In response to the legal issues of concern to the public in the current epidemic prevention and control, the Shanghai Municipal Bureau of Justice has formulated the Q&A Guidelines, sorting out the issues with respect to non-cooperation with nucleic acid testing, falsification of test reports, price-jacking, force majeure in contract performance, labor issues during the epidemic outbreak, the basis and procedures for emergency expropriation, and legal liability for rumor-mongering. Ms. LIN Zhen, Ms. XU Zhongzhen and Ms. TONG Xiaofeng of Grandall Shanghai Office have made appropriate supplements to the Guidelines, and translated the same into English for your reference. As the epidemic prevention and control is at its most critical stage, we call on the general public to strictly comply with the laws and regulations, actively cooperate with the government and its relevant departments in taking measures to prevent and control the epidemic, and work together to overcome the difficulties.
I. Legal liabilities for not cooperating with nucleic acid testing and control management, and forging and altering nucleic acid testing reports
Q: What legal liability will be incurred if someone refuses to cooperate with nucleic acid testing during the epidemic prevention and control?
A: Article 12 of the Law of the People's Republic of China on Prevention and Treatment of Infectious Diseases stipulates that any and all units and individuals in the territory of the People's Republic of China must accept preventive and control measures such as investigation, testing, collection of samples, isolation and treatment of infectious diseases by disease prevention and control institutions and medical institutions, and truthfully provide relevant information.
Article 7 of Regulations of Shanghai Municipality on Public Health Emergency Management provides that any and all units and individuals shall comply with the relevant laws and regulations, obey the decisions, orders, notices issued by the people's governments at all levels and their relevant departments, and cooperate with the people's governments at all levels and their relevant departments in accordance with the law to take measures to prevent and dispose of public health events. Article 83 provides that any unit or individual who violates the provisions of these Regulations, does not obey the decisions, orders, notices issued by people's governments at all levels and their relevant departments or does not cooperate with the measures taken in accordance with the law shall be ordered by the competent authorities to correct its behavior; if the behavior constitutes a violation of public security management behavior, the unit or individual shall be punished by the public security organs according to law; if the behavior results in the occurrence of public health events or expends the harm to others’ personal and property, the unit or individual shall bear civil liability in accordance with the law; if it constitutes a crime, the unit or individual shall bear criminal liability in accordance with the law.
Article 84 provides that for any violation of the provisions of this Regulation, in addition to being investigated for corresponding legal liability in accordance with the law, relevant authorities shall also, pursuant to the provisions, collect on the public credit information platform of this Municipality information on dishonesty of the relevant entities, and information on individuals' concealment of disease history, travel history or residence history in high-risk areas of epidemics to avoid isolation treatment, medical observation or health observation, etc., and take disciplinary measures pursuant to the law. Therefore, whoever refuses to cooperate in nucleic acid testing and other prevention and control measures shall bear the corresponding legal liability in accordance with the law and may be listed in the dishonesty information, with disciplinary measures taken pursuant to the law.
Q: What legal responsibility will be incurred if someone forges or alters a nucleic acid test report for travel inspection?
A: According to the Law of the People's Republic of China on Administrative Penalties for Public Security, anyone who forges, falsifies, alters or trades in official documents, certificates, certification documents or seals of state organs, people's organizations, enterprises, institutions or other organizations shall be sentenced to detention for the period ranging from ten days to fifteen days, and may be fined up to RMB 1,000; where the case is relatively minor, he/she shall be detained for a period ranging from five days to ten days, and may be fined up to RMB 500. The act of forging or fabricating nucleic acid test reports will be subject to the corresponding public security management punishment.
In addition, if the act of forging or fabricating the nucleic acid test report causes the spread of the epidemic or has a serious risk of spreading, it may constitute the crime of obstructing the prevention and control of infectious diseases; if a confirmed COVID-19 patient or a pathogen carrier forges or fabricates the nucleic acid test report and enters a public place or public transportation, such person may also constitute the crime of endangering public security by dangerous means.
Q: If a resident of controlled or separated communities refuses to cooperate with the prevent and control management, violates relevant prevention and control policies of Shanghai, hangs out or gathers without permission, what legal liability is he/she subject to?
A: According to Article 50 of the Law of the People's Republic of China on Administrative Penalties for Public Security, any of the following acts shall be penalized by a warning or a fine up to RMB 200; where the case is serious, he is subject to detention for a period ranging from five days to ten days, and may be fined up to RMB 500: refusal to implement the decision or order issued by the people's government in accordance with the law in case of emergency; obstructing the staff of state organs in the execution of their duties in accordance with the law; forcibly rushing through the cordon or controlled area set up by the public security organs. Those residents of controlled or separated areas who refuse to cooperate with the control management, hang out and gather without permission are subject to the corresponding public security management punishment.
In addition, those who cause the spread of the COVID-19 or are in serious danger of the spreading are suspected of violating Article 330 of the Criminal Law of the People's Republic of China, which constitutes the crime of obstructing the prevention and control of infectious diseases.
In addition, a confirmed patient or carrier of the pathogen who conceals the disease or withholds information about the trip and enters a public place or takes public transportation, causing the spread of the COVID-19, is suspected of violating Article 114 and Article 115 of the Criminal Law of the People's Republic of China, which constitutes the crime of endangering public security by dangerous means.
Therefore, under the current serious situation of epidemic prevention and control, it is the duty of every citizen to cooperate with the prevention and control measures such as nucleic acid testing, and not to take any chances and challenge the bottom line of the law.
II. Legal liabilities for price-jacking
Q: During the prevention and control period, some operators take the opportunity to raise prices, whether it constitutes an illegal act of jacking up prices?
A: During the epidemic prevention and control period, some operators took the opportunity to raise prices on grain, oil, meat, eggs, vegetables, milk and other goods necessary for people’s basic livelihood, on masks, antiviral drugs, disinfection and sterilization supplies, medical equipment and other epidemic prevention supplies which are most closely related to the fight against the epidemic and on raw and auxiliary materials required for the production of the above products. Such behaviors not only seriously disrupted the market order and harmed the legitimate rights and interests of consumers, but also created or intensified the panic demand and damaged the social order, which seriously affected the smooth development of epidemic prevention and control management.
According to the Guiding Opinions on Determining the Illegal Act of Price-Jacking during the Period for Prevention and Control of the Novel Coronavirus-infected Pneumonia Epidemic released by Shanghai Municipal Bureau of Market Supervision and Shanghai Municipal Development and Reform Commission, an operator constitutes the act of price-jacking under Article 14 of the Price Law of the People's Republic of China if such operator: (i) fabricates, disseminates information on price increases, or sharply raises the price; (ii) sharply raises the price for the purpose of seeking exorbitant profits while the production cost or purchase cost has not changed obviously; (iii) takes the lead in raising the price to a large extent in some regions or industries; (iv) hoards for profiteering result in the short supply of commodities and thus the price goes up sharply; and (v) jacks up prices by other means and causes the commodity prices to go up too fast or too high.
Q: Legal liabilities for price-jacking?
A: 1. administrative liabilities. According to the Price Law of the People's Republic of China, the Provisions on Administrative Sanctions Against Price-related Illegal Activities and other relevant provisions, for any illegal act of jacking up prices, promoting an excessively rapid or high increase in commodity prices, the market regulatory authorities shall order the offender to make correction, confiscate illegal income and impose a fine of no more than five times the amount of illegal income; where there is no illegal income, a fine ranging from RMB 50,000 to RM B500,000 shall be imposed, and where the case is relatively serious, a fine ranging from RMB 500,000 to RMB 3,000,000 shall be imposed; where the case is serious, it shall be ordered to suspend business for rectification or its business license shall be revoked.
2. Criminal liability. According to the Circular of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice on Issuing the Opinions on Legally Punishing Illegal and Criminal Acts Interfering with Prevention and Control of the New Coronavirus Pneumonia Epidemic (Fa Fa  No. 7), during the prevention and control period, whoever hoards and speculates, jacks up the prices of masks, protective goggles, protective suits, disinfectants and other protective products, drugs and other articles relating to people's livelihood that are urgently needed in the prevention and control in violation of the relevant national provisions on market operation, price management, etc. to seek exorbitant profits, and the amount of illegal gains is relatively large or there are other serious circumstances which seriously disrupt market order, shall be convicted and punished for the crime of illegal business operation, and shall be sentenced to fixed-term imprisonment of no more than five years or criminal detention, and shall also, or shall only, be fined no less than one time but no more than five times the illegal gains; where the case is especially serious, he shall be sentenced to fixed-term imprisonment of no less than five years, and shall also be fined no less than one time but no more than five times the illegal gains or be sentenced to confiscation of property.
III. Application of "force majeure" to contract performance
Q: Can the epidemic be considered as "force majeure", and does it mean that the contract cannot be performed?
A: According to the Civil Code, force majeure is an objective situation that cannot be foreseen, avoided and overcome.
The COVID-19 epidemic is a public health emergency and meets the basis characteristics of force majeure. During the outbreak in 2020, the Legal Affairs Commission of the National People's Congress stated that the COVID-19 epidemic was a force majeure for parties who are unable to perform their contracts as a result.
Article 590 of the Civil Code provides that "If a party is unable to perform a contract due to force majeure, it shall, in light of the impact of the force majeure, be exempted from liability, in part or in whole, except as otherwise provided by law. If the party cannot perform the contract due to force majeure, it shall notify the other party in time to mitigate the damage that may be caused to the other party and shall provide proof within a reasonable period of time. If the force majeure occurs after the party has delayed its performance, the liability for breach shall not be exempted."
With respect to the understanding and application of force majeure, please pay attention to the following issues:
1. Consider the cause and effect and the degree of impact. Although the COVID-19 epidemic meets the basic characteristics of force majeure, it does not mean that all contracts cannot be performed during the epidemic period. There must be a direct causal relationship between the failure to perform the contract and the epidemic; and the specific circumstances of the case should be considered together with the degree of impact of the epidemic on the performance of the contract to determine whether the liability is partially or fully exempted. In addition, if a party cannot perform the contract due to force majeure, it shall notify the other party in a timely manner to mitigate the damage that may be caused to the other party and provide proof within a reasonable period of time, otherwise it is required to bear the liability for breach of contract. If force majeure occurs after the party has delayed performance, it cannot claim exemption from liability for the breach on the ground of force majeure.
2. Encourage continued performance of the contract. For contracts that can be performed during the period of epidemic prevention and control, the parties are encouraged to continue to perform according to the contract; where a party refuses to perform the contract when it is able to do so, it shall bear the liability for breach of contract. If the contract cannot be performed due to the epidemic, the parties may negotiate to change the contract and continue to perform by alternative performance or delayed performance; if the alternative performance or delayed performance will lead to the failure to achieve the purpose of the contract, the parties may request to cancel the contract.
3. Balance of interests. For a contract cannot be performed, in part or in whole, due to the epidemic or the preventive and control measures taken by the government and its relevant departments, or the continued performance will cause significant impact upon the interest of either party, the interests of the two parties shall be balanced and the share of responsibilities of each party shall be determined in accordance with the principles of fairness, honesty and credit, and taking into account the specific circumstances of the case.
4. Friendly consultation. No party wants to see the outbreak of this epidemic and it cannot be attributed to the fault on either side. In the special period, the parties should work together to tide over the difficulties and properly solve the dispute through friendly consultation and based upon the principles of equality, voluntariness, honesty and credit, and shared responsibility; failing which, the parties may solve the dispute through mediation, arbitration and other non-litigation channels.
IV. Labor relations during the epidemic
Q: How are wages paid to employees of enterprises who cannot provide normal labor due to isolation treatment, medical observation or other isolation control measures? How to deal with the expiration of the labor contract?
A: According to the Ministry of Human Resources and Social Security "Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relation Issues during the Period for Prevention and Control of the Novel Coronavirus-infected Pneumonia Epidemic" (Ren She Ting Fa Ming Dian  No.5), Where an employee of an enterprise is unable to provide normal work as a result of being isolated and treated or under medical observation because that he/she is a patient with pneumonia, a suspected patient or in close contact with a person with the novel coronavirus infection, or as a result of the government's implementation of isolation measures or other emergency measures, the enterprise shall pay the employee remuneration during such period, and shall not rescind the employment contract with the employee in accordance with Articles 40 and 41 of the Employment Contract Law. During this period, if the employment contract expires, it shall be extended to the expiration of the employee's medical treatment period, medical observation period, isolation period or the end of the emergency measures taken by the government.
Q: How are wages paid during the period of home-based work?
答：根据人力资源社会保障部 中华全国总工会 中国企业联合会/中国企业家协会 中华全国工商业联合会《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》（人社部发〔2020〕8号），对因受疫情影响职工不能按期到岗或企业不能开工生产的，要指导企业主动与职工沟通，有条件的企业可安排职工通过电话、网络等灵活的工作方式在家上班完成工作任务；对不具备远程办公条件的企业，与职工协商优先使用带薪年休假、企业自设福利假等各类假。要指导企业工会积极动员职工与企业同舟共济，在兼顾企业和劳动者双方合法权益的基础上，帮助企业尽可能减少受疫情影响带来的损失。
A: According to the Ministry of Human Resources and Social Security,the All-China Federation of Trade Unions,All-China Federation of Industry and Commerce,China Enterprise Confederation,China Enterprise Directors Association, "Opinions on Stabilizing Employment Relationship during the Period for Prevention and Control of the Novel Coronavirus-infected Pneumonia Epidemic to Support Enterprises in Resuming Work and Production" (Ren She Bu Fa  No. 8), where the employees cannot arrive at their posts on time or the enterprises cannot start the production due to the epidemic, the enterprises shall be guided to initiatively communicate with their employees, and the qualified enterprises may arrange for their employees to work at home and complete the work assignments by flexible working methods via telephone and network; the enterprises not meeting the remote working conditions shall negotiate with their employees on the priority to take various kinds of paid annual leave and welfare leave given by the enterprises themselves. Trade unions of enterprises shall be guided to actively mobilize employees to work together with the enterprises in the same conditions, on the basis of taking into account the legitimate rights and interests of both enterprises and employees, so as to help the enterprises to minimize the losses brought about by the impact of the epidemic..
During the period of delayed resumption of work or non-return to work affected by the epidemic, for the employees who still cannot provide normal work after taking various leaves or other employees who cannot provide normal work, the enterprise shall be guided to negotiate with them with reference to the relevant provisions of the State on wage payment during suspension of work and production, and pay wages to them under the standard stipulated in the labour contract within a wage payment cycle; where a wage payment cycle is exceeded, living expenses shall be paid pursuant to the relevant provisions.
According to the “Notice on Supporting Enterprises in the Safe and Orderly Resumption of Work and Coordination of Labor Relations during the Period for Prevention and Control of the Novel Coronavirus-infected Pneumonia Epidemic” issued by the General Office of the All-China Federation of Trade Unions (Gong Fa Dian  No. 4), Where an enterprise requires its employees to work at home in any flexible manner, the enterprise shall pay wages as that paid for normal working hours..
Encourage enterprises and workers to establish the concept of close cooperation and mutual help, negotiate with each other to stabilize work posts by adjusting salaries, rotation of posts and leaves, shortening working hours and other means.
V. The basis and procedures for emergency expropriation
Q: Does the government and its departments have the right to requisition hotels and other places as centralized isolation and health observation places for epidemic prevention and control?
A: According to The PRC Civil Code, Emergency Response Law of the People's Republic of China, Law of the People's Republic of China on Prevention and Treatment of Infectious Diseases, Regulations of Shanghai Municipality on Public Health Emergency Management ,etc. facilities, equipment, venues, vehicles, and other materials needed for epidemic prevention or emergency response from organizations and individuals may be requisitioned pursuant to the authority and procedures stipulated by the law. Regulations of Shanghai Municipality on Public Health Emergency Management also clarify that the district people's government may temporarily requisition hotels and other places with relevant conditions as centralized health observation points in accordance with the requirements for epidemic prevention and control.. Therefore, there is a clear legal basis for the government and its departments to temporarily requisition hotels and other places for epidemic prevention and control.
Q: What procedures should be carried out to implement emergency requisition?
A: Regulations of Shanghai Municipality on Public Health Emergency Management stipulate that when implementing emergency requisition, the requisitioned unit or individual shall be issued with an emergency requisition voucher, and be compensated after use or the emergency response to the public health incident is completed.. In June 2020, the General Office of the Municipal Government issued the Implementation Measures of Shanghai Municipality on Compensation for Emergency Requisition in Response to Emergencies (Hu Fu Ban Gui (2020) No. 6), further refining the procedures for emergency requisition, including the issuance of emergency requisition vouchers and the contents contained therein, the obligations of the requisitioned units or individuals, the management and return of requisitioned materials, etc.
Q: How should be compensated after the implementation of emergency expropriation?
A: The Implementation Measures of Shanghai Municipality on Compensation for Emergency Requisition in Response to Emergencies (Hu Fu Ban Gui (2020) No. 6) clearly defines the compensation notice, compensation materials, compensation scope and standard, compensation identification, compensation method, compensation allocation, etc. The requisitioned unit or individual shall, within 6 months from the date of receiving the confirmation of the use of the materials requisitioned for emergency requisition or the expiration of the notice of compensation, submit the relevant written materials of compensation to the unit engaged in emergency requisition; after receiving the requisition for emergency requisition, the unit shall, in accordance with the scope and standard of compensation, examine the amount of compensation together with the financial department at the same level and determine the compensation scheme.After the compensation scheme is approved, the unit engaged in emergency requisition shall sign an agreement on compensation for emergency requisition with the unit or individual requisitioned, and the financial department shall allocate compensation funds to the unit or individual requisitioned in accordance with the procedures prescribed in the measures for the management of financial funds.
Q: How to resolve disputes over emergency expropriation?
A: The prevention and control of the epidemic is a top priority and requires the support and cooperation of all sectors of society. The government and its departments shall pay attention to the protection of the legitimate rights and interests of natural persons, legal persons and unincorporated organizations in the work of emergency requisition and compensation, and do a proper job of site cleaning, goods storage, resettlement and compensation. Requisitioned units or individuals should actively cooperate, and when disputes arise, try to resolve them through consultation; if consultation cannot be resolved, they can be resolved through administrative reconsideration or litigation in accordance with the law.
VI. the legal responsibility of rumor-mongering and disinformation
Q: At the critical moment of epidemic prevention and control, there are always people who try to fabricate and spread various rumors that cause anxiety and panic and disturb the public order, what legal responsibilities do they need to bear?
A: 1. Those who create and spread rumors to disturb public order shall bear administrative responsibility. According to the "Law of the People's Republic of China on Administrative Penalties for Public Security", those who intentionally disturbing public order by spreading rumors, making false reports of epidemic situations shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan; and if the circumstances are relatively minor, he shall be detained for not more than 5 days or be fined not more than 500 yuan.
2. If the circumstances of rumor-mongering are serious and constitute a crime, criminal liability shall be investigated according to law. According to the “Opinions on Lawfully Punishing Illegality and Criminality that Obstruct Prevention and Control of COVID-19”(Fafa  No. 7) jointly formulated by the Supreme People's Court, the Supreme People’s Procuratorate,the Ministry of Public Security and the Ministry of Justice, rumor-mongering and rumor-spreading in serious cases may constitute the following crimes: (1) [Crime of Fabricating or Deliberately Disseminating False Information]. Whoever fabricates false information of epidemic, spreads such information through the information networks or other media, or is aware of the falsehood of the above information but deliberately spreads it on the information networks or other media, seriously disrupting social order, shall be sentenced to fixed-term imprisonment of not more than 3 years, criminal detention or public surveillance; if serious circumstances are caused, he shall be sentenced to fixed-term imprisonment from 3 to 7 years. (2) [Crime of Picking Quarrels and Provoking Troubles] .Whoever fabricates false information, or knowingly disseminates false information on the information network, or organizes or instructs people to disseminate it on the information network, making trouble in a public place, which causes a serious disorder of the public place., shall be convicted and punished for the crime of Picking Quarrels and Provoking Troubles, and shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance; whoever assembles other people to commit the acts as mentioned in the preceding paragraph many times, which seriously disrupts the social order, shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and may also be fined.
3. Those who create rumors and spread rumors to violate the legitimate rights and interests of others shall bear the corresponding civil liability. The Civil Code specifies that the personality rights of civil subjects shall be protected by the law. Any act of fabricating or spreading rumors or insulting or defaming others, infringing on others' rights to reputation, honor, privacy and other personality rights, shall be subject to corresponding civil liability according to law.
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