This Week in Asian Law

June 19-25

China

  • The Shanghai Municipal People’s Congress Standing Committee promulgated a decision (in Chinese) on how to implement the Pudong New Area’s special legislative and regulatory powers. The local action follows the issuance of a decision by the National People’s Congress Standing Committee (NPCSC) to grant the Shanghai Pudong New Area legislative powers similar to those given to China’s special economic zones - namely, the power to enact legislation that conflicts with national laws as long as it is consistent with the “basic principles” of those laws. Earlier this month, the NPCSC formally enacted the Hainan Free Trade Port Law (in Chinese), which grants Hainan Province more legislative and reform autonomy with respect to trade and investment.

  • The Supreme People’s Court, Supreme People’s Procuratorate and Ministry of Public Security released an Opinion on Several Issues Concerning the Application of Law in Handling Criminal Cases of Telecommunication Network Fraud (II). The 17-article document provides guidance about jurisdiction, evidence collection, victim restitution, and other matters in telecommunication network fraud cases. Officials answered questions from reporters concerning the document. (in Chinese)

  • Safeguard Defenders, a human rights NGO focused on Asia, published an illustrated report titled Locked Up, Inside China’s Secret RSDL Jails. The report concluded that Chinese police have increased their use of Residential Surveillance at a Designated Location (RSDL), a kind of secret detention without trial. RSDL is “one of the – if not the – most far-ranging system for enforced disappearances anywhere,” the group said in a letter to the United Nations Working Groups on arbitrary detention and enforced or involuntary disappearances and various human rights special rapporteurs.

  • Following the Anti-Foreign Sanctions Law taking effect on June 10, Chinese enterprises face new challenges in complying with the law while also ensuring the security of their overseas investments and the stability of international supply chains. The law firm King & Wood Mallesons published an analysis of key issues regarding the law from an enterprise perspective.

  • As the International Day Against Drug Abuse and Illicit Trafficking approaches, the Supreme People’s Court released 10 typical cases of drug crimes and drug abuse-induced secondary crimes, including two death penalty cases. The Supreme People’s Procuratorate released four typical cases involving new types of drugs disguised as drinks, stamps, and “smart drugs.” In answering questions from reporters, Yuan Ming, the director of the Second Prosecution Department of the SPP, introduced the pattern of drug cases handled by prosecutorial organs in recent years. (in Chinese)

  • The State Council Information Office issued a white paper on “China's New Type of Political Party System.” The white paper provides basic information about China’s current political party system, the relationship between the Chinese Communist Party and other political parties, the role of other parties and persons without party affiliation in the current regime, and the distinctive features and advantages of China’s party system. (in Chinese)

Hong Kong

  • The Hong Kong High Court has ruled that the failure of parties in a dispute to comply with preconditions to arbitration is a question of admissibility, not jurisdiction, and accordingly declined to set aside an arbitral award. The law firm representing the defendant in the case said the decision “will be of relevance in the 118 jurisdictions which have legislation based on the [UNCITRAL] Model Law, and follows a wider international trend.” In the past, failure to follow the escalation mechanism in a contract left an arbitral tribunal’s decision vulnerable to challenge in domestic courts.

  • The first trial under Hong Kong’s year-old National Security Law began in the case of Tong Ying-kit, who was riding a motorcycle flying a protest flag when he collided with police who were trying to stop him. Tong has been charged with terrorism, inciting secession, and “causing grievous bodily harm by dangerous driving.” If convicted, he could face life imprisonment. Tong pleaded not guilty to all three offences. Earlier in the week, the Court of Appeal upheld a decision to deny Tong a trial by jury, citing “a perceived risk of the personal safety of jurors and their family members.” The case has drawn attention globally as Tong’s fate could indicate how the courts will handle dozens of other pending national security cases.

Koreas

  • The Seoul High Court has scheduled its first hearing of the claims of former “comfort women” for Nov. 25. The plaintiffs are appealing the decision of a lower court in April to dismiss their request for damages from Japan for harms they suffered in Japan’s military brothel system before and during World War II. The Seoul Central District Court ruled that it lacked jurisdiction over the case under international law. That decision was surprising because a different panel of judges at the same district court in January ordered the Japanese government to pay damages to 12 former comfort women and their bereaved families; that case was finalized without appeal by the Japanese government.

  • The provisions of South Korea’s Labor Standards Act concerning maximum working hours will take effect with respect to small business from July 1, 2021, marking the final step in a long phasing-in process. The rules cap the number of hours that employees may work each week at 52, down from 68. Companies with more than 300 employees were required to comply beginning in July 2018, and those with more than 50 employees were affected from January 2020. As of July 1, only businesses with fewer than five employees will remain exempted. The government said it will offer transition support for small businesses, including wage subsidies for new hires made necessary by the new rule.

  • The European Commission has deemed the level of personal data protection in South Korea as “adequate,” a major step in an ongoing dialogue between South Korea and the European Commission regarding mutual recognition of personal data protection regimes. In a joint statement with South Korea’s data protection authority, the European Commission declared that Korea ensures a level of protection for personal data that is similar to the level provided in the European Union (EU). As a result, businesses will be allowed to transfer personal data freely from the EU and European Economic Area to South Korea without being required to provide further safeguards as required for “third country transfers” under the EU General Data Protection Regulation 2016/679.

  • A South Korean pastor, the Rev. Lee Dong-hwan, has appealed the decision of the Korean Methodist Church suspending him for two years after he administered a blessing at the Incheon Queer Festival in 2019. He said a prayer and scattered flower petals while wearing a rainbow-colored stole. The decision of the Methodist Church was the first of its kind in South Korea. Lee’s case has drawn support both domestically and internationally.

  • North Korean authorities recently reactivated a “unified command” tasked with conducting inspections and crackdowns on “non-socialist and anti-socialist behavior” along the border with China. The unified command is believed to pursue reports from border residents who complain about the wealth gap between them and families of defectors and “brokers” who receive goods and money via China. The unified command was established after a law was passed last year to eradicate “reactionary thought.”

Taiwan

  • COVID contact-tracing data collected by the 1922 short message service has never been used for criminal investigation, Taiwan’s National Communications Commission (NCC) said in a statement. The service was launched in May to facilitate contract tracing of patrons at businesses and restaurants. Upon entering a venue, patrons can scan a QR code and send a free text message to 1922 to create a record of their presence; the information is stored by their telecom provider for 28 days in case the venue is associated with an outbreak. A newspaper published a letter from a district judge claiming that an application he reviewed for a search warrant indicated police are using 1922 data for criminal investigations. In response, the NCC said data collected via the 1922 service is accessible only by the Central Epidemic Command Center for “disease prevention purposes.” It denied the bureau has ever sought to access the data, and said telecom companies have not offered the data to third parties.

  • The Transitional Justice Commission overturned a guilty verdict against a former mechanic who was court-martialed 47 years ago for insulting a commanding officer. The commission found that the defendant, Chen Wen-chiung, was not serving in the military even though he was employed as a mechanic at a factory under the Joint Logistics Command. The military court thus had no jurisdiction over him. The commission described Chen’s prosecution and sentencing to less than three years in prison as an example of an authoritarian government seeking to secure its rule, oppressing any dissent and preventing people from developing individuality.

  • Three day care attendants have been given four-month suspended sentences for punishing a two-year-old child by placing turtles on his body. When the child refused to eat, the three defendants placed two turtles on the child, knowing he was afraid of them. Prosecutors accused the three of violating the anti-coercion clause of Article 304 of the Criminal Code, and requested a harsh sentence. The court ruled that the defendants’ actions caused lasting psychological damage. But considering that the defendants confessed, expressed remorse, paid restitution, and had low risk of recidivism, the court sentenced them to four months imprisonment with a three-year suspension and 20 hours mandatory coursework.

  • Lawmakers and experts from the Taiwan People’s Party (TPP) said the government should consider the impact of new wind farm installations on industry and marine ecology before approving them. The government plans to phase out all nuclear power generation facilities and generate 20 percent of electricity from renewable energy sources by 2025. The TPP said the government should look into the needs and activities of shippers, the coast guard, navy, and fishers and re-evaluate its marine territory plans.