Chinese Law Prof Blog

New blog on Chinese intellectual property

I'd like to announce a new blog on Chinese intellectual property. It's authored by Mark Cohen, who has had a long and distinguised career in the field. Here's the address: chinaipr.com.

PhD positions at Amsterdam Law School

Amsterdam Law School has ten (salaried) PhD positions open, and applicants interested in China with excellent legal and language skills are encouraged to apply. You would have the privilege of working with Benjamin van Rooij, author (among other things) of a terrific book on Chinese environmental law that combines unique fieldwork with theoretical sophistication.

Details here.

Do judges have a duty to speak Mandarin in court?

Ultra-nationalist Peking University professor Kong Qingdong (孔庆东), who boasts of being a direct descendant of Confucius, stirred up a controversy the other day with televised insults to the people of Hong Kong - mocking their accent, calling them dogs (he later claimed he only meant some of them), and declaring that all Chinese had a duty to be able to speak Mandarin. (Here's a video of his remarks and the Hong Kong subway incident that prompted them.)

I want to look particularly at his claim that all Chinese have a duty to speak Mandarin. Here's what he said, in the original and in translation: "说普通话的人没有义务、没有必要掌握任何一种方言。中国人有义务说普通话。. . . 当你遇到一个人，他所操的方言跟你不一样的时候，怎么办？双方都应该说普通话。故意不说普通话是什么人？王八蛋！" ("People who speak Mandarin have no duty and no need to speak any other dialect. Chinese have a duty to speak Mandarin. . . . When you meet with someone and his dialect is different from yours, what should be done? Both parties should speak Mandarin. What kind of person would deliberately not speak Mandarin? A bastard!")

This is where Prof. Kong may get himself in trouble, and not just for his un-Confucian way of expressing himself, which would seem more suited to a Legalist book-burning. In the trial of Li QInghong (黎庆洪) just conducted in Guiyang, the presiding judge decided on the third day of proceedings to stop speaking in Mandarin and began instead to speak on in local Guiyang dialect, making it difficult for Li's lawyer to understand the proceedings. When Li's lawyer objected and said that the judge was required under relevant law to speak Mandarin, the judge said that it was his right to use Mandarin or Guiyang dialect as he pleased. But perhaps Prof. Kong will surprise me and denounce the presiding judge as a bastard.

Thanks for Flora Sapio for bringing this interesting aspect of the Li Qinghong case to my attention.

Simon Leys (Pierre Ryckmans) on Liu Xiaobo

Here's Leys's review of a newly-published collection of Liu Xiaobo's writings in English translation in the New York Review of Books.

Serial killers in China

Here's a fascinating article on the subject from the Danwei blog. Among other things, it discusses the case-cracking incentives faced by police. Non-political offenses are rarely the subject of central government attention; crimes like serial murder are generally left to local police, who get no points for solving crimes committed in someone else's jurisdiction, and may indeed have to pay the cost of feeding and housing the suspect until he is sent back (also at their expense) to the jurisdiction that wants him.

Wheelchair-bound threat to the people's democratic dictatorship

Fresh from its triumph over the dark forces of Hollywood in their attempt to topple the state by shaking the hand of a blind man, the people's democratic dictatorship has now set its sights, once again, on Ni Yulan, already crippled by earlier police beatings. Apparently she and her husband have been "picking quarrels" and "disturbing public order", both criminal offenses. The New York Times story is here. Apparently the leaders have not been reading books about how China is destined to take over the world. They seem extraordinarily unconfident and fearful.

Gao Zhisheng (apparently) found

Chinese prison authorities have apparently notified Gao Zhisheng's brother that he is being held in a prison in Xinjiang. Here's the report from China Aid Association (I added the link about the alleged probation violation):

China Aid Association

(Washington, D.C. – Jan. 1, 2012) For the first time since his most recent forced disappearance 20 months ago, the whereabouts of human rights lawyer Gao Zhisheng were confirmed on Sunday.

ChinaAid learned that Gao Zhisheng’s older brother, Gao Zhiyi, received written notification on Sunday of Gao’s incarceration in Shaya Prison in the Xinjiang Uyghur Autonomous Region in far western China.  The notification was signed and dated on Dec. 19 by the prison.

Gao disappeared into police custody in April 2010, the most recent in a series of forced disappearances since his 2006 conviction on a subversion charge.  On Dec. 16, just days before his five-year probation period was to have ended, the Chinese government announced that it was sending him to prison for three years for violating his probation.  It was the first word that he was still alive, but no information of his whereabouts or condition was released.

Shaya (Xayar) Prison is located in Aksu Prefecture, about 1,130 kilometers (700 miles) southwest of the Xinjiang capital of Urumqi.

"Gao's internal exile reminds the world of how former Soviet dissident Andrei Sakharov was cruelly treated in Siberia in the 1980s," said ChinaAid founder and president Bob Fu, a friend of Gao. “The Chinese government can use this remote jail to prevent concerned people from visiting Attorney Gao, but just like Sakharov, Gao's courageous voice can never be silenced by the four walls of his prison cell."

Gao Zhiyi is planning to visit Gao Zhisheng as soon as he gets a physical address of the prison.

The prison’s mailing address is : Shaya Prison, Shaya county, Aksu  Prefecture, Xinjiang Uyghur Autonomous Region, Postal code: 842208
Prison phone number: +86-997-8402100.

Gao Zhiyi’s phone number: +86-151-9198-5726

Larry Ribstein, RIP

I was shocked and very saddened to hear of Prof. Larry Ribstein's sudden death (apparently from a stroke) on Dec. 24th. In addition to teaching Chinese law, I also teach business associations, and so was familiar with Larry's name and fame before actually meeting him when we were both visiting professors at NYU Law School in 2007-08. You can get a sense of Larry's personality by reading his voluminous writings and blog posts - his style is crystal clear and highly readable, his ideas original and important. But I needed to meet him in person to get a full sense of the man and to realize what a cool guy he was.

As I read others' remembrances, one term keeps cropping up that is one of the first things I noticed, too: intellectually honest. Larry was not afraid to follow his ideas where they led him, but never mischaracterized opposing ideas in order to refute them more easily. He had very strong ideas (in addition to deep learning) on many subjects, but I can think of few people with whom it was more fun to discuss things.

Larry's scholarly productivity is the stuff of legend - lots of it, on a wide range of topics, and all of it top-notch. I once asked him how he managed to do it. His answer: "I don't need a lot of sleep."

So broad is Larry's impact that it even reaches the field of Chinese law. He had been to China and was consulted on the drafting of (what else?) China's Partnership Law.

It is truly sad that such a terrific scholar and colleague has been lost to us.

Here's the announcement from the University of Illinois, and here's a remembrance from Geoffrey Manne (collecting other remembrances as well).

Gao Zhisheng welcomes revocation of probation, looks forward to prison beatings

Gao Zhisheng welcomes revocation of probation, looks forward to prison beatings

DATELINE: Somewhere in China, Dec. 16, 2011 -- Noted Chinese dissident Gao Zhisheng today welcomed the news that his probation had been revoked and that he would be going back to prison. “I’ve gotta admit, life on the outside has been a bit tougher than I expected,” he said through clenched teeth, as his broken jaw had been wired shut. “But at least I’ll know where I am.”

Speaking from an undisclosed location, Gao also said that he looked forward to meeting his new cellmates and to being beaten by them daily. “Hey, I can handle daily,” he said. “It’s two or three times daily that gets a little wearing.” He added that another advantage of prison life was that because cigarettes were scarce, they were used mostly for smoking.

PILnet seeks country director for China

Here's the job announcement.

An interesting take on China's solar subsidies

Here's an interesting take on China's solar subsidies from Bronte Capital: whether they exist, their WTO legality, whether the Chinese manufacturers can survive without them, etc. These subsidies are now the subject of a US antidumping and countervailing duty investigation.

China: A Decade in the WTO - conference papers

Here's a link to the papers from a conference on "A Decade in the WTO: Implications for China and Global Trade Governance".

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ABA Rule of Law Initiative seeks deputy country director for China

Here's the announcement. They are looking for someone with (1) a Juris Doctor or equivalent law degree; (2) at least five years of practical legal experience, with a minimum of one year working on donor-funded international legal reform programs, preferably in China; (3) demonstrated planning, management, analytical, and writing skills; (4) fluency in English; (5) proficiency in both written and spoken standard Chinese (Mandarin); (6) excellent oral communication and interpersonal skills; and (7) familiarity with the Chinese legal system, as well as the current political and cultural context.

The position is available immediately; they are looking at applications on a rolling basis, so hurry! (On the other hand, are there many people out there who have those qualifications?)

Pu Zhiqiang on Ai Weiwei's tax case

Noted lawyer Pu Zhiqiang represents the Beijing Fake Cultural Development Company (北京发课文化发展有限公司) in its tax case. The government claims that Fake has tax problems and that Ai Weiwei is responsible for them. Here is Pu's analysis of the situation, in Chinese and (courtesy of the Siweiluozi blog) English. It's useful reading for those who still manage to believe that this is just a tax case.

Incidentally, "Fake" is just the romanization of the characters in the name; possibly it is a cute pun on the English word "fake".

NOVEMBER 21 UPDATE: A friend informs me that he has it on good authority that the characters 发课 (fa ke) are actually a pun on a four-letter English expletive. As this is a family blog, I will say no more.

An independent candidate's story

Qiao Mu (乔木), an associate professor at Beijing Foreign Studies University and the director of its Center for International Communications Studies, recently ran (maybe "attempted to run" would be more accurate) as an independent candidate for the Haidian district people's congress. This is the only level of people's congress where candidates are directly elected; delegates to higher-level congresses are selected by lower-level congresses. And this is of course all done under the guidance of the Party. The election was on Nov. 8th. Here's his account:

As an independent candidate, I did not win the election, but got the second largest votes (1300 ballots) after one month campaign with my voluntary supporters, which shaped democracy in my university-community and brought many positive changes in the campus management and people’s mind.

I had NO intention to challenge the ruling party and the political system in the grassroots election. What I cared was the voter’s (faculty and students) opinion, livelihood and rights. However, I encountered increasingly enormous pressure and oppression from the very beginning. My voluntary students were forced to quit the campaign. Many organized spreading rumors and political lies in SMS to defame my personality, motives and actions (mostly on social media), i.e., my campaign was a conspiracy and sponsored by the west media, and I was manipulated by the US embassy, and I will leave the university it is useless to vote for me.

I was shocked to find, in the last week before the vote day, all my social media ( weibo/micro-blog on sina.com, blog, renren and my election video on tudou/56 were closed.) I tried to register new one many times on sina.com and renren.com, but all were closed for a short while. Things went beyond my imagination. All my mobiles and phones were monitored. I was followed by two securities in the campus and two secret agents outside. Many students and faculty members involved were forced verbally to quit me. Some students were required to identify my supporter on CCTV, some parents were asked to come to Beijing to persuade the students to stop.

The Big Brother was watching us.

We did nothing wrong. All we did was in the track of China’s constitution and election law. But I was told there were policy and regulation, which were more important and measurable.

On the vote day of Nov 8, there were numerous banners and flags in the campus, which said to carry on socialist democracy and enhance the rule of law, and to vote gloriously. Many securities and secret agents walked around. People outside of the campus were not allowed to entered for three days.

I was not among the two officially nominated candidates. My name was not in the ballot. However, the voter could write down my name if they voted for me. I got 1296 votes among 8035 turn-outs, the second largest winner, much more than an official candidate. The No.1, a vice presidents of my university, passed the half line only with 117 more votes. If no those 117 votes, the election would be a runoff. He and I, the first two, will be voted another day. In that case, my name will be written on the ballot. Who knows the result?

Farewell to my 10 weibo (Microblogs on sina.com), 4 blogs with 100 articles,  and 1 paid Renren ID with twenty thousand followers, most of them were my university (vote zone) contacts.

My social media can be closed, but I will neve close my  mouth and my writing will never stop.

Qiao Mu (Michael)

China's draft Mental Health Law

Here's a useful post on the subject by Elizabeth Lynch at the China Law and Policy blog.

George Washington/Fordham program on Chinese IP issues

George Washington University Law and Fordham Law School will be jointly sponsoring a full-day program, called “Patents, Trade and Innovation in China: A Public Discussion on Practical Strategies for Engaging China.”   The program is scheduled for December 13, at GW Law School.  David Kappos, Director of the USPTO, will be the keynote speaker, and Chief Judge Rader of the Court of Appeals for the Federal Circuit will also be presenting.  The program is divided into four sessions:  the overall economic and rule-of-law challenges to China becoming an innovation society; assessing China’s efforts at patent catch-up with the West; how China has implemented its WTO and other IPR commitments; and how to collaborate and engage with China on innovation and IP issues.  The program is intended as a series of roundtable discussions, with interaction from attendees.   In addition to IP and trade lawyers, government officials, political scientists, and company executives, China lawyers who are scheduled to discuss include myself, Carl Minzner (Fordham) and Mark Cohen (Fordham).  The program follows up on a highly successful smaller meeting sponsored by Chief Judge Rader and will also likely involve distribution of research and other reports and coordination on technical assistance. There is no charge for the event and no CLE will be offered.  Those interested in participating should RSVP to iplaw@law.gwu.edu with the subject line: “China Conf.”

The most dangerous man in China...

... is apparently blind activist and barefoot lawyer Chen Guangcheng, judging from the extraordinary level of security thrown up around his home to prevent him from having any communications with the outside world. None of this has any known legal justification, by the way. Here's a report from China Human Rights Defenders (Chinese here). Think of how much all this must cost!

Attempts to visit the lawyer and activist Chen Guangcheng (陈光诚) in Shandong Province have often been thwarted by the constant, stifling presence of guards blockading Dongshigu Village, where Chen lives under illegal house arrest (see reports below). The intensive operation is fortified by surveillance cameras and monitoring points set up at four village entrances and around Chen’s home. As groups of Chinese activists continue their “Operation Free Chen Guangcheng” by making repeated visits to Dongshigu Village, CHRD has released an aerial photo that charts the locations of village entrances and monitoring posts while describing these in detail.

The village’s widest concrete road—at three meters across—runs along its eastern edge and intersects China National Highway 205, which connects the provinces of Hebei and Guangdong. A small bridge lies in the middle of this road, and after crossing the bridge and turning right, Chen’s home is the first one on the north side, and is surrounded at all times by seven or eight guards.

The highway entrance near Chen’s home is guarded by 20 individuals who work in two shifts, scrutinizing each vehicle and person entering the village. At another location are two small structures that function as the guards’ work stations, with a pair of vehicles parked nearby. Thugs use one of them in case they need to chase after visitors, and the other is stationed next to a small bridge. Seven to eight individuals, also working in two shifts, man these vehicles.

Another concrete road entrance faces a neighboring village, Yazi Village, to the southeast of Dongshigu, and is located about 600 meters down the highway. A monitoring point in this area is set up about 100 meters after crossing a bridge, and guards—close to 20 people divided into two groups—reportedly stay hidden behind a pile of firewood and are able to see anyone crossing over the bridge, which leads to a trail into Dongshigu. On one side of the trail is a row of bungalows where tobacco is grown, and guards keep three vicious dogs on the other side.

A third entrance—a drainage area beneath a highway—lies along the village’s southwest edge, and is a path so narrow and rugged that it can only be undertaken on foot. There are six or seven guards stationed at this entrance, which is also equipped with a monitoring camera. Northwest of the village, there is a fourth passage off a small bridge to neighboring Xishigu Village. There are two monitoring points, one at the entrance of Xishigu Village and another after crossing a bridge and turning to the left, with close 20 guards.

In sum, there are two surveillance points in front and behind Chen’s home, and six other points set up at various locations on the four narrow roads that enter Dongshigu Village. There are a total of six surveillance cameras in the village. Two mobile phone jammers are set up at the homes of Chen’s neighbors to the west and east.

Reportedly, almost 100 hired thugs keep Chen under surveillance, and all are recruited from outside the village. They are divided into two large squads and 12 smaller groups, and maintain radio communication with each other while working around the clock. And like many extensive operations, monitoring Chen and the entire village is also wealth-generating. Given two daily meals, each person pockets 100 RMB a day—far more lucrative pay than the average villager (even the village party secretary earns just 3,000 RMB in salary per year). The guards are led by Gao Xingjian (高兴见), who comes from a nearby village. Gao was appointed as head of the guards after fighting off past visitors on many occasions, and has supposedly amassed a good deal of wealth from filling that role.

Judge rejects evidence obtained by unlawful interrogation in Zhang Guoxi case

Check out this article by Jeremy Daum at the web site of the US-Asia Law Institute, with a set of very useful links as well. As Daum notes, rejecting evidence obtained by unlawful interrogation (I'll call it that instead of torture, since it didn't involve the kind of extreme measures - waterboarding, lit cigarettes on the skin, etc. - that we normally associate with the term) is exactly what judges in China are supposed to do according to applicable rules, but in practice it's far from becoming a ho-hum dog-bites-man story.

More on proposed revisions to China's Criminal Procedure Law

In a previous post, I promised more comments on the proposed revisions. My comments here will be about the controversial provisions on residential surveillance (监视居住) (RS) (also known as supervised residence). First, though, let me post here a translation of the amendments done by Johannis Bayer and Li Changshuan of the Danish Institute for Human Rights.

Now for the comments:

The current Criminal Procedure Law (CPL) provides for residential surveillance to be imposed on suspects while they are being investigated (Art. 50). While it doesn't define what residential surveillance actually entails, it is clear from the context and other documents that it involves something akin to house arrest: the subject's liberty is restricted but not absolutely, and the subject remains at home. This is clear from the following sources:

• Art. 57 of the CPL contemplates that those without a fixed place of abode must stay at a designated place (presumably designated by the police); this implies that those with a fixed place of abode would remain there.
• According to a 1984 Reply issued by the Supreme People's Court (最高人民法院关于依法监视居住期间可否折抵刑期问题的批复), time spent under residential surveillance, unlike time spent in any form of coercive detention, cannot be used to set off time imposed in a subsequent criminal sentence. The rationale is precisely that residential surveillance does not involve the type of restriction on liberty that accompanies detention. If the subject is coercively sent to a place of detention under the label of "residential surveillance", then this is not really residential surveillance; it is a form of detention proper, and the time served can set against the time imposed in a criminal sentence.
• According to a 1991 Reply issued by the Supreme People's Court (最高人民法院行政审判庭关于对公安机关采取监视居住行为不服提起诉讼法院应否受理问题的电话答复), it is unlawful for public security organs, on the basis of a decision to impose residential surveillance, to shut the subject up in a station house, detention center, or other place. The original question posed to the SPC makes clear that "other place" includes "guest houses", hotels, work units, etc. (The SPC did not, however, offer a judicial remedy for this illegality; it suggested that the victim bring the matter to the attention of higher-level public security authorities.)

As the above makes clear, the police have for years had a practice of locking people up in places other than their residence, but calling it "residential surveillance". Let's call it "non-residential residential surveillance" (NRRS). Although NRRS is unquestionably unlawful, it is apparently too useful to be dispensed with. One advantage is perhaps that, unlike detention or arrest, RS carries no notification requirement. To be sure, the notification requirements for detention (Art. 64) and arrest (Art. 71) are weak because the police can evade them entirely by a unilateral and unreviewable determination that to notify family of the detention or arrest would impede the investigation. But perhaps the police still feel it's better to have no restraints at all than to have even this weak one. In any case, the lack of a notification requirement makes sense under the proper understanding of RS: the suspect is still at home and able to communicate, so the family is bound to know. The lack of a notification requirement would make no sense if NRRS were a legitimate practice.

All right: fast forward to August 2011, when the proposed amendments came out. The provisions on RS have attracted a great deal of criticism on the grounds that they legitimize NRRS. I was recently at a meeting with Chinese officials and academics where the revisions were discussed. They were a bit miffed at criticism of these revisions and felt that some important improvements had been overlooked. To some extent I think they had a point; certainly my own understanding was aided by the discussion we had.

Here’s one part of the key language from new Art. 73: 对于涉嫌危害国家 安全犯罪、恐怖活动犯罪、重大贿赂犯罪，在住处执行可能有碍侦查的，经上一级人民检察院或者公安机关批准，也可以在指定的居所执行。This is translated in the Bayer/Li translation as: “Where, in cases of a crime suspected to threaten national security, crimes of terrorist activities and major crimes of bribery, it may, upon approval by the next higher people’s prosecutor’s office or public security authority, be enforced at a designated place of residence[.]”

I would modify this slightly to make the term “suspicion” apply to all three crimes: “Where there is suspicion of the crime of endangering national security, the crime of terrorist activities, or the crime of receiving bribes in serious circumstances, then …” I don’t see any reason for confining “suspicion” to just the first crime, and it’s not grammatically necessary to do so.

More controversial are the provisions re notice. Here’s the Chinese: “指定居所监视居住的，除无法通知或者涉嫌危害国家安全犯罪、恐怖活动犯罪，通知可能有碍侦查的情形以外，应当把监视居住的原因和执行的处所，在执行监视居住后二十四小时以内，通知被监视居住人的家属。”

This is rendered in the Bayer/Li translation as: “Where residential surveillance is enforced at a designated domicile, the family members of the person under surveillance shall be informed of the reason for and the place under residential surveillance within 24 hours upon enforcement, save where a notice cannot be furnished or where crimes threatening national security or crimes of terrorist activities are suspected and a notice may impede the investigation.” In other words, notice must be given within 24 hours except where either of the following two conditions applies: (1) notice cannot be furnished, and (I say “and”  because this is a list, but note that they are alternatives) (2) (a) a crime of threatening national security or terrorism is suspected, AND (b) giving notice might impede the investigation.”

As noted above, under current law, there is no notification requirement for residential surveillance. At the same time, current law (as well as applicable SPC interpretations) contemplates that residential surveillance will really be at the residence. Now a requirement of notice has been added, but note that it applies only to the new, permitted type of “residential surveillance” not at your residence (i.e., NRRS). Moreover, it is not completely discretionary, since the exception for impeding the investigation applies only to two types of cases. In other words, yes, the revisions legalize the current practice of non-residential residential surveillance, but only in three types of cases, and they also add a restriction that notice must be given (subject to a non-open-ended exception).

Note also that the new notice requirement is essentially duplicated for detention (new Article 84) and arrest (new Article 92). Here it’s unambiguously good from a civil liberties or restraint-on-power perspective. Under current law, police can decide not to notify family of a suspect's detention or arrest if they unilaterally decide in any case that it would impede the investigation. Under the revisions, police can decide not to notify only if they (again unilaterally and unreviewably) decide that it would impede the investigation and it’s one of two types of case: national security or terrorism.

In short, then, the revisions tighten up the existing notice requirement for detention and arrest, and add in the same requirement for NRRS.

Of course, in the end these are all just words, and since police action is essentially unreviewable by external authority if it takes place in the claimed context of a criminal investigation (see the above-mentioned 1991 Reply issued by the Supreme People's Court), the police are under no real obligation to apply the words in good faith. But the words are, on the whole, more restrictive of police powers than before, and that's worth noting.

Finally, I want to note one mistake in this part of the translation: Item 32 of the amendment amends Art. 57, changing it to Art. 75. Paragraph (b) as translated says that someone subject to residential surveillance may not "meet or correspond with certain designated persons without the prior approval by the enforcement authority." I don't see any support in the original Chinese for the idea that the prohibition applies only to "certain designated persons." The original Chinese says that those subject to RS may not meet or correspond with anyone without approval: "未经执行机关批准不得会见他人或者通信".

This is more than a trivial point, because as translated the burden is on the police to come up with a list of prohibited people; as actually written, however, the default rule is that meetings or communications with anyone are barred; it's up to the subject to seek permission (which he might not get) to escape what could become a form of solitary confinement. I don't believe this aspect of the proposed revisions has been widely commented on.