Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Friday, January 23, 2009

Yale Law School's China Law Center seeks research associate for Beijing

I have received the following announcement:

The China Law Center, Yale Law School

Announcement

Research Associate, Beijing

The China Law Center of Yale Law School is seeking a graduating senior or recent university graduate for a Research Associate position based in Beijing.  The Research Associate will support Center projects in China by conducting research and writing on issues related to legal reform; interacting with scholars, officials, and lawyers in China; and performing administrative and logistical tasks.

Qualifications:

1) Bachelor's Degree or equivalent;
2) Proficiency in written and spoken Mandarin Chinese;
3) Fluent English;
4) Strong research, writing, analytical, and communication skills;
5) Strong organizational skills, attention to detail and an ability to work independently;
6) Interest in law and legal reform and a commitment to public interest service; and
7) Experience in China (preferred)

Interested applicants should send a cover letter and resume (including contact information for references) to The China Law Center at yalechinalaw@gmail.com.  Applications will be reviewed on a rolling basis.  Applicants will only be contacted if invited for an interview.  The Research Associate will receive a competitive one-year fellowship stipend for the 2009-2010 year.

The China Law Center

The China Law Center of Yale Law School is a unique institution devoted to supporting law and policy reform within China and increasing understanding of China in the United States.  The core of the Center's work is designing and carrying out sustained, in-depth cooperative projects between U.S. and Chinese experts on key issues in Chinese law and policy reform.  Our projects focus on areas that are critical to China's ongoing reform process, particularly judicial reform, criminal justice reform, administrative and regulatory reform, and constitutional law.

Since its start in 1999, the Center has opened offices at Yale University and in Beijing, with a small staff of lawyers and scholars with decades of collective experience working on law and policy reform issues in China.  The Center's Director is Professor Paul Gewirtz.  A full list of Center staff, and further information, may be found on our Website: http://www.yale.edu/chinalaw.

Yale Law School is an affirmative action, equal opportunity, Title IX employer.

January 23, 2009 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (0)

Review of human rights in China by UN Human Rights Council

The following is from Joshua Rosenzweig of the Dui Hua Foundation:

The status of China's commitment to its obligations under international human rights law will soon be up for review by the UN Human Rights Council as part of the new "Universal Periodic Review" process.  Under UPR, all UN member states are subjected to a uniform process according to a rotating schedule.  NGOs and other stakeholders were required to submit China reports to the UN last August, and these have been collated by the OHCHR into a single document that, along with China's own report, form the core of the formal review process, which is scheduled to take place on 9 February.  The troika overseeing China's UPR is made up of representatives from Canada, India, and Nigeria.  The council's recommendations to China will be released on 11 February.

Here are some relevant documents from the UN's web site:

There's also a compilation by the Office of the United Nations High Commissioner for Human Rights (OHCHR) of information on China (including HK & Macao) contained in the reports of treaty bodies and other relevant official United Nations documents. Here's an unedited version available at the OHCHR website.

January 23, 2009 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Thursday, January 22, 2009

China brings first case to WTO dispute resolution

The case is against the US; according to the Financial Times report on the case, it involves four sets of parallel anti-dumping and anti-subsidy duties imposed by the US on two types of steel pipe, pneumatic off-road tyres and laminated woven sacks. I'm not sure that this is the first time China has set the dispute resolution process in motion - you have to start with a request for consultations - but apparently it's the first time the matter has gotten to this stage.

January 22, 2009 in News - Chinese Law | Permalink | Comments (1) | TrackBack (0)

Sentencing in Sanlu cases announced

Here's the report from Caijing [English | Chinese]. There's a nice table at the bottom showing who got sentenced to what on what charges. The chairwoman and GM of Sanlu, Tian Wenhua, got life imprisonment for producing and selling substandard products (presumably Art. 140 of the Criminal Law, where a death sentence is not a possibility). Oddly, she was not convicted of producing and selling poisonous food (presumably Art. 144 of the Criminal Code, where a death sentence is a possibility), a charge that was the basis of at least one death sentence. It's hard to believe that had the procuracy charged her under Art. 144, she would not have been convicted; thus, it seems a decision was made early on not to charge her with a capital crime.

The other charge that brought death sentences was that of endangering public safety (presumably under Art. 115 of the Criminal Law, which speaks of causing injury or death through setting fires, cutting off water, explosions, spreading poison, or other dangerous methods). It's not an implausible stretch to apply Art. 115, but I wonder if this is the kind of thing the drafters had in mind; Arts. 140 and 144 seem a much better fit. Perhaps for some reason their premise of "producing or selling" was thought not to apply.

Here are the statutory references:

     第一百一十五条  放火、决水、爆炸、投毒或者以其他危险方法致人重伤、死亡或者使公私财产遭受重大损失的,处十年以上有期徒刑、无期徒刑或者死刑。
    过失犯前款罪的,处三年以上七年以下有期徒刑;情节较轻的,处三年以下有期徒刑或者拘役。

    第一百四十条  生产者、销售者在产品中掺杂、掺假,以假充真,以次充好或者以不合格产品冒充合格产品,销售金额五万元以上不满二十万元的,处二年以下有期徒刑或者拘役,并处或者单处销售金额百分之五十以上二倍以下罚金;销售金额二十万元以上不满五十万元的,处二年以上七年以下有期徒刑,并处销售金额百分之五十以上二倍以下罚金;销售金额五十万元以上不满二百万元的,处七年以上有期徒刑,并处销售金额百分之五十以上二倍以下罚金;销售金额二百万元以上的,处十五年有期徒刑或者无期徒刑,并处销售金额百分之五十以上二倍以下罚金或者没收财产。

    第一百四十四条  在生产、销售的食品中掺入有毒、有害的非食品原料的,或者销售明知掺有有毒、有害的非食品原料的食品的,处五年以下有期徒刑或者拘役,并处或者单处销售金额百分之五十以上二倍以下罚金;造成严重食物中毒事故或者其他严重食源性疾患,对人体健康造成严重危害的,处五年以上十年以下有期徒刑,并处销售金额百分之五十以上二倍以下罚金;致人死亡或者对人体健康造成特别严重危害的,依照本法第一百四十一条的规定处罚。[The relevant text from Art. 141 says, "致人死亡或者对人体健康造成特别严重危害的,处十年以上有期徒刑、无期 徒刑或者死刑."]

January 22, 2009 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Monday, January 19, 2009

USTR releases 2008 report on China's compliance with WTO obligations

You can download the report here. I offer no comments because I haven't read it yet.

January 19, 2009 in Commentary, News - Chinese Law, Publications | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 13, 2009

USTR internship in Beijing

Please see my China-side blog post here for details.

January 13, 2009 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (3)

Court decision in "human flesh search engine" case

"Human flesh search engines" is a term used to describe sites where internet vigilante mobs track down and publish personal details (name, home address, workplace, phone number, etc.) of those they believe have engaged in some kind of behavior worth punishing. Needless to say, the mob may not always have its facts right, and even if it does, there are privacy issues involved that will be treated differently by different legal systems.

A recent case by one victim against Web sites that had posted personal information about him ended in victory for the plaintiff, even though the allegation prompting the mob - that he had had an extramarital affair, to which the mob attributed his wife's suicide - was true. The court deserves credit for ruling in favor of someone it clearly viewed as a bad person, but what this case really shows is that the Chinese legal system weighs privacy pretty heavily against free speech, even when the speech is truthful. (I should point out that a defendant Web site that published only the story about the affair, but not the plaintiff's personal information, was found not liable.)

I wonder what Lu Xun, who wrote "Diary of a Madman" [English | Chinese] criticizing the metaphorically cannibalistic tendencies of Chinese society, would think of those who see no irony (or shame) in calling these things "human flesh search engines" (人肉搜索引擎).

Sources:

January 13, 2009 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2009

Supreme People's Court withdraws Qi Yuling interpretation

Big news on the constitutional law front and some quick late-night comments: the Supreme People's Court has officially withdrawn/cancelled (废止) its 2001 "Reply" in the Qi Yuling case (the announcement is here; see item 26). The cancellation appears as Item 26 in a Supreme People's Court notice dated December 18th; the notice lists 27 SPC interpretations issued prior to 2008 that are declared henceforth ineffective. A reason is supplied in each case - for example, a 1964 interpretation on the inheritance of residences leased out directly by the state, and another 1965 interpretation on urban housing owned by capitalists, are cancelled on the grounds that circumstances have changed to make it no longer applicable. But the Qi Yuling cancellation is accompanied by the rather lame explanation that "it is no longer applied" (已停止适用). In a sense this is completely accurate: the Qi Yuling case, after a torrent of initial publicity, quickly disappeared from judicial discourse and was never heard from again. Evidently the higher-ups decided the SPC had gone too far. Thus, this notice really just confirms what was already pretty obvious - that Qi Yuling was an outlier, not a trendsetter. But it doesn't explain what we really want to know, which is why it's no longer to be applied.

Qi Yuling was always kind of an odd case, in fact, so its demise is not really a disaster. For readers who don't know, here is a brief synopsis from memory. (Other synopses here and here.) The case involved a young woman (Qi) who took an examination to qualify her for further study. The letter informing her of her success was intercepted by another woman with the collusion of her father, a locally powerful person. The second woman then took on Qi's identity in the course in question, and continued to use Qi's identity as she went to work in a bank. Along the way, a number of institutions, including governmental ones, knew of the fraud but were complicit.

Qi discovered the fraud and sued, claiming among other things infringement of her right to her name and deprivation of her right to an education. At the time, that right was not found in any statute, but was contained in the constitution. The Higher-Level People's Court hearing the case asked the Supreme People's Court whether she could be awarded damages on the basis of this infringement of her constitutional right. The SPC answered yes. This was considered groundbreaking, because it had long been a dogma of Chinese law that the constitution could not be cited by courts or used as a basis in their judgments. (The bases for this claim were not very strong in my view, but that's another blog post; in any case, courts certainly believed it.)

The case is odd because it's never been clear to me why the SPC, if it wanted to help Qi without doing anything daring, couldn't simply have suggested a generous interpretation of the damages suffered by infringement of Qi's right to her name - an interpretation that would include her lost earnings. It's not self-evident that the only way to give Qi full compensation was to recognize her right to a judicial remedy for infringement of her constitutional right to an education.

It's also unsatisfying because it applies the constitution not against the state but against private parties. The appeal of constitutionalism and of government under law generally is that it promises limited government in order to maximize the liberty of citizens. If rules designed to limit government start getting applied to citizens, they will find their liberty severely constrained. It's all very well to prohibit government from discriminating on the basis of religion, but should churches be prohibited from doing so when they seek a pastor? I recognize that these questions are far more complex than I make them seem here; please remember this is just a quick blog post designed to show why the Qi Yuling case is not quite the shining beacon of constitutionalism some have interpreted it to be.

An interesting political question: is this part of an attack on Xiao Yang, which has seen him rumored, apparently falsely, to have been put under shuanggui (Party disciplinary detention) on suspicion of corruption, and may be connected with the downfall of Huang Songyou, a former SPC vice president, on corruption charges? The Qi Yuling Reply came out on Xiao Yang's watch, and was vocally promoted by Huang Songyou.

These are just my initial quick and unedited thoughts. Comments welcome. (Remember they will not appear right away.) Many thanks to Ben Liebman for bringing this to my attention.

January 12, 2009 in News - Chinese Law | Permalink | Comments (0) | TrackBack (1)

Saturday, January 10, 2009

Chinese cops spoil my party

I was in Beijing last month, and the night before I left invited some friends to join me for some food, beer, and conversation. Among those I asked to come was lawyer, activist, and Charter 08 signatory Teng Biao (腾彪). He didn't come, and didn't phone to say why. Later I found out why: he had been out visiting black jails (the illegal detention centers where petitioners are sometimes sent) and had been detained by the police for interrogation. It's kind of depressing to think that with a crime (unlawful detention under Art. 238 of the Criminal Law) taking place right in front of their eyes, the police would rather harass the people who are trying to stop the crime. Isn't this getting things backwards?

January 10, 2009 in Commentary | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2009

Arrests of journalists

Southern Weekend (南方周末) has a good article on arrests and detentions of journalists in 2008. See my China-side blog post here for English and Chinese versions.

January 2, 2009 in News - Chinese Law | Permalink | Comments (1) | TrackBack (0)

Law-related job in Beijing for Chinese national

Please see my China-side blog post here for details.

January 2, 2009 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (0)