China’s Border Control: Exit Ban or Bian Kong

China is well known for its ability to detain foreigners from exiting the country. It is often used to settle business conflict between foreigners and Chinese companies. The Chinese company contacts the police to say that a foreigner has not paid or lived up to some business dealing and Chinese border control puts a ban on the foreigner’s exit. These are called “exit bans“.

Bian kong, “边控“， short for bianjing kongzhi, “边境控制” is a system that can bar a foreigner from leaving China. We normally call it an “exit ban”

边控

边控即边境控制，它是为防止涉案的外国人或者中国公民因其借出境之机逃避司法机关追究法律责任，给境内的国家、集体或个人财产等带来重大损失，而通过法定程序在国边境口岸对之采取限制出境的一种保全措施

适用法律
编辑
目前国内关于边控的相关法律规定，主要是外国人出入境管理法、 《中华人民共和国公民出入境管理法》 （以下简称“两法”）和最高法院、最高检察院、公安部、国家安全部印发的《关于依法限制外国人和中国公民出境问题的若干规定》 （以下简称《若干规定》）以及公安部发布的一些部门规章等。总体上讲，这些规定比较原则，在适用中还需要不断地加以完善

处理方法

外国人出入境管理法第二十三条和中国公民出入境管理法第八条分别规定了对于法院通知有未了结民事案件不能离境的外国人和中国公民，不准出境。《若干规定》在参照“两法”的基础上，规定了对某些外国人和中国公民（与案件审理有利害关系的人员）依法予以办理边控手续，不准其出境。与案件审理有利害关系的人员一般指当事人本人或当事人的法定代表人（负责人）和业务经办人，这些人对案件事实的调查和裁判的执行有直接关系，他们是否在我国境内直接影响到法院对案件的审理和执行。并且强调：
（1）对于需要限制已入境的外国人或限制中国公民出境的案件，必须严格依法尽快办理，从严掌握。
（2）在限制外国人或中国公民出境的审批权限的设置上，要求法院认定的犯罪嫌疑人或有其他违反法律的行为尚未处理并需要追究法律责任以及有未了结民事案件的，由法院决定限制出境并执行，同时通报公安机关。

（3）法院在限制外国人和中国公民出境时，可以向当事人口头通知或书面通知，在其案件（或问题）了结之前，不得离境。根据案件性质及当事人的具体情况，分别采取监视居住或取保候审的办法，或令其提供财产担保或交付一定数量保证金后准予出境。还有扣留当事人护照或其他有效出入境证件，但应在护照或其他出入境证件有效期内处理了结，同时发给本人扣留证件的证明。法院扣留当事人护照或其他有效出入境证件，如在出入境有效期内不能了结的，应当提前通知公安机关。
（4）《若干规定》还要求，法院对某些不准出境的外国人和中国公民，需在边防检查站阻止出境的，应填写《口岸阻止人员出境通知书》。需在口岸阻止出境的，应向本省、自治区、直辖市公安厅、局交控。在紧急情况下，如确有必要，也可以先向边防检查站交控，然后按照规定，补办交控手续。控制口岸超出本省、自治区、直辖市的，应通过有关省级公安机关办理交控手续。

在限制出境期间，一般情况下，并不限制被控对象在国内活动的自由。对持有外国护照的当事人实施扣留护照、限制出境等措施后，必须在48小时内逐级报告上级人民法院，同时向同级人民政府外事办公室通报。决定限制出境时，扣照后，必要时可以通知外国使、领馆该外方当事人护照已被法院扣留，防止被扣照人到使、领馆以护照遗失为由申请补办护照出境，造成强制措施落空。
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Border control

Bian kong is border control. It is to prevent foreigners or Chinese citizens involved in the case from escaping the judicial organs to pursue legal liabilities and bring significant losses to the state, collective or personal property in the territory. A kind of preservation measures for restricting the exit of border crossings

Applicable law

At present, the relevant domestic laws and regulations on border control are mainly the Exit and Entry Administration Law for Foreigners, the Law of the People’s Republic of China on Exit and Entry Administration (hereinafter referred to as the “two laws”) and the Supreme Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of National Security. The “Several Provisions on Legally Restricting the Exit of Foreigners and Chinese Citizens by Law” (hereinafter referred to as “Several Provisions”) and some departmental regulations issued by the Ministry of Public Security. In general, these rules are relatively principled and need to be constantly improved in their application.

Approach

Article 23 of the Alien Exit and Entry Administration Law and Article 8 of the Chinese Citizens’ Entry and Exit Administration Law respectively stipulate that foreigners and Chinese citizens who are unable to leave the country without notice of civil cases may not be allowed to leave the country. On the basis of the “two laws”, the “Several Provisions” stipulates that certain foreigners and Chinese citizens (persons who have an interest in the trial of the case) shall be subject to border control procedures according to law and shall not be allowed to leave the country. The persons who have an interest in the trial of the case generally refer to the person or the legal representative (responsible person) and the business manager of the party concerned. These people have a direct relationship with the investigation of the facts of the case and the execution of the judgment. Whether they directly influence the territory of China Go to the court to hear and execute the case. And emphasize:
(1) Cases that need to restrict foreigners who have entered the country or restrict the exit of Chinese citizens must be handled as soon as possible in strict accordance with the law.
(2) In the setting of the examination and approval authority for restricting the exit of foreigners or Chinese citizens, if the criminal suspect identified by the court or other violations of the law has not been processed and needs to be investigated for legal responsibility and there are unresolved civil cases, the court shall decide Restrict the exit and execution, and notify the public security organs.
(3) The court may, when restricting the exit of foreigners and Chinese citizens, make oral notices or written notices to the parties, and may not leave the country until the case (or problem) has been closed. Depending on the nature of the case and the specific circumstances of the parties, separate methods of monitoring residence or bail pending trial, or providing them with property guarantees or delivering a certain amount of security, are allowed to leave the country. There is also a detention of the party’s passport or other valid entry and exit documents, but the certificate should be processed within the validity period of the passport or other entry and exit documents, and the certificate of detaining the certificate should be issued to me. The court detains the passport of the party or other valid entry and exit documents. If it cannot be closed within the validity period of entry and exit, it shall notify the public security organ in advance.
(4) The “Several Provisions” also require that the courts, if certain foreigners and Chinese citizens who are not allowed to leave the country, need to stop leaving the border at the border checkpoint, they should fill out the “Notice of Exit of Port Blockers”. If it is necessary to stop the exit at the port, it shall be handed over to the public security department and bureau of the province, autonomous region or municipality directly under the Central Government. In an emergency, if it is necessary, you can also hand over the control to the border checkpoint, and then follow the regulations to complete the transfer procedures. If the control port exceeds the province, autonomous region or municipality directly under the Central Government, the relevant public security organs shall handle the procedures for handling the control.

During the period of restricted exit, in general, the freedom of the accused to operate in the country is not restricted. After implementing measures such as detaining passports and restricting exits to parties holding foreign passports, they must report to the higher-level people’s courts within a period of 48 hours and notify the Foreign Affairs Office of the people’s government at the same level. When deciding to restrict the exit, after the deduction, if necessary, the foreign embassy or consulate may be notified that the passport of the foreign party has been detained by the court to prevent the deducted person from applying to the embassy or consulate for the loss of the passport to apply for the replacement of the passport. The measures fell through.

In the West we do not prevent foreigners from leaving the country due to commercial disagreements, but this is not the case in China. Here is an example from ADVChina, Barred from Leaving China!. This foreign gym owner sold his gym to a Chinese guy, but had a loan on the gym equipment. In the contract the Chinese guy assumed the loans of the business. Unfortunately for the foreigner the Chinese guy did not pay back the bank loans, so the bank put an exit ban on the foreigner.

John has been banned from leaving China because of a wrongfully broken contract. We talk about his and some other things that are happening in regards to exit bans in China.

This exit ban, or bian kong, has been used on many foreigners and is a concern for anyone doing business in China. It regularly comes up in the news. I recall one bank executive not being allowed to leave China to go back to HK due to an exit ban.

This year 2019 the US Government had issued a travel warning citizens that there were arbitrary:

Exercise increased caution in China due to arbitrary enforcement of local laws as well as special restrictions on dual U.S.-Chinese nationals.

Chinese authorities have asserted broad authority to prohibit U.S. citizens from leaving China by using ‘exit bans,’ sometimes keeping U.S. citizens in China for years. China uses exit bans coercively:

• to compel U.S. citizens to participate in Chinese government investigations,
• to lure individuals back to China from abroad, and
• to aid Chinese authorities in resolving civil disputes in favor of Chinese parties.

The Canadian government has also issues travel warning, buried deep within the “Law and Culture” section, though not as forward as the US:

Canadian business travellers have been detained and had their passport confiscated as a result of business disputes with their Chinese counterparts. Seek legal advice from professionals in China, as well as in Canada, before proceeding with business agreements or arrangements. Ensure that all documents are translated so that conditions, terms and limitations are understood. Disputes are often costly and prolonged, and you may be subject to a travel ban restricting you from leaving the country until the matter is resolved.

From the Australian Government, under “Legal proceedings and investigations”

Exit bans

If you’re involved in a criminal matter or investigation, or a civil or commercial dispute, you may not be allowed to leave China until the matter is resolved. In some cases, individuals aren’t aware an exit ban has been imposed on them until they have attempted to depart China.

You don’t have to be directly involved in the legal proceedings to be affected. Some Australians have reported they have been subjected to an exit ban and prevented from leaving China as a result of a commercial or legal dispute involving family members. Some Australians have been restricted from leaving China for extended periods of time, sometimes many years, because of this.

2019 Aug 05 Chinese rights lawyer Chen Jiangang flees to US to escape ‘persecution’ in China: Exit bans used against Chinese dissidents, accused’s relatives and human rights lawyers.

2020 May 05 US family tells of travel nightmare: China bans their exit and father imprisoned without charge