Thursday, October 29, 2009
- China’s Antimonopoly Law—One Year Down
- China’s Antimonopoly Law—One Year Down: Part 2. China’s new merger review regime
- China’s First Court Decision under the Antimonopoly Law: A Misreading of the Law?
Tuesday, October 27, 2009
Two years ago I blogged about the gerrymandered National People's Congress ("gerrymandered" is not really the right word, but what's done is done) in which, by formal legislative design, there are four times as many delegates from urban areas as from rural areas relative to population. (I am deliberately not using terms such as "representation", since that word assumes that the NPC is actually a representative body, an issue I don't want to get into here.) Although seeing this as a problem and fixing it won't make China a democracy, it seems to me to be a very important - and welcome - symbolic step toward reversing the anti-rural bias that has characterized PRC politics since the beginning. And that step seems to be in the cards.The latest draft of the Election Law to go to the National People's Congress Standing Committee for review apparently removes distinctions between urban and rural residents, at least as far as they affect the number of delegates that come from particular areas. And that would mean the end of the four-to-one rule. Here's the news report.
Friday, October 23, 2009
Thursday, October 22, 2009
Monday, October 19, 2009
I have received the following announcement, which may be of interest to readers. (I confess I am puzzled by their claim to be "the first law journal in China".) (Oct. 20 update: I am informed that they meant to say, "the first student-run law journal in China".)
TSINGHUA CHINA LAW REVIEW, CALL FOR SUBMISSIONS:
The Tsinghua China Law Review is the first law journal in China and is
in association with Tsinghua University School of Law in Beijing,
China. The TCLR is an English-language academic journal aimed at a
global audience, publishing articles on legal topics relating to
China. The TCLR Board of Editors is a collaborative effort between
foreign students in the Tsinghua LLM Program in Chinese Law and
Chinese students at the Tsinghua School of Law. The journal follows a
U.S. law journal format. It is published bi-annually and distributed
to subscribers in the U.S., China, and throughout the world.
Call for Submissions
The TCLR is currently seeking high-quality scholarly articles for its
upcoming issue. Articles should be original works of legal analysis
on topics relating to Chinese law or other legal issues that pertain
to China. Citations are required for all points of law, assertions of
fact, or references to other works. Citations should be in footnotes
and formatted in accordance with the Bluebook
Articles may be submitted by email, in Word format, to
TsinghuaCLR@gmail.com or in hard copy, along with a CD-ROM electronic
copy, to the Tsinghua School of Law. Kindly email the preceding
address for postal information. Submitted articles will be
considered on a rolling basis.
A Note on the Language of Publication
The main body of articles should be written in English. However,
Chinese-language legal terminology, citations, or references to laws
or other original sources may be provided in Chinese, and will be
translated by the TCLR editorial staff. In addition, for articles
that regularly reference Chinese-language laws or other materials, the
TCLR editorial staff will translate the materials to English so that
they may be included as appendices to the article for publication.
Courtney L. Gould
Wednesday, October 14, 2009
There has recently been a minor tempest over regulations passed by the Hubei Provincial People's Congress Standing Committee on July 31, 2009. The provincial regulations implement the national Law on the Protection of Minors.
One provision that excited a lot of comment was the rule supposedly forbidding parents from seeing the text messages of their children. (The headline of this report, for example, is "Hubei legislation forbidding parents from checking their children's text messages is criticized as not conforming to China's situation." And the English-language Global Times reports, "Parents barred from peeking at kids' emails." ) But a look at the actual text suggests that this is a misreading.
It takes a little chutzpah to say that everyone is wrong and I'm right, but I've been saying it for so long about so many things that there's no reason to stop now. The provision in question, article 34, says, "No organization or individual may reveal private information about minors. With respect to letters, diaries, e-mails, on-line chat records, cell phone text messages, and other personal communications, no organization or individual may conceal or destroy them. Without the permission of the person or his/her guardian, it is forbidden to open and/or inspect them. The preceding does not apply when the law provides otherwise." (任何组织和个人不得披露未成年人隐私。对未成年人的信件、日记、电子邮件、网上聊天记录、手机短信及其他个人信息，任何组织和个人不得隐匿、毁弃，未经本人或其监护人同意，不得擅自开拆、查阅。法律法规另有规定的除外。) If the guardian can give permission to any Tom, Dick, or Harry, it would be silly to say the guardian could not give permission to himself. And it would further make no sense to read "guardian" in a narrow sense so as to exclude parents. Thus, it seems sensible to conclude that the provision in question does not in fact bar parents from monitoring their children's private communications, and Hubei is not an outlier after all.
This conclusion is reinforced by the fact that an earlier draft of the bill explicitly forbade parents from checking children's text messages without the permission of the child. That provision didn't make it into the final draft, presumably because that effect was not intended.
The provincial regulations do enhance the privacy of minors by broadening the scope of protected communications; the national law speaks only of letters (信件). On the other hand, the national law (perhaps unintentionally) is actually more, not less, protective than the Hubei law with respect to what it covers: it seems to forbid even parents and guardians from opening the letters of minors who have the capacity to act. Here's the provision (Art. 31 of the national law), translated quickly and inelegantly: "No organization or individual may conceal or destroy the letters of minors. With the exception of police organs or the procuracy who undertake inspection according to provisions of law because of the needs of criminal investigation, or of parents or guardians who open [letters] on behalf of minors without the capacity to act, no organization or individual may open [letters of minors]." (对未成年人的信件，任何组织和个人不得隐匿、毁弃；除因追查犯罪的需要由公安机关或者人民检察院依照法律规定的程序进行检查，或者对无行为能力的未成年人的信件由其父母或者其他监护人代为开拆外，任何组织或者个人不得开拆。)
I read the Hubei regulations as actually diminishing the protection of the privacy of minors (in a formal sense only, of course - I don't believe parents now are actually considered to be violating the law if they open their children's mail) in making it legally possible for parents and guardians to give permission to themselves to monitor their letters and other communications. But of course it also makes sense to treat letters, e-mails, and text messages similarly, whatever you decide to do about them.
Thursday, October 8, 2009
"In late June, Gao Zhisheng was allowed to return to his home village in Shaanxi Province to pay his respects to his ancestors.Let me add some editorial comment:
"He is not being mistreated and is not being subjected to coercive legal measures."
1. This is consistent with earlier news about a phone call Gao was reported to have made in July.
2. The claim that he is not being subjected to "coercive legal measures" is of course beyond laughable, and in contradiction to the notion that he was "allowed" to return to his home village. I know the old saying about a diplomat being someone who lies for his country, but I don't think they are supposed to tell you to your face that black is white and insist that it's pitch dark at high noon.
3. I suspect that the reason they are using this particular language is that it is the exercise of coercive measures (nothing about "legal" or "illegal") against the person that requires a legal basis (i.e., an appropriate document passed by the NPC or the NPC Standing Committee) and triggers various detainee rights and state duties. If there is no legal basis, then it's just kidnapping.
4. This represents some kind of progress, because at least the government is now admitting that is has information about Gao.
Wednesday, October 7, 2009
Apologies for the long hiatus following my last post. Things have been hectic.
I testified today before the Congressional-Executive Commission on China on recent developments in the relationship between weiquan (维权, "rights-upholding") lawyers and the state. Here's my written testimony.