Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Thursday, June 25, 2009

Liu Renwen on death by lethal injection

According to the China Daily, by the end of 2009, all executions in China Beijing will be by lethal injection instead of the traditional gunshot. (I've previously blogged here and here on this issue.) Here, in translation courtesy of the Dui Hua Foundation, is an opinion piece by Prof. Liu Renwen of the CASS Institute of Law. Prof. Liu sees this as a step forward both because it's a more humane way of executing and because it marks, in his view, progress toward the eventual abolition of the death penalty.

I hesitate to criticize Prof. Liu, who is a consistent advocate for policies I tend to favor and is also a friend. But his opinion piece reflects a complete unawareness, which I am afraid is widespread in China, that there might be any problems with lethal injection that would make it less humane that a bullet in the back of the head. These problems have been the subject of extensive debate in the United States on the grounds, among other things, that it may inflict severe but undetectable pain (for materials, see here and here; a recent Supreme Court opinion on the issue is here; New York Times report here), and it's unfortunate that this side of the story does not seem to appear in China.

Various people have also told me - I have no way of knowing whether this is true - that lethal injection became popular not because it was more humane than shooting, but because it didn't result in blood spattering all over the place, which made those nearby worry about AIDS. The story has some plausibility, given that lethal injection got its start in Yunnan, where intravenous drug use, and therefore the HIV infection rate, is high.

UPDATE, 2 JULY 2009: I misread the China Daily piece; it speaks only of Beijing, not of China as a whole.

June 25, 2009 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

The Month The Censors Stopped Taking Their Medication

Here's an excellent post on Rebecca MacKinnon's blog on recent developments in censorship in China.

June 25, 2009 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 23, 2009

Yet another barrier to entrepreneurship in China

I was talking the other day to a friend who is trying to get a small company registered in Beijing. Among the many roadblocks thrown up by the Beijing Administration of Industry and Commerce is this amazing (to me, anyway) one: she has to provide an explanation of why she chose the name she did for the company. While certain words and implications (for example, "China National ..." if you aren't a centrally-owned SOE, or cuss words) are understandably prohibited, her proposed name implicated none of these. It's just the interfering instincts of overly idle bureaucrats, as far as I can tell.

June 23, 2009 in Commentary | Permalink | Comments (2) | TrackBack (0)

Tuesday, June 16, 2009

Jerome Cohen calls on Taiwanese lawyers to speak out

With the author's permission, I'm attaching here a recent op-ed by Jerome Cohen calling on Taiwanese lawyers to show the same courage exhibited by several admirable PRC lawyers (in much riskier circumstances) and to speak out against abuses and in favor of reforms in the Taiwanese legal system.

June 16, 2009 in Commentary | Permalink | Comments (2) | TrackBack (0)

Saturday, June 13, 2009

Husband and wife successfully sue former mistress for return of 300,000 yuan in gifts

Here's an interesting story: after a man broke up with his mistress, he and his wife successfully sued her for the return of 300,000 yuan, representing the value of gifts he had given her over the years they were together.

Dan Harris, from whose excellent China Law Blog I got this story [English | Chinese], comments that it's a good example of how Chinese courts tend to weigh the perceived equities very heavily in their rulings, as opposed to what the law might strictly require. I don't disagree with this as a general proposition, but would note only that the wife's case seems far from meritless. China has a community property system for married couples, and the wife argued that the husband could not therefore validly alienate these gifts without her consent. As the mistress pointed out in her defense, of course, the entire economic system would break down if any transaction by a spouse could be invalidated later by the other spouse at will.

Here's the legal basis for the two arguments:

Mistress: The Marriage Law (Art. 17) says that "Husband and wife have equal rights of disposition over community-owned property" (夫妻对共同所有的财产,有平等的处理权。) In other words, either party can dispose of community property on their own.

Wife: Art. 17 of the Supreme People's Court's Interpretation of Several Issues in the Application of the Marriage Law (关于适用《中华人民共和国婚姻法》若干问题的解释) indeed states that "[e]ither party has the right to decide on a disposition of community property where it is for daily living necessities" (i.e., a concept of ordinary expenses) (因日常生活需要而处理夫妻共同财产的,任何一方均有权决定。 ). But where important dispositions for non-ordinary expenses are involved, both spouses must agree (夫或妻非因日常生活需要对夫妻共同财产做重要处理决定,夫妻双方应当平等协商,取得一致意见。)

Mistress: At least according to the news report, the mistress responded that Art. 17 of the SPC Interpretation also says that "[w]here the third party has reason to believe, the other spouse may not oppose the disposition to a bona fide third party on the grounds that he or she did not know or did not consent." Unfortunately, the mistress did not quote the provision in full. It actually says, "Where the third party has reason to believe that [the disposition] is a manifestation of the joint agreement of the husband and wife, the other spouse may not oppose the disposition to a bona fide third party on the grounds that he or she did not know or did not consent." (他人有理由相信其为夫妻双方共同意思表示的,另一方不得以不同意或不知道为由对抗善意第三人。 )

In short, if you accept just two premises - (1) that gifts to a mistress are not a necessity for daily living, and (2) that a mistress could not reasonably believe that a wife would consent to the gifts being made to her - then the wife's case actually looks pretty good. Thus, it might be a mistake to see this case as an example of a court overriding the law to get at the equities.

June 13, 2009 in Commentary, News - Chinese Law | Permalink | Comments (2) | TrackBack (0)

Wednesday, June 3, 2009

Courts as fora for dissent

I was asked by the New York Times to contribute a very brief comment on the above subject; here's the result. (The other contributors' comments on dissent are also, of course, worth reading.)

June 3, 2009 in Commentary | Permalink | Comments (0) | TrackBack (0)