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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

China: Tobacco Leaf Tax and Vessel Tonnage Tax Laws Passed

(Jan. 19, 2018) On December 27, 2017, in its last session of 2017, the Standing Committee of the National People’s Congress of China (NPC) adopted laws regulating the taxation of tobacco leaves and the taxation of vessel tonnage. (Zhonghua Renmin Gongheguo Yanye Shui Fa (Dec. 27, 2017), NPC website; Zhonghua Renmin Gongheguo Chuanbo Dunshui Fa (Dec. 27, 2017), NPC website.) The new Laws will take effect on July 1, 2018.

The Tobacco Leaf Tax Law, which replaces the State Council’s Provisional Regulations on the Tobacco Leaf Tax, establishes who is subject to the tax (those entities that purchase tobacco leaves within the territory of China in accordance with the Law of the People’s Republic of China on Tobacco Monopolies); which leaves are covered by the tax (flue-cured, air-cured, and sun-cured tobacco leaves); the taxation basis (the total payment actually made by a taxpayer for the purchase of tobacco leaves); tax-collection bodies; the time schedule for tax liability; tax payment deadlines; and tax payment locations. The Law also provides that the tax rate of 20% previously levied on tobacco-leaf buyers remain unchanged.

The other tax law passed by the NPC Standing Committee, the Vessel Tonnage Tax Law, repeals the State Council’s Provisional Regulations on the Vessel Tonnage Tax. The Law lays down detailed provisions establishing which vessels are subject to the tax (those that enter the domestic ports of China from overseas ports); tax items and tax rates; the taxation basis (the net tonnage of a vessel and the terms of the tonnage tax certificate); taxable amounts (calculated by multiplying the net tonnage of a vessel by the applicable tax rate); tax-collection bodies; and eligibility criteria for tonnage tax exemptions. According to the Law, the tax is levied on vessels entering domestic Chinese ports (excluding Hong Kong and Macau) from foreign ports. The Law divides tax items into four categories according to their net tonnage: up to 2,000 tons, 2,000 to 10,000 tons, 10,000 to 50,000 tons, and over 50,000 tons. In addition, the tonnage tax rates are classified into preferential tax rates and general tax rates. Preferential tax rates are applicable to taxable Chinese vessels and taxable vessels whose flag states (regions) have signed treaties or agreements containing reciprocal most-favored-nation treatment clauses for vessel taxes and dues, while general tax rates apply to all other taxable vessels.

According to Ruihe Wang, director of the Economic Law Office of the NPC Standing Committee’s Legislative Affairs Commission, the passage of the two tax laws is mainly a process that elevates the previous administrative regulations to NPC laws. Wang suggested that the legislation did not significantly affect the former tax system. Once the two tax laws take effect in 2018, six out of the 18 types of taxes levied in China will be imposed by NPC laws. (Zhou Xiaoxiao, Shuishou Fading Zai Xia Yicheng: Yanye Shui Fa He Chuanbo Dunshui Fa Huo Renda Tongguo [A Step Forward Toward Statutory Taxation: Tobacco Leaf Tax Law and Vessel Tonnage Tax Law Passed by NPC] 21 SHIJI JINGJI BAODAO [21st CENTURY BUSINESS HERALD] (Dec. 28, 2017).) Under the 2015 amendment of the Law on Legislation, the types of taxes, tax rates, and mechanism of taxation must be provided in laws adopted by the NPC, rather than in administrative regulations. (Laney Zhang, China: Law on Legislation Amended, GLOBAL LEGAL MONITOR (July 8, 2015).)

Prepared by Yichao Zhang, Law Library intern, under the supervision of Laney Zhang, Senior Foreign Law Specialist.

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Italy: Constitutional Court Issues Decision on Citizenship Oath

(Jan. 18, 2018) On November 8, 2017, the Italian Constitutional Court issued a decision on requiring an oath of citizenship from an immigrant whose disabilities prevented her from taking it. (Decision No. 258 of November 8, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [OFFICIAL GAZETTE, G.U.] (Dec. 13, 2017) (in Italian), G.U. website.)

The Decision declared article 10 of Law No. 91 of February 5, 1992, unconstitutional because the article does not exempt from the citizenship-oath requirement a person who is incapable of taking the oath due to serious and proven conditions of disability.  (Id., holding 1; Law No. 91 of February 5, 1992, New Rules Governing Citizenship (G.U. Feb. 15, 1992) (in Italian), Normattiva website.)

The Decision also denied the Ordinary Tribunal of Modena’s request that the Court declare unconstitutional article 7, paragraph 2 of Presidential Decree No. 572 of October 12, 1993, and article 25, paragraph 1 of Presidential Decree No. 396 of November 3, 2000. (Id., holding 2; Presidential Decree No. 572 of October 12, 1993, on the New Rules Governing Citizenship (G.U. Jan. 4, 1994), (in Italian), G.U. website; Presidential Decree No. 396 of November 3, 2000, Regulations for the Revision and Simplification of the Civil Status Resolution (G.U. Dec. 30, 2000) (in Italian), G.U. website.)

Background of the Case

The case under consideration involved a minor female petitioner affected by partial epilepsy and severe mental retardation. The Court noted that during the hearing to test her competence to provide the required oath, the minor appeared “disoriented in time and space.” (Decision, holding 2 (all translations by author).)

The Ordinary Tribunal of Modena then raised the issue of the constitutionality of several Italian legal provisions because the provisions, which required immigrants to provide an oath in order to obtain Italian citizenship, did not exempt persons with disabilities that prevent them from taking such an oath. (Id., holding 1.)

Applicable Rules

The Constitutional Court reviewed the constitutionality of the challenged legal provisions in light of international conventions ratified by Italy—in particular, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the United Nations Declaration on the Rights of Disabled Persons (DRDP). (Id., holding 1; CRPD, Mar. 30, 2007, 2515 U.N.T.S. 3, UN Division for Social Policy and Development: Disability website; G.A. Res. 30, DRDP (Dec. 9, 1975), UN Office of the High Commissioner for Human Rights website, ratified by Italy through Law No. 18 of March 3, 2009 (in Italian), Normattiva website.)

The Court noted that Law No. 91 of 1992 established that Italian citizenship may be granted by a Presidential Decree to foreigners who legally reside in Italian territory for at least ten years. (Decision, considerations of fact 3, ¶ 2.) Article 10 of the same Law provided that the decree granting citizenship becomes null and void if within six months from the date of the notification of the decree the beneficiary does not take an oath to be loyal to the Republic and abide by the Constitution and the laws of the State. (Law No. 91 of 1992, art. 10.) In addition, Law No. 91 required that the oath for the acquisition of citizenship be given before the civil official of the municipality where the beneficiary resides or intends to reside or, if residing overseas, before the diplomatic or consular authority of the place of residence. (Id. art. 23, ¶ 1.) The Court considered that the lack of a regulation for a situation where the beneficiary is unable to take the oath due to serious mental illness constituted a “normative lagoon” or otherwise “a contrast of the normative fabric with respect to the constitutional parameters.” (Decision, considerations of fact 3, ¶ 4.)

In an intermediate ruling in the case, the Tribunal of Bologna upheld a previous ruling issued by the Council of State in 1987 according to which the oath constituted a right and duty of the beneficiary that had to be exercised personally and could not be delegated to her legal guardian. (Id., considerations of fact 4, ¶ 2.)

Initially, the Court examined the argument that the beneficiary’s inability to understand the nature and legal and moral consequences of the oath were an obstacle to her obtaining citizenship altogether. (Id., considerations of fact 6.) The Court contrasted this argument with reasoning based on article 2 of the Constitution that mental disability may not deprive a person from the acquisition and enjoyment of a fundamental right, which in this case is the status of citizenship. (Id., considerations of fact 7, ¶ 1; Costituzione della Repubblica Italiana [Constitution of the Italian Republic] art. 2, Italian Senate website.) To accept the contrary of this reasoning would mean that legally and in fact there would be two classes of persons vis-à-vis the enjoyment of constitutional rights: those with disabilities and those without, and that hypothesis is unacceptable. (Decision, considerations of fact 7.1.)

The Court noted that article 18 of the CRPD provides that “the right to citizenship may not be denied and therefore the disabled have the right to acquire and change citizenship and may not be deprived of the same arbitrarily or on the basis of their disability.” (Id., considerations of fact 7.2, ¶ 1.)

The Court also noted that the general legal framework of Italian legislation on disabilities favors overall social integration (see Law No. 104 of 1992, on the Assistance, Social Integration and Rights of Handicapped Persons, Feb. 5, 1992, Normattiva website), thus bringing a “radical change of perspective with respect to the very way of dealing with the problems of people affected by disabilities.” (Decision, considerations of law 9, ¶ 1.) The Court concluded that the inability of a person affected by a disability to acquire citizenship may constitute a form of social exclusion that deprives the person of a sense of belonging to the national community and may also become a form of marginalization even with respect to other family members who have acquired citizenship. (Id., considerations of law 9, ¶ 1.)

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France: Constitutional Court Strikes Down Prohibition on Accessing Terrorist Websites

(Jan. 17, 2018) On December 15, 2017, France’s Conseil constitutionnel (Constitutional Court) struck down a legislative provision prohibiting access to websites that support terrorism. (Conseil Constitutionnel, Decision No. 2017-682 QPC, Dec. 15, 2017, CONSEIL CONSTITUTIONNEL.) The provision, which was part of a security law adopted in February 2017, prohibited “habitual” access to websites that supported or called for acts of terrorism and contained images or representations of intentional killings, unless that website was accessed for “legitimate reasons,” such as journalistic or academic research. (Loi n° 2017-258 du 28 février 2017 relative à la sécurité publique [Law No. 2017-258 of 28 February 2017 Regarding Public Security] art. 24, LEGIFRANCE). The Conseil constitutionnel found that this provision was contrary to the freedom to communicate ideas and opinions as enshrined in article 11 of the 1789 Declaration of the Rights of Man and of the Citizen, which is considered part of the French Constitution. (Déclaration des Droits de l’Homme et du Citoyen de 1789 [Declaration of the Rights of Man and of the Citizen of 1789] art. 11, English translation, CONSEIL CONSTITUTIONNEL.)

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Germany: University Admission Rules for Medical Studies Partially Unconstitutional

(Jan. 16, 2018) On December 19, 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the federal framework and state implementing provisions regulating university admissions for medical studies at Germany’s public universities are partially incompatible with the German Basic Law, the country’s Constitution. The Court stated that the provisions infringe the applicants’ constitutional right to equal participation in study programs offered at public universities. (BVerfG, Dec. 19, 2017, Docket No. 1 BvL 3/14, BVerfG website (in German); Press Release No. 112/2017, Federal Constitutional Court, Legal Provisions of the Federation and the Laender Relating to University Admissions to Medical Studies Are Partly Incompatible with the Basic Law (Dec. 19, 2017), BVerfG website; Basic Law for the Federal Republic of Germany (May 23, 1949), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, art. 12, ¶ 1, sentence 1 in conjunction with art. 3, ¶ 1, GERMAN LAWS ONLINE (unofficial English translation).)

The unconstitutional provisions will remain in force until new provisions have been enacted. The Court set a deadline of December 31, 2019, for the legislature. (BVerfG, 1 BvL 3/14, at para. 253.)

Facts of the Case

The rules for university admissions for studies at public universities in Germany can be found in the Federal Framework Act for Higher Education and in the state laws ratifying and implementing the State Treaty on the Establishment of a Joint Center for University Admissions. The states also authorized the public universities to enact rules to regulate their internal admission procedures. (Id. at 4; Hochschulrahmengesetz [HRG] [Framework Act for Higher Education], Jan. 19, 1999, BGBl. I at 18, as amended, GERMAN LAWS ONLINE; Staatsvertrag über die Errichtung einer gemeinsamen Einrichtung für Hochschulzulassung [State Treaty on the Establishment of a Joint Center for University Admissions], June 5, 2008, GESETZ- UND VERORDNUNGSBLATT NORDRHEIN-WESTFALEN [GV. NRW.] [STATE GAZETTE OF LAWS AND ORDINANCES FOR NORTH RHINE-WESTPHALIA] at 710, annex.)

The Federal Framework Act for Higher Education provides that every German who fulfills the requirements to study at a university, meaning everyone who has successfully graduated from high school (Abitur), is entitled to pursue the university studies of his or her choice. (HRG § 27.) The states and the universities are obligated to develop common criteria to determine the number of available admission spots and the maximum number of students that each university may admit in a given year if it seems likely that not all applicants will receive a spot. In cases in which several universities have established maximum admission numbers, the spots for that course of study will be distributed by the Joint Center for University Admissions. (Id. §§ 30, 31.)

The admission to medical studies at German public universities is restricted nationwide because there are generally more applicants than admission spots. Up to 30% of the spots are reserved for specific applicant groups—for example, applicants for whom a rejection would constitute extreme hardship, in particular, social hardship; applicants who are from a foreign country or are stateless; and applicants who have already completed another course of study, among others. (Id. § 32, ¶ 2; BVerfG, 1 BvL 3/14, at 13.) The rules provide that for the remaining spots, 20% will be allocated on the basis of high school final examination grades, 60% on university-specific admission criteria, and 20% on elapsed waiting time since high school graduation. (HRG, § 32, ¶ 3.) The Federal Framework Act for Higher Education provides a nonexhaustive list of criteria that universities must take into account, but requires that the final high school examination grade have “significant influence” on the admission decision. (Id. § 32, ¶ 3, no. 3.) Some of the state laws that implement and further define the selection criteria provide exhaustive lists for the universities to take into account when making the admission decision, whereas other state laws leave it up to the universities to define additional criteria. (BVerfG, 1 BvL 3/14, at 28–36.)

Applicants must submit a ranking of their preferred universities with their application to the Joint Center for University Admissions. The State Treaty limits that number to six. (Id. at 22.) Location preference is one criterion that has been frequently used by the universities in making their selections. For the winter semester of 2017/2018, fifteen universities considered applications only from students who ranked those universities as a first choice, four other universities chose location preference as the most or second-most important criterion, and another four universities selected location preference as the most, second-, or third-most important criterion. (Id. at 18.)

The constitutional complaint was submitted to the Federal Constitutional Court by the Administrative Court of Gelsenkirchen, which has two pending cases from students who have been denied admission to study medicine. The Administrative Court of Gelsenkirchen stayed the two proceedings and asked the Federal Constitutional Court to rule on the constitutionality of the admission criteria as codified in the Federal Framework Act for Higher Education and in the state provisions ratifying and implementing the State Treaty on the Establishment of a Joint Center for University Admissions. (Id. at 49.)

Decision

The Federal Constitutional Court held that the legal provisions on university admissions to medical studies are unconstitutional to the extent that they

  • allow universities to autonomously define further selection criteria;
  • do not ensure that the university-specific admission procedures are conducted in a standardized and structured manner;
  • allow the universities to use location preference as an additional criterion in their admission procedure without any restrictions;
  • do not provide a balancing mechanism for rendering high school graduation grades from different German states sufficiently comparable in university admissions procedures; and
  • do not require universities to consider at least one additional selection criterion as equally important as the high school examination grade. (Id. at 246.)

The Court stated that everyone who fulfills the general admission criteria has a constitutional right to equal participation in study programs offered at public universities. However, it reiterated that this right exists only within the framework of actually available education capacities and does not obligate the government to create additional capacities to accommodate everyone. (Id. at 105 & 106.) It explained that particularly for popular programs of study like medicine, this might result in not everyone actually receiving a spot at a university. (Id. at 106.)

The Court explained that in cases in which there are not enough places for all applicants, the selection must generally be based on aptitude. (Id. at 108.) It held that there are no constitutionally required criteria to assess aptitude, but that the admission criteria have to be transparent and predictable. (Id. at 113 & 114.)

The Court held that basing the admission decision for 20% of the available places on the high school examination grade is constitutionally unobjectionable. (Id. at 127.) However, it stated that it is unconstitutional if within that context priority is given to candidates on the basis of their location preference, thereby “devaluing” the high school examination grade and replacing it with location preference. In the opinion of the Court, location preference can be used only as a secondary criterion. (Id. at 136 & 137.) Furthermore, it ruled that the number of location preferences cannot be limited. (Id. at 138.)

Lastly, the Court stated that allocating places according to waiting time was constitutional, but that the number cannot be higher than the current 20%. (Id. at 221.) However, it held that not limiting the waiting time was unconstitutional, because “waiting too long substantially impairs the chances of success in studies and therefore the possibility to actually choose one’s profession.” (Id. at 223 & 224.)

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Japan: Supreme Court Affirms Reversal of Order to Return Children with Dual Citizenship

(Jan. 12, 2018) On December 21, 2017, Japan’s Supreme Court affirmed a High Court decision that reversed a previous order for the mother of four children with dual Japan-US citizenship to return the children to their father in the United States. (Sup. Ct., Case No. 2017 (kyo) 9 (Dec. 21, 2017) (in Japanese; click characters beside PDF icon at the bottom), COURTS IN JAPAN .)

Background

The appellant was a male US citizen and the appellee his wife, who is a Japanese national. Their four children were born while they were living in the US. In July 2014, the Japanese wife and the four children went to Japan for a six-week stay agreed on by both the wife and husband. In August 2014, the parents agreed that the wife and children’s stay in Japan would be extended because the husband was having difficulty finding employment in the US, and the husband also agreed that the four children would be enrolled in school in Japan in September 2014. The husband and his mother separately visited the children in Japan later that year. (Id.; Subcommittee Hearing: Hope Deferred: Securing Enforcement of the Goldman Act to Return Abducted American Children, Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations, 113th Cong. (July 14, 2016) (statement of James Cook), House of Representatives website.)

In January 2015, the husband filed for divorce in the US. In July 2015, he filed an application with the US State Department to request the children’s return to the US. (Subcommittee Hearing, supra.) The application was based on the Convention on the Civil Aspects of International Child Abduction (Child Abduction Treaty), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW. Japan also has a law to implement the Convention: Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Implementation Act), Act No. 48 of 2013 (Japanese Law Translation website). During the investigation procedure, the Osaka Family Court found the husband did not have the financial resources to raise the children. In October 2015, the Osaka Family Court decided the two elder children would stay in Japan and the two younger ones would go back to the US. The Court found, in principle, that all the children should be returned under the Convention and the domestic law implementing the Convention. (Subcommittee Hearing, supra; Child Abduction Treaty art. 12; Implementation Act art. 27.) However, the two elder children objected to the return, and the Court found that they were mature enough to object. (Child Abduction Treaty art. 13; Implementation Act art. 28, para. 1, item 5.) Both sides appealed the decision. In January 2016, the Osaka High Court found that the two elder children’s objections were valid but also that it would be better for them to go back to the US. Therefore, the High Court ordered the wife to return all four children to the US. (Case No. 2017 (kyo) 9.) The High Court decision was finalized in the same month. (Id.)

However, the wife did not comply with the court order. Even after she was ordered to pay 5,000 yen (about US$4,500) per person for every day she did not comply with the return order, she did not return the children. (Subcommittee Hearing, supra.) In September 2016, the enforcement officers’ attempts to remove the children from their mother’s residence in Japan were not successful because the children refused to leave. (Case No. 2017 (kyo) 9; Simon Scott, Three Years After Japan Signed Hague, Parents Who Abduct Still Win, LINKEDIN (Oct. 30, 2017).)

On the other hand, in February 2016, the house in the US where the family used to live was placed under auction, and in August 2016, the husband moved out the house and began living in one room in a third party’s house. (Case No. 2017 (kyo) 9.)

In early 2017, the wife filed a petition to change the return order because the situation had changed since the order was issued. (Implementation Act art. 117.) The Osaka High Court agreed with the wife and reversed the original decision, declining the husband’s request to return the children to the US. It was this decision that the Supreme Court affirmed in December 2017. The Court stated that the living environment that would be provided for the children had worsened to an extent the Court could not ignore. The Court found that the benefits of the two elder children returning to the US despite their objections had been lost, and that it had become more likely that the two younger children would be in an unbearable situation. (Case No. 2017 (kyo) 9.)

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