Twofish's Blog

September 11, 2006

Pet peeve – Law, regulation, and policy in China

Filed under: china, Uncategorized — twofish @ 5:28 am

Just a pet peeve….

I wish when people talk about things coming out of Mainland China, that make clear

1) exactly what it is and

2) exactly who issued it

In the PRC, a law is very different from a regulation which is very different from an opinion, a measure, and a decision.

A law is a bill passed by the National People’s Congress or the NPCSC. No one else in Mainland China other than the NPC can pass a law.

A regulation is an administrative order passed by the State Council.

An opinion is a general directive issued by the State Council, agency, or local government.

A measure is set of specific implementations by an agency or local government.

A decision is a resolution of a court case.

Now about whatever Xinhua issued. First of all, it is not clear what exactly got issued. Second, unless there is an administrative rule that I am unaware of, Xinhua is not technically a state agency, and does not have authority to issue binding regulations or to punish people for breaking those regulations.

The only way this would work is if the General Administration on Press and Publications issued a measure, which does not seem to have happened, or else the Central Publicity Department of the CCP is telling people to go through Xinhua. However, most newspapers have their own sources of political cover, and so if CPD is doing this, they need to negotiate a bit.

This gets me to a final annoyance. You’d think that in this day and age, when people quote a regulation from the PRC, that they would at least hyperlink to the regulation.

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3 Comments »

  1. I agree with you in theory, but in fact, so often, the only thing we bloggers know about the law (be it a regulation, a bill, or whatever) is that it has been issued. It often takes weeks to find the law itself and, yes, sometimes one finds no such law was ever issued. I usually wait and see on China’s so-called new laws before posting, but this media law was getting so much play and I was so puzzled by it, I wanted to get it out there as soon as possible. As far as I know, Xinhua is not a state agency (it is a state owned company) and it has no authority to issue any binding regulations. However, this, of course, does not mean it is without power to influence laws.

    Comment by China Law Blog — September 11, 2006 @ 1:10 pm

  2. National laws, opinions, and measures are easily available. What is opaque are party guidelines and local decrees.

    In any case, this wasn’t an excuse in this situation since I found the measure on the Xinhua.

    http://news.xinhuanet.com/politics/2006-09/10/content_5072446.htm

    The regulation looks very weak and is one of those that is likely to be totally ignored. I agree with with the poster on your blog that argued that this was somewhat of a power grab for commercial purposes.

    The legal authority for the regulation is very, very weak. A sure sign of a weak regulation is when there is a general statement that this regulation is according to law, without specificing which one. The legal authority is to a general State Council directive 国务院对确需保留的行政审批项目设定行政许可的决定 that gives general authority to Xinhua to regulate foreign news services, but that general regulation doesn’t appear to specifically authorize Xinhua to do what it is doing.

    What’s more, Articles 18 and 19 basically says that if you violate this regulation, that Xinhua will request that you be punished by the appropriate authorities. It doesn’t say who it will ask, or how you will be punished, and the reason for this is basically that it doesn’t know.

    Article 21 extends the regulation to Hong Kong, Macao, and Taiwan which flatly violates the Basic Laws in the case of HK and Macao. This is less a sign that anyone really can or wants to violate the Basic Laws, but rather a sign that whoever drafted this regulation is utterly clueless about these things.

    If this *had* been a concerted effort by the Central Government to restrict the press what what have likely happened is that the Party would have issued an internal directive followed by an “yijian” (opinion) by the State Council which would have outlined the general goals of the policy. Then you’d have dozens of agencies issuing their own “banfa” (measures) implementing the policy. This process takes months.

    Without an “yijian” from the State Council, a “banfa” is pretty meaningless since it means that you have an agency doing something on its own without any sort of coordination.

    An “yijian” is sort of akin to a Circular issued by the Office of Management and Budget in the United States, whereas a “banfa” is something akin to a regulation that actually gets published in the Code of Federal Regulations.

    Comment by twofish — September 11, 2006 @ 2:43 pm

  3. My Chinese is poor. My co-blogger, Steve Dickinson, whose Chinese is so good that he taught law in Chinese at Beijing University is somewhere in Mongolia. I chose to go with the post before seeing the regulation itself. Check out my new post on this.

    Comment by China Law Blog — September 12, 2006 @ 5:30 am


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