真相与谬误：《反间谍法》修订一周年记
Truth VS Untruth:the 1st Anniversary of the Revision of the Counterespionage Law
4月26日，《中华人民共和国反间谍法》修订满一周年。自去年全国人大常委会修订此法以来，境内外舆论一直保持着高关注度，绝大多数尊重和支持中国正当立法活动，但也有一些误解误读，甚至是恶意攻击抹黑。为增信释疑、以正视听，有必要盘点一年来《反间谍法》的真相与谬误，更好回应外部关切、揭批虚假叙事、实现正本清源。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 |
国家安全是国家发展的前提，也是保持开放稳定营商环境的基石。以立法形式维护国家安全，既是国际通行做法，也是一国主权体现。美国早在1917年就制定了《反间谍法》，此后又多次修改。2023年，英国推出最新《国家安全法》，从严打击间谍活动和“外部干涉”。还有很多国家也都制定了反间谍等法律，用以维护国家安全和利益。
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.我国一年前修订的《反间谍法》，前身是1993年颁布的《国家安全法》，2014年仅作更名修改，实际施行超过30年，不少条款已无法适应时代需要。比如，此次新增的“网络间谍行为”，是因中国1994年才全功能接入国际互联网，比原《国家安全法》出台时间晚一年，客观造成了法律的滞后性，故难以有效防范打击风险日益突出的网络间谍活动。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.法与时转则治。2023年修订《反间谍法》，既合理借鉴了各国法律制度，更立足时代发展和中国实际，法律条文由40条细化完善为71条，进一步明确了合法和非法的边界，以法律规则的确定性减少了企业经营的不确定性。修订后的《反间谍法》更加科学合理、清晰准确、公开透明，是中国法治进步的时代体现，也是护航高质量发展的重要保障。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.近年来，中国政府在维护高水平安全的同时，也在以法治化方式不断扩大对外开放，陆续出台《外商投资法》《优化营商环境条例》等法律法规，以及“外资24条”“吸引和利用外资行动方案”等政策措施。据国内主管部门统计，近年外商在华直接投资收益率达9%左右，处于国际较高水平；2023年，中国实际利用外资1.1万亿元，处于历史第三高，全国新设外资企业数量增长了39.7%。这一系列数据和事实表明，中国政府通过持续打造市场化、法治化、国际化的一流营商环境，有效维护了外商投资中国、深耕中国、赢在中国的收益率和信心值。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《反间谍法》出台后，受个别恶意抹黑舆论影响，有的企业担心“中方泛化国家安全”，把正常商业调查活动作为“间谍行为”，把一般商业信息当成“国家秘密”。事实证明，这种担心是完全多余的，《反间谍法》保护的是包括外企在内的绝大多数人员的合法权益，打击的是极少数危害国家安全的违法犯罪行为，而非正常的投资、经营、科研等活动。
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.对于什么是间谍行为，我国《刑法》《反间谍法》分别从刑事犯罪、行政违法角度作了清晰列举。以外方关心的商业尽职调查为例，只要不是接受境外间谍组织及其代理人的指使，或是不知晓对方是间谍组织及其代理人而接受了所谓“商业调查委托”，但没有实施刺探、窃取、收买、非法提供国家秘密、情报等行政违法或犯罪活动，就不会被认定为间谍行为。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.对于什么是“国家秘密”，我国《保守国家秘密法》作了明确界定，包括7类具体事项。今年2月，《保守国家秘密法》修订后，又有人借机炒作“中方法律政策不透明”。但这次修法重点只是进一步强化“国家秘密”的精准保护，做到依法公开、依法保密、保放适度，而对“国家秘密”范围未作丝毫修改。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.如果非说《反间谍法》是“放大镜”，那也是放大了对国家安全机关规范执法的监督要求，新法对各项执法权的行使条件、程序、范围等都作了严格限定。去年《反间谍法》出台前夕，国家安全部专门向全社会公布举报信箱和举报电话，主动接受社会各界监督。近期，国家安全部首次制定公布《国家安全机关行政执法程序规定》《国家安全机关办理刑事案件程序规定》2个部门规章，进一步增强法律执行的公开性和透明度，确保依法反间谍、更好促发展。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 |
维护数据安全是各国面临的共同难题，过度保护则有害经济发展和科技进步，放任不管则危及国家安全和公共利益。中国坚持促进数据开发利用和保障数据安全并重，率先发起《全球数据安全倡议》，就解决数据安全问题提出了切实可行的中国方案，与有的国家“假开放、真垄断”的做派形成鲜明对比。
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.《反间谍法》立足统筹开放和安全，结合《数据安全法》既有规定，对数据调取作出衔接性规定，并非一项新增授权。与此同时，《反间谍法》严格限定查阅调取数据的前提条件、审批流程、范围限度，避免权力滥用。今年3月，国家网信办出台的《促进和规范数据跨境流动规定》，对国际贸易、跨境运输、学术合作、跨国生产制造和市场营销等活动中收集和产生的数据向境外提供的规则作出规定，依法明确了免予审查、认证等条件和程序，清晰表明了对数据正常跨境流动的支持保护，有效降低了企业合规成本，是中国扩大制度型开放的重要举措。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.发展和安全不是非此即彼的“单选题”，修订《反间谍法》也不意味着“中国重视安全高于发展”，而是为了更好统筹发展和安全，持续营造健康稳定的良好发展环境。作为反间谍工作主管机关，国家安全机关始终秉持法治精神、遵循法治原则，严格执行《反间谍法》和相关法律法规，坚定不移在法治轨道上为推进中国式现代化保驾护航。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.