Chinese Law Prof Blog

The Chen Guangheng/NYU affair

The circumstances of Chen Guangcheng's leaving New York University have been in the news lately and the subject of dispute. Essentially, Chen says he is being pushed out due to pressure on NYU from the Chinese government. (Here's his statement (web version here).) NYU says that the original arrangement was that he would come and be supported for a year, and the year is up. (Here's an interview with Jerome Cohen, and here's a good post from China Digital Times that puts the whole story together with links to all these souces.)

My impression is that NYU is more sinned against than sinning here; the one-year deal squares with my recollection, and I think it's beyond question that NYU has been quite generous to Chen during the time he's been there. If you believe that NYU has an obligation to look after Chen indefinitely, then of course you'll see him as being booted out, but I note that neither Chen nor anyone else has offered actual evidence, or even specific (as opposed to general) allegations, of Chinese pressure on NYU to get rid of him. Activist Bob Fu, for example, declines to identify any direct pressure from China, but still manages to imply that NYU did something discreditable: "There is also self-censorship, particularly if a college president believes their China campus or the future enrollment of Chinese students will be sabotaged." In other words, there are absolutely no facts that could prove Fu wrong. He just knows.

Prof. James Feinerman of Georgetown Law School has kindly permitted me to quote his post to the Chinalaw list on this subject:

I'm taking this in from London, where there's little to no interest in this development. However, I have several reactions to the news and to how it's become public. First of all, a little history - Months ago my colleagues and I at Georgetown were approached by Chen's "people" (yes, he has them), sounding us out about a move to Georgetown (and presumably, more importantly, DC). This set off certain "alarm bells" - why was he leaving or interested in leaving NYU? The pretext for his departure to the US less than a year earlier was the fellowship he received to study at NYU; would moving elsewhere upset that? We were assured that, No, he was just "reviewing his options," probably because the term of his stay was coming to an end after one year. Obviously, he's been checking elsewhere, if rumors of his departure for Fordham are true. That's just one reason not to buy his story that PRC interference has caused his "ouster" from NYU. Secondly, he's waited until the very end of his stay at NYU - the term of which was well known all along - to voice his first complaints about the mistreatment he's suffered. If this were an ongoing problem, why not previously? Third, along with others (such as both Don Clarke and I), Jerry Cohen and a host of China scholars in the US regularly write, speak and even testify before committees of the US Congress and other governmental bodies about China's human rights abuses, flawed rule of law and other shortcomings - rarely pulling our punches - and have faced no retaliation for doing so. We still get visas to visit the PRC, have regular interchange with Chinese colleagues and (to my knowledge, at least) have caused no undue problems for our home institutions with our activities. Notwithstanding this, I take [another contributor]'s point that a few Western academics have been targetted - Perry Link and Andy Nathan come immediately to mind. Old habits die hard among the Communist diehards.

We may have to remember back to the era of the Tiananmen dissidents - Wu'er Kaixi, Chai Ling and others - to find a good analog for Chen. They came to the US after the massacre, were lionized for a while as the heroes of the "Democracy Movement," and then faded from public attention in fairly short order. As that happened, they became vocal and bitter, complaining just like Chen, that they were betrayed, that the cushy welcome they received was evaporating as memories faded. In short, they learned (as Jerry Cohen liked to quip at East Asian Legal Studies lunches to the invited speakers) that "there is no free lunch." After a reasonable transition, they were supposed to find something to do, on their own. In Chen's case, he's had a pretty sweet deal - a year of housing in Washington Square, financial support, translators, educational opportunities if he chose. Understandably, he's unhappy. But biting the hand that fed you - well, for a year - makes Chen seem like an ingrate.

Finally, Chen mistakes what he knows (and what he knows works) in China for the way things work in the US. He assumes that the PRC government - or government in general - can make academics fall in line. How little he knows us. Nothing rankles the academy more than a heavy governmental hand - especially that of one viewed by most as a vile totalitarian autocracy - trying to wield influence. It's more likely to cause academics - even academic administrators - to react in opposition. We prize our freedom more than that. It's a shame he's failed to learn at least that much about the institution that has sheltered him and his family for the past 16 months or the country of his exile. This latest screed, however, is likely to backfire. Remember Solzhenitsyn? Despite his heroism, his Nobel prize, and his writerly brilliance, he was remembered more as a reactionary scold, ranting about the West while enjoying its perks. From various accounts, Chen also risks becoming a captive and a mouthpiece for the religious right, anti-abortion, and China-threat factions here in the US. His current story will resonate with them, but in the longer run it promises he will receive even less attention from influential mainstream opinion makers in this country.

 

Funding available for China-EU research projects

I have received the following announcement:

New Research Applications Due Before July 1st, 2013

The China EU School of Law (CESL) is happy to announce that a new round of research applications has been opened. Scholars, researchers and professionals can apply for funding to conduct scholarly research in the domain of China –EU law and legal developments. Funding is available for conferences in China and/or within the EU, for which travel costs and per diems can be reimbursed; also projects can be funded in which Chinese and EU research and researchers is brought together. Finally CESL does facilitate the publication of scholarly output in articles through the China EU Law Journal and of books in the newly established China EU Law Series, both published by Springer. Research is expected to be in the domain of the China EU School of Law; we do expect all projects to be undertaken by a team of Chinese and EU scholars /researchers / professionals. Furthermore, we may only fund costs related to travel and per diems. And furthermore staff costs related to the coordination and execution of the research project. We do expect each project to account for its activities with a report after finalization, and to culminate in articles for the China EU Law Journal or in a book published in the China EU Law Series, both edited under the auspices of CESL. For an indication: we foresee to have available for each project a maximum of 20.000 EURO. Click for the Research Guide and Application Form.

 

Judge Dee: coming to a PC near you

Most people who study Chinese law learn early on about Judge Dee, "a semi-fictional character based on the historical figure Di Renjie, magistrate and statesman of the Tang court. The character first appeared in the 18th century Chinese detective novel Di Gong An. After Robert van Gulik came across it in a second-hand book store in Tokyo, he translated the novel into English and then used the style and characters to write his original Judge Dee stories." (The quoted text is from the Wikipedia entry.)

Now in addition to van Gulik's great stories, we have the Judge Dee computer game. I have no idea if it's any good, and they've written the wrong character for Dee on the main page (蒂 instead of 狄), but hey, anything as amazing as a computer game about Chinese legal history is worth a mention. If anyone tries it out, please let me know what you think in the comments.

Compulsory "legal education" as a substitute for Re-education Through Labor?

The Dui Hua Foundation has an interesting article on its web site about local authorities' newfound enthusiasm for legal education - this time, of the compulsory kind, where petitioners are forced against their will to stay for days or even months at a facility where they are ostensibly to be educated to understand and obey the law. This is apparently being done in response to the declining utility of re-education through labor (RETL) as a measure against petitioners - petitioning per se may soon no longer be subject to RETL, and RETL itself may be on the way out.

I just want to add a couple of comments. First, it bears repeating that petitioning of the kind that typically gets petitioners locked up does not in fact violate any law. It's the local authorities that need the education in that respect.

Second, and more importantly, the Dui Hua Foundation article says only that this kind of compulsory "legal education" violates the Chinese constitution and international human rights norms. This is an unnecessarily weak argument; neither of those two norms are robust sources of law in the Chinese legal system. We can actually say something much stronger. Since compulsory legal education does not have any foundation in statutory law - that is, legislation passed by the National People's Congress or its Standing Committee - then it cannot serve as a basis for the deprivation of personal liberty. This is spelled out clearly in Article 8 of the Law on Legislation, and it's the same argument that has been made against RETL. If a deprivation of personal liberty has no legal basis, then it's either kidnapping or unlawful detention, both of which violate the Criminal Law, which is a robust source of law in the Chinese legal system. So let's call this what it is.

New blog about the Supreme People's Court

Check it out here. It's written by Susan Finder, who has had a long career in Chinese law teaching and practice.

Yu Hua: "In China, Power Is Arrogant"

Here's a nice op-ed by the writer Yu Hua about how the arrogance and unaccountability of power leads to ridiculous regulations in China. Exhibit A in this type of article is usually the Hunan regulation calling for female civil servants to have symmetrical breasts. Since the reaction I usually get when talking about this regulation is one of amused skepticism - people are willing to believe crazy things happen, but not this crazy - I thought it would be useful to emphasize that this regulation really did exist. Here's the news report about it, with specific details (in Chinese).

Kong Qingdong ordered to apologize and pay damages for insulting (anonymous!) commentator online

Here's a story that goes straight to the ridiculous without passing the sublime. Self-styled direct descendant of Confucius, Peking University professor (shame on you, PKU!), and all-around blowhard Kong Qingdong (孔庆东) was ordered on Wednesday by the Haidian Basic-Level People's Court to apologize and pay 200 yuan to Guan Kaiyuan, a 22-year-old law student at the China Institute of Industrial Relations. After Guan had criticized a poem by Kong as not following proper composition rules, Kong responded on Sina Weibo (Chinese Twitter), "You haven't even read the poem, you dog and traitor," and added some salty references to Guan's mother.

Guan, who is obviously one of those Chinese people we keep hearing about from the government whose delicate feelings are easily hurt, sued. It's not clear from news reports what the exact claim was - presumably defamation. Anyway, Guan still isn't satisfied - he wants Kong to be required to apologize on his Weibo account, not just in some national newspaper.

While one hates to be in the position of defending someone like Kong, this is ridiculous. Guan posted his critique, and received the insult, under a pseudonym. In other words, even if we decided that ordinary insults like "dog" and "traitor" should be actionable as defamation - something that would already severely crimp ordinary speech - in this case nobody knew the insult was directed against Guan until he outed himself. Do the courts really want to overload themselves with cases from every anonymous troll who managed to provoke a rude response?

Some relevant references:

• South China Morning Post report
• Shanghaiist report
• Beijing News report (in Chinese)
• Language Log post showing that everyone in China and probably many outside are descended from Confucius, too

Supreme People's Court directive to lower courts on cases involving internet censorship

Here's a great translation and commentary from the Siweiluozi blog regarding a 2009 Supreme People's Court directive to lower courts on "internet management" (i.e., censorship). In a typical case, a user posts something on the internet, perhaps on a blog or weibo account. The authorities, finding it distasteful, instruct the host to delete it. The host duly deletes it. The user then sues the host for violating the terms of the service contract. Because the censorship instructions to the host have a flimsy legal status - they are probably an oral order from a Party, not state, body delivered over the phone - mounting a defense is difficult and embarrassing.

To the rescue rides the SPC, which instructs courts simply not to accept this kind of case. That way, the flimsy legality of the censorship regime is not exposed.

As Siweiluozi points out, this merely highlights the nature of the courts as administrative and not really judicial bodies. They have precisely as much independence as the Party-state allows them for the sake of convenience, but when a political decision is made to use (or avoid the use of) the law in a certain way, they must fall into line. This instruction from the SPC requires courts to act contrary to statutory law, which already sets forth conditions under which courts should and should not accept lawsuits for hearing. None of the considerations in the SPC's directive can be found in the statute. Indeed, the SPC acknowledges the flimsy legal status of its own directive, by making it secret and prohibiting public comment.

US Department of Justice seeks Resident Legal Advisor for China

Here’s the announcement (with links), from the China IPR blog: http://chinaipr.com/2013/04/28/resident-legal-advisor-for-china-us-doj/

Senior China-related position at USTR

I hear that the China Affairs Office of the United States Trade Representative in Washington, DC is now hiring since one of the key people is leaving. They are looking for someone who can lead trade negotiations and who is relatively senior.

Here’s the announcement: https://www.usajobs.gov/GetJob/ViewDetails/341555900?share=email

CECC seeks professional staff member for commercial rule of law

Here's the announcement, posted on the China IPR blog.

Fulbright awards related to law and China

I've received the following announcement:

The 2014-2015 Fulbright U.S. Scholar Program core competition is now open.

The Fulbright Scholar Program offers teaching, research or combination teaching/research awards in over 125 countries for the 2014-2015 academic year. Opportunities are available for college and university faculty and administrators as well as for professionals, artists, journalists, scientists, lawyers, independent scholars and many others.

This year, there are over 60 awards available in the field of law.  Moreover, All Discipline awards offered in all regions of the world welcome teaching and/or research proposals in any area of study, including interdisciplinary projects.  Practicing lawyers and law school faculty are encourage to visit the 2014-15 Catalog of Awards for more information about these opportunities.  Among them are Distinguished Chair awards in Italy and Sweden; a chance to explore China or Nepal;  a Rule of Law, Civil Society Development and Judicial reform award in Macedonia; and an International Human Rights Law award in the West Bank. 

In order to meet the changing needs of academia and develop new options to better accommodate the interests and commitments of today’s scholars, the program has introduced several innovations to the 2014-2015 program, including: Fulbright Flex Awards, Fulbright Postdoctoral/Early Career Awards, Salary Stipend Supplements, and Teaching English as a Foreign Language Awards.

The application deadline for most awards is August 1, 2013.  U.S. citizenship is required.  For other eligibility requirements and detailed award descriptions visit our website at http://www.cies.org/us_scholars/us_awards/  or contact us at scholars@iie.org.

 

Eurasia Group seeks China analyst (Washington or New York)

Here's the announcement. Excerpt: "Eurasia Group is seeking an experienced and motivated China analyst. The ideal candidate must have a strong understanding of elite politics, governance, and political decision-making in China. In this role, you will assess leadership dynamics and policymaking, and forecast the resulting political risks."

This is only indirectly related to Chinese law, but in this job climate, I'm going to go a bit further afield in posting relevant help-wanteds on the assumption that readers are also looking at a wider range of possibilities.

Hotel Loses Case in Breaching Contract for “Stability Maintenance”

Here's a fascinating case that makes for an interesting data point in what we think we know about the Chinese legal system. An anti-discrimination NGO reserved rooms at a hotel in Suzhou for a conference. The police got wind of it and instructed the hotel to cancel the reservations in the name of stability maintenance. The hotel, needless to say, did as it was told. Yawn. Dog bites man.

Now it gets interesting. The NGO sued the hotel for damages in a Suzhou. What would we expect? That no court would accept the suit, and that if it did, the plaintiffs certainly would not win. But what happened is that the court not only accepted the suit, but found for the plaintiffs. It rejected the hotel's argument that the police order to close was a kind of force majeure and that the state had expropriated the rooms ("政府临时征用客房开会"). But apparently the government did not in fact take the rooms in question for some other purpose, and the court rejected the force majeure argument, stating that it wasn't one of the events of force majeure spelled out in the contract.

Astonishingly, the vice-chief of the local police station, Mr. Pan, appeared in court and testified that they had indeed orally ordered the hotel not to allow the meeting to go forward:

　　  （潘）：2012年4月29日左右，我们派出所接到上级相关部门的口头通知，五一期间维稳工作需要，对辖区内酒店宾馆要求不允许接待从事会议的集会活动……为此，我们口头要求莫泰公司停止接待活动。这一次主要目的是不允许大型的会议举行。

        Pan: Around April 29, 2012, our station received an oral notice from the relevant superior departments saying that during the period of May 1st, because of the needs of stability maintenance work, hotels within our jurisdiction were requested not to permit the hosting of meetings. . . . Because of this, we orally requested the Motai Company [i.e., the hotel] to discontinue their hosting activities. The main objective at that time was not to permit large-scale meetings to go ahead.

　　（法院）问：关于公安的此次举措有无书面的材料？ 

        Court: Are there any written materials pertaining to this measure by the police?

　　（潘）答：没有的，都是自上到下口头传达的。当时的平江公安分局治安大队和我们所的民警一起到被告莫泰酒店向他们的店长封晓军做工作的。

        Pan: No. Everything was orally transmitted from above to below. At the time, officers from the Security Brigade of the Pingjiang Public Security Branch Bureau went with policemen from our station to the defendant Motai Hotel and worked on the hotel manager Feng Xiaojun. [I have translated "做工作" as "worked on"; the basic idea of the term is to try to persuade someone, but one can imagine it was done in a pretty coercive atmosphere.]

It's hard not to have some sympathy for the hotel here. It's unrealistic to suppose that they could just have blown the police off; I would have thought there was indeed a good case to be made for force majeure. What message is the court sending to hotels in cases like this? That they should not listen to police instructions? It seems extraordinary that a court, especially on in the same city as the police in question, should have come up with a judgment like this. Does this mean that courts are not as subservient to local powerholders as we thought? Or is there some fascinating behind-the-scenes story that explains this apparent anomaly? My inclination is to suspect the latter, but if enough data points like this accumulate then the former will start looking more plausible.

It's the old question of whether you make the observations fit the theory ("My theory tells me that this stuff doesn't happen, so there must be something fishy about the observation") or the theory fit the observations ("Time to reassess what we think we know about Chinese courts"). Although many people think the first method is obviously wrong - of COURSE we should adjust our theory to fit the facts, right? - in practice we constantly, and often correctly, question the validity of our observations precisely because they seem so out of whack with a theory in which we have confidence. Remember the Italian scientists who thought they might have found neutrinos that traveled faster than light? Even they doubted their own findings.

Here are two news reports:

• http://www.lvngo.com/ngo-31467-1.html
• http://china.caixin.com/2013-03-25/100506031.html

MOFCOM solicits comments on draft regulation on merger remedies

The headline says it all. Here's the link to the draft regulation. The deadline for comments is April 26, 2013. The ABA's International Law section and its Antitrust section are assembling a group to draft comments; the group's work needs to be done by April 12 in order to allow sufficient time for internal review. If interested in participating, contact Ms. Yee Wah Chin (ywchin at ywc-antitrust.com), the Deputy Policy Officer of the Section of International Law.

New developments in China-Philippines UNCLOS arbitration: tribunal appoints representative for China

In the latest development in the China-Philippines UNCLOS arbitration, the International Tribunal for the Law of the Sea has appointed a representative for China, since China failed to do so. 

I've previously blogged about this arbitration (in chronological order, here, here, and here). China has objected to the arbitration on the substantive grounds that the complaint lacks merit, and possibly on procedural grounds that the tribunal for various reasons doesn't have jurisdiction. What the Chinese government doesn't seem to understand (perhaps willfully) is that you don't get to be your own judge of these issues; whether the complaint has merit and whether the tribunal has jurisdiction are things the tribunal decides. To fight the claim in no way acknowledges its legitimacy. What it does acknowledge is the legitimacy of the UNCLOS dispute settlement system. That's presumably an important part of UNCLOS. Does China really want to promote the principle that the system applies only to states that consent to its jurisdiction after the dispute arises?

Job openings at the Congressional-Executive Commission on China

The CECC has openings for two professional staff members and a communications director. The deadline is April 8th. Here's the announcement:

Professional Staff Members (2)

The Congressional-Executive Commission on China is a bipartisan commission created by Congress in 2000 to monitor and report on human rights and rule of law developments in China. The Commission consists of Senators, Members of the House of Representatives, and senior officials from the Administration. The Commission holds hearings, issues an Annual Report, and maintains a database of political prisoners in China, among other activities. For more information on the Commission, see www.cecc.gov.

The Commission is seeking professional staff members to assist in monitoring and reporting on substantive issues pertaining to the freedom of religion and criminal justice portfolios. The professional staff member will assist in assessing China's compliance or noncompliance with international human rights standards and Chinese domestic law. Successful candidates should have substantive background and/or an interest in one or more of these issue areas. Successful candidates should also possess the necessary Chinese language, English writing, and communication skills to effectively research, analyze, and explain such developments to U.S. policymakers and the broader public.

Main duties:

• Monitoring and researching Chinese and English language sources (media, government, NGO) for developments relating to their issue area.
• Identifying and analyzing key developments and reporting their significance orally and in writing, including through drafting sections of the Commission's Annual Reports, short analysis pieces, public statements, and press releases.
• Researching political prisoner cases and creating and maintaining case records in the CECC Political Prisoner Database.
• Assisting in organizing CECC public hearings and roundtables.
• Staff member also may be asked to travel to U.S. cities, China, or other foreign locations on official business.

Qualifications:

• Candidates must be a U.S. citizen.
• Very strong demonstrated ability to speak, read, write, and perform research in Chinese (Mandarin) is required.
• The successful candidate will likely have worked or studied in mainland China, Taiwan, or Hong Kong.
• Candidates will preferably have a law degree or a Ph.D. or M.A. in political science, history, business, economics, or other social sciences. B.A. candidates with very strong credentials will also be considered.
• Strong oral and written communication skills, and the interpersonal skills and enthusiasm to work under tight deadlines and as part of a team.

Application Procedure:

• Please submit a brief cover letter, resume, short writing sample (5 pages or less), and the names and contact information for two references to Judy Wright, CECC Director of Administration, via e-mail at judy.wright@mail.house.gov or via FAX at 202-226-2915. PLEASE NO PHONE CALLS. The deadline for applications is Monday, April 8, 2013, by 11:59 PM, EDT. Applications received after this deadline will not be considered.
• The Congressional-Executive Commission on China is an equal opportunity employer.

---

Communications Director

The Congressional-Executive Commission on China is a bipartisan commission created by Congress in 2000 to monitor and report on human rights and rule of law developments in China. The Commission consists of Senators, Members of the House of Representatives, and senior officials from the Administration. The Commission holds hearings, issues an Annual Report, and maintains a database of political prisoners in China, among other activities. For more information on the Commission, see www.cecc.gov.

The Commission is seeking a communications director to be responsible for developing and implementing a communications and outreach strategy to increase the accessibility, visibility, and relevance of the Commission's work to key stakeholders, including Commissioners, Congress, the Executive Branch, media, non-governmental organizations, and the general public.

Main duties:

• Develop and implement a communications and outreach strategy for the Commission's key stakeholders, including Commissioners, Congress, the Executive Branch, media, non-governmental organizations, and the general public.
• Develop and implement a strategy for increasing accessibility to Commission work products, including newsletters, political prisoner records, special reports, and the Annual Report.
• Increase media coverage and raise awareness on the Hill and to the general public regarding the Commission's work.
• Maintain the Commission's new Web site and social media sites (Twitter, Facebook).
• Draft, edit, and distribute Commission statements, press releases, newsletters, new media content, and event announcements.
• Develop, plan, and provide logistical support for Commission events, including hearings, roundtables, and briefings.
• Monitor, track, and assess the effectiveness of the Commission's outreach efforts.

Qualifications:

• Candidates must be a U.S. citizen.
• Candidates will have a B.A. with relevant work experience.
• Some background in layout and design (including for Web sites and publications) is desirable.
• Ability to speak and read Chinese is preferable.
• Strong oral and written communication skills, and the interpersonal skills and enthusiasm to work under tight deadlines and as part of a team.

Application Procedure:

• Please submit a brief cover letter, resume, short writing sample (5 pages or less), and the names and contact information for two references to Judy Wright, CECC Director of Administration, via e-mail at judy.wright@mail.house.gov or via FAX at 202-226-2915. PLEASE NO PHONE CALLS. The deadline for applications is Monday, April 8, 2013, by 11:59 PM, EDT. Applications received after this deadline will not be considered.
• The Congressional-Executive Commission on China is an equal opportunity employer.

 

Supreme People's Court Work Report, 2013

Here's the text of Wang Shengjun's Supreme People's Court Work Report presented to the National People's Congress earlier this month.

Risk of Loss of Freedom for Serving as Legal Representative of a Company in China

That's the title of this very important blog post from the Chinese Lawyers in Shanghai blog. Yes, if your company owes money to suppliers or employees, you, the local expat manager and legal rep, may find yourself detained until the creditors are satisfied even though it's a corporate debt over which you may have no control. If you ever might be in this position, read this post.

USCC Hearing on Corporate Accountability, Access to Credit, and Access to Markets in China’s Financial System

The US-China Economic and Security Review Commission (USCC) is holding a hearing this Thursday in Washington, DC on the above subject. Among those testifying will be Prof. Paul Gillis, the author of the excellent China Accounting Blog. His testimony is a good summary and review of the current problems faced by the SEC and the PCAOB in their efforts to get information about audit procedures from Big Four-affiliated Chinese accounting firms. (I say "affiliated" because the Chinese firms are separately owned and I don't know what kind of contractual arrangements actually bind them to the foreign firms whose name they share.)

Because I have provided expert testimony on this issue, it's probably important to add that I don't necessarily agree with everything Prof. Gillis says in his testimony. In particular, I have expressed here my own views on the issues of how far China's laws on state secrets and archives actually constrain the auditing firms.