This Week in Asian Law

November 7-13

China

  • On October 21, 2020, the National People’s Congress Standing Committee released the draft Personal Information Protection Law for public comment through November 19. Here are summaries and analyses of the draft text from a U.S. law firm, a Chinese firm, and CGTN (China Global Television Network). Follow this guide to submit comments.

  • China’s Supreme People’s Procuratorate and China Securities Regulatory Commission jointly released 12 typical cases involving securities crimes or violations to provide guidance for handling similar cases in the future. (In Chinese)

  • Chongqing prosecutors warned that an “opinion” purportedly issued by the Supreme People’s Court in 2002 about how to adjudicate construction contract disputes is actually fake, and said they have ordered two Beijing-based companies to remove it from an online library of legal documents. The fake opinion had influenced the outcome of a Chongqing lawsuit and was widely cited in court decisions and journal articles nationwide. (In Chinese)

  • The Supreme People’s Court declined to approve the death penalty for confessed rapist-murderer Wang Shujin and remanded his case to Handan Intermediate Court for retrial. The lower court had sentenced Wang to death for raping and killing two women and attempting to kill a third after raping her. The SPC affirmed Wang’s convictions in those cases but ordered a retrial with respect to a fourth rape-murder case, saying new evidence had been found. Wang’s fate is of wide interest in China because his confession in a fifth rape-murder helped bring about the posthumous exoneration of Nie Shubin. Nie was executed in one of China’s most infamous wrongful conviction and execution cases.

  • The Hangzhou procurorate is experimenting with a “non-custodial” QR code app installed on suspects’ cellphone to monitor their activities while on bail. The app has been used by 1,607 released suspects and officials say that none has jumped bail. (In Chinese)

  • On November 10, China’s State Administration for Market Regulation released the draft “Guidelines for Anti-Monopoly in the Field of Platform Economy” (in Chinese) for public comment through November 30. The draft covers the determination of market dominance, unfair price behavior, below-cost sales, restricted transactions, differential treatment, tie-in sales and additional unreasonable trading conditions.

  • Among legislation approved by the National People’s Congress Standing Committee during its October meeting is the Export Control Law. China Briefing has analyzed the law, which it says is China’s first comprehensive export-control legislation.

  • The Shenzhen Municipal People’s Congress Standing Committee released the Health Regulation of Shenzhen Special Economic Zone, which takes effect on January 1, 2021. The regulation includes provisions on occupational health and safety, paid leave, and health care of vulnerable groups. The People’s Congress Legal Affairs Committee issued an explanation of the regulation.

  • The Supreme People’s Procuratorate held its first-ever public hearing to decide whether to grant a sentence reduction and parole to a convicted prisoner serving his term. (In Chinese) The case involved a man sentenced to four years in prison for excessive logging. The SPP said it held the public hearing in order to encourage greater use of parole and provide guidance for lower-level procuratorates as they choose among possible punishments. Parole has not been widely used in China. In the SPP’s 19th group of prosecutorial guiding cases (in English, paywall), it said that when an inmate is eligible for both parole and commutation, the procuratorate shall prioritize parole in its recommendation.

Hong Kong

Japan

  • Japan’s Immigration Services Agency is taking measures to shorten detention periods for foreigners awaiting deportation following intense international criticism, hunger strikes by deportees and calls by Japanese lawyers. Those in this category are generally aliens who have overstayed their visas and do not want to go home. The agency proposed to limit the number of times that detained foreigners can apply for refugee status, so that those without viable claims can be deported quickly rather than be held for years. It also proposed to allow some undocumented foreigners to live outside detention facilities in certain circumstances, and to create a special resident status for those who are unable to return to their homeland due to strife.

  • Japan’s Supreme Court upheld a lower court’s conviction in a father-daughter sexual abuse case that triggered nationwide protests. The case involved a father who forced his 19-year-old daughter to have intercourse. Women's groups around the nation erupted in outrage after a district court in March 2019 exonerated the father. At issue was whether the victim had been able to resist. The Nagoya High Court later convicted the father of the crime of quasi-forcible intercourse and sentenced him to 10 years, a decision that the Supreme Court upheld. The Justice Ministry has convened a panel of experts to discuss whether the law should be amended to make it a crime to have intercourse without consent, eliminating the requirement to prove that the victim was in a state of not being able to resist.

Koreas

  • South Korea’s Financial Services Commission is seeking legal amendments that would require virtual asset service providers to report the real names of their customers. The aim of the proposed amendments is to prevent money laundering. Virtual assets covered by this act include cryptocurrencies, digital tokens, e-money, electronically registered stocks, etc.

  • A district court in South Korea has served public notice on a Japanese firm to move forward with the asset seizure process so that it can compensate five Korean plaintiffs who were forced laborers during World War II. Mitsubishi Heavy Industries Ltd. had failed to respond to a ruling by South Korea's Supreme Court to compensate the former forced laborers and their families. Japan argues that its 1965 treaty with South Korea settled all colonial-era issues. South Korea’s Foreign Ministry said it is consulting with Japan to work out a solution.

  • The Labor Ministry and the Transport Ministry announced on November 12 that the government will consult with logistics companies, push for legislative revisions and introduce improved workplace guidelines to protect delivery workers, following a recent series of courier deaths, allegedly from overwork.

  • South Korea’s gender equality minister was criticized by women’s rights groups after she said that next year’s mayoral by-elections in Seoul and Busan present an “opportunity for people to collectively learn about gender-related issues.” The mayors of both cities were removed after being accused of sexual harassment. The minister apologized after nearly 300 women's rights organizations called for her resignation, saying that “victims are not tools to be used to raise awareness of gender issues.” The minister apologized.

  • South Korea’s Constitutional Court held a public debate on November 12 to decide whether it is unconstitutional to prohibit marriage of blood relatives within eight degrees of relationship. According to Articles 809 and 815 of the Civil Code, such marriage is prohibited. A petitioner is arguing that the prohibition violates marriage freedom.

Taiwan

  • Women’s groups in Taiwan have criticized the Ministry of Interior’s draft anti-stalking act for treating stalking as sexual harassment and failing to provide for early intervention in stalking cases that might head off violence by the stalker. The ministry is pushing back on the criticism.

  • Taiwan’s Constitutional Court’s Interpretation No. 796, released on November 6, declared unconstitutional a provision of the Criminal Law that revokes parole when a parolee commits any intentional crime punishable by imprisonment, regardless of the length of the imprisonment or whether the parolee is eligible for suspended sentence. The court said that Art. 78, Sec. 1 of the Criminal Law violates the principle of proportionality in Article 23 of the Constitution. Six days after the decision, three defendants who had been returned to prison after the revocation of parole were released. (in Chinese)

  • Taiwan’s marriage equality activists are urging authorities to allow transnational same-sex marriages in Taiwan in cases where the foreign national’s home country does not recognize same-sex marriage. Although Taiwan legalized same-sex marriages in May 2019, so far foreign nationals have been allowed to marry their same-sex Taiwanese partners in Taiwan only if their home governments also allow same-sex marriage. The activists focus on Article 8 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements, which says that if applying a foreign law leads to a violation of the public order or good morals of Taiwan, that foreign law is not applicable.

Vietnam