Tuesday, August 30, 2005
The 17th Session of the 10th National People's Congress Standing Committee met at the end of this month and passed several items of legislation on Aug. 28. I discussed one of them, the revised Law on the Protection of the Rights and Interests of Women, in a previous posting. Here are the other items:
- A Law on Notaries was passed. I confess I haven't taken the time to read this carefully. The Ministry of Justice issued an Implementing Suggestion the same day.
- A Security Administration Punishment Law (治安管理处罚法) (SAPL) was passed. This is essentially a revised version of the Security Administration Punishment Regulations (治安管理处罚条例) last revised in 1986. (An explanatory article can be found here.) Despite the new label ("law" instead of "regulations"), both were passed by the NPC Standing Committee, and thus the new document doesn't seem to have a higher legal status than the old one. Glancing quickly through the SAPL, I noticed a couple of interesting points:
- The maximum detention period remains at 15 days; the maximum fine is almost always 1000 yuan.
- Some provisions have been added to help the police keep track of who's where: Art. 56 makes it an offense for hotel operators to fail to report the presence of persons they know (明知) to be criminal suspects or wanted by the police.
- Prostitution seems to be going down the road to decriminalization. In the 1986 SAPR, it was "strictly forbidden" (严厉禁止) to engage in prostitution (on either side of the transaction), and the punishment was generally detention for up to fifteen days and/or a fine of up to 5000 yuan. The SAPR further authorized punishment through a sentence of re-education through labor (劳动教养), which can be up to three years plus an additional fourth under certain circumstances. The SAPL has backed off considerably from this. The language specifically forbidding prostitution and consorting with prostitutes is completely gone. Instead, there is just a bland statement of the offense and its punishment, which remains at up to 15 days and/or a fine of up to 5000 yuan (which of course is a lot less now than it was in 1986). The prospect of re-education through labor is gone. And a new provision states that where the circumstances are "minor" (a possibility not even contemplated in the 1986 SAPR), the punishment shall be detention for up to 5 days or a fine of up to 500 yuan.
- Several minor treaties and conventions were ratified, but not the one that everyone is waiting for: the International Convention on Civil and Political Rights.
Sunday, August 28, 2005
Prefatory note: Actually, the heading for this post is misleading -- the NPC Standing Committee has prohibited something described by the term 性骚扰, conventionally translated as "sexual harassment". Whether it has actually prohibited the acts that in English are called "sexual harassment" remains to be seen, because the Chinese term is not defined in the law.
The current session of the NPC Standing Committee today (August 28) passed a resolution amending several sections of the Law for the Protection of the Rights and Interests of Women (妇女权益保障法). The amendments, to be effective as of Dec. 1, 2005, include provisions against sexual harassment, but the concrete scope of the prohibition is not clear.
Art. 40 states: "Sexual harassment of women is prohibited. The injured woman has the right to complain to the work unit and the relevant department." (禁止对妇女实施性骚扰。受害妇女有权向单位和有关机关投诉.) Art. 58 states that where an incident of sexual harassment or domestic violence constitutes a violation of the Security Administration Punishment Regulations, the victim may request the police to impose punishment under those regulations (but surely this is already so), and may also bring a civil action in court for damages. Unfortunately, the amendments fail to define sexual harassment or the measure of damages.
Many of the amendments do not seem particularly earthshaking and are largely statements of principle with little or no concrete legal effect. Some examples:
- The equality of men and women is declared to be a basic state principle, while at the same time the law declares that the state shall protect the special rights and interests enjoyed by women under law (Art. 2). It is also forbidden in the same Article to discriminate against, mistreat, abandon, or harm women, but it is hard to see how, in the Chinese context, concrete rights might flow from this vague norm. (And whatever these terms mean, does the law condone doing them to men?)
- Art. 6 declares that people's governments at all levels must stress and strengthen the work of protecting women's rights and interests.
- Art. 10 states that women and women's organizations have the right to make suggestions to state organs at all levels regarding the protection of women's rights and interests. The right to make suggestions is something currently enjoyed by all citizens (although of course nobody has the right to see his or her suggestions adopted).
- Art. 11 states the people's congresses at all levels as well as villagers' and residents' committees should have an "appropriate" (适当) number of women, but appropriate is not defined.
- Art. 12 imposes the same obligation (if it can be called that) on state organs, social groups, enterprises, and institutions to have an "appropriate" number of women in leading positions. One wonders if this will apply to the Party itself.
Other provisions have more bite. For example, Art. 16 explicitly prohibits schools from rejecting students on the basis of sex or raising admission standards for women, except in the case of undefined "particular specialties" (特殊专业).
I don't have the time to go into all the amendments here, but there are many. I will post an English summary when one becomes available.
- Text of amending resolution (in Chinese)
- Law for the Protection of the Rights and Interests of Women, as amended (in Chinese)
- News report on sexual harassment amendment from People's Web (人民网) (in Chinese)
- News report on sexual harassment amendment from Xinhuanet (in English)
Saturday, August 27, 2005
The following press release is from the Office of the High Commissioner for Human Rights at the UN. Note that discussions regarding China's ratification of the International Covenant on Civil and Political Rights are on the agenda.
United Nations High Commissioner for Human Rights Louise Arbour will visit the People’s Republic of China from 29 August to 2 September 2005.
The visit, the first by Mrs. Arbour and the eighth by a High Commissioner, is expected to formalize the continuation of a programme of technical cooperation between China and the Office of the High Commissioner (OHCHR) started in 2000. Mrs. Arbour and Chinese authorities are scheduled to sign in Beijing an agreement focusing on facilitating the Government’s ratification of the International Covenant on Civil and Political Rights and on helping China implement recommendations from the United Nations Committee on Economic, Social and Cultural Rights.
During the visit, Mrs. Arbour will meet with the Ministers of Justice and Foreign Affairs, as well as with other senior Government officials. She will also hold talks with the President of the Supreme People’s Court and meet with Chinese non-governmental organizations, academics, representatives of United Nations agencies in China and members of the diplomatic community.
In Beijing the High Commissioner will also take part in a commemoration of the Fourth World Conference on Women held in Beijing 10 years ago. In that context she will attend a meeting with Chinese President Hu Jintao on Monday, 29 August. On 30 August Mrs. Arbour will open the thirteenth Annual Workshop on the Asia-Pacific Framework for Regional Cooperation in human rights.
OHCHR has been engaged in a dialogue with the Government of China since 1998, when both signed a “Memorandum of Intent”. A “Memorandum of Understanding” setting the cooperation programme in motion was concluded in September 2000 by the Government and then High Commissioner Mary Robinson.
Friday, August 26, 2005
Dean Hou Xinyi and Prof. Sun Hongyou of Nankai University Faculty of Law are currently visiting Oklahoma City University Law School with a view to establishing various exchanges and initiatives. For the full story, click here.
Nankai has been doing quite a lot of outreach since the establishment of the Faculty of Law in June 2004. On this trip, Hou and Sun will also visit the law schools at Tulsa, Mercer, and Stetson.
Thursday, August 25, 2005
Readers may be interested in the following job announcement:
The Asia Law Initiative of the American Bar Association (ABA-Asia) is a public service project that provides technical assistance in support of legal reforms and the rule of law in Asia. ABA-Asia seeks candidates to fill a Project Manager position based in ABA-Asia's Washington, D.C. office. The Project Manager develops, obtains outside funding for, and implements projects and activities in various Asian countries, including China. Some travel to the region is required. Qualified candidates will possess the following: (1) a Juris Doctor Degree; (2) at least five years of practical legal experience, including a minimum of one year working on donor-funded international legal reform programs; (3) excellent writing and editing skills; (4) proficiency in the Chinese language; and (5) knowledge of Asian (particularly, Chinese) history, geography, and politics. Salary is in the high $50's, excellent benefits are provided.
Interested individuals should send resume and references to Ms. Allison Fayle at firstname.lastname@example.org no later than Friday, September 2, 2005. ABA-Asia will contact only those candidates whom it selects for interviews. The candidate ultimately selected must be ready to commence work by October 17, 2005.
Wednesday, August 24, 2005
The State Council has proposed two amendments to the Individual Income Tax Law to the Standing Committee of the National People's Congress. The first simply raises the level of personal exemptions from 800 yuan/month to 1500 yuan/month. The second highlights an interesting feature of Chinese tax law of which I had not been aware: that many recipients of income are not legally responsible for paying taxes on that income. Instead, the employer is responsible for withholding the appropriate amount. If sufficient tax is not withheld, it is the employer that is responsible, and the tax authorities have no recourse against the recipient of the income. This apparently makes it easy for certain high-income individuals such as performers to avoid taxes. The second amendment will close this loophole.
- News report in Chinese
- News report in English (South China Morning Post; Lexis/Nexis access required)
Tuesday, August 23, 2005
The partners at Coudert Brothers, a firm with a long history in China practice -- firsts are always difficult to measure, but it was certainly one of the first foreign firms with a Beijing office in the post-Mao era -- have voted to disband the firm. It's sad to see the end of this institution, but the people readers of this blog are most likely to know -- those in the China practice -- are likely to land on their feet.
Monday, August 22, 2005
St. John's University in Queens, New York seeks adjunct instructors and adjunct assistant professors to teach Chinese Business Law and International Investment and Trade in China. The full announcement is here: Download stjohns.pdf. Please note that the application deadline is very soon: 26 August 2005.
The Congressional-Executive Commission on China is seeking a professional staff member to manage the Commission’s portfolio on criminal law development in China. Full details available here: Download cecc.pdf. The application deadline is 6 September 2005.
The Special Rapporteur of the Commission on Human Rights on torture
made the following statement today (22 August 2005):
The Special Rapporteur of the United Nations Commission on Human
Rights on torture and other cruel, inhuman or degrading treatment or
punishment, Manfred Nowak, will visit the People’s Republic of China from
21 November to 2 December 2005, at the invitation of the Government.
In order to gather first-hand information during the visit—which will
include stops in Beijing, Jinan, Urumqi, Yining, and Lhasa—the Special
Rapporteur will meet with Government officials and representatives of civil
society, among others, and visit detention facilities.
The Special Rapporteur will submit a comprehensive written report on
the visit to the Commission on Human Rights at its sixty-second session in
Mr. Nowak was appointed Special Rapporteur of the Commission on 1
December 2004. As Special Rapporteur, he is independent from any government
and serves in his individual capacity. The Commission first decided to
appoint a special rapporteur to examine questions relevant to torture in
1985. The mandate covers all countries, irrespective of whether or not a
State has ratified the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment.
He has previously served as a member of the Working Group on Enforced
and Involuntary Disappearances; the UN expert on missing persons in the
former Yugoslavia; the UN expert on legal questions on enforced
disappearances; and as a judge at the Human Rights Chamber for Bosnia and
Herzegovina. He is Professor of Constitutional Law and Human Rights at the
University of Vienna, and Director of the Ludwig Boltzmann Institute of
For further information on the mandate of the Special Rapporteur,
please visit the website:
Friday, August 19, 2005
Prof. Jerome Cohen's recent statement before the Congressional-Executive Commission on China has been picked up and (in an "adapted" version) reprinted in the People's Daily English website. Needless to say, they've cut out some stuff, but it's quite interesting to see what they've left in as well -- more than one might expect. Thanks to the work of the CECC staff, we can now see exactly what they cut, added, and left in: a very useful mark-up is available here. Readers in China who cannot access the CECC site should click here: Download pd_version_of_cohen.pdf.
Thursday, August 18, 2005
Tuesday, August 16, 2005
Johns Hopkins University is seeking two visiting professors of law for the 2006-07 academic year at its graduate program in Nanjing. JHU will match the home institution's salary and offer a standard benefits package. The deadline for applications is Nov. 1, 2005. For more information, please see the website at www.nanjing.jhu.edu or download this document: Download hopkins.pdf
Wednesday, August 10, 2005
Tuesday, August 9, 2005
I have been asked to post the following announcement:
Part-Time Teaching Positions Are Available at The Institute of Asian Studies, St. John’s University (an E.O.E. Institution)
Adjunct Instructor(s) or Adjunct Assistant Professor(s) teaching the following courses:
Chinese Business Law
International Investment & Trade in China
Each course requires 3 hours teaching each week at St. John’s Queens Campus.
Fall Semester, 2005 (from August 31 to December 17, 2005)
Applicants must have the following:
1. JD, SJD/JSD., Ph.D., Ph.D. candidacy or other equivalent degrees in related fields from an American university;
2. Working permit(s) issued by the US Government if applicable;
3. A good command of spoken and written English;
4. Prior teaching experience is a plus.
Deadline to Apply: August 25, 2005
Please send immediately Personal Statement, Curriculum Vitae and Two References to
Dr. Bernadette Li
Director & Professor
Institute of Asian Studies
St. John’s University
8000 Utopia Parkway
Queens, N.Y. 11439
Friday, August 5, 2005
Thursday, August 4, 2005
I have just run across the State Council's Regulations on the Administration of For-Profit Performances (营业性演出管理条例), issued July 7, 2005 and effective as of September 1, 2005. Among other things, lip-synching is now prohibited, and punishable by a fine of up to 100,000 yuan (see Articles 29 and 47).
Since witty sarcasm is very hard to pull off successfully, I'm just going to report this one without comment.
Tuesday, August 2, 2005
I previously announced the availability of the Joint Submission of the American Bar Association’s Sections of Antitrust Law, Intellectual Property Law and International Law on the Proposed Anti-Monopoly Law of the People’s Republic of China (May 19, 2005), available here. This group has supplemented that submission with Proposed Revisions to Selected Articles of The April 8, 2005 Revised Draft of The Anti-Monopoly Law of the People’s Republic of China (July 29, 2005), available in Chinese and in English.
Thanks to Yee Wah Chin for providing these links.
Monday, August 1, 2005