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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: Tax Incentives Extended to More Small Businesses

(Aug. 17, 2018) On July 11, 2018, China’s Ministry of Finance (MOF) and State Administration of Taxation (SAT) jointly issued a notice mandating the doubling of the income threshold for small, low-profit companies to be eligible for preferential corporate income-tax incentives. (MOF and SAT, Notice on Further Expanding the Scope of Application of the Preferential Income Tax Policies on Small and Micro Enterprises (July 11, 2018) (in Chinese), SAT website.)

According to the notice, for the years 2018 to 2020, the annual taxable income threshold for small and low-profit companies to be eligible for preferential corporate income tax incentives will increase from 500,000 yuan renminbi (RMB) (about US$72,951) to RMB1 million (about US$145,918). (Id.)

To be eligible, a small, low-profit company must not belong to business sectors prohibited or restricted by the state, and must satisfy the following standards:

  • Industrial enterprises must not have more than 100 employees and no more than RMB30 million (about US$4.38 million) in assets.
  • Other enterprises must not have more than 80 employees and no more than RMB10 million (about US$1.46 million) in assets. (Id.)

For eligible small, low-profit companies, the corporate income tax is to be levied on 50% of their actual taxable income and at the preferential rate of 20%. (Id.) China’s 2008 Enterprise Income Tax Law sets up a standard 25% corporate income-tax rate for all resident companies and nonresident companies having income-generating establishments in China. (Law of the People’s Republic of China on Enterprise Income Tax (adopted by the National People’s Congress (NPC) on Mar. 16, 2007, effective Jan. 1, 2008), NPC website.)

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China: 2020 Air Pollution Action Plan Released

(Aug. 16, 2018) On June 27, 2018, the State Council (China’s cabinet) released a three-year action plan for tackling air pollution, which sets up targets for improving the air quality of the country by 2020. (State Council, Three-Year Action Plan for Winning the Blue Sky War (Guo Fa [2018] No. 22, June 27, 2018) (Three-Year Action Plan) (in Chinese), State Council website; Hao Feng, China Releases 2020 Action Plan for Air Pollution, CHINADIALOGUE (July 6, 2018).)

The Three-Year Action Plan contains specific targets for reducing emissions of sulfur dioxide (SO2) and nitrogen oxides by 2020, with both to decrease by at least 15% compared with 2015. For cities where the existing PM2.5 (fine particulate matter) standards have not been met, the urban concentration of PM2.5 is targeted to decrease by at least 18% compared with 2015. The annual numbers of days with fairly good air quality is targeted to increase to at least 80%, and highly polluted days to decrease by at least 25% compared with 2015. (Three-Year Action Plan, supra.)

The Plan focuses more on controlling ozone than the previous action plan by adding specific targets not only for nitrogen oxides, but also for volatile organic compounds (VOCs). Ozone is created when VOCs react with nitrogen oxides. By 2020, VOCs are targeted to decrease by 10% compared with 2015.  (Id.; Feng, supra.)

Another notable change is that the Three-Year Action Plan redefines the key regions where air pollution is heavy. The Plan does not include the Pearl River Delta, which was one of the three key regions in the previous air pollution action plan. A new key region has been added: the Fen-Wei Plains, which include Xi’an, the capital city of Shaanxi province, as well as other parts of Shaanxi; Henan province; and Shanxi province. Furthermore, the Beijing-Tianjin-Hebei key region has been expanded to include the surrounding areas, including parts of Shanxi, Shandong, and Henan provinces. (Three-Year Action Plan, supra.)

The Plan explicitly calls for a reduction in emissions of pollutants “in coordination with” a reduction in emissions of greenhouse gases, indicating that China is integrating the management of air pollution and climate change. (Feng, supra.) The National Development and Reform Commission (NDRC) used to be responsible for managing greenhouse gases and combating climate change, while the management of air pollutants other than greenhouse gases was the responsibility of the Ministry of Environmental Protection (MEP). In April 2018, a new Ministry of Ecology and Environment (MEE) was established. The MEE absorbed the environmental protection functions of the former MEP and several other central government departments, including the NDRC. (Ma Tianjie & Liu Qin, China Reshapes Ministries to Better Protect Environment, CHINADIALOGUE (Mar. 14, 2018).)

The Three-Year Action Plan was issued following the expiration in 2017 of the earlier plan released in 2013. (State Council, Air Pollution Prevention and Control Action Plan (Guo Fa [2013] No. 37, Sept. 10, 2013) (in Chinese), English translation available on the Clean Air Alliance of China website.) The 2013 Plan has been called China’s most influential environmental policy of the past five years and an important factor in significantly improving China’s air quality by setting PM2.5 targets for key regions. (Feng, supra.)

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Sweden: Supreme Court Rules Live Broadcast of Rape Is Aggravated Defamation but Not Violation of Duty to Report Ongoing Rape

(Aug. 8, 2018) On July 2, 2018, the Swedish Supreme Court ruled that a man who had filmed an ongoing rape and broadcast it on Facebook Live was guilty of aggravated defamation (grovt förtal) but not of the crime of failure to report a rape. (Högsta domstolen [Swedish Supreme Court], Case No. B 3552-17 (July 2, 2018), Supreme Court website.) The prosecutor had initially charged the man with failure to report an ongoing rape, aiding in the rape, and aggravated defamation. (Id. ¶¶ 3–4.) Failure to report an ongoing rape is a separate crime in Sweden. (6 kap. 15 § Brottsbalken (BrB) [CRIMINAL CODE], Swedish Parliament website.)

Background

On a night in January 2017, one woman, incapacitated because of alcohol and drug consumption, was consecutively raped by two men while a third filmed and streamed the incident. (Case No. B 3552-17, ¶¶ 1–3.) Subsequently, both the District Court and the Appeals Court convicted the third man of failing to report the crime and of aggravated defamation, but not of aiding in the rape. (Id. ¶¶ 6–8.)

Supreme Court Holding

The Supreme Court found that because the prosecutor had initially prosecuted him for involvement in the crime, it could not also charge the man with failure to report the crime in the alternative, as fear of being charged with an ongoing crime is a legal defense against having to report it. Thus, the Supreme Court held that because the man was charged with aiding in the crime meant he could not be charged with failure to report it. (Id. ¶¶ 15–16.)

Aggravated Defamation Defense

The defendant had argued in defense against the aggravated defamation charge that the broadcast of the rape on Facebook Live was protected by his constitutional rights to broadcast under the Yttrandefrihetsgrundlagen (YGL)—The Fundamental Law on Freedom and Expression. If deemed a constitutionally protected broadcast the action could not have resulted in a conviction of aggravated defamation. Under Swedish law, some broadcasts by private citizens are constitutionally protected. To be constitutionally protected a broadcast must be directed to the public and be viewed as “a program” as defined in the Web Broadcast Rule. (Id. ¶¶ 21, 26; 1 kap. 6 Yttrandefrihetsgrundlagen (YGL) [Fundamental Law on Freedom of Expression], Parliament website.)

The Supreme Court found that in order for a broadcast to constitute a broadcast “program,” the broadcast needs to have a thematic purpose and that not all spontaneous broadcasts could be described as programs. In this case the live streaming on a closed Facebook page could not be considered a program and was thus not constitutionally protected. Accordingly, the broadcast could be considered as aggravated defamation. (Case No. B 3552-17, ¶¶ 28, 29, 32.)

Sentencing

The Supreme Court ruled that the man should be sentenced to four months’ imprisonment, as he had committed the crime while on probation. (Id. Domslut & ¶ 36.)

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Norway: Supreme Court Rules on Boundaries of Hate Speech

(Aug. 7, 2018) On April 12, 2018, the Norwegian Supreme Court issued a judgment under which a person was sentenced to prison for hate speech. (Norges Høyesterett [Norwegian Supreme Court] Dom [Case No.] HR-2018-674-A, Lovdata website; HR-2018-674-A, Supreme Court website.) The Court found that the man, who on August 15, 2015, had repeatedly called another man of Somali descent “*expletive* darky [jaevla svarting]” and “*expletive* negro” (jaevla neger)” had violated the Norwegian provision on hate speech. (NORWEGIAN PENAL CODE, 135a Straffeloven LOV-1902-05-22-10.)

The Penal Code criminalizes hate speech, specifically stating in section 135a that

[a] person who willfully or through gross negligence publicly utters a discriminatory or hateful expression is punishable by fines or imprisonment of up to three years. The use of symbols also counts as an expression. Aiding and abetting is punishable in the same way.

[“]Discriminatory or hateful expression[”] means to threaten or insult anybody, or to promote hate, persecution, or contempt for anyone because of their

  1. skin color, or national or ethnic origin,
  2. religion or faith,
  3. homosexuality, lifestyle, or sexual orientation, or
  4. disability

(§ 135a Straffeloven (translation by author).)

The Penal Code was revised in 2005, and the hate provision in section 135a of the old Code was incorporated into section 185 of the 2005 Penal Code. (NORWEGIAN PENAL CODE, as revised in 2005, § 185, Lovdata website.) Thus, although the crime was committed while the old Code was in force, the precedent of the old Code applies in interpreting the provision in the current Code.

Background

The hate speech occurred after a fight broke out between the two men around 2:30 a.m. in the town of Halden, during which the defendant pushed the Somali man, who retaliated by throwing a baked potato that struck the defendant in the back of his head. (HR-2018-674-A, ¶ 9.) The defendant claimed that his comment was not related to the victim’s skin color or race but should be seen as any other kind of curse word unrelated to the man’s ethnicity. The Supreme Court rejected this argument. (Id. ¶ 13.) The Court also determined that the speech qualified as hate speech according to the provision in the Code because it had clearly been made in public (Id. ¶ 11.)

In a previous case the Court had found that calling a security guard a similar name to that used in the current case was illegal. The Court in that decision noted that the security guard had not in any way provoked the defendant and that security guards as a group were in need of special protection. (Id. ¶ 19.) In this case, the Court likewise found that the comment was clearly derogatory and meant to show disrespect on the basis of color, as specified in section 135a of the Code. But the Court also needed to determine whether “the comment nevertheless is free from punishment because of the [heated] situation under which it was made.” (Id. ¶ 18.) The Court found that it was not. (Id. ¶ 20.)

The verdict clarifies the boundaries of free speech versus hate speech in Norway and makes it clear that terms such as “negro” or “darky” are criminalized no matter in what circumstances they are uttered. The fact that a person of color starts the altercation or escalates a conflict cannot be used as a defense. (Id. ¶ 21.) Thus, under Norwegian law, a person is always protected from derogatory and discriminatory comments based on skin color, ethnicity, sexuality, or disability, even when such comments arise during an argument or fight.

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