Tuesday, December 27, 2005
The Supreme People's Court made another foray into the field of residential secured lending last month with the issuance of the Rules on Implementation [of Judgments] Against Real Property Subject to a Security Interest (最高人民法院关于人民法院执行设定抵押的房屋的规定) (effective Dec. 21, 2005) (the "2005 Rules"). The 2005 Rules, which provide that secured residential lenders won't have the rights they thought they had under the Security Law, are a modification - in lenders' favor - of another set of rules issued last year, the Rules of Sealing, Seizure, and Freezing in the Course of Implementation [of Judgments] by People's Courts (最高人民法院关于人民法院民事执行中查封、扣押、冻结财产的规定) (issued Nov. 4, 2004, effective Jan. 1, 2005) (the "2004 Rules").
Art. 6 of the 2004 Rules, by providing that courts could not execute against the "necessary" residence of a judgment debtor ("对被执行人及其所扶养家属生活所必需的居住房屋，人民法院可以查封，但不得拍卖、变卖或者抵债"), may not have actually abolished secured residential lending, but certainly made it a lot more risky and expensive for banks.
In any case, possibly in response to political pressures (although I have no idea what in fact was behind it), last month the SPC issued another set of rules that give a little bit back to lenders. Article 1 of the 2005 Rules, in permitting execution against residential property subject to a security interest, explicitly reverses Article 6 of the 2004 Rules. The 2005 Rules go on, however, to establish some conditions for execution, such that in some cases the holder of the security interest will not in the end be able to take the property.
First, the judgment creditor has to give the debtor six months to move out. If the debtor cannot find a place to move to, then upon confirming this, the court may require the creditor to find a place for the debtor. The 2005 Rules explicitly state, however, that the new place need not match the conditions of the old place, and the debtor shall have to pay rent to the creditor (in an amount to be determined by the court with reference to market conditions if the parties cannot agree on the amount). Moreover, the creditor can add to the amount it takes from the sale of the property any rent payments owing at the time of the sale.
Second, where the debtor is a "minimum guarantee" (低保) household and is unable to find a place to move, then the court may not execute against the residence at all. ("Minimum guarantee" households are urban households that have, upon application, been found to have below a certain minimum per capita income and are thus eligible for certain welfare benefits. In Shanghai, for example, the per capita minimum is 290 yuan/month; in Taiyuan it is 181 and in Shenzhen it is 344.)
Whether such frequent and sweeping modifications to the rights of lenders under the Security Law are a good idea as a matter of policy is something we can debate, but whether the Supreme People's Court is the right institution to be undertaking it is a much harder argument to make. Clearly they are trying to give something to the poorest households, but if Chinese banks act rationally in their lending practices (an open question, I concede), the result will be to make credit less accessible to those households. Hernando de Soto has argued that one of the things that keeps the poor poor in the Third World (do people still use that term?) is the lack of institutions allowing them to gain access to credit through loans secured by their property; secured lending turns a house that has value only as a place to live into something that can generate cash as well.
In the end, I think, it goes back to politics. Since the government cannot claim certain kinds of justifications for its existence (for example, election through a democratic process), it must seek justification in other ways - for example, "stability." The result is that the poor who would be able to repay their secured loans, and would benefit from them, are hurt in order to prevent disruptive protests by the poor who would not.
Monday, December 19, 2005
The Supreme People's Court has finally published its second five-year plan for court reform (人民法院第二个五年改革纲要(2004－2008)). This document was reported to have been issued in October; it is dated Oct. 26, and news reports appeared at the time discussing its contents. But the document itself was inexplicably unavailable to those of us who were looking for it; it did not, for example, appear on the SPC's web site. But now we finally have it: click here.
Below are some initial impressions based on a quick reading. I've also included a few queries at the end and would welcome suggested answers. This post is open to comments.
This is an interesting document with a number of good and specific suggestions and goals that go beyond the platitudes one often sees in these things. A few things that struck me:
1. Death penalty: (a) Hearings (开庭审理) at the second instance as well as the first. (b) All death penalties to be reviewed by Supreme People's Court.
2. Change in function of higher courts: Change from a principle of jurisdiction by importance of case (e.g., amount in controversy) or party to a system of jurisdiction by type of legal principle at stake. Thus, higher courts will not have original jurisdiction in cases where no legal issue of broad significance is at stake.
3. Increase finality of judgments (at least this is how I read Item 9): Bring more order into the system of zaishen (再审).
4. Reform the system of qingshi (请示): If there's an important legal issue at stake that can only be resolved by a higher court, then the lower court (or the parties) should request that the higher court simply take jurisdiction over the whole case and hear it.
5. Reform of adjudication committee: Item 23 seems to contemplate separate ACs for criminal and civil matters. This would seem to mean the end of the AC as a single body with jurisdiction over everything the court does, and would leave the court president as the head (whereas I believe that now, at least in form, the AC as an organ of collective leadership is superior to the president). Kind of a big step.
6. Reform of personnel selection: The document suggests that higher court judges should increasingly be taken from skilled lower court judges and other legally talented people, but it's not specific on how this would happen, since it doesn't recommend changing the basic system of judicial appointment.
7. Reforms in court financing: Here the document is quite specific: it suggests that court finances should be guaranteed at the state level and paid at a level not lower than the provincial treasury. This would make a big difference in the way courts operate if it could be effected.
Something I didn't see: Section 4 on improving the enforcement of judgments didn't seem to offer very much by way of specifics. Did anyone see something there they found significant?
Questions about obscure (to me) terms:
1. What is 各级人民法院的法官员额比例方案 (Item 36)?
2. What is it talking about in Item 25 when it says 实现司法政务管理的集中化和专门化?
This isn't exactly Chinese law-related, but it may be of interest to enough readers of this blog to be worth posting. The first paragraph of the job announcement is as follows:
The University of Oklahoma invites nominations and applications for the Harold J. & Ruth Newman Chair in US-China Issues in the School of International and Area Studies, a tenured position at the level of associate or full professor. The holder of the Newman Chair will also serve as the Director of the University’s new Institute for US-China Issues. The establishment of the Chair and Institute is part of a broad Asia-related initiative, led by President David L. Boren, to strengthen the role of the University of Oklahoma as a major center for education, scholarship and public outreach on Asia and US-Asia issues.
Here's the full text: Download oklahoma.pdf
Sunday, December 18, 2005
On Dec. 8, 2005, Peking University's Faculty of Law formally launched its Center for Research in Soft Law (软法研究中心), with Luo Haocai (罗豪才) (Peking Univ. Faculty of Law) as honorary director, Jiang Ming'an (姜明安) (Peking Univ. Faculty of Law) as director, and Song Gongde (宋功德) (National Institute of Administration) as executive director.
The text of Luo's speech at the founding ceremony, where he lays out some of the problems in the field and the goals of the center, can be found here.
Friday, December 16, 2005
Here's an announcement about the latest round of grants from the US-China Business Council's Legal Cooperation Fund: Download USCBC-LCF.pdf. The fund operates under the auspices of the USCBC's non-profit educational and research arm, the China Business Forum.
This is a good program for small-scale grants that operates with a minimum of red tape. For information on applying, see the LCF's website.
Tuesday, December 13, 2005
Here's something that is not strictly speaking law-related, but that is close enough to be of interest to readers of this blog, I think:
Well, looks like I can't keep my resolution not to post; here's another job opportunity that I want to publicize right away.
The Congressional-Executive Commission on China is seeking a professional staff member to manage the Commission's portfolio on commercial rule of law development in China. Details here: Download cecc2.pdf
Monday, December 12, 2005
The Office of China Affairs of the Office of the United States Trade Representative has three openings at the GS-14 or GS-15 level. These are relatively senior positions. The job announcements are listed below:
- Job 1 (Note that although the above announcement is for only one person, my understanding is that two will be hired at this level.)
- Job 2
Wednesday, December 7, 2005
Tuesday, December 6, 2005
Periodically I 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 Gao Zhisheng (高智晟), an attorney about whom I have previously posted known for his representation of the poor and those who have been persecuted for helping them.
Monday, December 5, 2005
Sunday, December 4, 2005
Nearly a decade after the initial request, Manfred Nowak, the Special Rapporteur of the United Nations Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, concluded a two-week visit to the People’s Republic of China on Dec. 2, 2005. Here is the press release issued by the United Nations:
Friday, December 2, 2005
Oops, I did it again, apparently. Something in a previous posting - was it my daring expose of the Beijing company selling lunar real estate? - has attracted the attention of the security authorities and the blocking now seems not intermittent, but permanent and complete. If anyone is reading this in China, please let me know.
Here's the latest from the Dec. 2005-Jan. 2006 Dean's newsletter at the University of Illinois College of Law:
Seven College of Law faculty members will travel to Guangzhou, China from December 3-11 to attend a conference entitled "The Role of Law in Economic Development -- Implications for China in the World," co-sponsored by the University of Illinois College of Law and the Law Faculty of Sun Yat-sen University. Those attending the conference include Professors William Davey, Tom Ginsburg, Jay Kesan, Larry Ribstein, Larry Solum, Charles Tabb, and Cynthia Williams. The relationship between law and economic development has been one of the central concerns of modern social theory and legal scholarship, and is of increasing importance to policy-makers in national governments and multilateral development institutions. It is also a critical issue for China's future, as China seeks continued economic growth while assigning a greater role to law and the legal system in underpinning that growth. The conference is being held as part of Sun Yat Sen University's celebration of the centennial of legal studies in Guangdong.
Thursday, December 1, 2005
The Ministry of Justice recently issued the 2005 list of ministry-level legal research projects approved for funding. A quick review shows that the term 和谐 (hexie: harmony), associated with Hu Jintao's leadership, appears in the title of seven of the 134 approved projects. In the list of 94 projects approved in 2003 (I couldn't find the 2004 list on line), the term does not appear at all.
CORRECTION (4 Dec. 2005): A reader has helpfully pointed me to a web site where all the projects from 2001 to 2005 may be found: lawstudy.gov.cn/project/wangnian/index.asp. The term 三个代表 (sange daibiao: the Three Represents), associated with Jiang Zemin, appears in only one project, in 2001. Hexie (harmony) appears in no projects until 2005, when it appears (as noted above) seven times.