真相與謬誤：《反間諜法》修訂一周年記
Truth VS Untruth:the 1st Anniversary of the Revision of the Counterespionage Law
4月26日，《中華人民共和國反間諜法》修訂滿一周年。自去年全國人大常委會修訂此法以來，境內外輿論一直保持著高關注度，絕大多數尊重和支持中國正當立法活動，但也有一些誤解誤讀，甚至是惡意攻擊抹黑。為增信釋疑、以正視聽，有必要盤點一年來《反間諜法》的真相與謬誤，更好回應外部關切、揭批虛假敘事、實現正本清源。April 26,2024 marks the first anniversary of the revision of the Counterespionage Law of the People’s Republic of China（hereinafter CEL).Ever since its revision by the Standing Committee of the National People’s Congress last year, this law has been in the limelight of media both at home and abroad. Among the respects and supports that most of the media have paid to the legislative effort, there were also some misinterpretations, misunderstandings, and even malicious attempts to attack and smear China. In response to relevant misgivings and concerns over the past year, it is necessary to look back at all the “truth” and “untruth” about the revision so as to expose what are false narratives and clean up all suspicions.
| A “booster” for high-qualitya “disruptor” to destruct |
國家安全是國家發展的前提，也是保持開放穩定營商環境的基石。以立法形式維護國家安全，既是國際通行做法，也是一國主權體現。美國早在1917年就制定了《反間諜法》，此后又多次修改。2023年，英國推出最新《國家安全法》，從嚴打擊間諜活動和“外部干涉”。還有很多國家也都制定了反間諜等法律，用以維護國家安全和利益。
National security is not only a prerequisite for national development but also the cornerstone of an open and stable business environment. Safeguarding national security via legislation is not only a common international practice, but also a manifestation of a country's sovereignty. The USA passed its Espionage Act as early as 1917 and has revised it several times ever since. In 2023, the UK pass edits latest National Security Act, vowing to introduce stricter punishment for espionage activities and “external interference”. Many other countries have also laid down similar laws to safeguard their national security and interests.我國一年前修訂的《反間諜法》，前身是1993年頒布的《國家安全法》，2014年僅作更名修改，實際施行超過30年，不少條款已無法適應時代需要。比如，此次新增的“網絡間諜行為”，是因中國1994年才全功能接入國際互聯網，比原《國家安全法》出臺時間晚一年，客觀造成了法律的滯后性，故難以有效防范打擊風險日益突出的網絡間諜活動。The National Security Law(NSL), the predecessor of the CEL, was enacted in 1993 and revised only by renaming it the Counterespionage Law in 2014. Having been in effect for more than three decades by 2023, many of the clauses in the NSL had proved no longer in line with the needs of the times. For example, the provisions concerning “cyberspace espionage” were added in the CEL because China did not have full access to the Internet until 1994, that is, one year later than the launch of the NSL, which means the law was actually lagging behind the times and unable to effectively prevent and crack down the ever-increasing risks of cyberspace espionage activities.法與時轉則治。2023年修訂《反間諜法》，既合理借鑒了各國法律制度，更立足時代發展和中國實際，法律條文由40條細化完善為71條，進一步明確了合法和非法的邊界，以法律規則的確定性減少了企業經營的不確定性。修訂后的《反間諜法》更加科學合理、清晰準確、公開透明，是中國法治進步的時代體現，也是護航高質量發展的重要保障。Good governance can only be achieved when the law keeps pace with the times. The new CEL in 2023 is based on the development of the times and the realities of China and drew much upon the legal systems of many other countries. In it, the old articles in the NSL were improved and their number expanded from 40 to 71, sharpening the distinction between lawful and unlawful acts and reducing the uncertainty in business operation by legal certainty. Being more scientific, more accurate and more transparent in effect, the revised CEL is the recognition of the progress China has made in rule of law in the new era as well as an important guarantee for high-quality development.近年來，中國政府在維護高水平安全的同時，也在以法治化方式不斷擴大對外開放，陸續出臺《外商投資法》《優化營商環境條例》等法律法規，以及“外資24條”“吸引和利用外資行動方案”等政策措施。據國內主管部門統計，近年外商在華直接投資收益率達9%左右，處于國際較高水平；2023年，中國實際利用外資1.1萬億元，處于歷史第三高，全國新設外資企業數量增長了39.7%。這一系列數據和事實表明，中國政府通過持續打造市場化、法治化、國際化的一流營商環境，有效維護了外商投資中國、深耕中國、贏在中國的收益率和信心值。In recent years, the Chinese government has been working to maintain a high level of security and open wider to the outside world by means of rule of law. To this end, China has launched laws and regulations such as Foreign Investment Law of China and Regulation on Optimizing the Business Environment, along with policies and measures such as 24 Measures for Foreign Capital Utilization and An Action Plan for Promoting the Attraction and Utilization of Foreign Investment. Statistics of the domestic authorities show that the ROI of foreign direct investment in China has reached around 9% in recent years, which is at a pretty high international level. In 2023, the foreign investment in actual use in China amounted to about 1.1 trillion Yuan, the 3rd highest in history; and the number of newly established foreign-invested enterprises underwent an increase of 39.7%. All these data and facts show that China’s continual efforts to nurture a first-rate business environment featuring marketization, rule of law and internationalization have substantially boosted both the ROI of foreign investment and confidence to invest in China, flourish in China and succeed in China.| A “sight” to locate espionage espionage activities rather than a “magnifier” to overstretch the concept of national security |
新版《反間諜法》出臺后，受個別惡意抹黑輿論影響，有的企業擔心“中方泛化國家安全”，把正常商業調查活動作為“間諜行為”，把一般商業信息當成“國家秘密”。事實證明，這種擔心是完全多余的，《反間諜法》保護的是包括外企在內的絕大多數人員的合法權益，打擊的是極少數危害國家安全的違法犯罪行為，而非正常的投資、經營、科研等活動。
Under the influence of some malicious media, some enterprises are worried that, with the revision of the CEL, “China would overstretch the concept of national security”, “normal access to business information may be treated as espionage activities” and “ordinary business information may be treated as state secrets”. It has been proved that such concerns are totally unnecessary. The CEL is aimed to protect the normal investment, business operations or scientific research as well as the legal rights of most enterprises, including foreign enterprises, and fight those criminal activities that threaten China’s national security.對于什么是間諜行為，我國《刑法》《反間諜法》分別從刑事犯罪、行政違法角度作了清晰列舉。以外方關心的商業盡職調查為例，只要不是接受境外間諜組織及其代理人的指使，或是不知曉對方是間諜組織及其代理人而接受了所謂“商業調查委托”，但沒有實施刺探、竊取、收買、非法提供國家秘密、情報等行政違法或犯罪活動，就不會被認定為間諜行為。What is espionage? The Criminal Law of the PRC and the CEL give an unequivocal exemplification of espionage activities in terms of criminal and administrative offenses respectively. Let’s take the much-concerned commercial due diligence as an example. As long as they do not accept the instructions of foreign espionage organizations and their agents, do not know that the other party is an espionage organization or its agents, and do not carry out administrative offenses or criminal activities such as spying, theft, buying, or illegally providing state secrets or intelligence, they will not be treated as espionage.對于什么是“國家秘密”，我國《保守國家秘密法》作了明確界定，包括7類具體事項。今年2月，《保守國家秘密法》修訂后，又有人借機炒作“中方法律政策不透明”。但這次修法重點只是進一步強化“國家秘密”的精準保護，做到依法公開、依法保密、保放適度，而對“國家秘密”范圍未作絲毫修改。What is “state secret”?The Law of PRC on Guarding State Secrets provides a clear definition of the term. In accordance with the law, there are seven types of “state secrets”. Once again, however, after the revision of the “Law on Guarding State Secrets” in February this year, some people took the opportunity to hype up “China's non-transparent laws and policies”. However, it should be noted that the focus of this revision is only to further strengthen the precise protection of “state secrets”, so that they are made public, kept confidential and appropriately declassified in accordance with the law, and that the scope of “state secrets” has not been modified in the slightest.如果非說《反間諜法》是“放大鏡”，那也是放大了對國家安全機關規范執法的監督要求，新法對各項執法權的行使條件、程序、范圍等都作了嚴格限定。去年《反間諜法》出臺前夕，國家安全部專門向全社會公布舉報信箱和舉報電話，主動接受社會各界監督。近期，國家安全部首次制定公布《國家安全機關行政執法程序規定》《國家安全機關辦理刑事案件程序規定》2個部門規章，進一步增強法律執行的公開性和透明度，確保依法反間諜、更好促發展。If the CEL is a “magnifying glass”, all it magnifies would be nothing but the oversight requirements for state security organs to standardize their law enforcement. The revised law sets rather strict limits on the conditions, procedures, and scope for the exercise of law enforcement powers. Not long before the launch of the revised CEL, the Ministry of State Security of PRC publicized the complaint mailbox and the whistleblower hotline and welcomed supervision from all walks of life. Recently, the Ministry of State Security of PRC has released two departmental regulations, namely The Administrative Law Enforcement Procedures of the National Security Agencies and The Criminal Case Handling Procedures of the National Security Agencies, so as to further increase the openness and transparency of law enforcement,promote law-based counterespionage work and better serve development.| A “filter” to safeguard data the cross-border data flow |
維護數據安全是各國面臨的共同難題，過度保護則有害經濟發展和科技進步，放任不管則危及國家安全和公共利益。中國堅持促進數據開發利用和保障數據安全并重，率先發起《全球數據安全倡議》，就解決數據安全問題提出了切實可行的中國方案，與有的國家“假開放、真壟斷”的做派形成鮮明對比。
Data security is a common dilemma faced by all countries today. Overprotecting it would bring harm to economic growth and scientific and technological progress and letting it take its own course would jeopardize national security and public interests. China attaches equal attention to the promoting the development and utilization of data and safeguarding data security. To achieve these goals, China has taken the lead in launching the Global Data Security Initiative and proposed a series of feasible solutions to data security issues, which is in stark contrast to the “monopoly in the disguise of opening-up” approach of some countries.《反間諜法》立足統籌開放和安全，結合《數據安全法》既有規定，對數據調取作出銜接性規定，并非一項新增授權。與此同時，《反間諜法》嚴格限定查閱調取數據的前提條件、審批流程、范圍限度，避免權力濫用。今年3月，國家網信辦出臺的《促進和規范數據跨境流動規定》，對國際貿易、跨境運輸、學術合作、跨國生產制造和市場營銷等活動中收集和產生的數據向境外提供的規則作出規定，依法明確了免予審查、認證等條件和程序，清晰表明了對數據正常跨境流動的支持保護，有效降低了企業合規成本，是中國擴大制度型開放的重要舉措。To achieve both opening-up and security, the CEL, with the support of provisions in the Data Security Law, offers supplementary regulations on data fetching, which is by no means an additional authorization. What’s more, to avoid possible abuse of power, the CEL sets strict limits to the prerequisites, approval process, and scope of access to data to avoid abuse of power. The Regulations on Promoting and Regulating the Cross-border Data Flow launched by the Office of the Central Cyberspace Affairs Commission provides that the transfers of data collected or created during international trade, cross-border shipping, academic cooperation, cross-border manufacturing or marketing outside of China shall be exempted from such procedures as auditing and authentication, which clearly demonstrates the support and protection for the normal cross-border flow of data, effectively reduces the compliance costs of enterprises, and is an important measure for China to expand its institutional opening-up.發展和安全不是非此即彼的“單選題”，修訂《反間諜法》也不意味著“中國重視安全高于發展”，而是為了更好統籌發展和安全，持續營造健康穩定的良好發展環境。作為反間諜工作主管機關，國家安全機關始終秉持法治精神、遵循法治原則，嚴格執行《反間諜法》和相關法律法規，堅定不移在法治軌道上為推進中國式現代化保駕護航。Development and security is not an either-or issue. The revision of the CEL doesn’t mean that “China attaches importance to security above development”, but rather aims to better integrate development and security, and continue to create a sound and stable environment for development. As the departments in charge of counterespionage work, national security organs have always upheld the spirit and principles of the rule of law, and strictly enforced the CEL and related laws and regulations in their steadfast efforts to safeguard the Chinese modernization by means of rule of law.
