide and must not refuse.

Article 22: Any citizen or organization shall keep confidential state secrets that they know regarding counter-espionage efforts.

Article 23: No individual or organization may unlawfully hold any documents, materials or other items that are as State secrets.

Article 24: No individual or organization may unlawfully hold or use any specialized espionage equipment such as those for eavesdropping or covertly photographing.

Article 25: Any citizen or organization has the right to report or make an accusation to the State security organ at a higher level about a state security organ, or its personnel, exceeding or abusing their authority or their other unlawful conduct. The state security organ at the higher level or the relevant departments shall promptly investigate the facts and is responsible for its handling.

No person may suppress or take revenge against citizens or organizations assisting state security organ efforts or reporting or making accusations in accordance with law.

Chapter IV: Legal Liability

Article 26: Where foreign institutions, organizations or individuals carry out, or instigate or financially support others in carrying out espionage activities, or where a domestic organization or individual linked to a foreign institution, organization or individual conducts espionage activities, and it constitutes a crime, it is pursued for criminal responsibility.

Article 27: Where those committing espionage crimes turn themselves in or have meritorious services, they may be punished leniently, have their sentence commuted or have punishment waived; where there are major meritorious services rewards are given.

Article 28: Those coerced or induced to participate in hostile or espionage organizations abroad, who engage in activities which endanger the national security of the People's Republic of China, but promptly and truthfully explain the circumstances to an organ of the People's Republic of China based overseas, or, upon reentering the territory, either directly or through their organization, promptly and truthfully explain the circumstances to a state security organ, will not be prosecuted.

Article 29: Where a person clearly knows of another person's espionage conduct, but when state security organs investigate relevant circumstance or gather relevant evidence refuses to provide it, punishment is given by their work unit or the competent authorities at the level above; or the state security organs may give administrative detention of up to 15 days. Where a crime is constituted, it is punished in accordance with relevant provisions of the criminal law.

Article 30: Where violence or threats are used to obstruct state security organs' lawful performance of their tasks, it is punished in accordance with relevant provisions of the criminal law.

Where intentional obstruction of state security organs lawfully performing their tasks does not employ violence or threats, but causes serious consequences, it is punished in accordance with relevant provisions of the criminal law; where the circumstance are minor, state security organs give up to 15 days administrative detention.

Article 31: Where state secrets relating to counter-espionage efforts are intentionally or negligently disclosed, the state security organs give 15 days of administrative detention; where it constitutes a crime, criminal liability is pursued in accordance with law.

Article 32: For those in unlawful possession of state secret documents, materials and other items, as well as those who unlawfully possess or utilize specialized spying equipment, state security organs may conduct a search of their person, items, residence and other relevant locations in accordance with law; and confiscate the state secrets documents materials and other items they unlawfully possessed, as well as the specialized spying equipment they possessed or utilized.

Those with unlawful possession of state secret documents, materials or other items involving espionage conduct, are given a warning or up to 15 days administrative detention by the state security organ; where it constitutes a crime, criminal responsibility is pursued in accordance with law.

Article 33: Concealing, transferring, selling or damaging property that is lawfully sealed, seized or frozen by a state security organ, or where one clearly knows that goods were taken in an espionage activity and conceals, transfers , sells, or sells them on behalf of others; the unlawful gains or illegal assets are confiscated by the state security organ; and where it constitutes a crime, it is pursued for criminal liability.

Article 34: Where foreign personnel violate this law, they may be given a deadline to leave the country or deported.

Article 35: Parties that don't accept an administrative detention decision may apply for a reconsideration to the organ at the level above the one making the decision within 60 days of the date on which they receive the administrative detention decision; those who don't accept the reconsideration decision may raise a suit in the people's courts within 15 days from the date on which they receive the written reconsideration decision.

Article 36: Based on differing circumstances, state security organs confiscate property which has been sealed, seized or frozen; or transfer it to judicial organs for disposition.

All property confiscated by the state security organs shall be placed in the national treasury.

Article 37: Where state security organ personnel abuse their powers, neglect their duties or misuse power to benefit friends and family, and it constitutes a crime, punishment is given according to the respective provisions of the Criminal Law; Where unlawful detention, torture to coerce confessions, or the use of violence to obtain evidence constitutes a crime, it is punished in accordance with the respective provisions of the Criminal Law.

Chapter V: Supplementary Provisions

Article 38: The relevant provisions of this law apply to state security organs and public security organs following laws, administrative regulations and relevant national provisions to perform their duty to prevent, stop and combat other activity that endangers state security.

Article 39:This law shall take effect on XXXXX.

 

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