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China: Statistics on Family Planning Fines Released

(Aug. 4, 2014) On July 29, 2014, Guangdong Province reportedly issued an audit report on the collection and management of the social maintenance fee, a fine imposed on parents who have “out-of-plan” children. According to the news report, it was the first time Guangdong Province has made public such an audit. (Liu Hongcen, Guangdong Shouci Pilu Shehui Fuyangfei Shenji Qingkuang [Guangdong Released Auditing Report on Social Maintenance Fee for the First Time], CAIXIN (July 30, 2014).)

The Guangdong audit indicates that in the years 2012 and 2013, the 22 counties in the province collected a total of RMB2.452 billion (about US$397 million) in social maintenance fees from parents who had been fined for having children in violation of the family planning law. The audit also found misconduct by local authorities in collecting and managing the fee. (Id.)

Previously, it was reported that by the end of 2013, 24 provinces had released statistics on social maintenance fees collected during 2012, totaling RMB20 billion. The revenue goes to county-level governments. The provinces that released the numbers, however, did not clarify how the collected fees were spent. (Huang Chen, 200 Yi Shehui Fuyangfei, Fuyang le Shui? [Twenty Billion Social Maintenance Fees Benefited Whom?], CAIXIN (Dec. 5, 2013).)

Legislative Background of the Social Maintenance Fee

According to article 18 of China’s Population and Family Planning Law, the state “encourages” late marriage, late childbearing, and one child per couple. Where the conditions specified by laws and regulations are met, the birth of a second child may be allowed. (Renkou yu Jihua Shengyu Fa [Population and Family Planning Law] [in English] (promulgated by the Standing Committee of the National People’s Congress, Dec. 29, 2001, effective Sept. 1, 2002), art. 18, GOV.CN.)

Having children not in compliance with the above article is subject to a social maintenance fee, according to the Law. (Id. art. 41.) As emphasized by the state family planning authority, the fee is not an administrative penalty but an administrative charge. (Huang Chen, supra.)

The Law does not set out a fee schedule that applies to all localities. Instead, it authorizes the State Council (China’s Cabinet) to formulate measures for collecting the fee. In the Measures on Levying the Social Maintenance Fee, the State Council prescribes that the base of computation of the social maintenance fee is “last year’s local disposable annual income per capita” in urban places, and “the net annual income per capita” in rural places. If the parents’ actual income is higher than the average income, the actual income may be used as the computation base. (Shehui Fuyangfei Zhengshou Guanli Banfa [The Measures on Levying the Social Maintenance Fee] (Aug. 2, 2002, effective Sept. 1, 2002), art. 3, 2002 FAGUI HUIBIAN [COLLECTION OF LAWS AND REGULATIONS] 532.)

The State Council Measures delegate to the provinces the authority, relying on this computation base, to formulate their own rules on specific fines that may be imposed for having out-of-plan children. In Guangdong Province, for example, a parent who has the first “out-of-plan” child will incur a fine of three to six times the computation base; the fine will be doubled for having the second “out-of-plan” child. An unmarried person who has a first child will be fined two times the computation base; for a second child born to an unmarried parent, the fee will be three to six times the computation base. A married person who has a child outside marriage will be fined six to nine times the computation base. (Guangdong Sheng Renkou yu Jihua Shengyu Tiaoli [Guangdong Province Population and Family Planning Regulation] (last amended Mar. 27, 2014), art. 53, Westlaw China online subscription database.)