A heavy fine for a third child: a burden that cannot be borne
A couple in Heze, Shandong, who had a third child were assessed for a social maintenance fee and, having failed to pay, faced enforcement proceedings brought by the health and family planning department. The article accepts that the application had a legal basis and that the sum matched local standards, but asks whether enforcement took account of the family's means, whether they were told of their right to pay in instalments, and whether a fee of this kind belongs in an era that now encourages childbirth.
1. Was the enforcement appropriate?
Although China long ago relaxed the two-child policy, a third child is still restricted. Under Articles 18 and 41 of the Population and Family Planning Law of the People's Republic of China, the state advocates that a couple have two children, and couples who meet the conditions laid down by law and regulation may apply to have further children; citizens who have children in breach of those provisions shall pay a social maintenance fee in accordance with law.
As to the standard for the fee, the State Council has delegated the power to the local level, so that each place may set it according to local conditions. The health and family planning department of Heze, Shandong, therefore had a legal basis for applying to the court for enforcement, and the sum assessed in this case was not unduly harsh and matched local standards.
What is special about this case is that the Wangs, who had the child in breach of the rules, are in poor financial circumstances. Faced with a large social maintenance fee, they are probably not deliberately defaulting but have simply run out of money. That officials act in accordance with law is the proper attitude for public servants, but taking account of the actual situation and considering the consequences of enforcement is part of the job too, and in this case how the family would make a living after a forced levy is a factor the enforcement officers should have weighed. The law also provides that a people's court carrying out enforcement shall leave the person subject to enforcement and the dependants he supports the money necessary for living, and administrative compulsion should above all combine education with compulsion. Enforcement as cold as this is arguably irregular and runs counter to the idea of governing for the people. Article 6, paragraph 2, of the Measures for the Administration of the Collection of Social Maintenance Fees provides: "Where a party genuinely has practical difficulty in paying the social maintenance fee in a single sum, it shall, within 30 days of receiving the decision on collection, submit to the family planning department of the county-level people's government that made the decision a written application to pay in instalments, together with the relevant supporting material. The family planning department of the county-level people's government shall, within 30 days of receiving the application, decide whether to approve payment in instalments and notify the party in writing." Did the officers, in pursuing the family's liability, tell them of the rights the law gives them? Whether the channels for relief were kept open and the option of payment by instalments offered is a question the public cares about more than a blunt freezing of bank deposits.
2. Where should the social maintenance fee go?
At a time of falling birth rates, serious population ageing and a gradual relaxation of family planning policy, the collection of a social maintenance fee does sit somewhat at odds with the direction in which the state is encouraging people to go, and the contradiction between heavily fining a third child and encouraging childbirth is why this case drew so much public comment.
The social maintenance fee derives from the Population and Family Planning Law promulgated in 2001, under which couples who breached family planning policy had to pay a sum to society in compensation for limited public resources; collection began in 2002. Because economic levels and the quality of the population vary from place to place, the State Council delegated the setting of specific standards to local authorities, and over the past decade standards have been arbitrary and the use of the money unclear. As long ago as the 2016 sessions of the National People's Congress and the Chinese People's Political Consultative Conference, Wang Pei'an, then deputy director of the former National Health and Family Planning Commission, observed that each place could deal appropriately with unprocessed cases of excess births in the light of actual conditions. That in effect signalled a lenient attitude towards excess births and gave local enforcers room for flexible discretion.
The social maintenance fee is a historical product of the family planning era, and the starting point and goal of national macro-policy has shifted from controlling childbirth and population size to encouraging childbirth. A full relaxation of the limits is only a matter of time, the fee can no longer keep pace with the times and should leave the stage, and the corresponding laws and regulations should be amended or repealed without delay. That every breach of the law is pursued and enforcement is strict is a principle enforcers should uphold, but where a legal rule has come to depart from the times and from national policy, those on the front line of enforcement should report the public's concerns and the difficulties of enforcement promptly, and press for legislative change.