More Severe Criminal Penalties on Safety Production Are Coming in China

By John Shi, Amy Yang

09-2020

The draft PRC Criminal Law Amendment (XI) (the "Draft Amendment") was released on July 3, 2020, seeking for public comments. Amongst others, the draft amendment to Article 134 of the PRC Criminal Law ("Article 134") with regard to safety production violations is noteworthy, particularly for enterprises engaged in manufacturing, construction and mining industries.

Under the current Article 134, criminal liabilities will ONLY be triggered when casualties or other serious consequences are caused by illegal production practices, including violations of safety management provisions and forcing others to work under hazardous conditions. The new Article 134 has kept the original provision but also added three new circumstances where criminal liabilities may also be triggered.

Three new circumstances

In addition to causing heavy casualties or other serious consequences as stipulated in the current provisions, actual threat of occurrence of heavy casualties or other serious consequences under these three new circumstances will also trigger criminal liability. These three new circumstances are:

  1. Turning off or destroying surveillance, alarm, protective, or first-aid equipment and facilities that are directly tied to production safety, or falsifying or concealing related data and information thereof;

  2. Where due to the threat of a major accident, one has been legally ordered to suspend production and operations, construction, or use of equipment, facilities, or venues, or to take measures to immediately remove the threat, but refuses to do so;

  3. Without lawful approvals or permits involving production safety matters, engaging in mining exploration, metal smelting, construction, or the production, sale, storage, or transport of hazardous materials, or other highly dangerous production operations and activities, where the circumstances are serious.
Who will bear the liability?

The subjects of the crime include but not limited to persons in charge, managers, actual controllers, investors and those who have organizational, command, or management responsibilities for production activities.

Suggestions

The seeking-for-public-comments session was ended on August 16, 2020. Once the Standing Committee of National People's Congress approves the Draft Amendment, other supporting regulations on safety management of production & operation will be likely to be revised accordingly. We thus bring this Draft Amendment to your attention so that you can assess your safety management in advance, in order to avoid any criminal risk. We will closely follow up with the legislation process, and be happy to advise you on further details.