Chinese Law Prof Blog

China drops rule against undergraduate marriages

With the start of a new academic year, new rules have come into effect governing student behavior. The Rules on the Administration of Students in Ordinary Institutes of Higher Education (普通高等学校学生管理规定) were substantially revised last March and became effective on Sept. 1. Some of the major changes are noted below.

• The long-standing prohibition on marriage by college students has disappeared. Under the former rules, college students wishing to marry were required to withdraw from the university. Furthermore, the new version of the Rules deletes previous language allowing for disciplinary action on the grounds of "evil character and corrupt morals" (品行极为恶劣，道德败坏), requiring instead specific acts. It's not clear whether the new Rules would have saved two students who were expelled last year from a university in Chengdu merely for making out in an empty study room; their appeal to court was rejected in January, 2005. But they are part of a trend toward increasing respect for personal privacy, and decreasing interest on the part of authorities in controlling every aspect of citizens' lives through their work unit. The revised Marriage Registration Regulations (婚姻登记条例) issued in August, 2003 eliminated the requirement of work unit involvement (through the issuance of a certificate) when citizens wished to get divorced.
• While the old Rules allowed universities to expel students for a little canoodling, apparently cheating was not an expellable offense. In two recent cases, students expelled for just this reason have taken their universities to court and have won. The new Rules make clear that cheating is a violation.
• The new Rules establish a procedure for students to challenge disciplinary sanctions imposed by their schools, and require schools to follow certain procedures in imposing the sanctions. This particular revision may stem from a desire to reduce what seems to be a growing number of student lawsuits against their universities.

Web references:

• Chinalawinfo report
• Xinhuanet report

Louise Arbour holds press conference on human rights in China

U.N. High Commissioner for Human Rights Louise Arbour held a press conference in China on Sept. 2, the last day of her trip to China, in which she commented on a number of issues related to human rights in China.

• She reported that she had urged China to release "reliable data" about the death penalty so that it could be subject to informed debate. "I'm not interested only in raw numbers or statistics," she said. "What is critical is not just that we have a total number, but that ... in a social sense that this be broken down with enough information so we can appreciate what these numbers actually mean."
• She pushed for a timetable for ratification by China of the International Covenant on Civil and Political Rights, but apparently did not get one.
• She reported that she had urged China to provide for judicial review of all decisions concerning the deprivation of liberty, including re-education through labor (RETL). As an administrative decision, RETL should at least in theory be challengeable under the administrative litigation law, and such challenges have in some cases been brought. There are indeed other deprivations of liberty, such as confinement on the basis of alleged mental illness, that are not challengeable even in theory.

New legislation passed by NPC Standing Committee

The 17th Session of the 10th National People's Congress Standing Committee met at the end of this month and passed several items of legislation on Aug. 28. I discussed one of them, the revised Law on the Protection of the Rights and Interests of Women, in a previous posting. Here are the other items:

• A Law on Notaries was passed. I confess I haven't taken the time to read this carefully. The Ministry of Justice issued an Implementing Suggestion the same day.
• A Security Administration Punishment Law (治安管理处罚法) (SAPL) was passed. This is essentially a revised version of the Security Administration Punishment Regulations (治安管理处罚条例) last revised in 1986. (An explanatory article can be found here.) Despite the new label ("law" instead of "regulations"), both were passed by the NPC Standing Committee, and thus the new document doesn't seem to have a higher legal status than the old one. Glancing quickly through the SAPL, I noticed a couple of interesting points:
  • The maximum detention period remains at 15 days; the maximum fine is almost always 1000 yuan.
  • Some provisions have been added to help the police keep track of who's where: Art. 56 makes it an offense for hotel operators to fail to report the presence of persons they know (明知) to be criminal suspects or wanted by the police.
  • Prostitution seems to be going down the road to decriminalization. In the 1986 SAPR, it was "strictly forbidden" (严厉禁止) to engage in prostitution (on either side of the transaction), and the punishment was generally detention for up to fifteen days and/or a fine of up to 5000 yuan. The SAPR further authorized punishment through a sentence of re-education through labor (劳动教养), which can be up to three years plus an additional fourth under certain circumstances. The SAPL has backed off considerably from this.  The language specifically forbidding prostitution and consorting with prostitutes is completely gone. Instead, there is just a bland statement of the offense and its punishment, which remains at up to 15 days and/or a fine of up to 5000 yuan (which of course is a lot less now than it was in 1986). The prospect of re-education through labor is gone. And a new provision states that where the circumstances are "minor" (a possibility not even contemplated in the 1986 SAPR), the punishment shall be detention for up to 5 days or a fine of up to 500 yuan.
• Several minor treaties and conventions were ratified, but not the one that everyone is waiting for: the International Convention on Civil and Political Rights.

NPC Standing Committee outlaws sexual harassment

Prefatory note: Actually, the heading for this post is misleading -- the NPC Standing Committee has prohibited something described by the term 性骚扰, conventionally translated as "sexual harassment". Whether it has actually prohibited the acts that in English are called "sexual harassment" remains to be seen, because the Chinese term is not defined in the law.

The current session of the NPC Standing Committee today (August 28) passed a resolution amending several sections of the Law for the Protection of the Rights and Interests of Women (妇女权益保障法). The amendments, to be effective as of Dec. 1, 2005, include provisions against sexual harassment, but the concrete scope of the prohibition is not clear.

Art. 40 states: "Sexual harassment of women is prohibited. The injured woman has the right to complain to the work unit and the relevant department." (禁止对妇女实施性骚扰。受害妇女有权向单位和有关机关投诉.) Art. 58 states that where an incident of sexual harassment or domestic violence constitutes a violation of the Security Administration Punishment Regulations, the victim may request the police to impose punishment under those regulations (but surely this is already so), and may also bring a civil action in court for damages. Unfortunately, the amendments fail to define sexual harassment or the measure of damages.

Many of the amendments do not seem particularly earthshaking and are largely statements of principle with little or no concrete legal effect. Some examples:

• The equality of men and women is declared to be a basic state principle, while at the same time the law declares that the state shall protect the special rights and interests enjoyed by women under law (Art. 2). It is also forbidden in the same Article to discriminate against, mistreat, abandon, or harm women, but it is hard to see how, in the Chinese context, concrete rights might flow from this vague norm. (And whatever these terms mean, does the law condone doing them to men?)
• Art. 6 declares that people's governments at all levels must stress and strengthen the work of protecting women's rights and interests.
• Art. 10 states that women and women's organizations have the right to make suggestions to state organs at all levels regarding the protection of women's rights and interests. The right to make suggestions is something currently enjoyed by all citizens (although of course nobody has the right to see his or her suggestions adopted).
• Art. 11 states the people's congresses at all levels as well as villagers' and residents' committees should have an "appropriate" (适当) number of women, but appropriate is not defined.
• Art. 12 imposes the same obligation (if it can be called that) on state organs, social groups, enterprises, and institutions to have an "appropriate" number of women in leading positions. One wonders if this will apply to the Party itself.

Other provisions have more bite. For example, Art. 16 explicitly prohibits schools from rejecting students on the basis of sex or raising admission standards for women, except in the case of undefined "particular specialties" (特殊专业).

I don't have the time to go into all the amendments here, but there are many. I will post an English summary when one becomes available.

Web references:

• Text of amending resolution (in Chinese)
• Law for the Protection of the Rights and Interests of Women, as amended (in Chinese)
• News report on sexual harassment amendment from People's Web (人民网) (in Chinese)
• News report on sexual harassment amendment from Xinhuanet (in English)