August 2023
Karl Zhang and Teresa Huang
On April 26, 2023, the Standing Committee of the National People’s Congress (NPC) passed the amendment to the Counterespionage Law of the People’s Republic of China (hereinafter referred to as the “Counterespionage Law”), which came into effect on July 1, 2023. The main revisions to the Counterespionage Law are as follows:
I. Definition of Espionage
According to the definition of espionage, “defecting to espionage organizations and their agents” and “carrying out cyber-attacks, intrusion, interference, control, and sabotage against state organs, classified organizations, or critical information infrastructures, etc.” are clearly defined as espionage. Depending on the practical conditions, the range of entities targeted for espionage purposes has been moderately expanded; and in terms of preventing leaks, “other documents, data, information and articles relating to national security and interests” have been added to the list, so that they are protected on an equal footing with state secrets and intelligence. Additionally, espionage acts affecting national security and utilizing the conditions in the country to engage in espionage against third countries are also brought under the regulation.
II. Security Precautions
This amendment adds a special chapter on security precautions, clarifying the main responsibility for counterespionage security precautions borne by state organs, people’s organizations, enterprises, institutions and other social organizations, and requiring them to educate their employees on national security, and to mobilize and organize their personnel to prevent and stop espionage.
The amendment also requires the state to establish a management system for key organizations of counterespionage security prevention, and stipulates that construction, alteration and expansion of development projects within the perimeter security control areas of important state organs, national defense and military industrial organizations and other important classified organizations as well as important military facilities need to be carried out by the state security agencies to implement the licensing of development projects involving national security.
III. Investigation and Handling
The new Counterespionage Law introduces a number of administrative law enforcement powers of the state security agencies in counterespionage, including but not limited to the inspection of electronics, facilities and related procedures of the individuals and organizations concerned, the summonsing of persons violating the Counterespionage Law to be investigated, and the restriction of exit and entry for domestic personnel suspected of espionage and for foreigners who may be engaged in carrying out activities that endanger national security after entering China.
Meanwhile, in terms of convergence with criminal proceedings, new provisions have been made for the identification of state secrets or intelligence and procedures for evaluating the results of harm.
IV. Guarantees and Supervision
The amendment also adds provisions on the protection, rescue, compensation, resettlement, pension and training of personnel involved in carrying out or assisting in carrying out counterespionage tasks; and adds provisions on encouraging scientific and technological innovations in the field of Counterespionage, and giving full play to the role of science and technology in counterespionage.
V. Others
This amendment has further enhanced the related legal responsibilities, expanded the application of administrative penalties, and addressed the coordination with criminal procedures, among other matters.
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