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."