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12.31.2008

Anti-pornography campaign to be launched in early 2009

A terse communiqué issued yesterday by the Central Political-Legal Commission (China's public security watchdog) has announced the launch of yet another saohuang dafei 扫黄打非 movement.

The movement will take place prior to the Spring Festival (beginning on January 26) and the Second Session of the 11th NPC (March 5).

Saohuang aims at cleaning up pornographic publications, while dafei targets illegal political publications. This nation-wide anti-pornography campaign will target the press, the internet and major communication and transportation highways, to stop the spread of harmful publications from abroad (境外有害出版物). Inspections will take place in major commercial streets of big cities, communication hubs, travel and vacation spots, marketplaces etc.

The saohuang dafei is coordinated by the National anti-pornography leading group (visit website), and implemented by local anti-pornography offices (as this one) at bureaus of news publications (visit).




Draft CL amendments - Article 201 - tax evasion

Art. 201 punishes tax evasion, provisions on which have been simplified. A new paragraph has been added that exempts from criminal liability those who pay tax arrears, a fine and are subject to administrative punishment.


Article 201

Any taxpayer who files a false tax declaration pay or underpays the amount of taxes payable by means of forging, altering, or fails to file a tax declaration by means of [deception] or concealing, or destroying without authorization account books or vouchers for the accounts, or overstating expenses or omitting or understating incomes in account books, or refusing to file his tax returns after the tax authorities have notified him to do so or filing false tax returns shall if the amount of tax evaded [is reasonably high] and accounts for over 10 percent but under 30 percent of the total of taxes payable and over 10,000 yuan but under 100,000 yuan,or if he commits tax evasion again after having been twice subjected to administrative sanctions by the tax authorities for tax evasion, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also [or shall only] be fined. not less than one time but not more than five times the amount of tax evaded; if the amount of tax evaded [is big and] accounts for over 30 percent of the total of taxes payable or is over 100,000 yuan, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined not less than one time but not more than five times the amount of tax evaded.

纳税人采取欺骗、隐瞒手段进行虚假纳税申报或者不申报,逃避缴纳税款数额较大并且占应纳税额百分之十以上 的,处三年以下有期徒刑或者拘役,并处或者单处罚金;数额巨大并且占应纳税额百分之三十以上的,处三年以上七年以下有期徒刑,并处罚金  

Where a withholding agent who, by using the means mentioned in the preceding paragraph, fails to pay or under-pays the taxes which he has withheld or collected shall, if the amount accounts for over 10 percent of the total of taxes payable or is over 10,000 yuan, [is reasonably high] shall be punished in accordance with the provisions in the preceding paragraph.

[Draft amendment: 扣缴义务人采取前款所列手段,不缴或者少缴已扣、已收税款,数额较大的,依照前款的规定处罚]

Whoever repeatedly commits the acts mentioned in the preceding two paragraphs and goes unpunished shall be punished on the basis of the cumulative total

[Whoever commits the acts mentioned in paragraph one and pays taxes after tax authorities have issued a communication demanding the payment of arrears is charged an overdue fine and is subjected to administrative punishment shall not be subjected to criminal prosecution, unless has received criminal sanctions for tax evasions within the last 5 years, or has been subjected to administrative punishment by tax authorities for more than two times.]

“有本条第一款行为,经税务机关依法下达追缴通知后,补缴应纳税款,缴纳滞纳金,并且接受行政处罚的,不予追究刑事责任;但是,五年内曾因逃避缴纳税款受过刑事处罚或者被税务机关给予二次以上行政处罚的除外
Translation courtesy CECC

Comments

Fanxulitai.

Suggested to replace "by means of deception or concealing" with "by deception, concealing or other means", to include all those cases not currently covered by the amendment to art. 201


Liu Zhenwei.

Stated that this amendment will water-down the fight against tax evasion. Suggested to introduce different provisions to punish cases where the amount of tax evaded accounts for more than 30% of what due. Also he suggested to use the payment of tax arrears as a mitigating circumstance.


Li Zupei

Suggested to mention "fails to file a false declaration" before "file a false declaration"





Fanny Law

Commented negatively upon the exemption from criminal liability of those who evade less than 10% of the tax due. While such measure is likely to reduce law enforcers' workload, it will nonetheless encourage people to evade tax. Suggested that mitigated sanctions or administrative punishment be adopted on those who do not reach the 10% liability limit.

Gama


Proposed to change "if the amount of tax evaded is reasonably high and accounts for over 10 percent" into "if the amount of tax evaded is reasonably high or accounts for over 10 percent". This would allow to prosecute those who evade amount of tax which are big, even though do not reach the 10% limit.



12.30.2008

Draft CL amendments - Article 180 (1) (4) insider trading

Art. 180 par. 3 of the Criminal Law punishes insider trading of information related to securities. The draft amendments include also futures in the current provisions, and add a paragraph to punish other unlawful trading activities of personnel of financial institutions.

Article 180
Any insider who possesses inside information about any stock exchange, [futures] transactions or anyone who illegally obtains such information, prior to the publication of the information that concerns stock , [futures] issuing or exchange or that has a vital bearing on the stock, [futures] price, buys or sells the very stock, [carries out futures transactions related to inside information] , divulges the very information [or suggests a third party to carry out any of the above-mentioned transactions] shall, if the circumstances are serious, be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also, or shall only, be fined not less than one time but not more than five times the illegal gains; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years and shall also be fined not less than one time but not more than five times the illegal gains.
[Proposed amendment 证券、期货交易内幕信息的知情人员或者非法获取证券、期货交易内幕信息的人员,在涉及证券的发行, 证券、期货交易或者其他对证券、期货交易价格有重大影响的信息尚未公开前,买入或者卖出该证券,或者从事与该内幕信息有关的期货交易,或者泄露该信息,或 者建议他人从事上述交易活动,情节严重的,处五年以下有期徒刑或者拘役,并处或者单处违法所得一倍以上五倍以下罚金;情节特别严重的,处五年以上十年以下 有期徒刑,并处违法所得一倍以上五倍以下罚金]
Where a unit commits the crime as mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.
The range of inside information shall be determined in accordance with the provisions of laws or administrative rules and regulations.
The range of insiders shall be determined in accordance with the provisions of laws or administrative rules and regulations.
Any employee of a fund management company, a security company, commercial bank or any other financial institution who takes advantage of his office to obtain operational information different from insider information and that has not been made public yet, carries out transactions related to it or proposes a third party to carry out any such transaction shall, if the circumstances are serious, be punished according to provisions under paragraph 1.
[基金管理公司、证券公司、商业银行或者其他金融机构的工作人员,利用因职务便利获取的内幕信息以外的其他未 公开的经营信息,违反规定,从事与该信息相关的交易活动,或者建议他人从事相关交易活动,情节严重的,依照第一款的规定处罚]
Translation courtesy CECC

Comments

Fanxulitai.

Stated that the current financial crisis made everybody understand that stocks and futures are not the only financial products, therefore article 180 should cover insider trading related to other financial products as well.


Zhang Shaoqin.

Proposed to add state personnel to the offenders punishable under article 180.





12.29.2008

Draft CL amendments - Article 151 (3) smuggling of plants and the products thereof

Art. 151 par. 3 of the Criminal Law punishes smuggling plants and the products thereof.

The proposed amendments to the Criminal Law would expand somewhat its scope of application to "other commodities and goods" as well, and introduce lighter penalties.

At the moment this crime can be punished with a maximum of five years imprisonment, if committed in ordinary circumstances. The draft amendments would allow to apply criminal detention 拘役 as an alternative to imprisonment. Criminal detention lasts between 1 and 6 months only and is executed at facilities managed by local public security bureaus. Furthermore, the detainee is allowed to visit his relatives for one or two days a month.


Article 151 [Smuggling of weapons and ammunitions] Whoever smuggles weapons, ammunition, nuclear materials or counterfeit currency shall be sentenced to fixed-term imprisonment of not less than seven years and shall also be fined or sentenced to confiscation of property; if the circumstances are minor, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.

[Smuggling of cultural relics, gold, silver or precious metals] Whoever smuggles cultural relics, gold, silver or other precious metals, the export of which is forbidden by the State, or precious and rare species of wildlife as well as the products thereof, the import and export of which are forbidden by the State, shall be sentenced to fixed- term imprisonment of not less than five years and shall also be fined; if the circumstances are minor, he shall be sentenced to fixed-term imprisonment of not more than five years and shall also be fined.

[Smuggling of plants and the products thereof] Whoever smuggles precious and rare species of plants and the products thereof, the import and export of which is forbidden by the State, [or other commodities and goods the import or export of which is forbidden by the State] shall be sentenced to fixed-term imprisonment of not more than five years [or criminal detention] and shall also, or shall only, be fined; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined.

[Proposed amendment] 走私国家禁止进出口的珍稀植物及其制品或者国家禁止进出口的其他货物、物品的,处五年以下有期徒刑或者拘役,并处或者单处罚金;情节严重的,处五年以上有期徒刑,并处罚金

Whoever commits the crime as mentioned in the first or the second paragraph, if the circumstances are especially serious, shall be sentenced to life imprisonment or death and also to confiscation of property.

Where a unit commits the crime as mentioned in this Article, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of the paragraphs in this Article respectively.

Translation courtesy CECC

Comments

Fanxulitai. The proposed amendment says "shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention". She suggested to insert a comma , before "or criminal detention" to avoid any potential misunderstanding about the maximum length of criminal detention. Currently criminal detention can last between 1 - 6 months.

Li Zupei

Suggested that "or other commodities and goods the import or export of which is forbidden by the State" be changed into "and other commodities and goods", to broaden the scope of this provision.



Fanny Law (yes, this is 罗范椒芬's English name)

Criticized article 151 on grounds that the logical relationship between the criminal facts described in it is unclear. It is not clear whethere there exist any correlation between the "precious and rare species of plants and the products thereof" and the "other commodities and goods the import and export of which is forbidden by the state." Suggested to add an explanatory paragraph to article 151.