Chinese Law Prof Blog

Prof. Benjamin Liebman and Chinese courts

Here's a nice profile of Ben Liebman, a fellow Chinese law professor at Columbia. It has some interesting points about Ben's work on Chinese courts.

Liu Renwen on death by lethal injection

According to the China Daily, by the end of 2009, all executions in China Beijing will be by lethal injection instead of the traditional gunshot. (I've previously blogged here and here on this issue.) Here, in translation courtesy of the Dui Hua Foundation, is an opinion piece by Prof. Liu Renwen of the CASS Institute of Law. Prof. Liu sees this as a step forward both because it's a more humane way of executing and because it marks, in his view, progress toward the eventual abolition of the death penalty.

I hesitate to criticize Prof. Liu, who is a consistent advocate for policies I tend to favor and is also a friend. But his opinion piece reflects a complete unawareness, which I am afraid is widespread in China, that there might be any problems with lethal injection that would make it less humane that a bullet in the back of the head. These problems have been the subject of extensive debate in the United States on the grounds, among other things, that it may inflict severe but undetectable pain (for materials, see here and here; a recent Supreme Court opinion on the issue is here; New York Times report here), and it's unfortunate that this side of the story does not seem to appear in China.

Various people have also told me - I have no way of knowing whether this is true - that lethal injection became popular not because it was more humane than shooting, but because it didn't result in blood spattering all over the place, which made those nearby worry about AIDS. The story has some plausibility, given that lethal injection got its start in Yunnan, where intravenous drug use, and therefore the HIV infection rate, is high.

UPDATE, 2 JULY 2009: I misread the China Daily piece; it speaks only of Beijing, not of China as a whole.

The Month The Censors Stopped Taking Their Medication

Here's an excellent post on Rebecca MacKinnon's blog on recent developments in censorship in China.

Yet another barrier to entrepreneurship in China

I was talking the other day to a friend who is trying to get a small company registered in Beijing. Among the many roadblocks thrown up by the Beijing Administration of Industry and Commerce is this amazing (to me, anyway) one: she has to provide an explanation of why she chose the name she did for the company. While certain words and implications (for example, "China National ..." if you aren't a centrally-owned SOE, or cuss words) are understandably prohibited, her proposed name implicated none of these. It's just the interfering instincts of overly idle bureaucrats, as far as I can tell.

Jerome Cohen calls on Taiwanese lawyers to speak out

With the author's permission, I'm attaching here a recent op-ed by Jerome Cohen calling on Taiwanese lawyers to show the same courage exhibited by several admirable PRC lawyers (in much riskier circumstances) and to speak out against abuses and in favor of reforms in the Taiwanese legal system.

Husband and wife successfully sue former mistress for return of 300,000 yuan in gifts

Here's an interesting story: after a man broke up with his mistress, he and his wife successfully sued her for the return of 300,000 yuan, representing the value of gifts he had given her over the years they were together.

Dan Harris, from whose excellent China Law Blog I got this story [English | Chinese], comments that it's a good example of how Chinese courts tend to weigh the perceived equities very heavily in their rulings, as opposed to what the law might strictly require. I don't disagree with this as a general proposition, but would note only that the wife's case seems far from meritless. China has a community property system for married couples, and the wife argued that the husband could not therefore validly alienate these gifts without her consent. As the mistress pointed out in her defense, of course, the entire economic system would break down if any transaction by a spouse could be invalidated later by the other spouse at will.

Here's the legal basis for the two arguments:

Mistress: The Marriage Law (Art. 17) says that "Husband and wife have equal rights of disposition over community-owned property" (夫妻对共同所有的财产，有平等的处理权。) In other words, either party can dispose of community property on their own.

Wife: Art. 17 of the Supreme People's Court's Interpretation of Several Issues in the Application of the Marriage Law (关于适用《中华人民共和国婚姻法》若干问题的解释) indeed states that "[e]ither party has the right to decide on a disposition of community property where it is for daily living necessities" (i.e., a concept of ordinary expenses) (因日常生活需要而处理夫妻共同财产的，任何一方均有权决定。 ). But where important dispositions for non-ordinary expenses are involved, both spouses must agree (夫或妻非因日常生活需要对夫妻共同财产做重要处理决定，夫妻双方应当平等协商，取得一致意见。)

Mistress: At least according to the news report, the mistress responded that Art. 17 of the SPC Interpretation also says that "[w]here the third party has reason to believe, the other spouse may not oppose the disposition to a bona fide third party on the grounds that he or she did not know or did not consent." Unfortunately, the mistress did not quote the provision in full. It actually says, "Where the third party has reason to believe that [the disposition] is a manifestation of the joint agreement of the husband and wife, the other spouse may not oppose the disposition to a bona fide third party on the grounds that he or she did not know or did not consent." (他人有理由相信其为夫妻双方共同意思表示的，另一方不得以不同意或不知道为由对抗善意第三人。 )

In short, if you accept just two premises - (1) that gifts to a mistress are not a necessity for daily living, and (2) that a mistress could not reasonably believe that a wife would consent to the gifts being made to her - then the wife's case actually looks pretty good. Thus, it might be a mistake to see this case as an example of a court overriding the law to get at the equities.

Courts as fora for dissent

I was asked by the New York Times to contribute a very brief comment on the above subject; here's the result. (The other contributors' comments on dissent are also, of course, worth reading.)

Yilishen executives go on trial

The Shanghai Daily reports that the Shenyang Intermediate Court began hearings on May 25th in the case of Wang Fengyou, the former president of Liaoning Yilishen Tianxi Group, and 54 other suspects who face various criminal charges in connection with what was apparently a pyramid scheme involving ant farming. You would pay a certain amount to the company and in return get an ant-raising kit and a promise of regular purchases amounting to a 30% annual return. The ants were supposed to be ground up for use in an aphrodisiac manufactured by the company. (L.A. Times story here.)

When I first thought of blogging about this case, I planned on wondering here why nobody ever bothered about the fraud involved in claiming that ground-up ants could be an aphrodisiac, since to the best of my knowledge there is no scientific support for such a claim. But a little further research showed that Yilishen's product, touted as the "Chinese Viagra", was in fact probably just as effective, no more and no less. After all, according to the Food and Drug Administration in a warning, it was not just a harmless if useless herbal supplement: it contained prescription-strength quantities of sildenafil, the active drug ingredient in Viagra. The powdered ants were just a bonus, I guess.

More on the Deng Yujiao story

Here are some links and translations from the China Digital Times. The CDT story includes some photos of performance art put on by some Beijing college students in support of Deng Yujiao. The characters in the photo here say, "Anyone could become a Deng Yujiao."

Meanwhile, Caijing reports on local-government shenanigans involving Deng's mother and the attorneys she retained for Deng. Apparently considerable pressure is being put on Deng's mother.

China's newest internet hero: waitress who fatally stabbed lecherous official

There are studies out there purporting to show that Chinese citizens score their government higher on various measures of satisfaction and legitimacy than do citizens of many Western democracies. It has always seemed to me naive to take these at face value and to assume that they really measure something comparable; for example, Americans asked if they are satisfied with their government can easily conceive of an alternative - having the other party in power - whereas Chinese might well consider the alternative to CCP rule to be chaos and civil war. One's perception of the alternatives is going to shape one's answer. But even more telling is the unquantifiable but constant drumbeat of news stories indicating that dissatisfaction with officialdom goes way beyond what we see in the countries that score lower than China in these polls. It is hard to imagine something like the Yang Jia case in the US, for example - when popular opinion is overwhelmingly sympathetic to someone who goes into a police station and brutally murders several officers who had not personally done anything to him.

In any case, the lastest example of this is the story of Deng Yujiao, a waitress in an entertainment club - probably a dodgy karaoke of some kind - who fatally stabbed a local official who wanted sexual services from her. Below is the introduction to her story from China Elections and Governance; full text here.

In the seemingly never-ending struggle of the common people vs. the corrupt officials, every once in awhile, there is a case that attracts nationwide attention.  In 2003, there was the Sun  Zhigang case, while last year protests in Weng'an, Guizhou surrounding the suspicious death of a high school girl attracted widespread attention online, and Yang Jia became famous for killing six police officers in Shanghai.
    
This year's unlikely heroine is Deng Yujiao, a 21 year old waitress at an entertainment club in Badong County, Hubei.  On Sunday May 10, she became the perpetrator in the stabbing murder of Deng Guida, a township level official, and she also injured his companion and colleague Huang Dezhi.

Just in time for the Grammys: The Song of the People's Judges

Here it is: 人民法官之歌 (Song of the People's Judges). Thanks to Glenn Tiffert for the link.

Here is a quick and dirty translation of the lyrics (no time for a proper translation):

Let loyalty be cast in the magnificent state seal
And support the golden balance-scales with impartiality
Open up and advance along the road to construction of the legal system
The spring wind of law blows across the cities and the villages.

To investigate the smallest detail, to eliminate the false and keep the true is our duty
To punish evil and promote good, and to support justice is our mission
O, be proud, people’s judges of the Republic!
O, be proud, people’s judges of the Republic!
Glory belongs to us
Glory belongs to the motherland
Glory belongs to the people!

Let loyalty be cast in the magnificent state seal
And support the golden balance-scales with impartiality
Open up and advance along the road to construction of the legal system
The spring wind of law blows across the cities and the villages.

To be loyal to the law and to strictly carry out the law is our bounden duty
To serve the people and to contribute selflessly is our sincere wish
O, be proud, people’s judges of the Republic!
O, be proud, people’s judges of the Republic!
Glory belongs to us
Glory belongs to the motherland
Glory belongs to the people!
Glory belongs to the people!

China-US legal information conference in Beijing

It's happening on May 27-30. More information here.

Supreme People's Court Work Report: comments

I finally got around to reading Wang Shengjun's Supreme People's Court Work Report delivered to the National People's Congress on March 10th and released a week later. In a genre that practically demands platitudinousness, Wang went beyond the call of duty. I was thinking of having an RA do a statistical count of meaningless 4-character phrases such as 开拓奋进 and 扎实工作 and then compare the frequency with previous years' reports, but gave it up because of difficulties of definition.

Anyway, here are a few comments:

• The Supreme People's Court itself hears a very large number of cases: it accepted 10,553 cases in 2008, up from 7,725 in 2007. Assuming death penalty review (for which they hired literally hundreds of new judges) counts as a case, then I would guess that the great majority of these cases are death penalty review cases. They don't have jurisdiction over many other cases - appeals as of right from any of China's provincial-level courts and cases of national significance, over which they have original jurisdiction. One Chinese scholar estimates (Chinese | English) that death penalty review in and after 2007 would be about 90% of the SPC's case load; if so, then this jibes with rough estimates of the number of death sentences in China, which generally put it at around 10,000; the lowest possible number is 1,718 in 2008, which is the number of public announcements of executions actually counted by Amnesty International.
• Once again we get a statistic of how many people were sentenced to punishments of at least 5 years' (or maybe "more than 5 years"; the Chinese can be read both ways, but it's probably "at least") imprisonment (including life sentences and death sentences): 159,020. This strikes me as the world's most useless number. Is there any purpose served by lumping together someone who gets 5 years (or a bit more) and someone who is executed? I have to admit that this way of categorizing criminal sentences was not just invented by Wang, though - it has a long history in Chinese Communist Party criminal law. In the Chinese Soviet Republic (1931-1934), the longest fixed-term sentence was 5 years; after that, it was death. I guess they didn't want to feed anyone longer than 5 years, or perhaps correctly anticipated they wouldn't last that long against the Guomindang encirclement campaigns.
• Incredibly, Wang boasts that in the melamine-tainted milk case that poisoned about 290,000 babies (as well as in other emergencies such as the Wenchuan earthquake), the SPC "promptly formulated judicial measures" to address the issues. The judicial measure formulated by the SPC in the melamine case seems to have been a secret instruction to lower courts not to accept any tort suits; although lawyers and plaintiffs made many attempts, no case was accepted until March 25th, more than two weeks after Wang delivered his report.
• Labor disputes were way up: 94% more than the previous year. This statistic has been out for a while and is generally interpreted as reflecting both the new Labor Contract Law and harder economic times. But it might also reflect a new willingness of the courts to accept such cases; perhaps in the past they were turning many away.
• Wang states that the rate for executed judgments (presumably civil) was 87%. It's hard to know what this number means. I don't think it could possibly mean that 87% of civil judgments not voluntarily performed were subsequently fully performed through the execution process. The 87% figure must, I think, include partial performance. But 5% and 95% are both partial, so it's hard to know really how significant it is.
• We see renewed praise for the "Ma Xiwu adjudication style." The populist, from-the-masses-to-the-masses, procedure-be-damned Ma Xiwu style is definitely making a rhetorical comeback. When I was in Beijing last December I picked up some recent books on the "Ma Xiwu adjudication style." For more on the Ma Xiwu adjudication style, click here. Ben Liebman of Columbia Law School will shortly be publishing a great paper on the return of populism in China's courts. (See E. Perry and S. Heilmann (ed.), Mao's Invisible Hand (forthcoming).)
• In line with the resurrection of praise for the Ma Xiwu style, there's also a renewed emphasis on mediation; in 2008, apparently 59% of civil cases were settled by court mediation.
• The people's assessor system seems to be developing into a system involving a small cadre of semi-professional citizen judges who hear a very small (and probably well defined) number of cases. This is what I guess on the basis of the following statistic: 55,681 assessors sat in on a total of 505,412 cases. This is about 5% of the total number of cases in 2008, no matter how defined (10.7 million accepted, 9.8 million completed); not a lot. On the other hand, that's about 9 cases per assessor, and even more when you consider that very often there is (or is supposed to be) more than one assessor per case. This jibes with what I've heard elsewhere: that assessors are selected with a view to them serving for what amounts to a term and sitting in on several cases.
• Because China has a process for changing the verdict of judgments that have already become "legally effective", there is concern in some quarters that no Chinese judgments are ever really final. If the report is correct, then as a practical matter it seems a legally effective judgment is pretty final; only 0.19% of such judgments were changed. On the other hand, I suppose one has to do an individualized determination in each case; procuratorates managed to get judgments changed in at least 2,273 (24%) of the 9,604 legally effective judgments they challenged.
• According to Wang, the caseload of the courts has gone up twentyfold in the years from 1978 to 2008 (the statistics are readily available, but I haven't checked this statement); at the same time, the number of court personnel has increased by only 168% (at least, that's how I interpret "增加了１．６８倍").
• Finally, a great deal of time seems to have been spent getting judges to study the Three Supremes (the obvious joke is too obvious to be worth making, so I won't): Supremacy of the Cause of the Party, Supremacy of the Interests of the People, and Supremacy of the Constitution and Law (the last one coming, well, last).

Comments welcome. Remember that they won't show up until I review them - that's how the system is configured - so don't keep re-posting in frustration when you don't see them.

Homicide and self-defense in China

Here's an interesting case just reported in Caijing:

Defendant's home was to be torn down to make way for a new real estate development and defendant and his family (wife and small child) relocated. Defendant refused to move because not satisfied with the compensation offer. (So far, so typical.)

The developer apparently had a reputation for unlawful tearing down and the use of violence, and had even been told to stop by the Benxi city government. (How bad to you have to be to merit that?)

On the day in question, the company sent 40 or 50 people to the defendant's house. (We are apparently NOT talking about police or anyone with any official position, if that matters.) Ten of them broke into the house (i.e., entered by means of violence and without permission). The wife was dragged away and slapped several times. The husband was in bed; when he tried to get out of bed, he was held down by several people. He grabbed a fruit knife that was nearby and stabbed the nearest person, then managed to run off. The person stabbed died in the hospital two days later. (After the defendant ran off, the gang proceeded to tear down the house. Now that's dedication to duty!)

The defendant has been charged with intentional wounding leading to death (故意伤害（致死）). (I don't know offhand which particular article of the Criminal Law this is.) His lawyers are pleading self-defense.

This is going to present a lot of difficulties for the local court, and not just for political reasons (i.e., the developer presumably has a lot of local clout). Although it would be very hard to get a conviction in such a case in the US, my sense is that Chinese legal culture is much less permissive in self-defense claims, and in particular is not particularly moved by the "a man's home is his castle" argument. It is on the contrary very moved by the fact that someone died, and in general, someone is going to have to pay for it to at least some degree. I recall a case from the Xing'an Huilan in which elder son accidentally hit his mother while protecting her from an attack by younger son; he was sentenced to death even though presumably this was the last thing Mom wanted. And there are other cases I recall from much more recent history in which the law seems to have made very unreasonable (in my opinion) demands on the defendant to avoid damaging his attacker. Thus, a verdict against the defendant in this particular case might not be explained simply as the strong getting their way against the weak. I think it might be consistent with what I see as the unsympathetic view of the Chinese legal system to self-defense claims in general, at least when death results. On the other hand, clearly it is not going to go down at all well with a lot of Chinese citizens if the defendant is not exonerated. I predict an epidemic of various illnesses in the Benxi court system that will keep judges in hospital and regrettably unable to hear cases for a while.

Comments?

China establishes public database of judgment debtors

Here's a very interesting development: on March 30, 2009, the Supreme People's Court opened to public use a web-based database of all judgment debtors in all courts in the country (except military courts). When I say "judgment debtor" (the Chinese term is 被执行人, perhaps most directly translated as "executee"), I mean defendants who have had executable judgments rendered against them and have not yet complied, regardless of whether there is money involved; it may be they are required to do some act, not just to pay money. Since the purpose of this database is apparently to increase compliance, I am assuming without actually knowing that judgment debtors are removed from the list once they comply. The list includes all judgment debtors in new cases starting in 2007 and in cases begun before then where there is an unexecuted judgment. According to an article in Caijing, the database now has over 6 million cases.

Information is supposed to be posted to the web site by the court in charge of execution of the judgment. The database may be searched by party name, identity card number (if a person), or organization code (if an organization). I was surprised to read in the Caijing article that apparently courts have not in the past always required parties to provide their identity card numbers to the court, so this information is not always available. Although you can search by identity card number, the information displayed once you find someone omits the last four digits from the card number in order to preserve the party's privacy. (This seems like a good idea.)

If a party has an objection to the content, it may file an objection under a specific set of rules.

The database serves two purposes. First, it is intended to put pressure on defendants to perform judgments. This might function through a kind of public shaming, although it's not very public. More effecitve, I think, is the way this database can function as a check on the trustworthiness of potential business partners. If judgment-scoffers routinely find that nobody wants to do further business with them, they will have an incentive to comply.

Second, it is intended to put pressure on the reporting courts themselves to work hard on getting judgments performed; it looks bad when the public can look up judgments that are years old and still unexecuted.

Needless to say, not all unexecuted judgments indicate that something bad is going on. When the defendant is insolvent, the judgment will stay unexecuted. When the judgment is unjust - for example, the judge was bribed - then the defendant's resistance is understandable. But it's still a good idea to make this information public: if the defendant has a good case to make to a potential business partner, he can explain himself.

I hope law firms are paying attention to this database - it seems to me that not to make it a standard part of any due diligence investigation would amount almost to malpractice.

This seems to me, at least at first glance, to be an entirely positive development. The potential downside - the legitimate interests of defendants in the privacy of their identify card number - seems to have been taken care of. Are there other downsides I've overlooked? I'd welcome comments.

UPDATE: Here's a screen shot (click for full-size view) of a report on a random judgment debtor (I just picked the likely-sounding name of 张卫东, since many people got names like that in the 50s and 60s). One thing seems to contradict an assumption I made above: this record is still in the database even though it seems that the judgment has already been performed (已结). If so, this reduces the incentive of judgment debtors to perform, although perhaps it increases their incentive not to get on the list in the first place. This makes it critical to understand how you get on the list: is it just by losing an executable judgment, or is it by refusing to perform and thereby being subject to coercive execution (强制执行), or is still some other  circumstance?

UPDATE #2 (April 2): Mr. Lan Rongjie, a Chinese lawyer currently an SJD candidate at Temple Law School and a PhD from Sichuan University Law Faculty, offers the following helpful clarification:

Initiation of execution depends on two conditions: 1) the defendant fails to perform the judgment within a specific period of time set by the court, and 2) the plaintiff files an application for forcible execution (强制执行). Please note when Chinese courts refer to execution of a court judgment, it means (forcible) enforcement. Therefore, even though all records show that all judgments against a specific person have been executed, it still indicates that this person does not have a good reputation in complying with court orders.