Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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).


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Big news on the constitutional law front and some quick late-night comments: the Supreme People's Court has officially withdrawn/cancelled (废止) its 2001 "Reply" in the Qi Yuling case (the announcement is here; see item 26).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)