Core Tip: Secrets Act, the NPC Standing Committee to amend the
Bill relates to distinguish between national secrets and commercial
secrets, the close will close the right to confidentiality set
deadlines. At present, there is dense set too much, too chaotic
problems. A township government can also set a top-secret-level
documents. The draft stipulates that the confidentiality period of
state secrets, except as otherwise provided, the top-secret level
of not more than 30 years.
The Beijing News reported February 25 after a lapse of six
months, and twenty-first meeting of the 13th NPC Standing Committee
yesterday by the Second Review Secrets Act amendment bill, this
amendment to make major changes in many aspects, involving state
secrets, and the distinction between commercial secrets, the close
will close the right to set the confidentiality and the
cancellation of the first trial period in the draft security
department administrative licensing, investigation and penalties
rights.
Secrecy laws have participated in the revision of the Law
Institute of the Chinese Academy of Social Sciences researcher Zhou
Hanhua spoke highly of this that the second instance, the draft
Bill is relatively great progress in the first instance.
Security officer for a period not close off the leak
The Eleventh National People's Congress yesterday, the Second
Review Secrets Act to amend the Bill at the last hearing, the
Standing Committee members considered that the classified staff are
doing a good job managing the core of confidentiality, some
departments and the public have also expressed this point
expectations. The draft second instance of this for a response.
NPC Law Committee, vice chairman of Sun Anmin said that the
Legal Committee by the House Judiciary Committee with the State
Council Office of Legislative Affairs, the State Secrecy Bureau
research, the proposed increase in the relevant provisions:
"classified staff should have good political qualities and
character, with a competent classified post the required ability to
work. "" classified staff in secret off period, shall be in
accordance with the provisions of any confidentiality obligations
that may not be in violation of regulations of employment, shall
not in any way known leaking state secrets. "
The draft amendment also stipulates that authorities should
establish a sound management system, personnel whose jobs involve a
clear personnel whose jobs involve the rights and obligations and
job requirements, duties of personnel whose jobs involve carrying
out regular supervision and inspection.
Secret for a period not more than ten years
Secrecy laws shall be amended the key issues involved
confidential and open relationship. The second trial received on
the draft of the right to be secret, and secret classified material
grades are determined in different period of confidentiality, this
provision is expected to end the current security work in the
secret "certain life" situation.
The draft amendment stipulates: "State Secrets confidentiality
period, except as otherwise provided, the top-secret level no more
than three decades, the secret level of no more than two decades,
the secret level of no more than ten years."
Amendment Background
Secrets Act, a number of issues facing the implementation of
more than 20 years
Township government may be set top-secret-level documents
China's current conservative State Secrets Law for over 20
years. In June 2009 revised draft Law on Guarding State Secrets for
the first time the NPC Standing Committee, the draft
confidentiality of the emergence of some new situations and new
problems were modified.
Issue a fixed density standards are not clear
Some Standing Committee members and departments, state secrets,
a relatively wide range, will close the standard is not clear, the
implementation is not easy to grasp. Taking into account matters
should distinguish between the secret state secrets, work secrets
and business secrets, the draft of the "What is a state secret,"
has made explicit stipulations.
Question 2 will close too many arbitrary
At present, there is dense set too much, too chaotic problems. A
township government can also set a top-secret-level documents.
Previously, the State Secrecy Bureau has publicly stated in the
media, and only should first close Dingzhun, can be not only to
protect national information security, to safeguard the fundamental
interests of the masses, but also the promotion of government
information openness and rational utilization of information
resources to protect the people right to information, participation
and supervision.
Office of a provincial government official said confidential
documents should not have been set the secret, apparently to the
confidentiality more difficult, raising the cost of
confidentiality. For example, he said, a City issued a Study on the
characters to the advanced file encryption surprisingly indicates
the extent of the spread of confidential documents.
Question 3 Security Level "must life"
For the Security Level of "a certain life," the revised draft
clear, state secrets, the confidentiality period, except as
otherwise provided, the top-secret level of not more than 30 years,
the secret level of not more than 20 years, the secret level of not
more than 10 years.
Question 4 penalty is difficult to stop leaks
For the handling of leaks, keep state secrets after the revised
draft law stipulates a fine of administration the right to
confidentiality.
In this regard, the Standing Committee member Zhang Xuezhong
believes that this approach "not being serious enough." "These
fines less 1,000 yuan, as many as several thousand dollars, not to
mention in this way can serve as a deterrent, such a requirement
the law at the national level appear not seem particularly
serious."
To be the focus of a top-secret time limit not exceeding 30
years
The draft stipulates that the confidentiality period of state
secrets, except as otherwise provided, the top-secret level of not
more than 30 years, the secret level of not more than two decades,
the secret level not exceeding ten years.
【Reading】
"Secret and incomprehensible," impede social progress
Background: The current secrecy law does not provide
confidentiality of the period, the draft in the first instance,
Chen Si-hi members that the proposed time limit should be
identified to classify documents. The comments in the draft, the
Ministry of Finance and the State Grain Bureau has also raised the
proposal to establish a secret period, the State Grain
Administration and the current draft of the proposed
provisions.
Public awareness of confidentiality requirements of the period
is higher that the top-secret level does not exceed 20 years, the
secret level not exceeding 10 years, the secret level not exceeding
5 years.
The second trial set for the first time the confidentiality of
state secrets, state secrets, this provision is expected to end a
certain life issues.
Secrecy laws have participated in the revision of the Law
Institute of the Chinese Academy of Social Sciences researcher Zhou
Hanhua said, "The past is often a certain secret life, only to be
perplexed." And such a number of documents declassified Ministry of
Foreign Affairs, but no system is difficult to normalization.
Confidential information must life "hindered social progress, in
particular, impede the development of information technology,
files, where the provisions of the Law for 30 years, was also
absorbed a file law and common practice abroad."
However, the confidentiality provisions of the current draft is
not an absolute deadline, the draft also provides for
confidentiality is necessary to extend the period, it shall
re-determine the duration of confidentiality.
For the duration of stay in a security "hole in" requirement,
Zhou Hanhua think we can understand the complexity of state
secrets, does have some secret matters, to 30 years, still not
open, "This is not only China abroad have to re-set the system
design is a dense international practice. "
But how to prevent abuse of this provision, leading to re-Mi was
originally scheduled for the exception, the implementation has
become a usual practice, Zhou Hanhua think first of all depends on
the legal consciousness of law enforcement agencies can not be an
exception to become the norm, or the abuse of this provision.
However, this alone is not enough, we still need a system, such as
social subjects that should be declassified secret expire, or the
public more valuable, if the security unit of the abuse this
provision, you can claim right of access for administrative
reconsideration or administrative litigation procedure, the review
process .
However, he believes secrecy laws of these systems is not
designed to solve, the Administrative Procedure Law, the
Administrative Supervision Law, the civil service law should play a
role, he explained, will be secret behavior is subject to judicial
review, because the principal is not scheduled to close security
sector, while the is a specific sector, "These are government
agencies, as the proceedings the defendant is no problem, the
administrative procedure law and the government information
disclosure regulations also stipulate that could be
litigation."
Is there a need for secrecy laws clearly this judicial review,
Zhou Hanhua that the secrecy laws, if not clearly defined,
according to the Administrative Procedure Law and the government
information disclosure regulations, can all be prosecuted, but
previously deleted from the draft second instance involved in the
Bill confidential management of the administrative licensing,
investigation and a fine of rights, Zhou Hanhua that as the Chinese
special system, the State Secrecy Bureau and the central security
office is an institution, Secret Service conduct or internal
administrative actions, and do not affect the rights and
obligations of social subjects occurred , "acts of the executive
branch secrecy, or can not enter the litigation as well."
Focus on two levels can not just be a secret
The draft stipulates that the central state organs, provincial
agencies and their authorized organs, units can determine the top
secret level, secret levels and secret level state secrets; the
city divided into districts, autonomous prefectures and one of the
bodies and their authorized organs, units can determine the secret
grade and secret level state secrets.
【Reading】
Reduce the administrative cost savings will close the main
Background: The National People's Congress Law Committee, vice
chairman of the Sun Anmin Secrets Act amendments to the Standing
Committee for revision of the draft report said that this is to
absorb the NPC Standing Committee members, departments and local
views, to address the excessive dense set.
Zhou Hanhua had to participate in the NPC's Law Committee,
within the Division Committee, the NPC Standing Committee
Legislative Affairs Commission of experts jointly organized by the
forum has also recommended the setting on the income secret rights,
Zhou Hanhua said China's security system had been scheduled to
close since the right to put very open, "open to any unit or
interior of their flats are scheduled to close sections of power,
This is more than inappropriate for international practice." He
explained that the state need to protect state secrets, and the
leak will cause national security, political, matter of serious
harm to the economy, while China put too open, resulting in
excessive fixed density. Some will close personnel in not sure of
the circumstances, "in order to avoid responsibility, have all
given set into a state secret, but a certain life, it also brought
a problem, will be too much, the insured had not saved."
Zhou Hanhua that the income will be close secret powers and
functions effectively address excessive and indiscriminate issue,
and will promote the free flow of information to promote domestic
economic and social information and promoting the development of
information industry, it is also significant at the same time, "to
really want to control tube well, the insured maintained, can
produce a win-win or win-win results. "
According to the provisions of the draft was the second
instance, will greatly reduce the current density of the main set,
"China's municipalities and districts, autonomous prefectures and
more than 600, while the counties have more than 3000, the original
set is the mass density of the main, but now you can save a lot of
administrative costs. "
A major change to this system, Zhou Hanhua that there is room
for further development in the future, he suggested that with the
development of confidentiality, in the current density determined
on the basis of the main body, but also can be further clarified or
further narrow the scope of the main set close .
Focus 3 distinguish between national and commercial secrets
The draft stipulates that involve national security and
interest, if disclosed, could undermine the country in political,
economic and defense fields, the security and interests, should be
identified as state secrets.
【Reading】
The need for legislation to protect trade secrets
Background: The draft for Peer Review in a relatively broad
state secrets provision, a number of standing committee members and
departments think it is easy to master implementation, Sun Anmin
said that the secret should distinguish between matters of state
secrets, work secrets and commercial secrets.
Zhou Hanhua said that the original scope of privacy law in
relation to confidentiality provisions, will be a large number of
trade secrets are included in the middle of state secrets. More
than 20 years ago Zhengqibufen the circumstances, this may also
have its legitimacy. However, with the deepening of reform and
opening up and the establishment of China's market economy system,
for such as science and technology, economic and social development
of the trade secrets and continue to state secrets to be protected,
it will lead to similar circumstances in the case of Rio Tinto has
repeatedly appear, giving others a handle, so that foreign
countries continue to deny the legal status of China's market
economy.
However, he believes that such information is not to say do not
protect, but by way of trade secret protection to protect. In other
countries, violation of trade secrets to be no less than the
liability of the slightest violation of state secrets. The Chinese
criminal law for the violation of trade secrets and violations of
state secrets of the crime, the criminal penalties are roughly
equal, can be a lot of trade secrets was spun off from the national
secret, namely, to protect them. Of course, due to the lack of
trade secret protection laws in China needs to accelerate the
legislative process, in order to trade secret protection provides
substantive law norms.
Focus 4 the right to cancel a fine of confidentiality sector
The draft limits the second trial of first instance in the draft
of the confidentiality provisions of the executive branch certain
powers, including the license rights, the right of investigative
powers and penalties.
【Reading】
Penalties are difficult to resolve security issues
Bill provides for the first trial involving state secrets, has
been engaged in business enterprises and institutions should be
equipped with security qualification, awarded by the security
administration department for examination. Sun Anmin said the
Standing Committee members, businesses and academics have
suggested, on the condition of confidentiality and conduct safety
review is necessary, but as a socially oriented administrative
permission to examine it carefully.
In this regard, the draft second instance abolished the right of
administrative licensing requirements and replace them with
confidential security checks, and to take enterprises signed a
confidentiality agreement with the client confidentiality to be
standardized manner.
It also provides for confidentiality of first instance
administrative department suspected of leaking state secrets or
jeopardize national security investigative powers and
administrative enforcement power, this provision has also been a
number of standing committee members, departments and scholars
questioned, they believe is responsible for security administration
development of privacy regulations and guidance, inspection,
oversight bodies, units of the security work, while the classified
investigation of the case should play a major national security
body functions.
The draft adopted by the above observations, provides
confidential administrative departments suspected of leaking state
secrets found in the case, urge the relevant authorities
responsible for organizing the investigation and handling.
There are four provisions in the draft the first trial involving
a fine of administration the right to confidentiality, a number of
standing committee members, departments, and public perception that
the penalties are difficult to resolve the issue of confidentiality
should be taken against those responsible according to law solution
to the duty of confidentiality issues in order to maintain secrecy
laws seriousness.
The Bill also incorporates the above views, eliminating the
right of confidentiality of a fine of administration.
Voice "the right to cancel a fine of legislative great
progress"
At the expert seminar, Zhou Hanhua to advocate the right to
delete such permission, the investigation and a fine of power, "Now
legislation, should license, a fine power, fines had become an end,
many after a fine of an unlawful act lawful, and not just is a
confidential law itself, we should rethink this problem, so that
the system return to the law on features. "
The right to cancel penalty is also in line with international
common practice, and no country will make security departments to
the fines. "Many a fine is not to solve the problem, a fine after
the reform and opening up, and now has become a 'panacea', in fact,
is 'fake', the penalty when the purpose of the law enforcement
agencies, but not the means." Zhou Hanhua said the confidentiality
The draft Law on the second trial license canceled, investigative
powers and a fine of the right of legislation big step forward.
However, in view of the particularity of China's security system,
the draft canceled license, such as the right penalty provisions
also allow the administrative department for confidentiality is
difficult to "do the defendant." Zhou Hanhua introduction of
foreign security sector is a purely government agencies in China,
the central security office is also the Secret Service, which is
the country's political system, specificity, and foreign cases can
not be directly compared.
Zhou Hanhua said that although the foreign security sector
decisions are subject to judicial review, such as the United States
on national security departments to the confidentiality of the
decision, although can be judicial review, but the attitude of the
courts maintain a high degree of respect, "is basically asking,
however, public interest organizations, , citizens, and very few
people to challenge the proposed action is very rare, once in the
court, which is highly respected. "
Zhou Hanhua said that under the two reviewers of the security
department of the location, security departments do not allow the
accused to make a specific administrative act by the department as
a defendant, both in line with the provisions of the Administrative
Procedure Law, it is reasonable not only guarantee the security
department of the respect and maintain its policy of height, it
will not affect the rights of citizens.