A Milestone of Air Legislation in China - Some Thoughts on the Civil Aviation Law of the People's Republic of China Wu Jianduan

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A MILESTONE OF AIR LEGISLATION IN CHINA-SOME THOUGHTS ON THE CIVIL AVIATION LAW OF THE PEOPLE'S REPUBLIC OF CHINA Wu JIANDUAN* TABLE OF CONTENTS I. INTRODUCTION .................................. 823 II. THE LEGISLATIVE SYSTEM IN CHINA .......... 824 III. NATIONALITY AND REGISTRATION ............ 828 IV. RIGHTS IN AIRCRAFT ............................ 830 V. LEASE OF CIVIL AIRCRAFT ...................... 832 VI. AIR SAFETY ADMINISTRATION .................. 832 A. THE ADMINISTRATION OF AIRWORTHINESS ....... 832 B. SAFETY AND SECURITY OF CML AIRPORTS ....... 833 C. RESPONSIBILITIES OF PUBLIC AIR TRANSPORT ENTERPRISES .................................... 833 D. GENERAL SAFEy CONCERNS ..................... 834 VII. PUBLIC AIR TRANSPORT ENTERPRISE ......... 835 VIII. CARRIER'S LIABILITY ............................ 836 IX. CONCLUDING REMARKS ........................ 839 I. INTRODUCTION 0N OCTOBER 30, 1995, the Civil Aviation Law of the Peo- ple's Republic of China ("Civil Aviation Law" or "Law") was adopted at the Sixteenth Meeting of the Standing Committee of the Eighth National People's Congress. Promulgated by Order No. 56 of the President of the People's Republic of China, the Civil Aviation Law became effective as of March 1, 1996. This Law, intended to ensure the safe and orderly operation of civil aviation, to protect the rights and interests of the parties involved in civil aviation and to promote the civil aviation industry within China, presents a milestone in Chinese air legislation. * Wu Jianduan, Legal Advisor to China Eastern Airlines Co., Ltd., Hongqiao Airport, Shanghai, China, 200335. 823 824 JOURNAL OFAIR LAW AND COMMERCE Provisions of international conventions and treaties to which China is signatory, such as the Chicago Convention of 19441 and the Warsaw Convention of 1929,2 have formed the primary basis of civil aviation law in the People's Republic of China. Other treaties, to which China was not a party, have also influenced the development of Chinese civil aviation law, though the extent of their influence remains unclear. During the forty-six years pre- ceding the Civil Aviation Law, the People's Republic of China enacted no national legislation concerning the inter- or intrana- tional practice of civil aviation. To some extent, this Law is the summary of the civil aviation practices that developed in the People's Republic over those forty-six years.3 Therefore, my discussion of the Civil Aviation Law must be viewed with an understanding of both international air law and domestic Chinese law practice. To aid in this understanding, I begin with a brief description of the Chinese legislative system. The rest of this Essay is left for a discussion of the main parts of the Civil Aviation Law as it pertains to nationality and registration, rights in civil aircraft, lease of civil aircraft, air safety administration, public air transport enterprises, and carrier liability. II. THE LEGISLATIVE SYSTEM IN CHINA First, we must consider the Constitution of the People's Re- public of China (the "Constitution").' Article 5 of the Constitu- tion states, "No laws or administrative or local rules and regulations may contravene the Constitution."5 Article 2 of the Constitution stipulates that all powers in the People's Republic of China belong to the people.6 The National People's Congress and the local people's con- gresses at various levels provide the means by which the people I Repertoy-Guide to the Convention on International Civil Aviation, ICAO Doc. 8900/2 (1977) (2d ed.). 2 Convention for the Unification of Certain Rules Relating to International Carriage by Air, Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11 [hereinafter Warsaw Convention] (codified at 49 U.S.C. § 40105 (1994)). 3 See Chen Guanyi, Director of the General Civil Aviation Administration of China (CAAC), Address at the First National Conference of Legal System of CAAC (1995) [hereinafter Address of the Director]. 4 See I LAws AND REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA GOVERNING FOREIGN-RELATED MATTERS 7 (Bureau of Legislative Affairs of the State Council of the People's Republic of China ed. 1991) [hereinafter LAWS AND REGULATIONS GOVERNING FOREIGN-RELATED MATTERS]. 5 XIANFA [Constitution] art. 5 (P.R.C.). 6 Id. art. 2. 1997] AIR LEGISLATION IN CHINA 825 exercise state power. It is considered the highest organ of state power in China. In legislative aspects, the National People's Congress is entitled to amend the Constitution and to enact and amend basic laws concerning criminal offenses, civil affairs, state agencies, and other matters. In addition, the National People's Congress may exercise such other functions and powers as are inherent in the highest power of a state.7 As the permanent body of the National People's Congress, the standing committee may exercise the following functions and powers: (1) interpret the Constitution and supervise its en- forcement; (2) enact and amend laws, with the exception of those reserved to the National People's Congress; (3) supple- ment and amend laws enacted by the National People's Con- gress when the National People's Congress is not in session, provided that the basic principles of the laws are not contra- vened; and (4) interpret the laws.' The Constitution of the People's Republic of China provides for three categories of legislation.9 The first category is "national" law, comprising different sections of the state statutory law. Only the National People's Congress or its Standing Com- mittee may enact this type of legislation. The second category is "subordinate" legislation, comprising administrative statutes the- oretically based on national law. The State Council, acting in a regulatory capacity, may enact this type of legislation. 10 The third category is regulations or orders issued under authority of the state council by subordinate ministries, such as the General Civil Aviation Administration of China (CAAC). 11 Sometimes, if there is no national law on a special subject, the State Council or ministries under the State Council will promulgate regulations, decisions, or orders to fill the gap. After the promulgation of a 7 Id. arts. 57, 62. 8 Id. art. 67. Actually, the Standing Committee of the National People's Con- gress can exercise such other functions and powers as the National People's Con- gress may assign to it other than the four items mentioned here. 9 This structure differs from that of many other countries. For example, Great Britain derives its legislation primarily from the two traditional sources: statutory enactment and subsidiary legislation. 10 XANFA [Constitution] art. 89 (P.R.C.). Some of the functions and powers of the State Council are to adopt administrative measures, enact administrative rules and regulations, and issue decisions and orders in accordance with the Con- stitution, the law and the administrative rules, and regulations, decisions, and orders of the State Council. 11 Id. art. 90 ("The ministries and commissions issue orders, directives and regulations within the jurisdiction of their respective departments and in accordance with the law."). 826 JOURNAL OFAIR LAW AND COMMERCE national law on the subject, the special regulatory decisions or orders are amended accordingly. The genesis of the Civil Aviation Law may be traced back to as early as 1979. In 1979, the Central Politics and Law Group (a powerful state agency responsible for drafting laws at that time) authorized the CAAC to begin the drafting of the Civil Aviation Law. After several years, the CAAC forwarded the preliminary draft of the Civil Aviation Law to the State Council. 12 The State Coun- cil then hosted a seminar to solicit opinions on the draft from representatives of the relevant ministries and committees under the State Council and of the military forces. Based on the seminar, CAAC revised the draft and forwarded it to the State Coun- cil for supervisory review.13 Investigations were subsequently made by special groups or- ganized by the Bureau of Legislative Affairs of the State Council. Following these investigations, the State Council held still more seminars to solicit the opinions of various experts concerning detailed adjustments, amendments, and additions to the draft. In late 1994 and early 1995, the Bureau of Legislative Affairs of the State Council and CAAC amended and refined the draft. On June 2, 1995, the CAAC presented the final draft to the thirty-second periodical meeting of the State Council for approval. 14 On June 10, 1995, premier Li Peng signed the draft, authoriz- ing its presentation to the Standing Committee of the National People's Congress. On October 30, 1995, the Standing Commit- tee, chaired by President Qiao Shi, approved the draft by a vote of 128-yes to 0-no with 8 abstentions. Thus, the Civil Aviation Law was adopted and promulgated. 15 This Law represents the first legislation concerning civil aviation ever enacted by the Standing Committee of the People's Congress of China. That is to say, it is the first time the People's Republic of China has had a law governing aviation activities to, from, or within China, binding on all parties involved in Chi- nese civil aviation.

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