Comment: What room is there for improvement when the second draft of the Public Security Administration Punishment Law is released?

Text | Zhao Hong, a professor at Peking University Law School

The reason why the Public Security Administration Punishment Law (Revised Draft) (hereinafter referred to as the "Revised Draft") has aroused continuous heated discussions is mainly due to the close relationship between the law and the general public. Because it deals with "minor crimes" that have not yet constituted a crime, but have a similar behavior to a crime, the scope of punishment in the administration of public security indicates the scope of the national punishment mechanism, including criminal punishment and administrative punishment.

For this reason, when the Draft Amendment expands the administrative authority of the public security organs to cover matters such as cheating on exams, raising Kong Ming lanterns, and operating drones, it has aroused the alarm of scholars and the public about the possible phenomenon of "re-policing". The tendency to "re-politicize" not only means that the probability of ordinary people "breaking the law if they are not careful" will be greatly increased because the legal net is more finely woven, but also implies the possible intervention of the state in the private sphere.

The "Draft Amendment" was first published on the website of the Chinese National Congress in September last year and was open to the whole society for comments, causing a huge uproar. Before the deadline for soliciting comments on September 30 of that year, a total of 99,375 people left 125962 comments, setting a record for the largest number of participants in the revision of the law in the past three years. Recently, the second review of the Draft Amendment has ended, and the Chinese National People's Congress has also published the full text of the second draft of the Draft Amendment on the Internet, and once again released it to the public for comments.

In detail, the author finds that many of the provisions of the Draft Amendment and the recently released Second Review Draft have responded positively to public concerns and are worthy of recognition, but there is still room for further improvement.

The second review draft responds positively to the disputed clauses

First of all, it deals with the provisions that "harm the spirit of the Chinese nation" and "hurt the feelings of the Chinese nation".

The clause characterizing the strong intervention of the state is, first of all, subparagraphs (2) (3) of Article 34 of the First Draft. Because it stipulates that public security punishments, including administrative detention, should be imposed on those who wear or wear clothing and symbols that are "detrimental to the spirit of the Chinese nation" or "hurt the feelings of the Chinese nation" in public places, this article has become the focus of heated discussions since the first draft was made public. The main criticism of this article lies in the fact that it leads state punishment from external behavior to inner order, which not only easily turns public security punishment into mental and moral punishment, but also leaves huge room for law enforcers to arbitrarily enforce the law.

Like the first instance, this article also attracted the most attention in the second instance. In a June 21 briefing by the spokesperson of the Legislative Affairs Commission of the Standing Committee of the National People's Congress, he referred to this article as "after extensive consultation and comprehensive consideration. It is planned to make more targeted and specific revisions and improvements", and in a report by China News Network on June 25, it was clear that "the second review draft comprehensively considers various factors and law enforcement needs, and recommends that expressions that damage the spirit of the Chinese nation and hurt the feelings of the Chinese nation should no longer be used." In Article 35(5) of the Second Draft, the previous clause was finally replaced with "wearing or wearing clothing or symbols that promote or beautify a war of aggression or aggression in a public place or forcing others to wear or beautify a war of aggression or acts of aggression in a public place, causing a negative social impact".

Although this article still restricts the individual's freedom to dress in public places, the reason for the restriction is concretized as "advocating and glorifying aggressive wars and acts of aggression", which has been a significant improvement over the previous broad and vague "Chinese national spirit" and "Chinese national feelings", but it is still worth discussing whether Article 35 (5) and (4) still have the potential to interfere with freedom of speech or even academic freedom, because the inclusion of more ideological vocabulary into the law will itself cause these problems.

The second is the revision of the relevant provisions on the extraction of biometric information. This article is considered to be a serious violation of the principle of proportionality because it allows the public security organs to conduct physical examinations of the perpetrators and victims of public security violations, and even to extract their biometric information. Moreover, without distinguishing between the type and necessity of the case, the public security organs are generally authorized to collect the biological information of the parties, even the victims, which not only implies a "presumption of guilt" against the offender, but also leads to the breeding of information leakage and abuse.

In the second draft, the provisions on biometric information extraction have been significantly revised: first, the objects of information extraction are clearly distinguished, stipulating that "the consent of the infringed person shall be obtained if the information or samples of the infringed person are extracted or collected". In addition, the addition of "necessary for the handling of the case" as a prerequisite for the collection of biological samples seems to be in line with the strict requirements of the PIPL for the collection of sensitive personal information as much as possible. However, "truly necessary for the handling of cases" is also quite broad, and it is easy to satisfy when it is implemented, and does not play a role in obviously restraining the public security organs. Thirdly, and more importantly, this article still stipulates that the approval level for the collection of biological information is "the person in charge of the case-handling department of the public security organ", which was criticized in the first draft and was not taken seriously in the second draft.

Also controversial in the Draft Amendment is article 59, paragraph 2, on penalties for obstructing the police in the performance of their official duties. It also includes "insulting and insulting the police" as an act that obstructs the police in the performance of their official duties, and makes it a circumstance for aggravating punishment. This provision has broadened the boundaries of penalties for obstruction of the performance of official duties, with the possible result that even if the person concerned has not actively obstructed the performance of official duties, it has not resulted in the inability to perform official duties, and the mere abusive conduct may result in administrative detention. Moreover, what is meant by "insult and abuse" is often defined by the police officers themselves in the performance of official duties, which will lead to fierce criticism and even innocuous ridicule, which may be interpreted as "insult and abuse".

It is worth affirming that in paragraph 2 of article 60 of the second review draft, this provision has been completely deleted, and the second review draft has also restored the provision in the current "Public Security Administration Punishment Law" that "those who obstruct the people's police from performing their duties in accordance with the law shall be punished heavily".

Other important revisions to the second review draft

In addition to responding to the controversial provisions of the Draft Amendment, the changes in the Second Draft are mainly due to the following points:

First, a provision is added that "if a citizen's act of stopping the act to prevent an ongoing unlawful infringement causes damage, it shall not be a violation of the administration of public security." This also shows that the justifiable defense clause has also been incorporated into the Public Security Administration Punishment Law. Justifiable defense and emergency avoidance are the reasons for illegal obstruction in criminal punishment, but they are rarely applied in the administration of public security. In practice, even if it is a legitimate defense, it is often treated as a mutual assault by the public security organs. A large part of the reason for this situation lies in the fact that the determination of legitimate defense requires more detailed verification and more complex judgment by the public security organs. However, the public security organs tend to believe that in public security cases, even if the parties are found to have assaulted each other, they are at most administratively detained, and the punishment is relatively lenient compared to the punishment, so there is a lack of corresponding motivation for verification and judgment. However, if the provisions on justifiable defense are formally included in the general provisions of the "Law on Administrative Penalties for Public Security," it is believed that this practice of punishment will be changed to a great extent, and the concept that "the law cannot yield to the lawless" will also be implemented in the field of public security.

Second, expand the scope of hearings for public security administrative punishments. Neither the existing Administrative Punishment Law nor the Public Security Administration Punishment Law explicitly include administrative detention in the scope of the need for a hearing. As a result, the heaviest administrative penalties have become a major loophole in procedural safeguards. Although Article 117 of the previous first review draft added "measures to order the suspension of business for rectification" as a hearing item in public security cases, in addition to fines and revocation of licenses, it still did not explicitly include administrative detention in the scope of hearings. Therefore, scholars have been calling for administrative detention to be included in the scope of hearings, so as to provide more opportunities for parties to protect their rights in advance.

It is worth affirming that although the second draft does not include all detention decisions in the scope of hearings, it still adds that "before the public security organs make a public security administrative punishment decision on administrative detention of a minor, they shall inform the violator and guardian that they have the right to request a hearing." In addition to the fact that a juvenile detention decision may request a hearing, the Second Draft also adds to this article that "in cases other than those provided for in the preceding two paragraphs, where the circumstances or evidence are complex or have an important social impact, and the public security organs find it necessary, they shall promptly hold a hearing in accordance with law", which actually provides a normative basis for detention cases to enter into hearings. Of course, the ideal way to change would still be to explicitly include all detentions in the hearing, and we look forward to revisiting the issue at the retrial.

Third, increase the punishment for the sale and breeding of fierce dogs and other dangerous animals in violation of laws and regulations, as well as for causing animals to harm others. In recent years, there have been frequent incidents of vicious dogs injuring people, and the public has also called for the government to strengthen supervision. In fact, in the "Public Security Administration Punishment Law", there are penalties for raising animals to interfere with the normal life of others and cause harm to others. Compared with the Public Security Administration Punishment Law, the new penalties added in the second draft extend the punishment from "raising animals to interfere with others, allowing animals to intimidate others, and driving animals to harm others" to illegally sell and raise dangerous animals such as fierce dogs, and the punishment targets have also expanded from animal breeders to those who illegally sell and raise fierce dogs.

In fact, the Civil Code already has strict provisions on the qualifications for fierce dogs to injure people, and the breeders or managers of dangerous animals such as fierce dogs shall bear strict no-fault liability for the injuries caused by fierce dogs, and they may not even have the right to defend to reduce or exempt tort liability, while the second draft extends the civil tort liability to public security punishment liability. The addition of this amendment can be said to strengthen the control of fierce dogs, but whether this joint and several liability should be extended from civil tort compensation to public security punishment is also worthy of further consideration.

4. Add provisions that a person currently serving the punishment of administrative detention may apply to leave the facility if he or she encounters specific circumstances such as taking entrance examinations, the birth of a child, or the critical illness or death of a close relative. This point corresponds to the suspension of administrative detention in Article 126 of the First Draft. Although the first draft does not reinstate the provision that "the enforcement of administrative detention shall be suspended upon application for reconsideration or the initiation of a lawsuit", it humanely adds that "circumstances such as taking entrance examinations, the birth of a child, or the critical illness or death of a close relative" can be used as a prerequisite for applying for a stay of enforcement. Now, the second draft has added a provision that the offender may apply for exit from the detention center if he encounters the same situation during the period of detention, which can be said to optimize the procedural safeguards for the enforcement of administrative detention.

However, many scholars and lawyers have pointed out that neither the first and second drafts include provisions on the fact that a party may retain a lawyer with a relative during the period of detention, and both maintain the principle of "prosecution does not stop detention", and the public security organs still have a large discretion on whether to suspend the execution of administrative detention, which makes the issue of ensuring the enforcement of administrative detention not substantively advanced.

Opportunities for Dharma cultivation should be cherished and not wasted

Throughout the full text, the second draft of the Public Security Administration Punishment Law does provide relevant responses to the previously controversial provisions, which is also particularly worthy of recognition. The fact that the public is concerned about the legislative amendment and can express their opinions through normal channels, and the official response to this is in itself a progress of the rule of law, so that the legislation has also increased the transparency, democracy and trustworthiness of the law to a large extent, and will also greatly promote the implementation of the law in the future.

However, from the perspective of the overall revision, there are still many issues that have not been covered in the second draft, and the room for change is relatively limited for the core issues that arise in the first draft. For example, the obvious expansion of the "penalty circle", the obvious increase in the severity of punishment, and the obvious relaxation of the procedural restraint mechanism are not completely corrected in the second review draft. However, in practice, there are high demands, such as the lack of provisions in the General Provisions on the reduction or non-punishment of unfinished illegal states (attempts, preparations, etc.), the lack of requirements for subjective intentional negligence, the lack of substantive punishment standards similar to the concept of legal interests in crimes, and even the elimination of illegal records. This is somewhat regrettable, and it also makes us look forward to more retrials in the future.

When the second draft was released in full, the Chinese National People's Congress also announced on June 28 that the Public Security Administration Punishment Law (Revised Draft) was once again open for public comment, with a deadline of July 27, 2024. I remember when the Draft Amendment was first published, I wrote: "The amendment is undoubtedly a filling of the loopholes that have been discovered, and it is also a response to the unfinished problems. "As a law that ordinary people will encounter head-on at any time, the Public Security Administration Punishment Law is of great importance, and we pay attention to the revision of this law and look forward to its greatest improvement.