Thursday, August 31, 2006
On Aug. 28th I posted here about the banning of the practice of hiring strippers for funerals. Although today's posting is not really about Chinese law, readers of the original post might be interested to know that this practice is far from aberrational, and has been a well-known (although by no means universal) custom in Taiwan for years. For an erudite on-line discussion compiled from the archives of the H-ASIA listserv and other sources, click here. I have never heard of it in mainland China, however; perhaps this custom is a recent Taiwanese import.
Wednesday, August 30, 2006
Businesses in China have discovered that defamation litigation can be an effective way to retaliate against critical media coverage and (they hope) deter future bad press. (For an informed discussion that is the product of extensive research, see pp. 68-72 of Benjamin Liebman, Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China, Harv. Int'l Law Journal, vol. 47, no. 1 (2006): 33-109.) The latest example is Hongfujin Precision Industry, the Shenzhen subsidiary of Taiwan-based Foxconn, which has sued two Chinese journalists (not their newspaper) for unfavorable reporting about labor rights violations. (See also the China Labour Bulletin story here.) The scandal in this case is not that Hongfujin has sued - for all I know, it may have a case - but that the Shenzhen Intermediate Court, apparently without notice to the defendants, has frozen all their assets, including residences, automobiles, and bank accounts. (I suspect they still have use of the residence and probably of the autos.)
The Shenzhen courts have already established for themselves a reputation for being sympathetic to local businesses in this kind of case - in the Shenzhen Fountain case, the plaintiff, Shenzhen Fountain Corporation, successfully sued Caijing magazine after the latter published a report questioning its accounting practices. (For details, see pp. 20-22 of Zhiwu Chen, Press Freedom and Economic Development (2005).) Shenzhen Fountain, by the way, was at the time and perhaps still is owned by Deng Xiaoping's niece; she and the company are discussed in this press report.
Because the plaintiff firm makes iPods for the US and other markets, Apple Corp. is in an awkward position and is "working behind the scenes to help resolve the issue", according to its spokeswoman as quoted in the South China Morning Post. The latest news on this is an unconfirmed report that the plaintiff, which had already promised to donate any proceeds to charity, has just modified its compensation request to a symbolic one yuan.
Monday, August 28, 2006
Just in case you were wondering, the police in China consider it unlawful to hire strippers to attract crowds to a loved one's funeral, thereby giving him or her more face after death. This has apparently been the local practice in Donghai (东海), a county in Jiangsu province. For details, see the following:
- Reuters report, Aug. 23
- Jiangnan Times (江南时报) report, Aug. 23 (in Chinese)
- Jinghua Times (京华时报) report, Aug. 22 (in Chinese, with pictures from a Focus (焦点访谈) report)
Sunday, August 27, 2006
The Standing Committee of the National People's Congress has just adopted two important (at least potentially so) pieces of legislation. Both are revisions of previously existing statutes.
- The Enterprise Bankruptcy Law (企业破产法), adopted Aug. 27, 2006, effective June 1, 2007 (Chinese text here)
- The Partnership Enterprise Law (合伙企业法), adopted Aug. 27, 2006, effective June 1, 2007 (Chinese text here)
I have not yet had time to read these and analyze the contents. While the delayed implementation date for something as sensitive as the Bankruptcy Law is understandable, it's hard to see why the implementation date of the Partnership Law is also so far off.
Friday, August 25, 2006
New York Times researcher Zhao Yan managed to escape conviction on the charge that he was the source of information for a Times story on Jiang Zemin's stepping down from the Central Military Commission. He was, however, convicted and sentenced to three years on an unrelated fraud charge. Those who have followed this case will know that the fraud charge is likely specious; either it was just too much for the authorities to admit that they had simply got the wrong man or they felt that punishing the innocent would make a paper like the Times think twice before publishing displeasing stories again. (Maybe they are right.) The NYT report is here.
Thursday, August 24, 2006
If further proof of the complicity of the central authorities in Chen's case were needed, try searching for his name (陈光诚) on Baidu (www.baidu.com): you get no results, along with a helpful message telling you that your keywords "may have content not in accordance with relevant laws and regulations" (您输入的关键词可能涉及不符合相关法律法规的内容). Interestingly, the results for both Google.cn and Google.com are very similar (they are headed by a nasty - and of course anonymous - character assassination which starts with the claim that because Chen is blind, he hasn't seen the great changes taking place in China!).
I recently posted on the proceedings of the Chen Guangcheng (陈光诚) trial； this farce has now reached its denouement with the sentencing of Chen to four years in prison for crimes (destruction of property, organizing a mob to block traffic) allegedly committed while he was under close police guard. As his lawyers were prevented by the authorities from attending the trial, the court appointed new lawyers for Chen who neither contested the charges nor called any witnesses on his behalf. (New York Times story here | Comments from attorney Xu Zhiyong's blog here.)
This case is just what it appears to be and hardly requires further commentary by me. I will just point out that Chen received substantially less due process than is typically available for murderers and other violent criminals. Even the Gang of Four got more due process than this. Central government leaders, who allowed this to happen, probably have better information on the state of Chinese society than I do. If they believe that the failure to crush a single individual who was, after all, exposing violations of state law will lead to a collapse of their authority, one can only conclude that the current state of social peace (such as it is) is fragile indeed.
I will conclude with a comment from Prof. Jerome Cohen of NYU Law School, who is closely acquainted with the details of the case:
The extremely harsh sentence for Chen Guangcheng confirms not only the lawlessness and vindictiveness of the authorities of Linyi City but also the determination of the national Communist Party Political-Legal Committee to intimidate and suppress the country's rising generation of human rights activist-lawyers. There was no valid basis for the charges against Chen. That is why all legal procedures were thrown out the window in his "trial". Otherwise his lawyers, who were never allowed in the courtroom, would have exposed the process as the farce that it was. Moreover, even if this idealistic and peaceful blind man who has led an exemplary life had been genuinely guilty of the charges, as his wife pointed out, the sentence is wildly disproportionate to the alleged offenses. It is another shameful demonstration by the highest leaders in the country - not merely the Linyi authorities - that all those in China who take seriously the regime's policies and legislation trumpeting "a socialist rule of law" do so at their peril. Chen's is not an isolated case, of course, but is related to the current campaign against lawyers, journalists and others who stoke the fires of the nation's increasing rights consciousness. But Chen is a justifiably famous person whose case will become a worldwide symbol of injustice in China. I will take my Chen Guangcheng T-shirt to my opening class on "Law and Society in China".
Wednesday, August 23, 2006
I previously posted a few times on the plagiarism suit brought by Wang Tiancheng (王天成) against Wuhan University law professor Zhou Yezhong (周叶中) (most recent post, with links to previous posts, here). Here, somewhat belatedly, are the latest developments in this case.
On July 18th, the Beijing No. 2 Intermediate People's Court delivered its verdict: victory for Zhou Yezhong. Wang Tiancheng's suit was found to "lack a factual and legal basis" (缺乏事实和法律依据). This judgment has been widely ridiculed within China; my sources tell me that the judges themselves were embarrassed by it but felt they had no choice, given the politics of the case.
- Text of judgment
- Response by Pu Zhiqiang (Wang's attorney)
- Response by Wang Tiancheng showing evidence of plagiarism
- Another critique
Wang Tiancheng has appealed; the text of his appeal submission can be found here. He does not expect to win, but is appealing to avoid any suspicion that he accepts the original judgment.
Monday, August 21, 2006
I am sorry to report two sad developments. First, Gao Zhisheng (高智晟), the attorney of whom I previously posted, is reported by Agence France Presse to have been arrested. It seems he was seized from his sister's home by several men who did not wear uniforms or identify themselves. As in most countries, it is unlawful in China to resist arrest, but presumably lawful to resist a kidnapping attempt. I wonder if it would be the official view of a Chinese court that a citizen, faced with persons attempting to spirit him away who wear no uniform, offer no identification, and say nothing, should assume that this is just regular police procedure and be liable if he attempts to resist?
The second sad development is the latest news regarding the trial of Chen Guangcheng (about whom I have previously posted), for which the word "farce" is scarcely adequate. The local authorities in Linyi, clearly intending not only to convict Chen but also to make a point that they can do whatever they want, prevented his lawyers from attending the trial by beating them or detaining them on grounds as patently - indeed, one might say conspicuously - flimsy as the charges against Chen himself.
By this time, the complicity of the central authorities in this disgrace can hardly be doubted. It is often said - I have said so myself - that the central government often has a hard time getting local governments to go along with its wishes, and cannot simply issue commands and achieve obedience. But at the same time, it is pretty clear that central government action would be swift and decisive were it to be discovered that the Party secretary of Linyi County was a Falun Gong adherent. It's just a question of priorities.
Thursday, August 17, 2006
This is not strictly speaking related to Chinese law, but it's related to China and to law, so may be of interest to some readers.
The Hopkins-Nanjing Center is looking for visiting professors to teach in its new 2-year MA in International Affairs (fully accredited in the US and China). (I think the visiting stints are for a year.) A former colleague of mine taught in their one-year certificate program and found it a very enjoyable experience. The Center's material states:
We are looking for economists, political scientists, and law professors to teach at the graduate level at the Hopkins-Nanjing Center. They will teach in English, largely to Chinese students, and need not have Chinese language ability or experience. The attached job announcements give more details about the positions for which we are searching.
We offer salaries comparable to what faculty receive at their home institutions, Hopkins benefits, plus travel and shipping stipends, a scholar's allowance, and free housing for professors and families.
The application deadline is Oct. 1, 2006. For more information, click here.
Sunday, August 13, 2006
Wal-Mart has been in the news recently after announcing on August 11th that it would work with Chinese officials to establish labor unions at all its outlets in China. Wal-Mart's history of opposition to unionization in its stores is well known, and as a New York Times report points out, "exactly what it means to have a unionized Wal-Mart store in China is unclear because unions in this country do not have a history of bargaining power."
Anita Chan, a research fellow at the Contemporary China Centre, Research School of Pacific and Asian Studies, Australian National University, has some very perceptive comments that I am attaching below (with some very minor edits and bracketed text added for clarification) with her permission:
Wal-mart has conceded. It must have realized it had made a wrong move, thinking it can use the same anti-union tactics as it does around the world. If it had been clever, the unions set up in Wal-mart superstores in China would have been no challenge to management. They would have been like so many of those other workplace unions set up by the ACFTU [All-China Federation of Trade Unions] in Asian foreign-funded enterprises in cooperation with management. It would have meant choosing a mid-level Chinese managerial staff to be the trade union chairperson without a democratic election. In many cases, the employees might not even have known that there is a trade union.
Will the unions that will now spring up in Wal-mart stores be the same? Very likely. Both sides probably prefer to have a "harmonious" relationship. But I also have the feeling that there may be new developments brewing among some ACFTU trade union officials. The way that these five trade union branches got set up was very different from any other in China that I know about. Piecing together the various Chinese press reports, it becomes apparent that the local ACFTU officials had to resort to grassroots organizing techniques widely used by "normal" trade unions elsewhere in the world. The entire procedure was secretive, without the knowledge of management. First, the local union officers sought to raise workers' consciousness by giving them literature to read. Then they talked to workers one by one secretly to persuade them to join the union. The union sought to cultivate activists who in turn would get other workers interested. Then when they had enough people interested in signing up to request a union -- in the case of China only 25 were needed -- the local union officials took Wal-mart by surprise by declaring that a union at the workplace had just been established at a ceremony. To top it all, the meetings and ceremonies all took place in the early hours of the day after midnight! Wal-Mart's adamant stance had provoked the ACFTU into trying out real grassroots organizing for the first time. This may be an experience the union federation will want to analyze for possible future use in similar cases.
It is often thought that there is no collective bargaining in China. Actually there is, especially in the OECD countries' big joint ventures. There is also some in SOEs or former SOEs. The bargaining may not be as sophisticated, legalistic or adversarial as the ones we witness in Australia or in the US, but nonetheless they involve a kind of bargaining. In the case of Wal-Mart, having been put in the spotlight, the ACFTU may want to let its own people and the world know that the union is serious about protecting employees' rights. I don't think this is likely, but it may be too early to rule it out and to simply assert that these union branches, especially the first few, are bound to be useless like so many others.
Friday, August 11, 2006
This is quite a week for law-related NGO jobs. There's plenty of time to think about this one; Ford is looking for a successor to Titi Liu, who is leaving in July 2007. Closing date for applications is Oct. 20, 2006. Ms. Liu encourages those seriously considering applying to contact her with any questions.
Here's the announcement: Download Ford_Foundation_announcement.html
Thursday, August 10, 2006
I have been asked to post the attached job announcement from Human Rights Watch, which seeks a researcher on China, preferably based in Hong Kong. No closing date is mentioned.
Details here: Download HRW_Announcement.html
Wednesday, August 9, 2006
I've been asked to post the following announcement; relevant documents follow after the announcement.
We're pleased to bring to your attention the following competition (see 3/3 attachments), which is open ONLY to non-Chinese nationals currently residing in Beijing.
Human Rights and Governance Specialist (ASST-07)/ Spécialiste en droits de la personne et gouvernance (ASST-07)
Competition No: 2006-OCIV-PEK-LEX-PERPA-016
Closing Date / Date Limite: August 27, 2006 / août, 27, 2006
Please send your resume and covering letter either via e-mail to firstname.lastname@example.org or via fax: 6532-4311.
Veuillez adresser votre curriculum vitae et votre lettre explicative par courriel à email@example.com ou par télécopieur: 6532-4311.
Human Resource Section/ Section des ressources humaines
Embassy of Canada - Beijing/ Ambassade du Canada à Pekin
Wednesday, August 2, 2006