Thursday, June 30, 2005
David Kelly of the East Asian Institute of the National University of Singapore has kindly given his permission to republish his summary/translation of the following interesting news item:
Survey of Costs of Rights Protection for Rural Migrant Workers: Getting 100 Billion Back Will Cost 300 Billion
(Cui Li, China Youth Daily, 2005-6-22)
A Survey Report on Costs of Rights Protection for Chinese Rural Migrant Workers of nearly 30,000 characters was recently produced by the Beijing Youth Center for Legal Aid and Research. The Report consists of four parts: economic cost, time cost, government cost and legal aid cost of protecting mingong [rural migrant worker] rights.
Taking demands for wages as an example, the author, Xiao Weidong says, "In order to press for less than RMB 1,000 in wages, completing all procedures, mingong rights protection means paying at least RMB 920 for various expenditures; at least 11 to 21 days must be spent, equivalent to RMB 550 to 1,050 in work lost. The cost to the country in wages and so on paid to government service personnel, judges and clerks is at least RMB 1,950 to 3,750. The overall is cost between RMB 3,420 and 5,720."
"While not every case needs to go through the complete procedure, this is just a conservative estimate which excludes the costs of city lodgings, meals, transport expenses etc., when mingong have to go many times to and from their hometown to the place of work. But based on 17 cases we investigated, in each case the overall cost went beyond RMB 10,000 ." Xiao Weidong indicated that, according to incomplete statistics of the All-China Federation of Trade Unions, to mid-November, 2004, some RMB 100 billion in back wages was owed to the nation's mingong. To get this paid back, society as a whole would have pay 300 billion costs.
Xiao Weidong says they plan to deliver the Survey Report to the National People's Congress, the Minister of Labour and Social Security, and legal institutions of the State Council, in the hope it will prompt people to think about the rights protection system for mingong.
Wednesday, June 29, 2005
The U.S. China Law Society is offering fellowships in support of research in the Chinese legal system. The full blurb is below:
The U.S. China Law Society is pleased to announce the launch of the Research Fellowship Program on Democratization, Constitutionalism and the Rule of Law in China. This year's program focuses on finding constructive measures to improve the People's Congress System and to build constitutionalism and the rule of law in China. The program plans to fund two fellows for the 2005-06 year. Each research fellow selected would be required to produce a research paper on an important aspect of the reform of the People's Congress System, democratization, development and reform of the constitutional review system, judicial reform and other rule of law issues. We aim to publish the papers in both the U.S. and China.
Please visit our website at www.uschinalawsociety.org to download Application.
The application deadline for the selection of the first fellow is July 30, 2005.
Two additional notes:
(1) As I read the application form, a total of $8,000 is available for both fellowships. No citizenship criterion is stated, but applicants must have an advanced degree (Ph.D., S.J.D., or J.D.) from, or be at the dissertation stage of a doctoral degree at, a U.S. university. Please read the application form to confirm these details.
(2) The application form may be directly downloaded here.
Tuesday, June 28, 2005
The China Digital Times reports that over 2300 journalists from various Chinese publications and websites have signed an open letter to the Guangdong Higher Level People's Court to protest the detention of Southern Metropolis News employees Yu Huafeng and Li Minying, who are serving prison terms for alleged corruption.
The letter states in part: "We are journalists from Southern Metropolis News, Beijing News, First Financial Daily, Evening News, Shanghai Youth Daily, Sina.com and Sohu.com. We are former colleagues of Yu Huafeng and Li Minying, two of the principal defendants in the 'Southern Metropolis News case.' We send this letter based on the following facts and beliefs: We believe it is an unjust case and Yu Huafeng and Li Minying are innocent. A few among us will speak on behalf of the whole group to continue to advocate until we see justice served in this case. We firmly believe it is just a matter of time until justice will prevail. And we believe that sooner is better than later. "
China Digital Times report (including Chinese text of the letter and links to related stories)
Monday, June 27, 2005
Noted legal scholar and Beijing University Faculty of Law professor He Weifang has announced in an open letter that he will no longer take graduate students in legal history. In his letter, Prof. He states that the current testing system is too oriented toward students who do well in tests and insufficiently oriented toward selecting those who will be good researchers. The letter states that at a recent meeting of graduate school officials with law school faculty, the vast majority of the latter expressed strong dissatisfaction with the current system, but were told that this was how the Ministry of Education wanted things. Prof. He concludes the letter by stating that this shows that universities do not have the necessary independence, and that the only choice for the weak (such as university faculty) in such situations is to withdraw.
Here are some useful web references (all in Chinese):
Sunday, June 26, 2005
As part of what might be called the continued rationalization or modernization of government administration, law firms in Beijing will, as of July 1st, be administered strictly according to their geographical location, as opposed to the current system in which some are administered by district governments and others are administered by the municipal government. In the new system, the district governments will handle the issuing of lawyer licenses and permits for law firm operations, while the municipal government will handle general rule-making and appeals from the decisions of district governments.
This change marks a general trend away from a system of administration in which the key question is one of bureaucratic rank to one in which the key question is one of geography.
The full story is reported in the June 14th issue of the Beijing News (新京报).
Saturday, June 25, 2005
Friday, June 24, 2005
I am sorry to report that less than a month after its launch, the Chinese Law Prof Blog has apparently been deemed a threat to Chinese national security and has been blocked by the Chinese government. It cannot be accessed from within China.
You have to wonder what kind of government could possibly feel threatened by something as harmless as this blog.
Thursday, June 23, 2005
The List of Issues to be taken up in connection with the consideration of the second periodic report of the PRC to the Committee on the Rights of the Child at its upcoming September session (September 12-30) is now accessible (currently in English only) at both of the following sites:
China's two periodic reports to the CRC are also accessible (in English, Chinese, French and Spanish) at:
The Deutsche Gesellschaft für Technische Zusammenarbeit GmbH (GTZ), a non-profit corporation wholly owned by the German government and established for the purpose of implementing development policy through technical cooperation, has quite a number of interesting legal advisory projects going in China (for more information, see the web site of the GTZ Advisory Service to Legal Reform in China). They are looking for qualified interns; German language is not required. Here's the text of the announcement:
Legal interns (Rechtsreferendare) are invited to apply for practical work in one of the four GTZ legal projects. A deep knowledge of and interest in private economic and/or administrative law, as well as fluency in English, especially in legal terminology, are required. Knowledge of Chinese language and/or Chinese law is an asset but not necessarily required. A small financial contribution will be granted during the internship. If you are interested herein, please send your CV by email (firstname.lastname@example.org attn. Dr. Alexander von Reden). Internship vacancies are especially available from October 2005.
There is a bit more information available by clicking on "Internships" on the Chinese web site.
Tuesday, June 21, 2005
A friend recently pointed me to a very long and involved joke about police corruption that can be found, in various versions, on Chinese websites. In one version the nationality of the policeman was changed to "African" (country unspecified), possibly to avoid political problems for the cautious poster, but the details seem pretty Chinese to me.
Unfortunately the joke is only in Chinese. It would translate well, however -- it doesn't rely on puns -- so if anyone wants to give it a try, I may post the result.
Monday, June 20, 2005
It occurred to me that since I occasionally post Chinese text here, readers might appreciate a guide to displaying and editing Chinese text in English Windows systems. Most readers who read Chinese will already know how to do this, but there are a few advanced wrinkles that may have escaped their attention, particularly when working with something other than Internet Explorer.
I looked at a number of web sites and found one that is fairly comprehensive: http://lingua.mtsu.edu/chinese-computing/faq/pc.html
For those who don't want to read all that, mostly it's a question of going to the View (or equivalent) menu on your browser, selecting Encoding (or equivalent), and then selecting Chinese Simplified (GB), since that is usually the font I'll be using. Another option to try is Chinese Traditional (Big5).
Friday, June 17, 2005
The following fellowship is not specifically in support of research in Chinese law, but that would certainly be included within the ambit scope of contemporary China studies. Here's the announcement:
UNIVERSITY OF CAMBRIDGE
MELLON FOUNDATION POST-DOCTORAL FELLOWSHIP IN CONTEMPORARY CHINESE STUDIES IN THE FACULTY OF ORIENTAL STUDIES
Applications are invited for a Mellon Foundation two-year post-doctoral
fellowship in contemporary Chinese Studies in the Faculty of Oriental
Studies, starting on 1 October 2005.
The salary will be £24,820 per annum.
The postholder will be expected to carry out research in any social
science discipline related to the study of contemporary China and to
teach for up to 7 hours per week on the undergraduate and Masters
courses in Chinese Studies.
Candidates should have a promising research record and be able to
teach disciplinary courses in English as well as using Chinese primary
source materials at both undergraduate and postgraduate level.
Applications, including an application form, a curriculum vitae and the
names and addresses of two referees, should be sent to Mrs Jane
Fisher-Hunt, Secretary to the Selection Committee, Faculty of Oriental
Studies, Sidgwick Avenue, Cambridge, CB3 9DA (telephone 01223 335107,
fac 01223 335110, email email@example.com), so as to reach her by noon
on Friday July 8th. Two references are required for each application
and the applicant should ask the referees to make sure that the
reference reaches the Secretary by the same deadline.
It is hoped that interviews will take place during the week commencing
Application forms (PD18) are found at
http://www.admin.cam.ac.uk/offices/personnel/forms/pd18/ and are also
available from the Secretary.
Further details are available from the Secretary, and are also found
on the Faculty's website, www.oriental.cam.ac.uk.
The University of Cambridge is committed to equality of opportunity.
Thursday, June 16, 2005
For all those who thought Americans were too litigious, here's a story from China about an attorney suing the Hubei Expressway Company because a traffic jam led to the speed provided not being "express". He is arguing that the lower-quality product (a slower road) should mean lower fees. Needless to say, lower fees would result in more cars on the road, leading to even slower speeds, but then, he's a lawyer and not an economist.
Wednesday, June 15, 2005
The indefatigable Wei Luo of the Washington University School of Law Library has just published a new book, Chinese Law and Legal Research. Wei writes:
Although Chinese law as a general topic has been explored quite extensively, I have to devote 1/3 of my book to discuss Chinese government structure, legal system, and sources of law to help would-be researchers get oriented in how to approach Chinese legal research and what information to be expected. Several flow charts were created to illustrate Chinese legal system. I also discuss Chinese legal publishing industries and how the Chinese government information is disseminated.
Here's the bibliographical information on the book:
New York: W. S. Hein, 2005, 380 pages, bibliographies, index, and illustrations, $85. Ordering information can be found at http://www.wshein.com/; orders can be e-mailed to firstname.lastname@example.org, or call 800-828-7571.
Tuesday, June 14, 2005
The Trade Development Alliance of Greater Seattle and the Washington State China Relations Council are putting on a presentation on arbitration in China on June 23rd in Seattle. Further details are available here. The blurb is as follows:
China has been wildly successful at attracting foreign capital investment and related trade deals. However, the perception among many foreign investors is that China's legal reforms and institutions are not impartial in contractual disputes with Chinese parties or as sophisticated as foreign laws and courts when addressing complex legal disputes. As a result, foreign investors are requiring that contractual disputes with their Chinese counterparts be resolved by means of mediation and, if that fails, international arbitration outside of China using an agreed upon set of rules and procedures. Please join us for a discussion on recent Chinese legal reforms, the New York Convention and the most common forms and forums for international arbitration utilized by foreign investors in China, as well as several model dispute resolution provisions taken from agreements involving investment in and trade with China.
Monday, June 13, 2005
An article in the June 10th Financial Times ("Microsoft bans 'democracy' for China web users") reports in part as follows:
Microsoft's new Chinese internet portal has banned the words "democracy" and "freedom" from parts of its website in an apparent effort to avoid offending Beijing's political censors.
Users of the joint-venture portal, formally launched last month, have been blocked from using a range of potentially sensitive words to label personal websites they create using its free online blog service, MSN Spaces.
Attempts to input words in Chinese such as "democracy" prompted an error message from the site: "This item contains forbidden speech. Please delete the forbidden speech from this item." Other phrases banned included the Chinese for "demonstration", "democratic movement" and "Taiwan independence".
The joint venture operating the portal, Shanghai MSN Network Communications Technology (in which Microsoft holds a 50% stake), stated that "MSN abides by the laws and regulations of each country in which it operates", and that users of MSN Spaces were required to accept the service's code of conduct, which forbids the posting of content that "violates any local and national laws". The FT article then noted that "there is no Chinese law that bars the mere use of words such as democracy".
It's true that there is no such statute or, to my knowledge, any other kind of regulation passed by an official government body. But is that the end of the story? In The Path of the Law, Holmes viewed law as "the prediction of the incidence of the public force through the instrumentality of the courts". And in The Bramble Bush, Karl Llewellyn said that "what officials do about disputes is . . . the law itself". There is a vast area of rules, customs, and practices in China that, constitutionally speaking, don't amount to law, but that are administered by state and quasi-state (i.e., Party) officials in a semi-regular way and are unquestionably backed ultimately by the coercive power of the state. Control over information is a key part of this area. Maybe we should just consign this whole territory to the field of non-law, but it seems more realistic to me simply not to confine ourselves to the constitutional definition.
The question has practical consequences. In Delaware, where most big U.S. multinationals are incorporated, it is a breach of a director's fiduciary duty to permit a company to engage in illegal activities and thereby expose it to liability. If Microsoft rejects the Holmesian view of law and allows its Chinese portal to do anything not forbidden by formal government regulation in China, and as a result is shut out of China and suffers losses, will Microsoft shareholders be comforted to hear the explanation that it was all technically legal?
There is another side to this coin as well. The Chinese-Chinese-Foreign structure for telecommunications projects, while perhaps technically in violation of various rules, was (I would argue) quite lawful under a legal realist view of Chinese law: the central government at the highest levels knew exactly what was going on and permitted it to continue. Later the government changed its mind and shut down the CCF projects. If a company lost money as a result, should the directors be liable on a theory of condoning unlawful activity?
I don't think so, but frankly I'd rather be the plaintiff's lawyer in a U.S. court -- while the defendants have to philosophize about legal realism without seeming like sophists, all the plaintiffs have to do is to say, "What part of 'illegal' don't you understand?" The result is that considerations of U.S. litigation may drive U.S. companies to observe rules in the Chinese legal system that, from a legal realist perspective, aren't really legal rules, and that nobody -- not even the Chinese government -- wants or expects them to observe.
Sunday, June 12, 2005
The Carnegie Endowment recently held a seminar in Washington, DC on "Enhancing the Political Role of Lawyers" in China, with the featured speaker being Mr. Gong Xiaobing, the Director-General of the Department of Judicial Assistance and Foreign Affairs of the Ministry of Justice of China. The full text of his remarks in both English and Chinese, as well as the comments of Dr. Veron Hung of the Carnegie Endowment, can be found here.
Mr. Gong's remarks make interesting reading, because they show the extent to which many reform-minded Chinese look to American practice -- or at least what they view as American practice -- as a model of what lawyers should be doing both professionally and as citizens.
It's also interesting to think about some of the things Mr. Gong identifies as the principal problems of the Chinese legal profession. For example, he is concerned that many law firms are small. But is this really a problem for China, and if so, why?
He also views as problematic the fact that "the degree of education and overall quality of lawyers are often higher than those of judicial administration officials who are in charge of managing lawyers". But is it self-evident that the best and the brightest should be in government, with private practice (and the social and political role he favors for practitioners) reserved for the also-rans?
Saturday, June 11, 2005
A very handy list of Chinese court websites and other court-related on-line resources can be found at the China Court Network's website here. It includes links to an English-language court website and the websites of several provincial, intermediate-level, and basic-level courts.
Friday, June 10, 2005
The China Court Network (中国法院网) reported on June 1st that a foreign-related case had for the first time been accepted for hearing by a Basic-Level People's Court in Yiwu City, Zhejiang Province. [Story] While the many "firsts" claimed in press reports are not always accurate, certainly this is unusual. In 2001, the Supreme People's Court issued rules generally giving Intermediate-Level People's Court original jurisdiction over such cases; the news report here says that the Supreme People's Court and the Zhejiang Higher-Level People's Court, in view of the Yiwu court's "actual circumstances", gave it authority as of June 1st to hear civil and commercial cases involving foreign (including Hong Kong, Macao, and Taiwan) interests where the amount in controversy was under 1 million yuan. Apparently it is the only court currently so authorized. Jurisdiction had previously been limited to intermediate courts and above because of their presumed greater sophistication. It is a little hard to see why a court in Yiwu has been considered the first basic-level court sophisticated enough to hear foreign-related cases, while courts in cities such as Shanghai and Beijing are apparently not yet up to standard. It seems to be in the nature of a local experiment that will then be propagated nationwide if successful. Certainly with the inevitable rise in the amount of foreign-related litigation, the intermediate courts will soon find themselves overworked.
Thursday, June 9, 2005
I recently received the following letter from Jean Hung of the Universities Service Centre at Chinese University of Hong Kong regarding the availability of grants to fund visits to the Centre to conduct research. I am posting it here (with some irrelevant material deleted) because the Centre has an excellent collection of periodicals and newspapers (in particular, local fazhibao (法制报)) relevant to research in Chinese law. I had a very productive stay there many years ago and recommend it highly.
It is my pleasure to report to you that we have received a generous donation from the Lee Hysan (Hong Kong) Foundation to support our Visiting Scholar Scheme at USC. The Lee Hysan Visiting Scholar Scheme provides grants to mainland and overseas scholars to visit the Centre for the purpose of conducting research. The grants subsidizes the rental for on-campus accommodation and provides per diem during the period of stay. The period of visit can be between 1 - 3 months.
Apart from giving at least one luncheon seminar during their stay, a Lee Hysan Visiting Scholar is required to support activities organized by the Centre, such as public lectures or other academic events to promote a better understanding of China among students or the general public in Hong Kong.
Candidates for the Scheme are expected to be either established experts or promising young scholars in the field, who have demonstrated experiences in empirical studies. Interested applicants are advised to return to us the application form duly filled, together with a CV and a research proposal of two pages. Graduate student applicants need to submit an additional recommendation letter of their supervisor. Research topics must have either a Mainland or Hong Kong focus. Please refer to our USC website for the application procedure.
Universities Service Centre for China Studies
8/F Tin Ka Ping Building
The Chinese University of Hong Kong
Shatin, N.T., HONG KONG