Friday, November 25, 2005
The Asian Law Institute, a consortium of Asian law faculties operating out of the National University of Singapore, will have its third conference on 25-26 May 2006 in Shanghai at the East China University of Politics and Law. The theme of the conference is "The Development of Law in Asia: Convergence versus Divergence?"
Full details available here.
Wednesday, November 23, 2005
The Beijing No. 1 Intermediate-Level People's Court recently announced that it was doing away with the system of disciplining judges on the basis of overturned decisions. Under that system, if a certain number of decisions were revised or overturned on appeal (or presumably on retrial pursuant to judicial supervision as well), the judge would receive sanctions in the form of benefit cuts or demerits. This system, commonly practiced in the Chinese courts, has been criticized by many on the grounds that (1) it leads judges to clear their decisions with superior courts beforehand, often through non-transparent means that in effect jeopardize the meaningfulness of an appeal, and (2) that it leads judges to pressure the parties unduly to accept a "mediated" settlement, from which (being theoretically voluntary) there is no appeal. Superior court judges, being only human, may also be reluctant in a close case to overturn a judgment when it will bring sanctions on the head of a fellow judge. Finally, of course, the system rests on a questionable premise: that there are no close cases, and that one "wrong" judgment is just as bad as another.
In order to avoid these perverse incentives, the No. 1 Intermediate Court has decided to replace a disciplinary system based on outcomes with a system based on process: the judge's behavior. Thus, judges are henceforth to be rewarded or disciplined based on their conduct of trials, not on whether the judgment is overturned or not.
- ChinaLawInfo report (in Chinese)
Monday, November 21, 2005
Periodically I would like to post short biographies of people in the Chinese law community (both the people in China who in a sense make Chinese law and the people outside who study it). Today's entry is He Weifang (贺卫方), a professor of law at Peking University's Faculty of Law.
The expression "to die of anger" (气死) is very common in Chinese (or maybe just among the Chinese people I know). It has now received official sanction as a cause of action in tort. The Worker's Daily (工人日报) reported in its Oct. 24, 2005 issue about a case in which a husband successfully sued a company for having caused the death of his wife in this way. In July, 2002, his wife and several other workers had confronted a senior official at the company about back wages they were owed. The official apparently said rather dismissively, "I can't do anything about it; go to the government or go to court." At this, the wife began foaming at the mouth and fell senseless to the ground.
The cause of death was ascertained to be cerebral hemorrhage triggered by the argument over wages. The husband brought suit in January, 2005. In its judgment, the court found that the company official had been too harsh in his tone (语言有些生硬) and had caused the victim's death; it found for the husband against the company.
Interestingly, nobody seems to have noticed that the statute of limitations for this action had long since run. The general limitation is two years under Art. 135 of the General Principles of Civil Law, and under Art. 136 it's one year for actions for personal injury.
Sunday, November 20, 2005
Wednesday, November 16, 2005
Conglomerate, one of the leading blogs on business law, has an interesting posting on Chinese antitrust law here: http://www.theconglomerate.org/2005/11/antitrust_in_ch.html
Tuesday, November 15, 2005
I am sorry to announce that some users in China have again found this blog blocked. Another user reports that he can still access it, so apparently the blocking is not complete. As readers will know, this blog is not exactly a hotbed of anti-Communist Party propaganda. I can only see these problems as a sign of the increasingly paranoid information control being exercised by the Hu-Wen government.
I have been asked to post the following announcement:
The Congressional-Executive Commission on China (CECC) is currently soliciting resumes for spring internships (paid) in Washington D.C., working on Chinese human rights and rule of law issues. Interns must be U.S. citizens.
Applications for spring internships must be received by December 1. Further details are available both in the enclosed attachment [Download CECC_Internships.pdf] and on the Commission's Web site at www.cecc.gov.
Interested applicants should send a cover letter and resume to the CECC, preferably via e-mail to Judy Wright, or via fax at (202) 226-3804, attention: Judy Wright, Director of Administration.
Please forward the enclosed attachment to interested students (both undergraduate and graduate), particularly those with strong research and language skills.
Director of Administration
I recently posted about a case in which a female worker forced into retirement on the basis of age brought suit against the labor bureau that had approved her retirement. I had expected that her complaint would have been about the different retirement ages prescribed for men and for women, but it was not. She was complaining not about sex discrimination nor even about discrimination between those of worker status and those of cadre status (who may retire later); her complaint was just that she had been wrongly classified as a worker.
Simon Zhang has kindly pointed me to a recent case in which the sex discrimination claim is finally being brought. The plaintiff was forced to retire from the Construction Bank of China (中国建设银行) at age 55; the corresponding retirement age for men is 60. The legislative basis for her retirement is a 1978 State Council document (No. 104, 1978) entitled "Provisional Measures Concerning the Settlement of Old, Weak, Sick, and Disabled Cades" (国务院关于安置老弱病残干部的暂行办法) ("Doc. 104"). Art. 4 of Doc. 104 states that female cadres who have reached age 55 and have participated in the work of the revolution for 10 years may retire. On the basis of Art. 4, the plaintiff's employer in October 2004 (the month she turned 55) applied to the Henan Provincial Labor and Social Welfare department to approve her retirement.
The plaintiff first took the case to labor arbitration, as she is required to do, claiming that the retirement age set forth in Doc. 104 conflicted with the guarantee of gender equality contained in Art. 48 of the Chinese constitution as well as international treaties to which China was a party. The arbitration tribunal rejected these arguments -- not as wrong, but as beyond the competence of the tribunal to consider (不属于仲裁委员会受理范围). (Interestingly, the plaintiff does not seem to have made anything of the fact that Doc. 104 does not in fact mandate retirement, but seems to contemplate it as an option available to the employee.)
The plaintiff then took her case to a basic-level people's court in the city of Pinxiangshan, Henan Province, which accepted the case on Nov. 11, 2005. The plaintiff seems to have dropped her argument based on international law and is still apparently declining to argue that Doc. 104 does not mandate retirement. But she has two interesting remaining arguments. First is the constitutional argument described above. But she (or more likely her lawyer) has rather cleverly thought up another argument that will allow the court, if it wishes, to avoid the constitutional question. This is an argument based on statute: that the rule of Doc. 104, under current social conditions, violates the legislative intent of protecting the rights of women. (It's not clear if she is referring to the legislative intent of Doc. 104 itself -- in which case she would be making the argument that the court should allow the spirit of a law to override its actual words -- or to the legislative intent and indeed actual words of laws such as the Law for the Protection of the Rights and Interests of Women (妇女权益保障法) (the "LPRIW"). Art. 27 of the LPRIW specifically prohibits work units from discriminating on the basis of sex when implementing the state's retirement system.)
An NPC statute would normally be clearly superior to something such as Doc. 104, but there's an interesting factor that complicates things: Doc. 104 was "approved in principle" (原则批准) by a resolution of the NPC Standing Committee. Perhaps this could be viewed as giving it the status of "law" equal to the LPRIW. The court could, of course, still hold that the LPRIW, as the later law, takes priority over Doc. 104, but it could also hold the Doc. 104 is more specific, and thus should take precedence over the more general LPRIW.
The legal arguments in favor of Doc. 104 look weak to me, but clearly the court is faced with a major challenge in being asked to rule contrary to the provisions of a State Council document and (more importantly) contrary to years of settled practice. Perhaps the court will take the simplest way out and find (plausibly, if you ask me) that Doc. 104 never mandated retirement in the first place.
Comments welcome (but please stick to the legal issues).
Monday, November 14, 2005
Peking University law professor He Weifang (贺卫方) appears in the Nov. 10th issue of Beijing Review discussing (and criticizing) the petitioning system. Here's an interesting excerpt:
One event that got enormous media coverage in 2003 was that Premier Wen Jiabao helped a migrant laborer get back defaulted wages. Despite the positive coverage, the side effect of it was tremendous. Though our premier loves his people, he can only help no more than a handful of migrant workers get their wages back. The side effect was that ordinary people began to believe that as long as they got the chance to meet the premier or the president, they could also have their problems solved. This incident has spurred on more petition efforts. In the process, a reliance or even worship of state leaders has developed at the cost of building and perfecting the legal system. After all, we endeavor to build a country ruled by law, rather than one ruled by a wise leader. The petition system is one with inborn relations to the rule of men. In a society dominated by the rule of men, even a wise monarch can easily evolve into a big tyrant.
Wednesday, November 9, 2005
The Chinese press has recently had several stories on a company purporting to sell land on the moon. The first story, dated Oct. 20 and from the China Daily, announces the start of operations of the Lunar Embassy (月球大使馆), which sells land for 298 yuan per acre. It adds solemnly, "Meanwhile, not all believe that the trading is legal; and some even regard it as fraud or a joke."
The second story, dated Oct. 27, announces that the Beijing Municipal Administration of Industry and Commerce "is working together with its Chaoyang District Branch, other concerned departments and legal experts to study and collect evidence on whether the company's businesses are legitimate."
The third story, dated Nov. 7, states the result of the investigation:
A Chinese company has had its license suspended after it tried to make money by selling land on the moon.
The Beijing Lunar Village Aeronautics Science and Technology Co. managed to sell large swathes of pristine lunar property before being shut down, the state-owned Xinhua news agency reported on Monday.
It is not known whether the proprietor plans to challenge this administrative decision.
Monday, November 7, 2005
The Washington Post reports (Nov. 6) that activist lawyer Gao Zhisheng's (高智晟) law firm was ordered suspended for a year by the Beijing Judicial Bureau on Nov. 4. The report states in part:
Judicial authorities in Beijing have shut down the law firm of a prominent civil rights lawyer after he refused to withdraw an open letter urging President Hu Jintao to respect freedom of religion and stop persecuting members of the banned Falun Gong spiritual movement.
Gao Zhisheng, among the most daring of a generation of self-trained lawyers who have been pushing the Chinese government to obey its own laws, said that the Beijing Bureau of Justice ordered his firm suspended for one year on Friday. The move came just hours after he filed an appeal on behalf of an underground Protestant pastor accused of illegally printing Bibles and other Christian literature.
Sunday, November 6, 2005
Chinalawinfo.com carries a report from the Morning News (晨报) showing that despite a quarter century of economic reform, the worker/cadre distinction remains important and has real bite. In this case, two women have brought an administrative lawsuit against Beijing's Haidian District Bureau of Labor and Social Insurance (海淀区劳动和社会保障局) for approving their (involuntary) retirement at age 50 from employment at the Xinxing Hotel (新兴宾馆). The retirement age for women of worker status is age 50; for women of cadre status, it's 55. These rules seem to be a holdover from an earlier era where (1) workers did manual labor, and so it was thought protective of female workers to give them earlier retirement, and (2) retirement meant reliable "iron rice bowl" benefits from a state-owned employer in the planned economy, and thus could be seen as a goal to aim for, not an imposition to be avoided. Neither of these premises hold true today; hence the lawsuit.
Two interesting things about this lawsuit:
- The plaintiffs' litigation strategy is to bring an administrative lawsuit against a government agency for approving the allegedly wrongful classification, not against the employer for making the wrongful classification in the first place.
- When I saw the headline for this article, I was expecting to read about a lawsuit for sex discrimination, since the retirement age for men is later. But the plaintiffs seem to have chosen not to make that particular claim. (It would almost certainly lose.)
Saturday, November 5, 2005
After 13 years in the Ankang (安康) system of psychiatric facilities operated by the Ministry of Public Security, Wang Wanxing was released last August and immediately exiled to Germany. This news came from Human Rights Watch on November 2. As the Human Rights Watch press release (well worth reading in its entirety) states, "Wang Wanxing is the first known released inmate of China's notorious Ankang system, out of an estimated 3,000 or more political detainees held in police-run psychiatric custody since the early 1980s, to have left China and be in a position to speak out about his experiences."
Wang's release is not, however, our first look into the Ankang system. Robin Munro has been working this territory for some time now, and in 2002 published Dangerous Minds: Political Psychiatry in China Today and Its Origins in the Mao Era (reviewed in the New York Review of Books by Jonathan Mirsky). An earlier article containing his research is "Judicial Psychiatry in China and Its Political Abuses," Journal of Asian Law, Vol. 14, No. 1 (Fall 2000). The most thorough and up-to-date study that I know of is Dr. Munro's University of London PhD dissertation (Department of Law, School of Oriental and African Studies, Jan. 2005).
Thursday, November 3, 2005
The Financial Times reports today that Jerome Cohen, in a talk to the Foreign Correspondents Club of China, continued to press the central government to do something about the ongoing unlawful confinement and harrassment of blind activist Chen Guangcheng (陈光诚). The article states in part:
“This is a daily shame to the People’s Republic of China,” Prof Cohen told the Foreign Correspondents’ Club of China in a briefing.
“It’s not enough to make nice speeches about the importance of strengthening the rule of law and it’s not enough to have internal reforms within the ministry and various public security bureaux, you have got to come to grips with concrete cases,” he said.
Zhou Yongkang, public security minister, should “pick up the phone” and call the local police chief to tell him to stop the abuse, Prof Cohen said.
An official with the Ministry of Public Security in Beijing declined to comment yesterday on Mr Chen’s situation and Shandong police did not respond to questions on the case.
For information on Chen in Chinese, click here.
Wednesday, November 2, 2005
Tuesday, November 1, 2005
On Oct. 28, 2005, Song Jian (宋健), the chairman of the China Environmental Protection Association (中华环保联合会), called for the establishment of a system of public interest environmental protection lawsuits. In this system, any citizen, social group, or governmental agency would have standing. What's interesting is the proposed defendant: state judicial organs (国家司法机关). If his remarks were not misreported, it's not clear to me what he has in mind. It would not be surprising for such a system to grant a private right of action against actual polluters, or against the central Environmental Protection Administration or its local branches. But the latter is not normally considered a "judicial organ". Judicial organs such as courts and police would not be involved in environmental law matters until it came time to enforce a fine or other measure against a recalcitrant offender. Does Song contemplate public interest lawsuits only when such enforcement actions are not properly undertaken?