Thursday, September 17, 2009
Here's the remarkable story [Chinese | English] of Zhang Haichao (张海超), a young brick mill worker who contracted black lung disease and, after a long struggle, eventually got 615,000 yuan from his employer as worker's compensation.
The struggle involved the fact that under China's rules on worker's compensation, the diagnosis can't come from just anyone; it has to come from an approved diagnostic facility in the worker's place of residence. When Zhang started having symptoms (in 2007, three years after he started working), he went to at least four different hospitals seeking treatment; all recognized it as black lung disease, but apparently are not allowed to make official diagnoses where occupational diseases are concerned. All they could officially say on their diagnoses was, "Appears to be black lung disease."
The facility that did have the authority to issue a diagnosis of occupational disease, the Zhengzhou Occupational Disease Prevention Institute, apparently interprets its mandate to prevent occupational disease to mean that it should prevent anyone being diagnosed with an occupational disease. 眼不见，心不烦 ("What the eye does not see, the heart does not concern itself with"), I guess. It required Zhang to produce, among other things, a work history, a history of exposure to dangerous substances, an assessment report of dangerous elements, his occupational health records, and the record of results from employer-conducted examinations. (And of course, all these documents need to be produced by some official body; the claimant can't just create them himself.) With requirements like this, it would be remarkable if any worker ever managed to make a successful claim, and Zhang's chances weren't helped by the fact that his employer quite predictably refused to produce documents Zhang needed for his claim to succeed.
Zhang ultimately got his chest cut open so a doctor could directly observe and diagnose the black lung disease, but even that was of no avail. It was only when the media heard of and took up Zhang's case that the authorities pressured his employer to settle with him and a few others with similar complaints.
The story is interesting in itself, but the broader issue for the legal system is why it relies so much on these formal procedures for evidence. This doesn't occur just in worker's compensation cases, although here the rules of evidence go beyond mere formalism and seem almost deliberately designed to discourage claims. It occurs in other areas of law as well, where documents must be properly notarized even though there is not any real doubt as to their authenticity. Some of this obsession for formal authentication can perhaps be traced to civil law influences on China's legal system, but since China has in other parts of its legal system felt free to ignore what's done in continental Europe, I think the real answer to this still lies in Chinese legal culture. And it's a bit puzzling, since most of the time when state officials make decisions, they are not artificially constrained in the types of information they can take into account. Strict rules of evidence make more sense in jury systems, when there is a concern that lay people might misinterpret certain kinds of information. But China doesn't have juries (the system of "people's assessors" can't really be compared to the jury system), so what's the problem?
Finally, I have a hunch that because of the way China's tort law operates, it might have been cheaper for the employer to kill him instead of just making him very sick. Compensation when death occurs, unlike compensation when injury occurs, takes no account of lost earnings and is based on the average cost of living in the place of the decedent's residence. I may try to work out what the actual numbers in this case might have been, and if so will post later on that.
There's been some discussion recently on the Chinalaw list about Chinese law journals in English. Here's a list of those the community knows about, with comments taken from list members' comments:
- Frontiers of Law in China: Selected Publications from Chinese Universities, Jointly published by the Chinese Higher Education Press and Springer, 2006-, irregularly.
Most of the members of the editorial board of this scholarly journal are from the Law School of Renmin University of China. They select and translate academic papers on law published in China. The journal is available both in print and online at http://www.springerlink.com.
- China Legal Science, Beijing: China Legal Science Journal Press, 2001-, annual.
This English annual journal is published by the same press that publishes the Chinese bimonthly Zhongguo Faxue (中国法学). This journal presents English translations of some good articles selected from its sister publication, Zhonguo Faxue. Both journals are the official publications of the China Law Society. The Harvard Law Library has it up to 2003; it seems to have ceased publication after that.
- Peking University Journal of Legal Studies, Peking University Press.
The link I've provided is to a page offering subscriptions. It claims quite falsely that this is the "FIRST and ONLY" law journal published by China's finest law school. Other journals published by the law faculty are Zhong-Wai Faxue (中外法学) and Beida Faxue Pinglun (北大法学评论); the latter began in 1998.
- Tsinghua China Law Review. The current issue (Spring 2009) came out recently.
Sunday, September 13, 2009
A Bulgarian woman apparently caused quite a stir by going topless at a Qingdao beach; according to reports, "because no clear law exists prohibiting this sort of behavior, beach employees simply could not intervene."
Friday, September 11, 2009
I recently had the pleasure of reading "Reforming Knowledge? A Socio-Legal Critique of the Legal Education Reforms in Japan" by Annelise Riles and Takashi Uchida. The article looks at recent reforms in Japanese legal education that aim to replace the 4-year undergraduate law degree with a 3-year postgraduate degree modeled (in intention, if not in fact) on the American JD degree. Following a brief transitional period that I think ends this year, anyone who wants to be a practicing lawyer in Japan will have to have the new JD-style degree.
The reforms were premised on the idea that Japan needs to move from an "advance control" society, in which the government dictates private parties' behavior in advance, to a society based on after-the-fact review and remedies, in which parties choose their course of action and then take the consequences. The latter type of society, so this reasoning goes, requires more legal specialists to assist private parties in assessing the law's requirements. Therefore, society needs more, and differently trained, lawyers.
Riles and Uchida question the success of the reforms in a number of areas. But more importantly for comparative purposes, they question an unexamined premise of the reforms: that Japan needs more professional lawyers. At present, legal knowledge in Japan is relatively widely distributed; far more people are undergraduate law majors than become lawyers. Those who don't become lawyers often go into business, sometimes in corporate legal departments and sometimes not. But they have a pretty sophisticated understanding of legal issues and can talk intelligently with professional lawyers in a way that many American business people cannot. Riles and Uchida discuss the advantages and disadvantages of two ways of distributing legal expertise in society: the monocentric model, in which legal knowledge is something like medical knowledge, and the polycentric model, in which expert knowledge is not monopolized by a single profession. Their point is not that one model is right and the other one wrong; it's that this issue hasn't really been looked at in the reforms, and the currently prevailing polycentric model - which they believe contributes significantly to Japan's low litigation rate - is being abandoned without any real consideration of its costs and benefits relative to those of the monocentric model.
This way of thinking about legal education has obvious applications in any country, but particularly in countries such as China where there is more experimentation and searching for solutions going on. My impression - not based on any in-depth research - is that most of the discussion about legal education in China takes for granted that the goal of legal education should basically be to produce more lawyers, as opposed to legally literate people who work in other fields, and that legally related work should be handled by the single profession of lawyers. People such as rural "legal workers" (法律工作者) are barely tolerated as a necessary concession to China's perceived backwardness, not as something that should actually be encouraged.
I hope people in China will read this article and think about its lessons.
Tuesday, September 8, 2009
China's central government has recently been making efforts, involving both carrots and sticks, to prevent petitioners from showing up in Beijing. This policy thrust showed up in a recent directive from the Party's Central Commission on Politics and Law (中央政法委员会) (abbreviated "ZhengFaWei" below).
Here's an interesting communication I received on this from a correspondent who wishes to remain anonymous. The last paragraph has been slightly edited:
The Supreme People's Procuratorate has acted upon ZhengFaWei's recent directive to send working groups to select provinces to hear Shang Fang grievances locally. The first five provinces named are Hebei, Shanxi, Inner Mongolia, Liaoning and Henan.
The pronounced policy is that the groups will only hear claims that warrant proper SPP jurisdiction in the first place, which encompasses two categories: claims of (usually completed) unfair trials (shensu claims) that have gone through provincial-level xinfang offices and tips and allegations regarding high-level corruption. The policy means two things. Those already in Beijing with proper claims will not be entertained at the SPP and will be directed back to the provinces; those who may come before the working groups without proper claims will be ignored and redirected to the provincial-level offices.
It remains to be seen how long the mission will last and if the coverage will be expanded in future.
With the help of a map, it is not difficult to realize that the first four provinces directly abut or surround Beijing and [seem to have been chosen to] create a buffer zone. Talk about priorities. Henan, being the lone exception, must have had an exceptional record in this department.
Monday, September 7, 2009
Wednesday, September 2, 2009
Shijiazhuang Administration of Industry and Commerce sued for failing to allow access to corporate records
Tuesday, September 1, 2009
The Procuratorial Daily (检察日报) reports on the imminent removal from the corpus of Chinese law (it appears in a few places) of the crime of "speculation" (投机倒把). This crime is a typical feature of planned economies, but because it often means nothing more than buying low and selling high (and it is typically not strictly defined), is obviously unsuited for the current Chinese economy. The resolution now before the NPC Standing Committee amending various laws reflects that fact.
My sense is that there have been very few prosecutions for speculation in the last several years, and what there has been has not been for acts such as buying low in place X and selling high in place Y. Instead, they have been for acts that were administratively prohibited but not explicitly criminalized. For example, many years ago the Chen brothers started an IP telephony service in Fujian that irritated the Ministry of Posts and Telecommunications; they were raided and convicted (possibly later reversed - I don't recall) on speculation charges. (Memo to pack rats: keep the faith! I stored materials on this case for years and finally seem to have thrown them out last spring, thinking I would never use them, in a general office clean-up.) More details here.
Thus, what we're seeing here is more a legislative tidying-up than a major shift in policy.