Wednesday, November 29, 2006
I previously posted here and here about the suit brought by Prof. Chen Tangfa against the Hangzhou Blog Information Technology Company, owner of the Blogcn.com site. Because there's been some interest in this case, I had a research assistant do a translation, which I have revised a bit but which is still in draft form. Nevertheless, I offer it here [Chinese | English] for those who are interested.
At the time I originally posted, I was too busy to look at the decision closely. Now that I've done so, I'm surprised to see that the court actually does not seem to have had a lot of sympathy for Prof. Chen. While the court required the defendant to apologize, it rejected the plaintiff's claim for 10,000 yuan for emotional distress (my loose translation of 精神损害) as well as his claim for 324 yuan in filing fees when he initially filed against the wrong party, giving him only the 1,000 yuan he spent getting a notary to look at the insulting blog post and attest to its existence. It rejected any claim against the defendant for damages caused by the wide discussion of the case in the media (which of course had had the effect of propagating the insulting remarks all over China, and indeed as far as this blog). It required him to share the court costs with the defendant (although he had to pay only 50 yuan out of 260).
In short, by bringing this suit Prof. Chen saw the insults in the blog post (which had in fact been hidden from the public by the defendant at about the same time he filed suit) spread more widely than they ever could otherwise have been, and paid 374 yuan for the privilege (in addition to whatever his legal fees were) - a Pyrrhic victory if there ever was one.
Tuesday, November 28, 2006
I last posted here about the farcical trial of Chen Guangcheng, the blind legal activist from Shandong. The verdict in his first trial was overturned and the case was remanded back to the original court. His second trial is now under way. Although three former prosecution witnesses promised to testify for the defense this time, saying that their former testimony had been elicited by police torture, none showed up; two had simply disappeared, while a third was kidnapped on the eve of trial by unidentified men literally in front of the eyes of two of Chen's lawyers. The Washington Post story is here.
Saturday, November 25, 2006
Here is an edited version of an announcement I recently received:
The Second Conference of the European Association for China Law Studies is bringing together legal scholars from Europe and other countries around the world. This conference series will serve as a meeting point for the research and teaching of Chinese law, an informational exchange among those involved in organizing China law studies, and a forum for developing individual research projects.
Authors are invited to submit abstracts before January 15, 2007. The abstracts should be submitted as an email attachment sent to Dr. Knut Benjamin Pißler (Max Planck Institute for Comparative and International Private Law, Hamburg/Germany, firstname.lastname@example.org) or to Professor Christiane Wendehorst (Sino German Institute for Legal Studies, University of Göttingen/Germany, email@example.com). The preferred format is MS Word.
The abstract should include:
- the title of the paper,
- full names of the author(s), their institutions, and email of the corresponding author,
- up to one page of text summarising the main contents of the proposed paper.
Authors will be informed of the paper’s acceptance before February 1, 2007. Camera-ready papers (not exceeding 10 pages) are due by July 1, 2007.
The full-length papers presented at the conference will be published.
For more information, click here.
Friday, November 24, 2006
The Treaty Between Australia and the People's Republic of China on Mutual Legal Assistance in Criminal Matters was signed on April 3, 2006 (but has not yet been ratified by either side). Click here for the text in Chinese and English, as well as for the minutes of the negotiation.
Thanks to Aviva Gulley of the Australian Embassy, Beijing for the link.
Thursday, November 23, 2006
In a speech earlier this month, Supreme People's Court president Xiao Yang stated that in the 9-year period from 1997 through 2005, 41,038 criminal defendants had been found innocent, representing 0.66% of the number of persons on whom judgment had been pronounced. [Source] He is not reported to have commented on whether he thought this figure was too high, too low, or just right.
Without information on what kind of cases are brought to trial - information that only in-depth fieldwork would reveal - it's hard to know what to make of this number. It is theoretically possible that doubtful cases are never brought to trial, although recent well publicized cases of miscarriages of justice (for example, here and here) make that hypothesis a bit implausible. But just how implausible is impossible to say.
The acquittal rate in the United States is much higher: in federal courts, a recent study found that the average conviction rate in jury cases was 84%, while judges convicted slightly more than 50% of the time; a quick Google search finds estimates of the overall acquittal rate ranging from 17%
to about 25%. (I have not researched this extensively and would welcome better numbers.)
East Asian countries have much lower acquittal rates. Consider this report on South Korea:
Prosecutors normally indicted only when they accumulated what they considered overwhelming evidence of a suspect's guilt. The courts, historically, were predisposed to accept the allegations of fact in an indictment. This predisposition was reflected in both the low acquittal rate--less than 0.5 percent--in criminal cases and in the frequent verbatim repetition of the indictment as the judgment. The principle of "innocent until proven guilty" applied in practice much more to the pre-indictment investigation than to the actual trial.
The acquittal rate in Japan is less than 1 percent. [Source] (For a good study of the Japanese criminal prosecution system, see David Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (2002), reviewed here.)
Interestingly, Taiwan's acquittal rate is 12% [source] - lower than the US but still in the same ballpark, while conspicuously higher than that of Japan or South Korea, to whose criminal justice systems its own bears a much higher formal resemblance. Another source reports a somewhat lower rate:
According to statistics released by the Ministry of Justice, the proportion of those released without prosecution is about 20 percent yearly. The conviction rate of those that go to trial is more than 90 percent.
Monday, November 20, 2006
I have received the following announcement:
The U.S. Commercial Service at the Department of Commerce is sponsoring a U.S.-China Legal Exchange and Roundtable focusing on developments in China's draft Antimonopoly Law and Partnership Law. The Exchange features:
- Vice Minister Zhang Qiong, State Council Legal Affairs Office (SCLAO)
- Vice Minister Ma Xiuhong, Ministry of Commerce (MOFCOM)
- John Sullivan, General Counsel, U.S. Department of Commerce
- Other representatives of MOFCOM, SCLAO, U.S. Department of Commerce, U.S. Department of Justice, and the Federal Trade Commission
- Local legal experts
The Exchange will take place in the following cities on these dates:
- Seattle, WA - December 1
- Cleveland, OH - December 5
- Washington, DC - December 8
Registration forms and more information can be found here. Please note that registration is limited and will be accepted on a first-come, first-served basis.
Sunday, November 19, 2006
The November 2006 issue of the ABA Section on International Law's China Law Reporter is now available here. Here's a summary of the contents:
- Charles Booth, an Associate Professor of Law at the University of Hawaii School of Law and Director of the Institute of Asian-Pacific Business Law at the University of Hawaii School of Law, contributes "The Race of Two Tortoises: Insolvency Law Reform in Hong Kong and China".
- Paul Jones, Principal of Jones & Co. in Toronto, writes "Understanding China's Franchise Law Regulations".
- Robin Gerofsky Kaptzan, a US lawyer resident in Shanghai, contributes "Company Supervision of FIEs by Shareholders and Employees: A Hurdle for Small and Medium Size Enterprises in Shanghai".
- The Jun He Law Offices provide "Summary of Laws from June 10, 2006 to July 10, 2006" and "List of Laws and Regulations from June 10, 2006 to July 10, 2006".
- Kara Philips, the Collection Development Librarian/Associate Director of Seattle University's Law Library, contributes "Items of Interest," a review of China-related books and articles.
Friday, November 17, 2006
[This is a re-posting of a previous post; important new material has been added at the end.]
Thanks to Adam Bobrow for this recent post to the Chinalaw list:
Anyone interested in the drafting process, changes over time, recommendations provided, and comparisons with much of the competition law in more mature jursidictions should review the submissions of the American Bar Association, through several of its Sections including International, Antitrust, and Intellectual Property, to the Chinese government on the draft law. The comments and annotated translations of the law from both a 2003 draft and a 2005 draft can be found on the ABA's website:
- The May 2005 Comments of the ABA's Section on Antitrust, IP, and International Law (note that the body of the 2003 comments is appended to the May 2005 comments)
To this list I can add the following:
I recently received a job announcement from the ABA, which I have summarized below.
The Asia Law Initiative of the American Bar Association is currently seeking candidates to fill one Deputy China Country Director position, based in Beijing. ABA-Asia works closely with Chinese partners to promote public interest advocacy, good governance, and criminal justice system reform. The Deputy China Country Director will assist in developing, inplementing, and evaluating projects in China.
Please note that qualified candidates must have a Juris Doctor or equivalent law degree and at least five years of practical legal experience, including one year working on donor-funded international legal reform programs (preferably in China). The deadline for applications is Friday, December 15, 2006. Additional job details and requirements can be found here.
Monday, November 13, 2006
In my recent post on the case of journalism professor who sued a blog hosting site for failing to remove insulting comments about him, I ventured some comparative observations about US defamation law based on my admittedly shallow knowledge of the subject. Fortunately, my friend and colleague Perry Keller of King's College London, an expert on both Chinese law and media law, has volunteered some much more sophisticated observations, which I offer in place of my own:
I'm not sure that the case involving the abusive student is so far from western defamation law standards. Although, to be frank, the United States and China sit at opposite ends of the spectrum in this area of law and that makes comparison difficult. The Chinese government is, for obvious political reasons, very reluctant to recognise a public interest or public figure defence for defamation actions. The courts of the United States, in sharp contrast, have used the First Amendment to eviscerate much of the law of libel, which one could argue has had a mixed effect on American public life.
Defamation under the common law is based on the question of whether a reasonable person would find that the meaning of the statement lowers the reputation of the person in the eyes of society (which is not quite the same as asking whether the statement is insulting). If the meaning of the statement that a person is a "weisuoren" is that he is a “pervert” it does seem to meet that test.
As the professor does not appear to be even a 'limited purpose public figure', the New York Times v. Sullivan constitutional privilege would not apply.
Consequently, the major issue here would then be whether or not the statement is protected under a defence of opinion, as Don has suggested. Although the US Supreme Court has declared that the First Amendment does not offer a blanket opinion defence, insulting or exaggerated speech that does not contain implicit statements of fact is protected (Milkovich v. Lorain Journal).
Does the statement that the professor is a “weisuoren” contain an implicit allegation of fact? American courts have tended to take a liberal view of insulting speech and have often found that generally abusive language carries no imputation of fact (eg. “fascist”). So, it seems likely that this single word would be sheltered under the opinion defence, which also requires that the defendant be shown to be motivated by malice.
The statement about him having rotten teaching materials “lanjiaocai”, would more clearly contain an implicit factual statement. However, so long as there was some plausible basis for that opinion, I believe it would also be protected under American law, although my knowledge of US law is not renowned for its depth.
The European Court of Human Rights has developed a fairly robust standard of protection for defamatory speech made in relation to a matter of public concern. This public interest defence is strengthened where the claimant is a public figure, but unlike American law does not depend exclusively on that status classification. From a European perspective, the problem in this case is that there is no obvious public interest element, without which there seems to be little reason to afford a defence to a plainly defamatory statement. Even opinions (“value judgements”) can harm a reputation and must be made on a matter of public concern to gain protection.
The English law of defamation has changed considerably under the influence of European human rights law to offer greater protection to freedom of speech. Nonetheless, I cannot see the student succeeding in this case under English law. Opinion is protected under the defence of fair comment, but this defence is is restricted to comments on matters of public interest. Moreover, an English Court would be more likely to find that a statement that a man was a ‘pervert’ would contains an implicit statement about the claimant’s conduct. There would consequently need to be some plausible connection between proven conduct of the claimant and the comment.
Lastly, American federal law provides strong protection from liability for Internet services, including sites that host content (s.230 Communications Decency Act). European law offers similar protection until the point that a host site is put on notice that it is carrying defamatory content (the Electronic Commerce Directive). At that point, the site must remove the material to retain its defence.
None of this detracts from Don’s point that American law would protect this student or that Chinese law does not contain a basis on which to consider the freedom of speech versus protection of reputation issues. Although, from a European perspective, this is not much of a test case for freedom of expression.
Friday, November 10, 2006
The following announcement may be of interest to Chinese students:
Interviews for International LL.M. Scholarship at UMKC School of Law
The University of Missouri at Kansas City (UMKC) School of Law has a long established relationship with China and Chinese Law Schools, and has been inviting Chinese students to study law in Kansas City for more than a decade. We are bringing Chinese students here to broaden the perspective of our American students and faculty, and to bring about better preparation for the future worldwide marketplace, in which American and Chinese lawyers must cooperate. We are not interested in making a lot of money from Chinese student tuition.
Therefore, UMKC Law School offers a Generous Scholarship Program for LLM students. We will offer as many as fifteen partial scholarships, to reduce the already low cost of our general law LLM program.
One hundred percent of the LLM graduates from UMKC who have taken the New York Bar have passed.
The statement set forth at http://www1.law.umkc.edu/academic/china/llm/overview.htm
will give you complete information about the LL.M. program at UMKC School of Law. At that website, you can watch an interview (in Chinese) with two of our current LLM candidates concerning their experiences studying in America and their experience at UMKC.
An interview is required to qualify for admission and scholarship. Interviews will occur [in China - ed.] in late November and December of 2006, and, if positions remain open, additional interviews may occur in March of 2007.
Professor Patrick Randolph, director of the Chinese programs at UMKC School of Law, and director of the Peking University Center for Real Estate Law, will conduct interviews for the programs. Please contact Nancy Kunkel, Program Coordinator, via email at firstname.lastname@example.org to arrange an appointment. Mrs. Kunkel’s telephone number is (816) 235-1647 and her fax number is (816) 235-5276.
This case is not exactly news - it was reported back in August - but I wanted to hold off posting about it until I got a copy of the judgment (see below).
Chen Tangfa (陈堂发), a journalism professor, sued a blog hosting service for not taking down insulting comments about him posted by a student. The comments, while certainly insulting (猥琐人wretched/tedious person, 烂人烂教材 rotten person and rotten teaching materials, 流氓 hooligan), fall I think comfortably within what we might call expressions of opinion rather than assertions of fact. [Nov. 11 FOLLOW-UP: I had not seen 猥琐人 before and relied too much on my prudish dictionary. As Willi Hao's comment suggests, it does indeed have a sense of "dirty" or "perverted".]
The court judgment found the comments actionable and the blog hosting service liable. My quick review of the judgment suggests the following interesting aspects of the issues dealt with by the court:
- Did the post infringe on the plaintiff's rights? The defendant argued (unsuccessfully, of course) that the poster had no subjective intention to harm the plaintiff.
- Was the hosting service liable? The defendant argued (lamely, in my opinion) that the defendant failed to provide proof of his identify. Whether the hosting service had a duty to remove the statements if the plaintiff had gone through the proper procedures seems not to have been an issue.
- An crucial non-issue was whether the statements were or were not actionable as defamatory. In other words, the plaintiffs did not argue that you may insult people with impunity in China provided you do not cross some line. Insults are harmful, and so you must bear liability.
My shallow acquaintance with defamation law suggests that the plaintiff's claim would not succeed in jurisdictions like the United States. This is not because nobody here thinks insults aren't harmful and sometimes quite unjustified. It's because there is a countervailing value - free speech - that must be considered as well. Although the Chinese legal system might well, if it thought about it, arrive at a different way of striking the balance between these two values, here (and in many defamation cases) the countervailing value doesn't seem to enter into the calculation at all. There is just no pushback. (For a far more detailed and nuanced view of Chinese defamation law than I can manage here, see Prof. Ben Liebman's excellent article on the subject, "Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China.") The irony of this suit being launched by a professor of journalism needs no elaboration.
Further sources and links:
Monday, November 6, 2006
In most countries an op-ed piece wouldn't mean much, but it's at least an interesting straw in the wind when an op-ed piece appears in the China Daily suggesting that it would perhaps not be a terrible thing, all things considered, to legalize prostitution, or at least to tolerate it in some form. The author was commenting on the controversy that ensued when AIDS prevention authorities in Harbin invited 50 xiaojie (the usual euphemism) to a lecture on prevention of AIDS and venereal disease. Staff members distributed gifts, pamphlets, and condoms. Apparently the police were complaining about the dilemma they were placed in: they could not arrest the xiaojie because that would have tarnished the credibility of the sponsoring organization. (It does not seem to have occurred to them that the act of attending a lecture aimed at prostitutes is not an offense.) As the author of the commentary can't resist pointing out, it's hard to take the police complaints seriously: if they really wanted to arrest these xiaojie, surely they could have done so at any time before the lecture. How is it that the health department managed to identify them while the police could not?
Incidentally, a colleague has pointed out that this piece seems to be a condensed version of a longer article in the Oct. 19, 2006 issue of Southern Weekend (南方周末) authored by a different person. No further comment.
Sunday, November 5, 2006
I have received an announcement from the CECC (slightly edited) as follows:
The Congressional-Executive Commission on China will hold another in its series of staff-led Issues Roundtables, entitled "China's National and Local Regulations on Religion: Recent Developments in Legislation and Implementation," on Monday, November 20, from 2:00 p.m. to 3:30 p.m. in Room 2200 of the Rayburn House Office Building, Washington, DC. All CECC hearings and Issues Roundtables are open to the public and the press.
On March 1, 2005, the State Council's Regulation on Religious Affairs (RRA) entered into force, representing the first comprehensive national regulation devoted to religious issues. This Roundtable examines the interplay between the national RRA and local regulations and discusses the practical impact of such regulations on freedom of religion in China.
The panelists are:
- Eric R. Carlson, Attorney, Covington & Burling LLP, Washington, D.C. and a Fellow of the International Center for Law and Religion Studies at J. Reuben Clark Law School, Brigham Young University.
- Bob (Xiqiu) Fu, President, China Aid Association, Midland, Texas.
- James W. Tong, Associate Professor of Comparative Politics, University of California-Los Angeles, and Editor of the journal Chinese Law and Government, Los Angeles, California.
Saturday, November 4, 2006
This is not exactly Chinese law-related, but it's not too far off, so here it is:
The Asia Society's Center on US-China Relations is looking for an associate director. The job announcement and a detailed description can be found here. Please note that they are looking for the following:
Ph.D. with 6-8 years experience in US-Asia affairs preferred with emphasis on China. A proven record of idea entrepreneurship, program management, and analytical excellence. Excellent writing and research skills. Proficiency in Microsoft Office software. Competency in Mandarin required.
Thursday, November 2, 2006
I have received the following e-mail (slightly edited) on another listserv:
The US/China Legal Exchange for 2006 is coming up at the beginning of December with sessions in Seattle on December 1, Cleveland on December 5, and Washington, DC on December 8. The Legal Exchange is an annual program between the Department of Commerce and China's Ministry of Commerce that provides the US business and legal community with the opportunity to learn about important changes to China's commercial law directly from Chinese government officials. Every other year, US experts travel to China to discuss legal developments with an audience in China; this year we will host Chinese legal experts discussing China's draft Anti-Monopoly Law and the recent amendments to the Partnership Law. The Chinese delegation will follow the precedent set in previous legal exchanges of having high level officials lead the Chinese delegation. This year's delegation will include Vice Minister Ma Xiuhong (Ministry of Commerce) and Vice Minister Zhang Qiong (State Council, Legislative Affairs Office). The laws to be discussed will have a tremendous impact on companies doing business in China or looking to enter the Chinese market, and the opportunity to hear about these laws directly from Chinese policymakers should be of great interest to anyone working with companies to take advantage of China's rapidly growing economy.
The Commerce Department is directly in charge of logistics for the Washington, DC session and can direct inquiries about the other sessions by those interested in participating. Commerce anticipates being able to accommodate approximately 75 attendees in Washington and while they have not finalized the planning or begun accepting registrations for the program yet, they have asked interested parties to post notices about the program. If you have questions about the program, please directly contact Joel B. Blank in the Office of the Chief Counsel for International Commerce at the U.S. Department of Commerce: email@example.com.
Wednesday, November 1, 2006
Court Organization Law amended to provide for universal Supreme People's Court review of death sentences
On Oct. 31, 2006, the Standing Committee of the National People's Congress adopted a resolution amending Art. 13 of the Court Organization Law (中华人民共和国人民法院组织法）to read in its entirety as follows:
死刑除依法由最高人民法院判决的以外，应当报请最高人民法院核准。(Death sentences, except where imposed by the Supreme People's Court according to law, should be reported to the Supreme People's Court for review and approval.)
(Note that "should" in this context doesn't really connote that there's any choice in the matter, but Chinese drafters sometimes say "must" (需 or 必须) and if they choose not to do it here, the translation should make that visible.)
This amendment represents a policy change that has been in the works a long time. Under the 1979 Court Organization Law (COL), the Supreme People's Court (SPC) had sole reviewing authority over death sentences - an authority that existed in addition to the regular one appeal that all defendants get as of right. In 1983, as part of the anticrime campaign of that era, Art. 13 of the COL was amended to give the SPC the authority to delegate death penalty review, in certain cases involving violent crime, down to provincial-level courts. Duly authorized, the SPC promptly issued a notice delegating that review power.
In recent years, however, discontent with the system of provincial-court review had grown because of a series of egregious miscarriages of justice, and the SPC put reclaiming this power of review on the agenda of its official Second Five-Year Plan for Court Reform dated Oct. 26, 2005.
An interesting question about this policy change: since provincial courts got their review power from the Supreme People's Court, the Supreme People's Court could have taken it back at any time simply by issuing another notice. Since as far as we know the SPC supports recentralization of review power, the fact that it was effected through NPC Standing Committee legislation may mean that those in favor of it wanted something a little more robust than a mere SPC notice.
Here are some news reports (in English):
- China Daily
- New York Times (free registration required)
- Xinhua report on background to the amendment (in Chinese) (added Nov. 5, 2006)
Here's a 2004 Amnesty International report (AI site|this site) on the death sentence in China. And lest anyone think that China has a monopoly on harrowing abuses in capital cases, check out the Texas capital punishment system in action here.