Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

A Member of the Law Professor Blogs Network

Sunday, October 30, 2005

China ratifies United Nations Convention Against Corruption

The NPC Standing Committee on Oct. 27th ratified China's accession to the United Nations Convention Against Corruption. As it is permitted to do, however, China declared itself not bound by Art. 66, Para. 2 of the Convention. The full text of Art. 66 is as follows:

Article 66
Settlement of disputes
l. States Parties shall endeavour to settle disputes concerning the
interpretation or application of this Convention through negotiation.
2. Any dispute between two or more States Parties concerning the
interpretation or application of this Convention that cannot be settled through
negotiation within a reasonable time shall, at the request of one of those States
Parties, be submitted to arbitration. If, six months after the date of the request for
arbitration, those States Parties are unable to agree on the organization of the
arbitration, any one of those States Parties may refer the dispute to the International
Court of Justice by request in accordance with the Statute of the Court.
3. Each State Party may, at the time of signature, ratification, acceptance or
approval of or accession to this Convention, declare that it does not consider itself
bound by paragraph 2 of this article. The other States Parties shall not be bound by
paragraph 2 of this article with respect to any State Party that has made such a
reservation.
4. Any State Party that has made a reservation in accordance with
paragraph 3 of this article may at any time withdraw that reservation by notification
to the Secretary-General of the United Nations.

October 30, 2005 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Friday, October 28, 2005

Zheng Enchong prepares to sue Chinese media

Zheng Enchong (郑恩宠), a Shanghai lawyer involved in the defence of economic and social rights of those displaced by urban development projects who was sentenced to three years in prison in 2003, has presented a letter to the Liberation Daily (解放日报), the Wenhui Daily (文汇报), and two individual journalists demanding a retraction of an article written on 29 October 2003 (shortly after his sentencing) on pain of further legal action. The letter, written by his attorney Pu Zhiqiang, is available here: Download DemandLetter.pdf

The demand is made just in time: the limitation period for actions in civil matters is normally two years (Art. 135, General Principles of Civil Law). The letter is dated Oct. 27, 2005. I did some research on this issue once, and all the authorities are agreed that just about any kind of demand will stop the running of the statute of limitations. It is not the case that only bringing suit in court will do. This is consistent with a common-sense reading of Art. 140 of the GPCL: "A limitation of action shall be discontinued if suit is brought or if one party makes a claim for or agrees to fulfilment of obligations. A new limitation shall be counted from the time of the discontinuance. 诉讼时效因提起诉讼、当事人一方提出要求或者同意履行义务而中断。从中断时起,诉讼时效期间重新计算。"

Still, waiting so long is a bit risky. Clearly, what a court would most like to do is to dismiss this suit on procedural grounds without having to make a decision on the merits. If suit is ever brought, it will have to be more than two years after the date of the alleged libel. Surely the court hearing this will be sorely tempted to read "make a claim for" as meaning "bring suit in court", even though all authority is against such an interpretation. If that happens, just remember: you saw it here first. On the other hand, it may be that Zheng just wants to keep his claim alive for another two years but has no specific intention at the moment of moving forward with it. This letter should start the clock running all over again.

Web references:

  • Reports on the Zheng Enchong case by human rights organizations (in English): here | here
  • South China Morning Post news report (in English)

October 28, 2005 in News - Chinese Law | Permalink | Comments (1) | TrackBack (0)

Chinese Law Prof Blog passes 10,000 mark

I'm pleased to report that the Chinese Law Prof Blog marked its 10,000th visit the other day. Now if only every person in China clicked just once on a link to this blog...

October 28, 2005 in News - Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Hostage-taking in business disputes: the video

It is no longer news that business disputes in China can lead to the personnel of one side being taken into custody. This can also happen to foreign business people, although it is usually limited to those who are ethnically Chinese (regardless of citizenship). A recent case is that of a PRC-born US citizen currently being held in Shanghai. What makes this case interesting is that the company on the other side of the dispute has made a video of the detainee signing various documents (after he had been held for some time) in an apparent effort to bolster their case against him. An attorney for a major US law firm (representing the company) is present as the video is being shot.

A report on this case, as well as portions of the video, can be seen at http://forbes.com/hostage. Needless to say, my linking to the Forbes report does not constitute endorsement of any of the views presented there.

October 28, 2005 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Thursday, October 27, 2005

NPC Standing Committee passes major legislation

The NPC Standing Committee today passed two major pieces of legislation:

Revisions to both these laws have been under discussion for years and today's event was long awaited. For reports on the revisions, click on the links below.

October 27, 2005 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 26, 2005

US requests information from China on IP enforcement

Pursuant to Art. 63.3 (quoted below) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement), the United States has officially requested that China provide information on various aspects of its enforcement efforts in recent years in the field of intellectual property protection.

Web references:

Full text of Art. 63 of the TRIPS Agreement:

Article 63
Transparency

1.    Laws and regulations, and final judicial decisions and administrative rulings of general application, made effective by a Member pertaining to the subject matter of this Agreement (the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property rights) shall be published, or where such publication is not practicable made publicly available, in a national language, in such a manner as to enable governments and right holders to become acquainted with them. Agreements concerning the subject matter of this Agreement which are in force between the government or a governmental agency of a Member and the government or a governmental agency of another Member shall also be published.

2.    Members shall notify the laws and regulations referred to in paragraph 1 to the Council for TRIPS in order to assist that Council in its review of the operation of this Agreement. The Council shall attempt to minimize the burden on Members in carrying out this obligation and may decide to waive the obligation to notify such laws and regulations directly to the Council if consultations with WIPO on the establishment of a common register containing these laws and regulations are successful. The Council shall also consider in this connection any action required regarding notifications pursuant to the obligations under this Agreement stemming from the provisions of Article 6ter of the Paris Convention (1967).

3.    Each Member shall be prepared to supply, in response to a written request from another Member, information of the sort referred to in paragraph 1. A Member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intellectual property rights affects its rights under this Agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements.

4.    Nothing in paragraphs 1, 2 and 3 shall require Members to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.

October 26, 2005 in News - Chinese Law | Permalink | TrackBack (0)

Tuesday, October 25, 2005

Supreme People's Court suggestions regarding standing of homeowner committees

Chinalawinfo.com, Peking University's legal information site, reported on Oct. 21st that Civil Chamber No. 1 of the Supreme People's Court had issued a "suggestion" (意见; normally translated as "opinion", but I think that's misleading) cutting back on the standing to sue of homeowner committees (业主委员会; also translatable as "proprietor committees") in residential developments. (Story here.)

There is considerable friction in China between real estate developers and those who buy from them. The magnificent swimming pool promised in the brochure may turn out to be an algae-infested wading pool, and broken elevators and collapsing ceilings may take a long time to fix. But the identification of the proper plaintiff for lawsuit purposes has proved difficult. Homeowner committees were for years shut out of courts on the grounds that they did not have standing under China's Civil Procedure Law. They do not have legal person status and are not the owners of the common areas; I am informed by a knowledgeable source that It is apparently often unclear who the owner of the common areas is. (Incidentally, when I say "owner" I mean the holder of the long-term land-use rights; the reversion in the case of urban land is of course held by the state.)

In 2002, however, a homeowner committee in Hefei appealed the denial of standing to the Hefei provincial court, which requested instructions from the Supreme People's Court. In March 2003, the SPC replied that homeowner committees did indeed have standing to sue.

Apparently, this opened the floodgates of litigation too wide for the comfort of the SPC. A recently published book, 中国民事审判前沿, carries a "suggestion" from Civil Chamber No. 1 of the SPC to the effect that standing should be limited to cases where suit is brought against the developer, authorized by a member vote, related to management of the property, and affecting the common interest of the whole body of homeowners.

This suggestion is interesting for its own sake, but it's also interesting from a procedural standpoint. According to the report, it has been informally circulated to lower courts and has now been published in a book. It was not issued, as SPC directives of this kind normally are, by the Adjudication Committee of the SPC, and it is not an official directive. Apparently courts are supposed to follow it pending the issuance of such an official directive in the matter. But if that's so, then what is the difference between an informal suggestion issued by a single chamber of the SPC and an official directive issued by the Adjudication Committee of the SPC?

CORRECTION 26 Oct. 2005: Simon Zhang has pointed out that this document is about conflicts between homeowners and management companies (those who maintain the complex after the residents have moved in), not developers (those who build the complex). I mistranslated "物业公司". Thus, homeowner associations will have standing to sue only management companies and not developers.

October 25, 2005 in News - Chinese Law | Permalink | Comments (3) | TrackBack (1)

Monday, October 24, 2005

Conference on intellectual property, Oct. 27 in Washington, D.C.

The China Institute is sponsoring a conference on intellectual property protection in China on Oct. 27 in Washington, DC. For more information, click here: Download IPconference.pdf

October 24, 2005 in Conferences | Permalink | TrackBack (0)

Saturday, October 22, 2005

Uneven distribution of lawyers in China

It won't surprise most readers to discover that legal talent, whether on the bench or at the bar, is distributed unevenly around China. Zhu Suli (朱蘇力), among others, has discussed the problems of staffing rural courts in Song Fa Xia Xiang (送法下鄉) (a very fine review of which has been published by Frank Upham in the Yale Law Journal).

The June 8th edition of the People's Daily (人民日報) carried an article on the distribution of lawyers with some interesting information. According to the article, China now has 114,000 lawyers and 11,691 law firms. China's lawyers annually handle over 1.5 million court cases and over 800,000 non-litigious matters. However, lawyers are still thin on the ground in the central and western parts of China. In 206 counties, there are no lawyers at all. (As of Feb. 2004, China had 2,861 county-level divisions. [Source])

October 22, 2005 in Commentary | Permalink | TrackBack (1)

China's report to the UN Committee on the Rights of the Child

The advance, unedited version of the Concluding Observations of the Committee on the Rights of the Child on China's Second Periodic report (covering the mainland and Hong Kong and Macau Special Administrative Regions) can be accessed (in English only) here (PDF file).

Other documents pertaining to the session (including the above-mentioned report, China's recent reply to the Committee's List of Issues, its delegation composition, etc.), can be accessed in Chinese, English, and French under the heading "China with Hong Kong SAR and Macau SAR" here.

October 22, 2005 in News - Chinese Law, People and Institutions, Publications | Permalink | TrackBack (0)

Friday, October 21, 2005

Zhengzhou court experiments with system of precedent

The October 20, 2005 issue of Legal System Daily (法制日报) has an interesting report of an experiment with case precedent that has been going on since August 2002 in a basic-level people's court in Zhongyuan District in Zhengzhou.

The perceived need for the system arose when a consumer sought to take advantage of a provision of China's consumer protection law providing for double damages against sellers of fake products by deliberately buying identical fake medicine in three separate jurisdictions and then bringing suit in each. The suit was rejected in each case, but on different grounds each time, despite having identical facts, pleadings, and evidence. The results of this natural experiment struck many as indicative of a problem that should be solved.

According to the report, the court's adjudication committee selects particular cases it wants to serve as precedents (先例). The details of these cases are made available on an electronic touch-screen in the courthouse building. Visitors can then see whether the court has dealt with cases similar to their own and assess their chances of winning should they decide to file suit.

The influence of the selected precedents on judicial decisionmaking is ambiguously put (in my view, deliberately so, given the sensitivity of the issue): precedents are to have "a certain guiding significance" (一定指导意义) and have "a certain binding force" (一定的约束力) on judges hearing similar cases. A judge hearing a similar case who proposes not to follow the precedent must report  to the adjudication committee, and failure to follow a precedent without a proper reason will, where the judgment is later deemed wrong, result in disciplinary measures for the judge.

The system is praised for having contributed to judicial efficiency and predictability and for having reduced corruption (by making the law more certain). Not everyone thinks it's a good idea, however: He Weifang of Peking University's Faculty of Law criticises the system because in requiring the judges in one court to follow that court's previous rulings, whatever is happening elsewhere in the country, it creates a local consistency at the expense of the larger national consistency he sees as more necessary.

October 21, 2005 in News - Chinese Law | Permalink | Comments (0) | TrackBack (1)

Thursday, October 20, 2005

Blakemore Foundation grants for Chinese language study

The Blakemore Foundation offers grants for advanced (i.e., non-beginner) Asian language study to American citizens and permanent residents of the United States who have a college degree and plan to use an Asian language in their career. Grants can be made for one year (Freeman Fellowships) or for less than one year (refresher grants). For more information, see the Foundation's web site here. I am posting about these grants here because they are ideal for lawyers who already have some Chinese, but just need that little extra boost to get them to the level at which they can work comfortably in a Chinese-language environment, and that kind of candidate would be very competitive.

October 20, 2005 in Fellowships/Research Opportunities | Permalink | TrackBack (0)

Wednesday, October 19, 2005

More on Yahoo and Shi Tao case

YahooYahoo's role in releasing information to PRC authorities leading to the conviction of journalist Shi Tao, previously discussed on this blog, continues to dog the company. Now Liu Xiaobo, described by the Financial Times as a "veteran dissident", has written an open letter to Yahoo co-founder Jerry Yang criticizing Yahoo for its actions (Financial Times report here). The Financial Times report states in part:

"Major foreign companies should not be helping the Chinese government to limit freedom of speech on the internet," Mr Liu told the Financial Times. "This is shameless."

Mr Yang, who recently sealed a $1bn (€830m, £570m) link-up with the Chinese commerce website Alibaba, confirmed last month Yahoo had assisted the action against Mr Shi, but said it had no choice but to provide information about him as part of a "legal process".

Yahoo on Monday refused to comment on the contents of the letter. A company spokeswoman at its base in Silicon Valley said it only released information to the authorities "when legally compelled to do so, and then only in a way that complies with both local laws and our privacy policy".

It has been pointed out in many commentaries that the "local laws" to which Yahoo's Hong Kong subsidiary - the company that released the information - are subject are the laws of Hong Kong, not those of mainland China, at least with respect to police demands for information. It is not impossible that Yahoo's Hong Kong subsidiary could have been subject in some way to PRC law, but so far Yahoo has not explained how.

October 19, 2005 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 18, 2005

Symposium announcement: "China at a Crossroads: Searching for a Balanced Approach to Development"

I have received the following announcement from the U.S. China Law Society:

The Harvard East Asian Legal Studies Program and the U.S. China Law Society will host a symposium entitled "China at a Crossroads: Searching for a Balanced Approach to Development," on November 5-6, 2005 at Harvard Law School.

China, much like the U.S., has become a society of haves and have-nots.  According to many academics specializing in China, the wealth disparity we see in today's China – based on a comparison of the Gini coefficients – is greater than that of the U.S. and second only to those of Latin American and sub-Saharan countries.   

The symposium will focus on searching for a balanced approach to development promoting both efficiency and equality.   The goal of this symposium is to examine systematically China's inequality from social, economic, legal and political perspectives and to generate constructive ideas and policy recommendations.

Among the speakers invited are He Weifang, one of the best-known constitutional scholar in China today; Li Shi, a pioneer in the study of the income-gap in China; and William Hsiao, the chief architect of a number of innovative programs in healthcare both inside and outside China.   Some of the West's most prominent Sinologists, including Roderick MacFarquhar and Elizabeth Perry will moderate the panels.  Dean Elena Kagan of Harvard Law School will welcome the attendees at the symposium opening.   For a complete list of speakers, please go to http://uschinalawsociety.org/symposium/speakers.htm.

For more information on the symposium and how to register and participate, please visit our website at: http://www.uschinalawsociety.org/symposium or email U.S. China Law Society at uschinalawsociety@gmail.com.

October 18, 2005 in Conferences | Permalink | TrackBack (0)

Monday, October 17, 2005

Human rights organizations back in from the wilderness?

Amnesty International and Human Rights Watch will be pleased to know that they are being cited as authoritative sources of information on human rights issues in the PRC press. In this case, however, it's their concerns over due process issues in Saddam Hussein's upcoming trial that is being reported. Well, it's a start.

On a serious note, the Chinese government - or at least some parts of it - have been surprisingly receptive to international human rights NGOs recently. Last June, a 2-day seminar on human rights was held in Beijing to which representatives of Amnesty International, Article 19 (a British free-speech group), and Human Rights in China were invited. Regrettably, not all branches of the government were on board in this case: the HRIC representative, Sharon Hom, was subject to an effort by plainclothes security men to take her from her hotel for questioning (they ultimately failed in the attempt to remove her physically, but did question her for an hour on a variety of topics). News report here.

October 17, 2005 in News - Chinese Law | Permalink | TrackBack (1)

Friday, October 14, 2005

Latest issue of GTZ newsletter now available

Issue 3, 2005 of the newsletter of the GTZ Advisory Service to the Legal Reform in China is now available on line here. And students, don't forget that GTZ is always looking for interns - details at the end of the newsletter.

October 14, 2005 in Internships/Employment Opportunities, Publications | Permalink | TrackBack (0)

Wednesday, October 12, 2005

CECC releases 2005 Annual Report

The Congressional-Executive Commission on China has just released its 2005 Annual Report. The CECC notes both forward and retrograde steps in human rights protection in China, and concludes that there has been no overall improvement in the past year.

A listserv of which I am a member has recently seen a lively discussion of the merits of US government bodies such as the CECC telling China what it must or should do with respect to human rights and other issues. Whatever one's views of the legitimacy of the CECC's project, however, the Commission has earned a good reputation for the capability of its staff and the quality of their reporting.

October 12, 2005 in Publications | Permalink | TrackBack (0)

Tuesday, October 11, 2005

More problems with Coudert's China operations

Coudert's China practice seems to have gone largely to Orrick, Herrington & Sutcliffe and DLA Piper Rudnick Gray Cary. But according to a recent news report:

[S]ome sticking points remain. Three dozen lawyers and staffers in the Beijing office -at least some of whom are going to DLA - now assert that Coudert hasn't complied with severance obligations under Chinese law. An employee there, speaking on condition of anonymity, said a complaint has been filed with the Beijing Justice Bureau and the Chinese Ministry of Labor.

A legal opinion prepared for the employees, a translation of which was obtained by the Recorder, also includes an allegation that Orrick is attempting to transfer to itself Coudert's license to practice in China, which the opinion says would violate Chinese law.

I figure this much is fair use. For the full report, go here.

October 11, 2005 in News - Miscellaneous | Permalink | TrackBack (0)

Monday, October 10, 2005

The artistic side of tax in China

I was recently rooting around in my hard disk for something and came across this item - a motivational song for tax collectors - which I translated many years ago. I hope readers enjoy it.

TaxlogoThe Motherland Is in My Heart
(From Zhongguo Shuiwu (Chinese Taxation), No. 3, 1990)

Words: Chen Jingxin
Music: Wang Shuangyin

Proudly and with deep feeling

The national emblem is on my cap
And the motherland is in my heart.
We are glorious tax workers.

A historic mission is on our shoulders:
To collect wealth for the Four Modernizations of the State,
To promote the flourishing of the economy.
We do not fear difficulties or dangers,
We go throughout all the towns and villages;
We do not fear difficulties or dangers,
We go throughout all the towns and villages.

The national emblem is on my cap
And the motherland is in my heart.
We are glorious tax workers.

A sacred responsibility is on our shoulders:
To struggle for the administration of taxes according to law,
To stand at our post in order to see that policies are strictly followed.
We have a thousand stratagems
For stopping tax evasion;
We have a thousand stratagems
For stopping tax evasion.

The national emblem is on my cap
And the motherland is in my heart.
We are glorious tax workers.

An exalted faith is in our hearts:
To devote ourselves to socialism,
To strive for the cause of tax collection.
We are willing servants of the people
And vigorously promote honest practices;
We are willing servants of the people
And vigorously promote honest practices.

October 10, 2005 in Other | Permalink | TrackBack (1)

Sunday, October 9, 2005

More independence for courts: a straw in the wind?

An interesting article recently appeared on the People's Daily website stating that the dependence of local procuratorates upon local government for finances would be "thoroughly reformed" within three years: the goal is to have all financing come from the central or the provincial governments. This is one of a series of reforms announced in the Opinion on the Three-Year Implementation of Further Reforms in the Procuratorate (关于进一步深化检察改革的三年实施意见) issued by the Supreme People's Procuratorate month.

Many Chinese and foreign analysts of the Chinese legal system have long called for similar reforms to the system of court financing as a way of enhancing the independence of courts from local political powerholders. As the procuratorate is administratively analogous to the court system, what can be done in the former can be done in the latter. The significance of this reform for courts will not likely be lost on those who would change the system.

October 9, 2005 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)