This Week in Asian Law

December 12-18

China

• The southeastern province of Yunnan recently passed an AIDS-prevention regulation that authorizes medical institutions to inform the spouse or sex partner of someone found to be HIV-positive if the infected person fails to do so. In this article, legal experts respond to concerns about whether the regulation violates privacy rights. (in Chinese)

• China’s Supreme People's Court has appointed four senior African legal experts to a 24-member Expert Committee of the China International Commercial Court, which hears international commercial disputes related to the Belt and Road Initiative. Matthew Erie, an associate professor at the University of Oxford said the move “sends a strong signal that China’s new outward-looking court is inclusive” in an effort to offer alternatives to international dispute resolution options.

• China’s Supreme People’s Procuratorate (SPP) published a 28-article document to guide prosecutors as they to implement the “plea for leniency” system. The document was issued in response to the opinions of the Standing Committee of the 13th National People's Congress when it reviewed an earlier SPP report on the implementation of the system. The document provides guidance about protecting the rights of defendants, exercising prosecutorial discretion, enhancing communication with defense lawyers, improving prosecution sentencing suggestions, and so on. (in Chinese)

• The China Law Society published its Annual Report on China’s Construction of Rule of Law for 2019. The 12-part report addresses achievements and problems with respect to rule of law in the fields of legislation, supervision, political and judicial reform, administration, adjudication, human rights protection, intellectual property protection, ecological protection, legal education, research and publicity, etc., as well as international cooperation and communication. (in Chinese)

• OutRight Action International has issued a report exploring the relationship between law and the lives of LGBT people in China, and the Chinese LGBT movement’s efforts to make law a force for greater equality rather than one that entrenches stigma. The report, titled “Precarious Progress: Advocacy for the Human Rights of LGBT People in China,” is written by Darius Longarino a China scholar based at the Paul Tsai China Center of Yale Law School.

• Since the 2012 Criminal Procedure Law legalized the police practice of detaining suspects in locations other than their homes or official detention centers (known as “residential surveillance in a designated location” or RSDL), China has been criticized by U.N. human rights experts for allowing what amounts to a form of incommunicado detention. The China Human Rights Lawyers Concern Group here responds to a recent defense of RSDL by the Chinese government. Separately, Zhu Yonghui, a Chinese defense lawyer at King and Capital Law Firm, also urged authorities to abolish RSDL in remarks made at a recent lawyers forum. (in Chinese)

• A Tianjin man, Yang Songfa, who spent 19 years behind bars for an intentional homicide that he did not commit, was exonerated this week. The Tianjin High People’s Court overturned the original conviction and suspended death sentence and acquitted him after a retrial found insufficient evidence to support his conviction 17 years ago. Yang’s conviction was based on his coerced confession after a 48-hour interrogation and questionable physical evidence.

• The Chinese Communist Party’s recently released Implementation Outline for the Establishment of a Rule of Law-Based Society (2020-2025) has been translated into English by China Law Translate, which also wrote its own Highlights of the Outline.

• Children who are sexually abused face special obstacles in persuading the courts to grant damages for mental and psychological injuries, according to Beijing’s Qianqian Law Firm, which specializes in such cases. Researchers at the firm recently analyzed 184 child sexual abuse verdicts and shared their findings.

Hong Kong

• Hong Kong human rights advocates and lawyers are warning that the Immigration (Amendment) Bill 2020 could deny victims of persecution access to an interpreter and other due process protections. The bill is part of the government's ongoing effort to control what it says is abuse of the city's non-refoulement system, a quasi-asylum system.

• Hong Kong officials pledged allegiance to the Hong Kong Special Administrative Region, vowing to uphold the Basic Law at an oath-taking ceremony. Civil servants who joined the administration since July 1, after the enactment of the region’s new national security law, are required to make such declarations. As of June 30, there were about 177,300 civil servants in Hong Kong, accounting for 4.6 percent of Hong Kong's workforce, media reported.

• A Hong Kong magistrate acquitted a social worker accused of obstructing police after viewing video evidence that showed the defendant being cooperative. The defendant was accused of pushing a constable twice during an anti-government demonstration in Hong Kong last year as officers were escorting arrested protesters to police stations for further investigation.

• Hong Kong approved 1,310 applications for interception and 25 applications for covert surveillance in 2019, according to an annual report to the chief executive by the Commissioner on Interception of Communication and Surveillance (ICSO). Only four out of the 1,314 applications were denied last year due to insufficient supporting documents. In 2018, 1,378 cases were approved out of 1,384 applications.

• Ten of the 12 Hong Kong activists who were arrested at sea in August while trying to flee to Taiwan have been charged with illegal boundary-crossing offenses. Another two, who are juveniles, are due to have a separate, closed hearing into their cases, but no charges have been announced. Relatives of the accused made a plea to be informed of the timing of the trials and whether they can attend.

Japan

• Japan’s Supreme Court Grand Bench has been asked to decide three cases challenging the constitutionality of provisions in the Civil Code and the Family Register Act that require shared surnames for married husband and wife. The plaintiffs, three couples in common-law marriages living in Tokyo, claim that the provisions violate the constitution’s guarantee of equality and marital freedom. In 2015, the Grand Bench confirmed the constitutionality of the Civil Code provision, ruling: “It is reasonable to set one surname as the name of the family, which forms a basis of society“.

• The Supreme Court affirmed a Tokyo High Court ruling that ordered the Japanese government to pay 768 million yen in noise pollution damages to residents living near the U.S. military’s Yokota Air Base in western Tokyo, but rejected plaintiffs’ demand that late-night and early-morning flights be suspended. In 2017, the Tokyo District Court’s Tachikawa branch held the government responsible for failing to prevent noise pollution from the base. The appellate court upheld the ruling and ordered the government to pay damages.

• The Supreme Court also upheld a Tokyo High Court ruling holding the central government responsible for failing to prevent health damage to construction workers who inhaled asbestos. The decision means the government must pay compensation totaling about 2.28 billion yen ($22.1 million) to 337 former construction workers and bereaved family members in the Tokyo metropolitan area. The ruling could affect 17 other lawsuits related to illnesses, such as mesothelioma and lung cancer, caused by inhaling asbestos in the workplace. The Supreme Court has not yet ruled on the plaintiffs’ request for damages from construction materials manufacturers.

• The notorious “Twitter killer” who killed and dismembered nine people, eight of them female, was convicted by a Japanese district court and sentenced to death. Takahiro Shiraishi approached victims via Twitter and offered to assist them with their suicidal wishes. Shiraishi pleaded guilty and said he would not appeal his death sentence, despite his lawyer’s argument that he simply assisted the victims’ suicidal wishes.

Koreas

• Vice Minister of Gender Equality and Family Kim Kyung-sun said some types of hate speech are already punishable under existing South Korean laws. She spoke at an online briefing about a ministry-sponsored bill that would explicitly ban hate speech against particular cultures, ethnic groups, and countries. The bill lacks a punishment clause, but the minister said serious levels of hate speech may already be deemed in violation of a criminal code ban on insults, and may be punished by fines or even prison time.

• South Korea’s legislature has amended the Law on the Development of Inter-Korean Relations Act to criminalize sending anti-government leaflets and propaganda into North Korea. Such actions are now punishable by up to three years in jail or a fine of nearly $30,000. The ban has sparked widespread criticism in Korea and internationally as likely to have a chilling effect on access to information and freedom of speech. Korean activists have vowed to defy the law and fight it in court.

• North Korea has adopted a new law against “reactionary thoughts” that strengthens the state’s controls over the flow of information both domestically and across the border. The law reportedly defines a wide range of acts as illegal, including: listening to, recording or distributing foreign radio radio broadcasts; importing and distributing “impure” foreign recordings, video content, books, or other published materials; and copying or distributing music unapproved by the state. Early this year, North Korean authorities issued an order to intensify the management of electronic devices in order to stop information flow in and out of the country. 

• South Korea’s National Labor Relations Commission has ruled that the Korea National Ballet was unfair when it dismissed a dancer who violated the company’s self-quarantine rule, and ordered the troupe to reinstate him. While acknowledging that the dancer violated his obligations to the dance company by traveling abroad during the home-quarantine period, the commission said the dance company abused its disciplinary power because the dancer did not violate the government’s quarantine rules. The ballet company is challenging the decision in court.

• The ruling Democratic Party of Korea has proposed a “Prosecutor Appointment Reform Act” requiring prosecutor appointees to have at least 5-year legal experience. It is the latest in a series of controversial changes to the country’s prosecutorial system being proposed by the ruling party against strong opposition from other parties. (in Korean)

• The Korean Bar Association held an online discussion about how to implement and improve the right of suspects to take notes during their own investigation and interrogation. The “self-defense notes,” a notebook that allows suspects to record information while being investigated by the police and prosecution agencies, is an innovation of the Seoul Bar Association in collaboration with the National Police Agency, and has been adopted around the country. Although criminal suspects have the right to a lawyer, in practice many lack representation. Allowing suspects to take their own notes is viewed as a means of protecting their rights. (in Korean)

Taiwan

• More than 100 domestic workers from Southeast Asia countries called for better legal protection during a rally in front of the Legislative Yuan in Taipei. Their requests included equal application of wage and hour regulations, better occupational injury compensation and retirement benefits. As of the end of October, about one-third of the 700,000 migrant workers in Taiwan were employed in the household service sector, according to the Ministry of Labor. Under Taiwan law, migrant domestic workers are not eligible for overtime wages, severance pay, occupational injury compensation, or retirement benefits, according to Migrants Empowerment Network in Taiwan, a migrant rights advocacy group.

• The Nationalist Party (KMT) has accused the Taiwan government of attempting to control free speech on the Internet with its draft Over-the-Top Media Services Management Act. Among other things, the act drafted by the National Communications Commission would impose a fine of up to NT $1 million for online content that it deems harmful to national security, public order, or good morals.

• The Executive Yuan has voided provisions of the Criminal Code and Criminal Procedure Code that criminalized adultery in light of an earlier Constitutional Court Interpretation (No. 791) that declared the provisions unconstitutional. The original Criminal Code provision allowed both parties in an adulterous relationship to be prosecuted and imprisoned for up to one year. A clause in Article 239 of the Criminal Procedure Code stated that “the withdrawal of a complaint against a spouse shall not be considered to be a withdrawal of a complaint against the other adulterer.” The Executive Yuan plans action on two other Criminal Code provisions in response to another Constitutional Court Interpretation. (Chinese)

  Vietnam

• Police have arrested a popular Facebook user for allegedly publishing posts against the state. Truong Chau Huu Danh, who has nearly 168,000 followers on Facebook, will be detained for three months for posts deemed illegal. Facebook has been under government pressure to censor more local political content. So far this year, Facebook has removed 2,311 posts and 290 fake personal accounts that violated Vietnamese laws from its platform, a 400-percent increase compared to the whole of last year.

This Week in Asian Law

December 5-11

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China

• The Central Committee of the Chinese Communist Party issued the Implementation Outline for Building a Society Ruled by Law (2020-2025) as a step toward the party goal of building a state, government, and society ruled by law by 2035. The document follows on an earlier five-year outline issued in 2015 that focused on building a government ruled by law. At a press conference on December 7, a party spokesman talked about the background, goals, main focus, and major tasks set out in the document. (in Chinese)

• The Supreme People’s Court (SPC) on December 7 issued a new judicial interpretation of the Criminal Procedure Law, which was amended in 2018. The previous judicial interpretation dated from before the amendment. The text of the new interpretation is to be released soon. (in Chinese)

• The SPC also issued a judicial interpretation on December 9 for handling civil disputes involving food safety. It said that e-commerce operators will be held accountable if they fail to review the business licenses of food sellers on their platforms and cause food safety problems.

• The Supreme People’s Procuratorate published four guiding cases on December 9 for implementing the “plea for leniency” system, a relatively new special procedure in China’s criminal justice system. The procuratorate spokesman said the four cases were chosen to illustrate that this special procedure could be applied in cases involving serious organized crimes, defendant organizations, judicial compensation, and prosecutorial appeals. (in Chinese)

• The Ministry of Public Security announced at a press conference on December 9 that the police will enhance investigation work in homicide cases to maintain social stability. It stressed that it remained steadfast in the policy that “every homicide case must be solved (命案必破)”. (in Chinese)

• Chinese regulators are seeking to find a balance between fintech innovation and regulation, according to an assistant professor of finance at Xiamen University, Yang Ji. In the wake of regulators cancelling Ant Group’s initial public offering at the last minute, Yang analyzed the risks that fintech companies including Ant introduce into the financial system.

• Shanghai Minhang District Court on December 8 placed Ziwutong Beijing Asset Management, the parent organization behind Danke, on the country’s “social credit” blacklist because of its high debt. Danke, one of the biggest real estate rental companies in China, has been skimping on paying property owners since November. Yang Wanming, vice president of the Supreme People’s Court, recently said that Danke was under investigation over its cash-flow problems. Its founder and CEO, Gao Jing, was detained for investigation in June. Danke was founded in 2015 and had an IPO on the New York Stock Exchange last January.

Hong Kong

• Amnesty International and Omega Research Centre, a UK-based organization, said in a report released December 11 that crowd-control measures deployed by Hong Kong police against civilians during 2019’s anti-extradition protests were in some instances akin to torture. The report identified the extensive use of baton and tear gas by Hong Kong police against protesters last year as state-sanctioned ill-treatment.

• Hong Kong pro-democracy media tycoon Jimmy Lai has been charged under the new National Security Law with collusion with a foreign country. Media reports say that the charge is linked to accepting media interviews, during which Lai, a vocal critic of Beijing, called for sanctions against Hong Kong. Conviction can bring imprisonment for three years to life.

• In a 144-page report to the legislature on December 9, the Independent Police Complaints Council said that the number of “reportable complaints” against the police force has dropped over the past year, despite widespread allegations of misconduct during the pro-democracy protests and unrest of 2019. Of the cases investigated, fewer than 10% were deemed “substantiated.”

• Secretary for Home Affairs Caspar Tsui told the Legislative Council on December 9 that the government will examine “loopholes” in the city’s laws against the spread of misinformation. However, Chris Yeung, chair of the Hong Kong Journalists Association, said such legislation is completely unnecessary and that laws against misinformation can be used to restrict free speech.

Japan

• The Osaka District Court has revoked the government’s approval to operate a nuclear plant under new safety regulation developed in the wake of the 2011 Fukushima nuclear disaster. A lawsuit brought by 130 area residents questioned whether the basic earthquake ground motion figure used by the plant operator, Kansai Electric, in its safety measures was appropriate. Judge Hajime Morikagi said the company needed to factor in a potentially much larger earthquake around the plant. It is the first time a Japanese court has withdrawn government approval granted to a power company to operate a nuclear plant under the safety standards set in 2013 following the meltdowns at the Fukushima Daiichi power plant triggered by an earthquake and ensuing tsunami.

• An editorial in the Japan News marking the 20th anniversary of an anti-stalking law called for revisions to bring the law up to date. Although the law has been amended to include within its scope actions such as mass emailing and persistent posts on social media by stalkers, as recently as July the Japanese Supreme Court ruled that tracking people with a GPS device is not barred by the law.

• Human Rights Watch said on December 11 that the Japanese government should immediately reverse its decision to support Cambodia’s notoriously abusive police force because Cambodia’s counterterrorism efforts have long been misused to target opposition political figures and other government critics.

Koreas

• North Korean state media reported on December 5 that the Supreme People’s Assembly (SPA), or legislature, will convene in late January 2021. The SPA usually meets once a year to approve legal revisions, personnel appointments, and the budget. Meanwhile, the Presidium of the SPA, which exercises the legislative function when the SPA is not in session, met on December 4 and approved a series of laws on “rejecting reactionary ideology and culture,” on the introduction of sci-tech achievements, on forestry, and on mobile telecommunications.

• An amendment to South Korea’s Telecommunication Business Act took effect on December 10, requiring large online service companies including Netflix, Google and Facebook to provide stable services to users. Violations could bring an administrative fine of up to $18,350.

• South Korea’s National Assembly on December 10 passed a controversial amendment to the rules for setting up a Corruption Investigation Office for High-Ranking Officials. The new procedures effectively remove the veto power held by the opposition People Power Party over selection of the new office’s chief. The opposition has been blocking the appointment of a head for the office because it fears the new office will unduly interfere with the prosecutor-general.

Taiwan

• Judicial authorities on December 5 warned the public not to try narcotic powder mixtures, as more than 60 deaths in the first half of this year were attributed to overdoses. To deter crimes involving drugs, the Keelung District Court sentenced three defendants to 25, 25, and 19 years, respectively, for selling PMMA powder mixtures near high schools, resulting in the overdose deaths of three students.

• The Control Yuan on December 8 put forth a series of proposals, including the establishment of a whistle-blower protection program, to improve protections for children who have been sexually abused. In the investigation brief of the Control Yuan, 17 major child sex-abuse cases were reviewed.

• The Legislative Yuan held a public hearing on December 7 to discuss ways of encouraging digital development and cybersecurity, including establishing a ministry-level body that would spur innovation and integrate existing information systems. Other proposals included government investment in cybersecurity, establishment of information-security departments at universities, and conducting regular drills to help government agencies learn to respond to attacks.

• Democratic Progressive Party (DPP) lawmakers on December 10 urged the Ministry of Labor to review the Gender Equality in Employment Act to protect workers. The existing act does not stipulate the process for investigating an employer as the perpetrator in a case. It also allows the employer to be the judge, jury and executioner, which discourages victims from filing complaints “through the system,” a lawmaker said.

• The Health Promotion Administration (HPA) is drafting an amendment to remove the requirement for married women to obtain permission from their partner before having an abortion. The current Genetic Health Act provides that induced abortion by a married woman “shall be subject to her husband’s consent unless her husband is missing, unconscious or deranged.” The HPA’s petition says that a woman’s right to bodily autonomy should not be affected by her marital status; because the risks and consequences of abortion are the woman’s to bear, it should not be decided by anyone else.

Vietnam

• After a 26-year ban on private use of fireworks in Vietnam, the newly passed Decree No. 137/2020/ND-CP relaxes the rules to allow certain kinds of non-explosive fireworks. An official at the Ministry of Public Security talked to the press about the new management and use of firecrackers and fireworks that will take effect on January 11, 2021.