Thursday, April 23, 2009
Friday, April 3, 2009
I finally got around to reading Wang Shengjun's Supreme People's Court Work Report delivered to the National People's Congress on March 10th and released a week later. In a genre that practically demands platitudinousness, Wang went beyond the call of duty. I was thinking of having an RA do a statistical count of meaningless 4-character phrases such as 开拓奋进 and 扎实工作 and then compare the frequency with previous years' reports, but gave it up because of difficulties of definition.
Anyway, here are a few comments:
- The Supreme People's Court itself hears a very large number of cases: it accepted 10,553 cases in 2008, up from 7,725 in 2007. Assuming death penalty review (for which they hired literally hundreds of new judges) counts as a case, then I would guess that the great majority of these cases are death penalty review cases. They don't have jurisdiction over many other cases - appeals as of right from any of China's provincial-level courts and cases of national significance, over which they have original jurisdiction. One Chinese scholar estimates (Chinese | English) that death penalty review in and after 2007 would be about 90% of the SPC's case load; if so, then this jibes with rough estimates of the number of death sentences in China, which generally put it at around 10,000; the lowest possible number is 1,718 in 2008, which is the number of public announcements of executions actually counted by Amnesty International.
- Once again we get a statistic of how many people were sentenced to punishments of at least 5 years' (or maybe "more than 5 years"; the Chinese can be read both ways, but it's probably "at least") imprisonment (including life sentences and death sentences): 159,020. This strikes me as the world's most useless number. Is there any purpose served by lumping together someone who gets 5 years (or a bit more) and someone who is executed? I have to admit that this way of categorizing criminal sentences was not just invented by Wang, though - it has a long history in Chinese Communist Party criminal law. In the Chinese Soviet Republic (1931-1934), the longest fixed-term sentence was 5 years; after that, it was death. I guess they didn't want to feed anyone longer than 5 years, or perhaps correctly anticipated they wouldn't last that long against the Guomindang encirclement campaigns.
- Incredibly, Wang boasts that in the melamine-tainted milk case that poisoned about 290,000 babies (as well as in other emergencies such as the Wenchuan earthquake), the SPC "promptly formulated judicial measures" to address the issues. The judicial measure formulated by the SPC in the melamine case seems to have been a secret instruction to lower courts not to accept any tort suits; although lawyers and plaintiffs made many attempts, no case was accepted until March 25th, more than two weeks after Wang delivered his report.
- Labor disputes were way up: 94% more than the previous year. This statistic has been out for a while and is generally interpreted as reflecting both the new Labor Contract Law and harder economic times. But it might also reflect a new willingness of the courts to accept such cases; perhaps in the past they were turning many away.
- Wang states that the rate for executed judgments (presumably civil) was 87%. It's hard to know what this number means. I don't think it could possibly mean that 87% of civil judgments not voluntarily performed were subsequently fully performed through the execution process. The 87% figure must, I think, include partial performance. But 5% and 95% are both partial, so it's hard to know really how significant it is.
- We see renewed praise for the "Ma Xiwu adjudication style." The populist, from-the-masses-to-the-masses, procedure-be-damned Ma Xiwu style is definitely making a rhetorical comeback. When I was in Beijing last December I picked up some recent books on the "Ma Xiwu adjudication style." For more on the Ma Xiwu adjudication style, click here. Ben Liebman of Columbia Law School will shortly be publishing a great paper on the return of populism in China's courts. (See E. Perry and S. Heilmann (ed.), Mao's Invisible Hand (forthcoming).)
- In line with the resurrection of praise for the Ma Xiwu style, there's also a renewed emphasis on mediation; in 2008, apparently 59% of civil cases were settled by court mediation.
- The people's assessor system seems to be developing into a system involving a small cadre of semi-professional citizen judges who hear a very small (and probably well defined) number of cases. This is what I guess on the basis of the following statistic: 55,681 assessors sat in on a total of 505,412 cases. This is about 5% of the total number of cases in 2008, no matter how defined (10.7 million accepted, 9.8 million completed); not a lot. On the other hand, that's about 9 cases per assessor, and even more when you consider that very often there is (or is supposed to be) more than one assessor per case. This jibes with what I've heard elsewhere: that assessors are selected with a view to them serving for what amounts to a term and sitting in on several cases.
- Because China has a process for changing the verdict of judgments that have already become "legally effective", there is concern in some quarters that no Chinese judgments are ever really final. If the report is correct, then as a practical matter it seems a legally effective judgment is pretty final; only 0.19% of such judgments were changed. On the other hand, I suppose one has to do an individualized determination in each case; procuratorates managed to get judgments changed in at least 2,273 (24%) of the 9,604 legally effective judgments they challenged.
- According to Wang, the caseload of the courts has gone up twentyfold in the years from 1978 to 2008 (the statistics are readily available, but I haven't checked this statement); at the same time, the number of court personnel has increased by only 168% (at least, that's how I interpret "增加了１．６８倍").
- Finally, a great deal of time seems to have been spent getting judges to study the Three Supremes (the obvious joke is too obvious to be worth making, so I won't): Supremacy of the Cause of the Party, Supremacy of the Interests of the People, and Supremacy of the Constitution and Law (the last one coming, well, last).
Comments welcome. Remember that they won't show up until I review them - that's how the system is configured - so don't keep re-posting in frustration when you don't see them.
Thursday, April 2, 2009
Here's an interesting case just reported in Caijing:
Defendant's home was to be torn down to make way for a new real estate development and defendant and his family (wife and small child) relocated. Defendant refused to move because not satisfied with the compensation offer. (So far, so typical.)
The developer apparently had a reputation for unlawful tearing down and the use of violence, and had even been told to stop by the Benxi city government. (How bad to you have to be to merit that?)
On the day in question, the company sent 40 or 50 people to the defendant's house. (We are apparently NOT talking about police or anyone with any official position, if that matters.) Ten of them broke into the house (i.e., entered by means of violence and without permission). The wife was dragged away and slapped several times. The husband was in bed; when he tried to get out of bed, he was held down by several people. He grabbed a fruit knife that was nearby and stabbed the nearest person, then managed to run off. The person stabbed died in the hospital two days later. (After the defendant ran off, the gang proceeded to tear down the house. Now that's dedication to duty!)
The defendant has been charged with intentional wounding leading to death (故意伤害（致死）). (I don't know offhand which particular article of the Criminal Law this is.) His lawyers are pleading self-defense.
This is going to present a lot of difficulties for the local court, and not just for political reasons (i.e., the developer presumably has a lot of local clout). Although it would be very hard to get a conviction in such a case in the US, my sense is that Chinese legal culture is much less permissive in self-defense claims, and in particular is not particularly moved by the "a man's home is his castle" argument. It is on the contrary very moved by the fact that someone died, and in general, someone is going to have to pay for it to at least some degree. I recall a case from the Xing'an Huilan in which elder son accidentally hit his mother while protecting her from an attack by younger son; he was sentenced to death even though presumably this was the last thing Mom wanted. And there are other cases I recall from much more recent history in which the law seems to have made very unreasonable (in my opinion) demands on the defendant to avoid damaging his attacker. Thus, a verdict against the defendant in this particular case might not be explained simply as the strong getting their way against the weak. I think it might be consistent with what I see as the unsympathetic view of the Chinese legal system to self-defense claims in general, at least when death results. On the other hand, clearly it is not going to go down at all well with a lot of Chinese citizens if the defendant is not exonerated. I predict an epidemic of various illnesses in the Benxi court system that will keep judges in hospital and regrettably unable to hear cases for a while.
Wednesday, April 1, 2009
Here's a very interesting development: on March 30, 2009, the Supreme People's Court opened to public use a web-based database of all judgment debtors in all courts in the country (except military courts). When I say "judgment debtor" (the Chinese term is 被执行人, perhaps most directly translated as "executee"), I mean defendants who have had executable judgments rendered against them and have not yet complied, regardless of whether there is money involved; it may be they are required to do some act, not just to pay money. Since the purpose of this database is apparently to increase compliance, I am assuming without actually knowing that judgment debtors are removed from the list once they comply. The list includes all judgment debtors in new cases starting in 2007 and in cases begun before then where there is an unexecuted judgment. According to an article in Caijing, the database now has over 6 million cases.
Information is supposed to be posted to the web site by the court in charge of execution of the judgment. The database may be searched by party name, identity card number (if a person), or organization code (if an organization). I was surprised to read in the Caijing article that apparently courts have not in the past always required parties to provide their identity card numbers to the court, so this information is not always available. Although you can search by identity card number, the information displayed once you find someone omits the last four digits from the card number in order to preserve the party's privacy. (This seems like a good idea.)
If a party has an objection to the content, it may file an objection under a specific set of rules.
The database serves two purposes. First, it is intended to put pressure on defendants to perform judgments. This might function through a kind of public shaming, although it's not very public. More effecitve, I think, is the way this database can function as a check on the trustworthiness of potential business partners. If judgment-scoffers routinely find that nobody wants to do further business with them, they will have an incentive to comply.
Second, it is intended to put pressure on the reporting courts themselves to work hard on getting judgments performed; it looks bad when the public can look up judgments that are years old and still unexecuted.
Needless to say, not all unexecuted judgments indicate that something bad is going on. When the defendant is insolvent, the judgment will stay unexecuted. When the judgment is unjust - for example, the judge was bribed - then the defendant's resistance is understandable. But it's still a good idea to make this information public: if the defendant has a good case to make to a potential business partner, he can explain himself.
I hope law firms are paying attention to this database - it seems to me that not to make it a standard part of any due diligence investigation would amount almost to malpractice.
This seems to me, at least at first glance, to be an entirely positive development. The potential downside - the legitimate interests of defendants in the privacy of their identify card number - seems to have been taken care of. Are there other downsides I've overlooked? I'd welcome comments.
UPDATE: Here's a screen shot (click for full-size view) of a report on a random judgment debtor (I just picked the likely-sounding name of 张卫东, since many people got names like that in the 50s and 60s). One thing seems to contradict an assumption I made above: this record is still in the database even though it seems that the judgment has already been performed (已结). If so, this reduces the incentive of judgment debtors to perform, although perhaps it increases their incentive not to get on the list in the first place. This makes it critical to understand how you get on the list: is it just by losing an executable judgment, or is it by refusing to perform and thereby being subject to coercive execution (强制执行), or is still some other circumstance?
UPDATE #2 (April 2): Mr. Lan Rongjie, a Chinese lawyer currently an SJD candidate at Temple Law School and a PhD from Sichuan University Law Faculty, offers the following helpful clarification:
Initiation of execution depends on two conditions: 1) the defendant fails to perform the judgment within a specific period of time set by the court, and 2) the plaintiff files an application for forcible execution (强制执行). Please note when Chinese courts refer to execution of a court judgment, it means (forcible) enforcement. Therefore, even though all records show that all judgments against a specific person have been executed, it still indicates that this person does not have a good reputation in complying with court orders.
I have received the following announcement:
The Tsinghua China Law Review is a new academic law journal at the Tsinghua School of Law in Beijing. The TCLR will publish scholarly articles on topics related to China's laws and legal system. The journal is the first of its kind in China, as it is published in English and is student-managed. Articles will be edited by a diverse staff of Chinese and international students. The TCLR will follow the format of a US law review, will be printed in the US, and in the future will be available through Westlaw, Lexis, and HeinOnline. For more details, please see the website (http://www.tsinghua.edu.cn/docsn/fxy/tclr/tclr.htm).
For all scholars in the China law field, there are still a few days remaining to submit articles for the Spring issue! The period for submissions closes on April 3rd. Please see the website for submissions details.