Friday, October 28, 2005
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.
- Reports on the Zheng Enchong case by human rights organizations (in English): here | here
- South China Morning Post news report (in English)
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.
Thursday, October 27, 2005
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.
Wednesday, October 26, 2005
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.
Full text of Art. 63 of the TRIPS Agreement:
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.
Tuesday, October 25, 2005
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.
Monday, October 24, 2005