CONTENTS
What are Public Security Administration Violations and Punishments?
What’s new in the draft revisions？
Heightened Enforcement for Domestic Violence, protection orders
Updates for agreement with the Criminal Justice System
Teaching the Law while enforcing it:
Collection of Biologic Samples
What are Public Security Administration Violations and Punishments?
In China, some offenses that are considered to not reach the level of “crimes” are instead classified as “violations of public security administration”, addressed outside of the normal criminal justice system. These violations are generally less serious versions of a related criminal charge, such as possession of small amounts of drugs, brawling where injuries were minimal, etc.
The Criminal Law (CL) and Criminal Procedure Law (CPL) provide for criminal conduct, it’s punishment, and investigative procedures; while the Public Security Administration Punishments Law (PSAPL) addresses both public security administration violations and procedures.
The PSAPL empowers police to directly punish violations with warnings, fines, and even up to 20 days of detention, without going through the courts at all.
What’s new in the draft revisions？
There are too many changes proposed in the long overdue revisions of the PSAPL to recount them all individually. In addition it is interesting to see what changes proposed in 2017 Draft Revisions have been abandoned. In order to highlight all the changes, I have provided a comparative chart below indicating the changes made in the previous and current draft, and separately highlighted some of the more important changes below.
I have not separately highlighted changes to the punishments for offenses, even where a new sentencing range was added for more minor or more serious offenses. It is worth mentioning, however, that greatly expanded penalties for entity-violators proposed in the 2017 Draft seem to have been abandoned throughout.
Controversy over Article 34:
The draft revision that has generated the most interest both within China and abroad is article 34, which focuses on penalties for disparaging heroes and martyrs. The article provides for 6 types of offense, which may be punished by between 5-15 days detention and possible fines of between 1,000- 5,000 RMB ($140-$685).
In 2018, China’s Law on the Protection of Heroes and Martyrs was enacted, authorizing both criminal and public security administration punishments. Amendment 11 to the Criminal Law, adopted in 2020, already added a new criminal charge in support of the law, authorizing up to three years imprisonment for ‘serious’ encroachment of the reputation and honor of heroes and martyrs (Criminal Law article 299-1). The newly proposed amendment of PSAPL article 34 seems intended to do the same in the public security administration context, as much of its language directly tracks that of the Heroes and Martyrs Law and creates a specific basis for enforcement. [see Box].
The offenses in Article 34 would already be controversial as they largely involve limiting speech of an inherently political nature, but items (2) and (3) are drafted so vaguely as to raise additional alarms. While their location in article 34 suggests that they should also be aimed at implementing the Heroes and Martyrs Law, they don’t directly mention heroes and martyrs at all, instead penalizing any speech, clothing, and items that “hurts the feelings of the Chinese people”. This phrase is a staple of China’s political and diplomatic rhetoric, but so vague as to offer citizens and law enforcement almost no guidance on what is prohibited.
The good news is that there are indications that Article 34’s language will be significantly clarified in the final version of the law. Both experts and the public have vocally criticized the new article, including through the submission of official public comments on the draft law. Tellingly, state media outlets have highlighted these criticisms, and the Legislative Affairs Committee of the National People’s Congress even issued a special notice reiterating that public criticism is appropriate and the purpose of having a public comment period. This reception contrasts with the deletion of an article by Professor Zhao Hong criticizing an unrelated provision that would punish insults aimed at police.
The bad news is that while “hurt the feelings of the Chinese people” might not remain as the statutory basis for punishing expression, further revisions will probably leave in place some restrictions on clothing, symbols, and speech that are viewed as insulting heroes and martyrs, as is already suggested in the Heroes and Martyrs Law.
While the specific focus on insulting ‘clothing’ may come off as unusual, which is possibly one reason the clause has gotten so much attention in Western media, other Chinese laws have similar clauses. The Counter-terrorism Law similarly prohibits compelling others to wear clothes or symbols promoting extremism or terror, which may have been interpreted liberally to go after those wearing Muslim religious attire. In relation to Heroes and Martyrs, calls for amending the PSAPL to address disrespectful clothing at memorials were already part of the discourse as early as 2018.
Heightened Enforcement for Domestic Violence, protection orders
An interesting area that has received less attention is the reform to a few articles related to domestic violence.
The first is the addition of heightened penalties for some domestic violence offenses. Article 52 now authorizes longer periods of detention (5-10 days) where circumstances of abuse or abandonment are more serious. It also adds situations where abusers target persons under their care or guardianship as an independent actionable offense, not requiring the victims to make a complaint. Criminal charges are of course also possible.
The second addition relates to the domestic violence warning letter system introduced in China’s 2015 Domestic Violence Law. To encourage earlier police intervention by police, the Law allowed that even when police responding to a domestic violence incident police found that there was no punishable conduct, they could create a detailed report in the form of a written warning. This warning would be sent to local community committees and law enforcement, who might offer counseling, and could also be used as evidence in subsequent incidents to establish a pattern of abuse. Unfortunately, in practice, the warning system was often viewed as a compromise measure, and used in place of punishment even where more severe measures were justified to protect victims.
PSAPL draft Article 59(2) effectively turns warning letters into a form of protection order for preventing further violence by making failure to heed the warning its own offense. Under the Domestic Violence Law, courts are responsible for both issuing and enforcing protection orders, meaning that the remedy for violating the order might still require a court appearance and could come too late for a victim in crisis. By making the violation of police issued warning letters its own offense, police will be more invested in enforcement, and have another basis for immediately removing potentially violent abusers before the situation escalates.
Updates for agreement with the Criminal Justice System
The last time the PSAPL was revised was in 2012, when only a single change was made. By contrast, the Criminal and Criminal Procedure Laws have undergone a series of major amendments in the same period, and many of the proposed revisions to the PSAPL are aimed at updating it to accord with these other laws more closely.
Plea Leniency System:
In articles 20, 107 and 108, a version of China’s “plea leniency” criminal justice system is introduced into the public security administration violation framework. The Plea Leniency System, which promises leniency for those who admit guilt and accept punishment in criminal cases, has quickly expanded to account for a vast majority of China’s criminal cases. Plea leniency is usually associated with simplified trial procedures, and articles 107 and 108 of the draft PSAPL similarly mention faster case handling, but it is unclear what this will look like in this context as the extra-judicial procedures are already quite simple. One premise of plea leniency is that faster handling of undisputed cases allows for more time to be spent on contested charges, but it also runs the risk of encouraging false confessions. This problem could be even more prevalent in public security administration cases which are handled even less publicly and police hold even more power.
Protection of Minors:
In recent years, China has overhauled its legal system as it relates to children.
Two systems offering further protection to juvenile offenders that were introduced to the Criminal Procedure Law in 2012 have been adapted in the Draft PSAPL. The first is the sealing of records of offenses committed when one was a minor in Article 136. Sealing of juvenile records is a recognition that young people are in a unique developmental stage where mistakes may be made, and misconduct is not necessarily predictive of future misconduct. While the records may still be accessed by criminal justice authorities and some other authorized institutions, they are generally protected so as not to stigmatize minors going forward.
The second is article 96’s allowance of “appropriate adults” to participate in the handling of minors cases. In both criminal and public security administration cases, parents or guardians, are allowed to be present when police question juvenile offenders. In 2012, the criminal procedure was amended to allow other “appropriate adults” to be present when guardians weren’t available, including other family members or staff from the minors’ school or a child welfare organization. Interestingly, another proposed amendment, at article 112, allows for guardians’ to also make comments in support of juvenile offenders when the punishment decision is being made, but does not allow for other appropriate adults.
Two other provisions come down the other way, allowing increased use of detention against minors. Under the current PSAPL, minors under 14 years old are immune from all punishments, 14 or 15-year-olds are never to be detained, and 16 or 17-year-olds can be detained only if it is not their first offense. Proposed revisions to article 22 add a paragraph that even those 14-16 can also be detained if they have more than one violation within a single year. Article 23 also further adds that where detention of a minor is not allowed, the police may still reprimand the minor or order them to express remorse.
In addition to these procedural reforms related to young offenders, penalties are also increased in several places for crimes against minors. This includes making the targeting of minors an aggravating factor for obscenity and pornography offenses (78, 79) or for encouraging drug use (83).
Supervision Commissions:
In 2018, China’s Supervision Law took effect creating a new branch of government that incorporated the powers of the Party Disciplinary Inspection Committee and took responsibility for the investigation of crimes abusing public office or authority. The proposed revisions to the PSAPL include multiple mentions of Supervision Commissions (e.g. articles 29, 88, 91, 134) to accord with the Supervision Law.
Teaching the Law while enforcing it:
Article 6 adds a provision that police performing public security administration functions should clearly explain the law to the parties and others. This reflects a pervasive policy of having ‘all those who enforce the law teach the law”, that is meant to increase legal awareness and legitimacy introduced in 2017.
Collection of Biologic Samples
Article 100 now allows for the collection of certain biometrics or biological samples to identify physical states, traits, or injuries; including against the will of the subject. This language tracks that of article CPL article 132, concerning police investigations of crimes, and is not surprising as police will investigate conduct while deciding whether it is to be handled as a crime or public security administration violation.
SPECIFIC OFFENSES ADDED
Cheating on tests, Article 26 adds new violations for those facilitating cheating on official state examinations, including organizing cheating, providing tools for cheating, selling answers, or taking exams on behalf of others. The maximum penalty is up to 10 days detention. The offenses correspond to similar criminal offenses added in Criminal Law Amendment 9 in 2015 (CL article 284-1).
Cults and Superstition: Article 30 expands liability for the misuse of cults, superstition, and religion to disrupt public order by adding an offense of “producing, transmitting, or possessing with intent to transmit” materials on such prohibited organizations. This is the only offense under this article that does not require showing that a disturbance of order has occurred. The same article also provides liability for those who knowingly facilitate the listed offenses. Similar activity has been included in Criminal Law Article 300’s provisions via a judicial interpretation.
Computer Trespass: Article 32 adds a provision to computer and information networks, providing liability to those who provide tools for committing the other offenses. A similar clause was added to Criminal Law article 285 in 2009’s Amendment 7 to the Criminal Law.
Pyramid Schemes: Article 33 adds offenses of organizing, leading, or bringing others into pyramid schemes. These correspond to Criminal Law article 224-1 added in 2009’s Amendment 7 to the Criminal Law.
Interfering with safe driving on public transport: Article 39 expands an existing offense relating to interference in civil aviation to include interference with the operation of all public transport. It also adds a new offense of attacking the driver or seizing the steering wheel of public transportation. Criminal Law Amendment 11 added corresponding crimes at CL article 133-2 in 2020.
Defenestration and Sky Lanterns: Article 42 contains a number of offenses related to the creation of public safety hazards, including damaging streetlights, not covering/labeling holes, and improperly using electric fencing. The draft revisions propose two additional offenses: the release of sky lanterns (with risk of fire) and throwing things off of buildings. A criminal offense of throwing things from heights was adopted in 2020’s Criminal Law Amendment 11, as CL article 291-1.
Failure to Protect by Key Units: Article 45 adds a new offense authorizing detention for the responsible personnel of key units for public security and defense that fail to protect citizen and their property, even after being ordered to make corrections. These key units, to be designated by local public security departments, include a wide variety of public facilities as defined in earlier authority. Fines for units and responsible individuals have long existed for similar offenses, but this may be the first time detention has been authorized.
Drones and other low-altitude aircraft: A new offense is added for operating unmanned drones and other low-altitude aircraft in serious violation of regulations, punishable by between 5 and 10 days of detention. The use of drones is not prohibited in China, but is increasingly regulated, including new regulations taking effect next year.
Witness intimidation and retaliation: Article 49 builds on existing offenses for intimidation and retaliation by adding a separate offense of violating protective injunctions issued by investigators forbidding contact with certain persons.
Protection of Personal Information: Article 55 adds offenses related to the unlawful acquisition, sale, or provision of personal information. This offense corresponds to crimes added in Criminal Law Amendment 9 in 2015, now at CL article 253-1.
Resale of other’s deliveries: Article 56, which previously addressed only opening, damaging, and tampering with other people’s deliveries has been expanded to include resale of the deliveries, closing a small loophole. Increased penalties have also been added where the circumstances are more serious.
Insult of police: Article 59 includes various offenses regarding the obstruction of police in the performance of their duties, including crossing police lines, obstructing emergency vehicles, and the violation of domestic violence warnings discussed above. A new clause adds that insult and verbal abuse of police can be considered an aggravated obstruction, meriting heavier penalties. That insult alone should be seen as obstruction is controversial and vague. A 2020 Guiding Opinion jointly issued by China’s top court, prosecutor’s office, and the Ministry of Public Security, however, previously provided that insult to police would merit higher public security administration penalties.
Providing forged documents to Facilitate Fraud: A new clause is added to Article 61’s prohibition on the creation/sale/use of forged official organization documents, adding that they must also not be rented out or loaned etc. for others to use illegally.
Failure to register business: Article 67 adds a new offense for failing to register information with the public security organs as required for businesses in certain sectors, including auto repair, resale, etc.
Escaping detention- Article 71 creates a new offense for those who escape from lawful detention, punishable by more detention.
Trading in drug Precursors and Reagents: Article 84 adds a new offense of trading in drug precursors, raw materials, and reagents.
Comparison Chart
The table below is meant to indicate the changes between the Effective version of the law, draft revisions proposed in 2017, and a 2nd revised draft that is currently available for public comment.
Because CLT only translated the 2017 and 2023 drafts, I have used the Chinese government’s translation of the effective law in the table below. This means that some English in the current version of the law may differ from my translation even though the original Chinese was not amended. Only those changes indicated by different colored text reflect actual revisions!
Green = added since previous draft Red = deleted in the subsequent draft
Green Strikethough = Added from previous, but removed/abandoned in subsequent draft
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