June 5-11
China
The National People’s Congress Standing Committee gave final approval to the Anti-Foreign Sanctions Law, which takes effect immediately. The law states that China has the right to take countermeasures against foreign sanctions and authorizes departments of the State Council to take actions against individuals and organizations involved in drafting, passing, and enforcing foreign discriminatory and restrictive measures, as well as their relatives and affiliated persons or organizations. European companies have expressed concerns over the law, and the president of EU Chamber of Commerce in China said the measures “are not conductive to attract investment.” At the same meeting, the NPC Standing Committee passed the Data Security Law, Law on the Status and Protection of Rights and Interests of Military Personnel, Hainan Free Trade Port Law, Stamp Duty Law, and two other laws (in Chinese).
The NPC Standing Committee released the second-reading draft of the Legal Aid Law (in Chinese) for public comment through July 9. According to an explanatory document (in Chinese) released by the NPC’s Constitution and Law Committee, the second draft expands the scope of acknowledged legal aid service providers from government legal aid agencies to include other social organizations. The draft also deletes language referring to “legal aid agency lawyers,” raises the minimum years of practice required for lawyers defending death and life imprisonment cases to three years, and broadens the coverage of legal aid services in civil and administrative law cases. The draft also makes changes with regard to funding, lawyer compensation, and supervision and quality control of legal aid lawyers. Three other draft laws/revisions have also been released for public comment.
The Supreme People’s Procuratorate (SPP) announced that procuratorates and judicial administrative bodies nationwide have taken “special rectification actions” against retired judges and prosecutors who have served as lawyers, defenders, and legal representatives less than two years after retirement, in violation of the Judges Law or Prosecutors Law and code of conduct. The restrictions on former judges and prosecutors working as lawyers stems from concern about corruption. The rectification measures are part of the nationwide “Education and Rectification Campaign” in the political-legal system announced last summer. The SPP, Supreme People’s Court (SPC), and Ministry of Justice are drawing up regulations to further restrict the careers of former judges and prosecutors. (in Chinese)
The SPC, SPP, and five other departments jointly issued the minutes of a meeting called to discuss the establishment of a system of punitive damages in public interest litigation related to food safety. The participating departments decided that punitive damages in civil cases would have a strong deterrent effect. They encouraged localities to place punitive damage payments into a public welfare fund to be used for consumer rights protection. The director of the Eighth Prosecution Department of the SPP answered questions related to the meeting minutes. (in Chinese)
A group under the State Council issued an opinion on strengthening the protection of minors. It came just days after the revised Law on the Protection of Minors and revised Law on the Prevention of Juvenile Delinquency took effect. Gao Xiaobing, the deputy minister of civil affairs, explained the opinion at a press conference. He listed 25 major tasks related to implementing the Law on the Protection of Minors, including expanding compulsory education to after-school services and developing an industry code of conduct to protect minors on the internet.
The SPP released a 2020 white paper on the prosecution of minors that reported a significant decline in juvenile arrests and prosecutions and increased use of the plea-for- leniency procedure in cases involving minors. The white paper also mentioned a rape case in which an intellectually disabled victim was awarded damages for emotional harm in a civil lawsuit collateral to the criminal proceedings. It was the first time a court supported a claim for emotional damages in such proceedings, and came after the SPC 2021 interpretation of the Criminal Procedure Law “left the door half open” to seeking emotional damages in civil proceedings collateral to criminal cases. (in Chinese)
China’s judicial system has long embraced digitalization and animation as a way of modernizing the judiciary. The Jamestown Foundation’s China Brief published a report about the development of digital and smart courts in China, drawing on the 2020 Report on the Informatization of Chinese Courts published by the Legal Studies Research Center of the state-affiliated Chinese Academy of Social Sciences (in Chinese, paywalled).
Hong Kong
The Court of Appeal has granted a request to have the Court of Final Appeal, Hong Kong’s top court, determine whether prosecutors may use the “joint enterprise” principle to indict persons not physically present at a riot or unlawful assembly with the same charges as actual participants. The issue arose in a riot case in which three defendants were acquitted as the presiding judge ruled that the charge of riot required offenders to have “assembled together” at a crime scene and there was insufficient evidence to conclude the trio had assembled with protesters with a common purpose. Tong, one of the acquitted defendants, sought the top court's interpretation on whether the legal principle was applicable in cases involving riots and unlawful assemblies, and whether prosecutors needed to prove a suspect's physical presence at a crime scene to secure a conviction.
The website of a pro-democracy activist group, Hong Kong Liberation Coalition, was taken down by a WordPress-hosted website for violation of terms of service. The group claimed that WordPress was pressured by Hong Kong police to sensor their website based on the National Security Law, but both the police and WordPress denied the claim. The website of another activist group, 21hkcharter.com, was temporarily removed by an Israeli web hosting company in response to a request from Hong Kong police who cited Article 43 of the National Security Law.
During the COVID-19 outbreak, calls to a child abuse helpline set up by a child protection NGO doubled, yet the number of reported cases decreased, according to Dr. Patrick Cheung, the chairperson of the organization. Cheung said anti-pandemic measures have kept children at home, resulting in the increase in unreported child abuse cases. Under the existing system of voluntary reporting, family members and professionals such as social workers do not have a statutory duty to report suspected child abuse. The Law Reform Commission in Hong Kong has been pushing to recognize the “failure to protect” as a new offense.
In a landmark case, the Court of the First Instance (the High Court) ruled that the non-biological mother of children born to her former same-sex partner should be granted guardianship rights, joint custody, and shared care and control over their children. The court said it would not be in the children’s best interests to deny the application as the children are close to both mothers. Same-sex marriages and civil partnerships are not recognized under Hong Kong law. Hong Kong’s LGBTQ community sees the decision as a huge victory.
Facebook refused all 202 Hong Kong government requests for user data in the second half of 2020, its transparency report shows. Separately, Facebook restricted content from Hong Kong-based users on 13 occasions due to alleged violations of local law, a sharp decrease from 199 cases in the first half of last year. Facebook, Google, and Twitter all suspended review of government data requests shortly after the National Security Law took effect last July.
Japan
A woman in a same-sex relationship is suing her former employer, the Hokkaido government, and a mutual aid association, for ¥4.8 million ($43,000) after being denied spousal benefits on the ground that such benefits are for heterosexual couples only. The plaintiff said the two defendants rejected her application for benefits in 2018 and 2019 on the basis of sex orientation, notwithstanding a document recognizing her same-sex partnership issued by the Sapporo Municipal Government. Japan has not legally recognized same-sex marriage but many local governments issue certificates recognizing same-sex relationships as “equivalent to marriage.” The lawsuit was filed in Sapporo District Court, which ruled in another case in March that the government’s failure to recognize same-sex marriage is unconstitutional.
Japan’s Gender Equality Bureau released a 2020 white paper on gender equality (in Japanese), showing that women in Japan have been hard hit by the fallout from the COVID-19 pandemic. Both men and women have lost jobs due to the pandemic but women have lost far more, according to the white paper.
The government is considering legal measures that would authorize central and local authorities to order hospitals to accept COVID-19 patients and secure a sufficient number of hospital beds, according to a draft of new economic and fiscal policy guidelines. The draft guidelines also seek to concentrate investment in four areas: green society, digitalization, regional revitalization and child support.
The Diet revised a 2018 law on promoting gender parity in elections to prevent sexual and maternity-related harassment against female legislators. The revised law, which takes effect on June 16, includes a new provision addressing sexual remarks, unwanted physical contact and insensitive comments and actions concerning pregnancy and childbirth. Women account for a little more than 20% of Upper House members and about 10% of Lower House members. Harassment is a major barrier to women running for office.
Koreas
The Seoul Central District Court dismissed a lawsuit filed against 16 Japanese companies to compensate Koreans who were forced to work at Japanese factories during WWII. Ruling against 85 victims of wartime forced labor and their families, the court found that they didn’t have legal rights to seek damages. The court said that proceeding with the case could violate international legal principles that countries cannot use domestic law to justify failures to perform a treaty. The ruling drew outrage in South Korea. Song Young-gil, head of the ruling Democratic Party, criticized the judgment as containing unnecessary political language. A petition calling for the impeachment of the presiding judge in the case gathered more than 250,000 signatures, triggering a requirement for the presidential Blue House to respond.
South Korean lawmakers drafted cryptocurrency legislation (in Korean) for the National Assembly to consider in response to industry calls for regulatory clarity. It is the first time crypto-specific legislation is being discussed in the country’s parliament. Cryptocurrencies are not currently recognized as financial assets in South Korea, but the government announced that it would begin collecting taxes on cryptocurrency income starting in 2022. The government has been criticized for asking traders to pay taxes without offering them any legal protection.
Taiwan
A Taiwanese citizen studying in Norway has brought a claim against the Norwegian government before the European Court of Human Rights (ECHR) after being forced to register as “Chinese.” In 2020, after a diplomatic row with China, Norway changed the registered nationality of its Taiwanese residents to Chinese. The plaintiff, Joseph Liu, and others launched a “My Name, My Right” movement to raise funds and pressure the government to change its decision. Their claim reached the Norwegian supreme court, which rejected it without affording them the chance to represent themselves in court. If the ECHR rules in Liu’s favor, all 47 signatories of the European Convention on Human Rights would be barred from registering Taiwanese citizens as Chinese.
Taiwan’s Ministry of the Interior released a statement (in Chinese) which prohibits landlords from expelling tenants who have COVID-19 or are subject to home quarantine or denying them their housing rights. It cited the Communicable Disease Control Act, which imposes a fine of up to NT$150,000 (US$5,417) for infringing the dignity and legal rights of an individual infected by infectious disease or placed under home quarantine. Organizations from the private rental sector have called for financial support for landlords during the pandemic.
A group of NGOs in Taiwan urged the government to amend the law to provide more help to people from Hong Kong who seek asylum in Taiwan. The ruling Democratic Progressive Party has insisted that existing laws and mechanisms are adequate. Although Taiwan has no refugee law, the government is legally authorized to offer “necessary assistance” to people from Hong Kong and Macao whose “safety and liberty are immediately threatened for political reasons.” However, local NGOs and opposition parties have urged the government to provide more clear and detailed guidelines.