Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Tuesday, March 30, 2010

Latest round in the Cohen birthday events: Hawaii, March 16

Earlier this month the University of Hawaii Law School put on a program in honor of Jerome Cohen's upcoming 80th birthday. Here are links to a video recording and a program description.

March 30, 2010 in Conferences, News - Miscellaneous, People and Institutions | Permalink | Comments (0) | TrackBack (0)

Saturday, March 27, 2010

Jerome Cohen and Yu-Jie Chen on the Stern Hu trial

Here's an interesting piece by Jerome Cohen and Yu-Jie Chen on an as-yet undiscussed aspect of the Stern Hu proceedings. I've made one very modest change in adapting it from text to web and added a link or two. I might also add that the notion that domestic laws can't be used as an excuse to override China's treaty obligations is also set forth in the 1987 predecessor to the document discussed below, although (unlike its successor) it doesn't specifically mention trials.

The Chinese Government's refusal to allow Australian Government consular officials to observe the secret portion of the Rio Tinto trial was supposedly based on the alleged superiority of Chinese domestic law over China's international obligation under the Sino-Australian Consular Convention. On March 19 MOFA spokesperson Qin Gang said the case would be handled according to Chinese laws. In rejecting the Australian Government claim to have the right of consular attendance even at the closed portion of the trial, Qin said:"We should not confound the consular agreement with sovereignty, especially judicial sovereignty....The decision of a closed-door trial was made based on Chinese law..."

This was a dangerous assertion that China's formal international binding obligations cannot be relied upon if the Chinese Government later decides that the demands of sovereignty override them.

Yet it now appears that MOFA's position and the decision of the Shanghai Intermediate Court No. 1 to exclude the Australian consuls violated existing Chinese law, which since 1995 has explicitly instructed China's courts to permit foreign consular representation even at non-public trials.

Article 6 (1) of the Instruction on the Handling of Certain Problems in Foreign-Related Cases, issued jointly by MOFA itself together with the most authoritative criminal justice agencies in China (the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice) on June 20, 1995, instructs the courts to allow foreign consular attendance at non-public trials, including criminal trials, whenever there is a provision for this in consular agreements, as there is in the Sino-Australian agreement. Moreover, Article 1 (3) of the Instruction states that whenever there may be a conflict between China’s domestic law and its international obligations, its international obligations must prevail except where the Chinese government has made a reservation. It goes on to say “the authorities shall not refuse the obligations in international treaties by invoking domestic laws.” This Instruction remains in effect today.

It is difficult to understand how MOFA, the Shanghai Intermediate Court and Professor Wan Xia [万霞] of the International Law Department of China Foreign Affairs University could have been ignorant of this Instruction, which Chinese courts obeyed until recently. China's courts used to admit foreign consuls to closed trials in accordance with the Instruction. The Rio Tinto case is not the only recent case in which the courts and MOFA have violated the Instruction, which is an official interpretation of China's obligations under relevant consular conventions such as Australia's. Last summer the United States government's claim to send consuls to observe the trial of American citizen XUE Feng on charges of illegally obtaining state secrets relating to the oil industry, a trial that has not yet been concluded, was also rejected. Apparently neither the Australian Government nor the United States Government was aware of the Instruction, which makes clear that China's courts are to implement -- not contradict -- China's international obligations. So it turns out that it is MOFA and the Shanghai Intermediate Court that have violated China's exercise of its "judicial sovereignty," to the detriment of the Australian defendant, Sino-Australian relations and China's reputation for respecting international law.

Jerome Cohen and Yu-Jie Chen

March 27, 2010 in Commentary | Permalink | Comments (1) | TrackBack (0)

Friday, March 26, 2010

The famous hukou editorial

On March 1, "[a] group of 13 Chinese newspapers from across the country carried an identical front-page editorial ... calling for the abolition of China’s household registration hukou system in a highly unusual co-ordinated critique of government policy." (Jamil Anderlini, "Call to end China citizen registration system," Financial Times, March 1, 2010) It seems, however, that appropriate advance permission had not been obtained. According to the South China Morning Post, "all the publications involved and most major internet news portals have removed the editorial or reports of it from their websites. According to an editor of another media outlet that ran the editorial, the verdict from the Central Publicity Department was brief: 'This act was inappropriate'." Moreover, the same article reported that "[e]ditors at The Economic Observer, the newspaper which initiated a joint editorial published on Monday criticising the mainland's hukou (household registration) system, have been punished for their bold action as other participating media confirmed a government order to remove the editorial from their websites."

Further reports:

It seems that the text of the editorial is still up on some web sites; here it is (available as of today) on the web site of the Chongqing Times (重庆时报). On the assumption that it would be nice to have a reliable source for both Chinese and English versions, however, I'm posting the original and a translation (the author of which has asked to remain anonymous). I'll post the English first, with the Chinese text following.

A Call for Accelerated Reforms to the Household Registration System to Truly Grant Rights to the People

China has long tasted the bitterness of its household registration system! Conceived in the planned economy era, it is an outdated system that has existed for decades and continues to disrupt the people's livelihoods today. It has, without sufficient reforms, ceased being relevant. To this end, on the occasion of the convening of the national "Two Sessions" , we,  the 13 newspapers from 11 provinces, autonomous regions, and municipalities, are issuing a joint editorial and submitting it to the representatives and committee members of the “Two Sessions.” We ask that you use the power in your hands to urge the relevant ministries and commissions to put forward a clear time table for household registration reform; and, to gradually use the demographic information registration system to replace the existing rigid household registration system until it is completely abolished.

The Constitution stipulates that the citizens of the People's Republic of China are all equal before the law, that the nation respects and protects human rights, and that the citizens’ personal freedoms will not be infringed upon. Freedom of movement is an inseparable component of human rights and personal freedom; it is a basic right that the Constitution bestowed the people. However, the current household registration policy has created unequal statuses among urban residents and between urban residents and peasants, constraining the Chinese citizens’ freedom of movement. Alllaws and administrative and local regulations must not contradict the Constitution – this is the legal basis for accelerating the current reforms of the  household registration system.

The household registration system has divided cities and countryside. The first generation of migrant workers invested their labor into the development of the cities. However, their offspring still have no means to resolve the status of their identities. Their children still have to bear the quandary of the previous generation. The cities in which they live remain unable to accept them. We have to ask: for how many more generations must this divide last?

Even within the cities, the household registration system has divided urban residents. In the same city, even though we, like all others,  have struggled for many years for the construction of the city and paid the same taxes, the absence of hukous has rendered us unable  to enjoy the same employment opportunities as others, or the same social services such as medical treatment, education, and elderly care. We have to ask: for how many more generations must this divide last?

The household registration system is a breeding ground for corruption. Because of its scarcity,  hukous have become the objects of buying and selling in many cities. Those with holders’ rights can use them to seek payment; real-estate agents can use them as sales tools. But the countless people who are vulnerable must either pay the money or find themselves without recourse. We  have to ask: for how many more generations must this inequality  last?

Not long ago, Premier Wen Jiabao clearly expressed that the central government had already decided to steadily advance household registration reform. And dozens of other cities nationwide, including Shanghai and Guangzhou, have already launched household registration reform measures. Residential permits are slowly replacing temporary residential permits in these cities, and holders will be able to enjoy the same public services such as social security, medical treatment, and education as local residents. At the same time, the country is accelerating the establishment of a unified national social security services system, bringing about the inter-regional transfer and continuation of social security networks...

Admittedly, progress is gratifying, but in many more areas, we are still disappointed to note the invisible and heavy shackles of household registration, distressing the innumerable hard-pressed people on the run. We are deeply aware of the complicated nature of the household registration policy and the intricate complexities of the details of reform.  Yet, we cannot overlook those who have experienced, are experiencing, and will experience oppression and hardship as a consequence of this policy.  For them, awaiting urgent reforms has made every minute of waiting seem endless.

As China's economy soars, we must also be mindful of the pressing imminence of the economy’s structural transformations. The demographic dividend is fading away, and natural resources will not be available forever. The power behind China's next stage of growth has already begun to point even more so to the adjustment of the internal structure and the optimization of efficient usage of natural resources. Household registration reform is not only good for the people's welfare; it can also inject more dynamism into China's economy. More important, household registration reform can help foster values and ideas centered around people, becoming the cornerstone of making balanced progress in  Chinese society and constructing a harmonious society.

For this reason, we call on representatives and committee members of the national "Two Sessions" to use the power in your hands – power that the people gave you – to urge the relevant ministries and commissions to abolish, as soon as possible, the "Household Registration Regulations" issued in 1958; to put forward a clear time table for national household registration reform; and, to  gradually use the demographic information records system to replace the current rigid household registration system until it is completely abolished.

We hope that our many citizens, whether   they are rooted in the north or south without dividing  them into urban and rural, will all have the same rights to employment, medical treatment, elderly care, education, and freedom of movement. We hope that the one thing that has suffered from many decades of   failed administration will end with this generation, our generation, and enable the next one to truly enjoy the sacred rights of freedom, democracy, and equality bestowed by the Constitution.

吁请加速户籍改革来真正赋权于民
 
  中国尝户籍制度之苦久矣!此诞生于计划经济时代、不合时宜地存在数十年之久之制度,至今仍时时困扰民生,已到非革新不足以与时俱进之境地。为此,值全国“两会”召开之际,我们,全国11个省、自治区和直辖市的13家报纸发表共同社论,提请“两会”代表与委员们,善用你们手中的权力,敦促有关部委提出户籍改革的明确时间表,逐步以人口信息登记制度取代现行僵化的户籍制度,直至将其彻底消除。

  《宪法》规定,中华人民共和国公民在法律面前一律平等,国家尊重和保障人权,公民的人身自由不受侵犯。迁徙自由是人权和人身自由不可分割的组成部分,这是宪法赋予国民的基本权利。然而,现行的户籍政策却造成了城市居民与农民、城市居民之间地位的不平等,制约了中国公民的自由迁徙。一切法律、行政法规和地方性法规都不得同宪法相抵触,这是加速目前户籍制度改革的法理基础。

  户籍制度分割了城市和乡村。最早的一代农民工,为城市的发展付出了自己的劳动,可是,他们的下一代仍然没有办法解决身份认同,他们的子女仍然背负着上一代的困惑,他们生活的城市仍然无法接纳他们。我们要问,这样的隔离究竟还要持续几代人?

  即便在城市中,户籍制度也分割了城市的居民。在同一座城市中,尽管我们与其他人一样为这座城市的建设奋斗多年,一样纳税,但没有户口让我们无法与其他人一样享受平等的就业机会,享受同等的医疗、教育、养老等社会保障。我们要问,这样的隔离究竟还要持续几代人?

  户籍制度还是滋生腐败的温床。正因其稀缺,在很多城市户口成了被买卖的对象。有权者可以以此寻租,地产商可以以此为销售工具,而万千弱势者要么付出金钱的代价,要么无奈地面对。我们要问,这样的不平等究竟还要持续几代人?

  温家宝总理不久前就明确表示,中央已经决定稳妥地推进户籍制度改革。而包括上海、广州等全国数十个城市都已经出台户籍改革的措施。在这些城市,居住证正逐步取代暂住证,持证者将可享受与当地居民相同的社保、医疗、教育等公共服务。同时,国家正在加快建立全国统一的社保服务体系,实现社保关系跨地区转移接续……

  进步固然可喜,但在更多地方,我们仍然失望地看到户籍这一无形而又沉重的枷锁,困住无数疲于奔命的人们。我们深知户籍政策之盘根错节,改革细节之错综复杂,然而我们更无法漠视那些已经、正在以及仍将因此政策而受挫、受苦的人们。对于他们,等待改革的迫切让每一分钟的等待都显得非常漫长。

  中国经济飞速成长的同时,我们也要警醒经济结构的转型已迫在眉睫。人口红利正在消失,自然资源也非源源不绝,中国经济下一轮成长的动力已经更多地指向内部结构的调整与资源使用效率的优化。户籍制度改革不仅利于民生,更能为中国经济注入更多活力。最重要的是,户籍制度改革能帮助确立以人为本的价值理念,成为中国社会各阶层均衡进步、构建和谐社会的基石。

  为此,我们呼吁全国“两会”代表委员,运用你们手中人民赋予的权力,敦促有关部委尽快废除1958年颁布的《户口登记条例》,提出全国户籍制度改革的明确时间表,逐步以人口信息登记制度取代现行僵化的户籍制度,直至最终将其彻底消除。

  我们希望,我万千国民,地无分南北,人不分城乡,都拥有同样的就业、医疗、养老、教育、自由迁徙的权利。我们希望,一项为患数十年的弊政,能终于我们这一代人,让下一代人真正享有自由、民主、平等的宪法赋予之神圣权利。

March 26, 2010 in Commentary, News - Chinese Law, News - Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Job opportunity: Senior Fellow and Project Director for China Health Law Initiative (Georgetown Law)

I have received an announcement of the headlined job opportunity. The first two paragraphs are below. The full announcement is here.

Senior Fellow and Project Director for China Health Law Initiative

The O’Neill Institute for National and Global Health Law is seeking an exceptionally qualified candidate to serve as Senior Fellow and Project Director for the Institute’s China Health Law Initiative.
 
The China Health Law Initiative, a partnership between Georgetown University Law Center’s O’Neill Institute and its Law-Asia Program, seeks to promote dialogue and exchange between the U.S. and China on health law as a tool for improving the public’s health and welfare.  The Senior Fellow and Project Director will develop and direct the program.  Responsibilities will include budgeting, grant management, additional grant writing, partner relations, program implementation, and management of any associated staff.

March 26, 2010 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 23, 2010

Job opportunity: US government positions in China trade

I have received the following message:

Two China trade-related positions are open in the US government.

One position is for an international trade specialist in the Office of the China Economic Area and the other is for the director of the Trade Facilitation Office in the U.S. Embassy in Beijing.  Two prior directors of the TFO were attorneys, and several international trade specialists have also been attorneys.

March 23, 2010 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (0)

Sunday, March 21, 2010

Why is Australia stonewalling on the Stern Hu case?

I remain baffled by the attitude of the Australian government in the Stern Hu case. Not only has it failed to press for its right to attend all of the trial proceedings, but it has parroted the Chinese government’s line about the legal basis for exclusion and, again taking a leaf from the Chinese government’s book, refused to explain (a) just what laws and regulations it believes allow exclusion, or (b) just who requested it. As I said in an earlier post, I realize these things are complicated, that it's all too easy to kibitz from outside, and that there may be things going on behind the scenes that I don't know about. Still, it does look awfully odd on the surface, and something needs to be explained. If there are any Australian parliament members reading this, could you ask Kevin Rudd about this at question time?

A March 18th press release from the Department of Foreign Affairs and Trade said, “At the request of one of the parties and in accordance with Chinese law and procedure, the Court has decided that the sessions dealing with the infringement of commercial secrets should be closed.”  It added, “Australian officials have asked for this to be reconsidered.”  The next day, another press release said, “The trial is taking place in accordance with Chinese legal processes. Chinese law provides for closed hearings in such cases and the court has decided accordingly.”

In e-mail correspondence with John Garnaut, correspondent for the Sydney Morning Herald, I expressed puzzlement over the following points and hoped he could seek clarification from DFAT:
1. Which party requested that the trial be closed?

2. DFAT seems to be expressing its own opinion that closing the trial is indeed in accordance with Chinese law and procedure. Is this correct? Which laws and procedures is DFAT referring to?
DFAT responded that the request came from “one of the commercial parties on the Chinese side,” but continued to maintain blandly that it was all “in accordance with Chinese law and procedure,” declining to respond to Garnaut’s request to identify which law and procedure it had in mind.

Garnaut asked for more clarification: because this is a criminal prosecution, there would not appear to be any “commercial parties on the Chinese side.” He also repeated his request that DFAT identify which Chinese laws and procedures it believed justified closing the trial. DFAT refused to go any further, offering only this utterly non-responsive response: “The Court decided that the sessions dealing with the infringement of commercial secrets should be closed.”

I just cannot figure out why the Australian government should line up so closely with the Chinese government not only on the substance of the legal analysis, but also in its refusal to explain how it arrived at its conclusions. One expects this only of a government that has something to hide. Has there been some secret deal whereby the Australians promised not to challenge their exclusion in exchange for some trial result? I’m not sure this sets a very good precedent. In exchange for accepting a disadvantageous (and implausible) interpretation of its rights under the agreement on consular relations, what is Australia getting and what did China give up? And if there’s no deal, why is Australia stonewalling and not making a fuss?

March 21, 2010 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Jerome Cohen on the Stern Hu case

Here are some comments from Jerome Cohen on my recent post about the Stern Hu case (posted here with his permission):

Don, I'm very glad to have your careful analysis spelling out the absurdity of the Qin Gang argument on behalf of MOFA. I have been taking the same position as you all week in response to inquiring Australian media and suggesting that they take a look at the Australia-China Consular Convention, which you have carefully done. The Australian Government, perhaps not wanting to affect the trial and sentencing, appears to have gone soft on its correct position that the entire trial should be open to its consular representatives. Surely it should lodge a formal protest and seek PRC correction of its action and the underlying treaty interpretation. 

This is not a minor matter from several points of view. Here I will mention only the international implications, but, as you point out, the domestic legal implications of the current PRC interpretation are also disturbing. I leave those for another day.

First, this issue of the right to consular observation of a trial comes up regularly. Indeed, the current, seemingly endless, Chinese prosecution of Chinese-American XUE Feng on grounds of illegally obtaining state secrets -- not yet(?) downgraded to commercial secrets -- raises the same issue. The USG, since nobody seemed to be minding the legal store last July when the first hearing of the case was held, apparently acquiesced in the exclusion of US consuls even though there have been earlier cases when US consuls were allowed to attend state secrets trials of American nationals in China. The US-PRC Consular Convention contains language similar to that in the Australian-PRC convention. I have expressed surprise at this USG failure to make a vigorous public response, in conversations with both US officials in the American Citizen Services office of the US Embassy and the Department of Democracy, Human Rights and Labor in the State Department, so perhaps, under new leadership, the Embassy and DRL have been pursuing the matter internally with the China Desk and the Legal Adviser's office and now with the PRC. I hope so. In such cases, where the PRC threatens Chinese defense lawyers with criminal prosecution if they reveal anything that happened at the trial-- even to family members and the family legal advisors who retained the lawyers -- consular observers are the only source for learning about the trial proceedings.

Second, all other countries should review their consular agreements with China on this point as well as others including the notice that must be given when the PRC detains one of their nationals for any reason.

Third, MOFA Spokesman Qin Gang's statement that China's "judicial sovereignty" trumps any language that it has obligated itself to in a treaty is, as Don says, ridiculous. I do not think that MOFA's Department of Law & Treaty Affairs would back this statement. Rather, if ordered to defend the court action, it would argue, however weakly, that the treaty allows China to read in an exception to the obligation to admit consular observers because of its domestic laws etc.

3. Just think how convenient the Qin Gang rationale could be. Should the USG, when confronted by the continuing PRC claim that the Taiwan Relations Act violates the sacred "Three Communiques" between the US and China regarding the status of Taiwan, dismiss that claim by stating that no one has the right to question American "legislative sovereignty", which implicitly overrides US international commitments?

4. Since the PRC began to represent China in the UN in 1971, we have witnessed a huge positive change in China's respect for and participation in the world community and its treaties. I hope we are not on the verge of a third stage in which a newly-confident and assertive China increasingly treats international law the way "super powers" have done on occasion. The PRC should focus, instead, on setting a better example in words and deeds.

March 21, 2010 in Commentary, News - Chinese Law | Permalink | Comments (1) | TrackBack (0)

The closing of the Stern Hu trial: a legal analysis

Recently there's been an e-mail circulating around describing how different countries label the various levels of terrorist threat. In Australia, the highest level is "the barbie is cancelled." The e-mail notes that this level has never been declared.

Alas, the Aussies seem to have gone soft in their ready acquiescence to China's closing of part of the Stern Hu trial, set to begin on Monday. Despite initial protests - more accurately, a polite request that the decision to close the trial be reconsidered - the Department of Foreign Affairs and Trade (DFAT) has announced that it's not going to complain any more. But in fact, I think Australia has a very strong case that the trial should be open to its diplomats.

Now, I understand that these things are complicated, and maybe there's something going on I don't know about that makes the picture look different. But on the surface, I have to say it looks very odd. (And don't even get me started about the oddness of Rio Tinto's CEO Tom Albanese addressing a conference in Beijing on the very day the trial starts. His session's topic? "Strengthening Global Cooperation for a Mutually Beneficial Future." Let's not forget on whose behalf Hu and his colleagues are alleged to have stolen commercial secrets. If the government believes its own allegations, why are Rio Tinto executives welcome in Beijing?)

Let me make clear that I have no inside knowledge about the merits of the case against Stern Hu. It remains to be seen what exactly the factual predicates of the alleged violations of law are, and how solid the evidence is of those facts. But I naturally tend to wonder when the accuser is so secretive.

Down to business. The Australian government has announced that "[a]t the request of one of the parties and in accordance with Chinese law and procedure, the Court has decided that the sessions dealing with the infringement of commercial secrets should be closed." For reasons that are not clear to me, they are being a little coy about which party. After all, there are only the defendants and the prosecution. In a subsequent communication, DFAT says it was "[a]t the request of one of the commercial parties on the Chinese side," but this is also puzzling. This is a criminal prosecution. How can there be commercial parties on the Chinese side? Perhaps there is some kind of parallel civil proceeding with an alleged theft victim as plaintiff, as allowed under Chinese law, but if so, it speaks volumes about the alarming opacity of this case that nobody has heard of it until now. (China also allows for a type of private prosecution of some cases, but not this kind.)

There are two issues here. (1) Does Chinese law allow or require part of the trial to be closed because it involves commercial secrets? (2) If it does, is closing the trial nevertheless a breach of China's undertakings in its agreement on consular access with Australia?

First issue: Chinese domestic law

On the first issue, I think the stronger argument is that Chinese law does not allow the trial to be closed on the grounds of commercial secrets. Several law-like documents are potentially applicable. The Criminal Procedure Law (the CPL), which in China's legal system has the highest authority of all of them (i.e., the other ones can perhaps "interpret" it but can't override it), deals with open trials in Article 152. That article says that trials shall be open except in a few limited circumstances. Those circumstances say nothing about commercial secrets.

第一百五十二条 人民法院审判第一审案件应当公开进行。但是有关国家秘密或者个人隐私的案件,不公开审理。十四岁以上不满十六岁未成年人犯罪的案件,一律不公开审理。十六岁以上不满十八岁未成年人犯罪的案件,一般也不公开审理。对于不公开审理的案件,应当当庭宣布不公开审理的理由。

Article 152

Cases of first instance in a People's Court shall be heard in public.  However, cases involving State secrets or private affairs of individuals shall not be heard in public.  

No cases involving crimes committed by minors who have reached the age of 14 but not the age of 16 shall be heard in public.  Generally, cases involving crimes committed by minors who have reached the age of 16 but not the age of 18 shall also not be heard in public.

The reason for not hearing a case in public shall be announced in court.

If the CPL were the only law on point, then the case would seem to be open and shut: Australian government representatives can't be excluded. Indeed, nobody can be excluded. But there are some other regulations on point as well (whether they override the CPL is another matter; I'll get to that later).

First, there is a 1998 "Interpretation" (a type of quasi-legislation) issued by the Supreme People's Court: the "Interpretation on Several Issues Relating to the Implementation of the 'Criminal Procedure Law of the People's Republic of China'" (关于执行《中华人民共和国刑事诉讼法》若干问题的解释). Article 121 of the Interpretation repeats the rule of the Criminal Procedure Law, and adds, "In cases genuinely involving commercial secrets where a party so requests, the court should decide to hold a non-public trial" (对于当事人提出申请的确属涉及商业秘密的案件,法庭应当决定不公开审理). This adds a basis for closing the trial that was not present in the Criminal Procedure Law. It also does not specifically state that the party requesting the closure of proceedings must be the party who will be hurt by the release of the secrets, even though one would think that is probably what is meant (more on that later).

Second, there is a 2007 Supreme People's Court document entitled "Several Opinions on Strengthening the Work of People's Courts in Holding Public Trials" (关于加强人民法院审判公开工作的若干意见). (This should not be confused with a judicial opinion; it's legislation, not case law.) Article 3 of the Opinions states, "Statutory rules on the scope of public trials shall be rigorously implemented; in the course of adjudication work, state secrets and secrets of judicial work shall be strictly kept, and the parties' private affairs and commercial secrets shall be protected according to law." (要严格执行法律规定的公开范围,在审判工作中严守国家秘密和审判工作秘密,依法保护当事人隐私和商业秘密) Article 11 states, "When a party raises the issue that the case concerns personal private affairs or commercial secrets, the people's court should synthesize factors such as the views of the parties and normal rational cognition of society, seek the views of experts where necessary, and decide [whether or not to close the trial] on the basis of a rational judgment" (当事人提出案件涉及个人隐私或者商业秘密的,人民法院应当综合当事人意见、社会一般理性认识等因素,必要时征询专家意见,在合理判断基础上作出决定).

The Interpretation and the Opinion raise two main issues. First, does the party who objects on the grounds of commercial secrets have to be the party who will be hurt by their public airing? I think the more plausible view is Yes. If there is a public policy good that is served by having open trials, what supervening value is served by allowing a party to close it on the grounds that someone else's commercial secrets will be revealed? Note that it can't be a general desire to preserve commercial secrets, because in that case there would be no reason to limit objectors to parties to the case; the person being damaged should be allowed to request that the trial be closed. But the right to object is limited to parties.

If this interpretation is correct, then the procuracy (the government prosecutors) have no standing to ask that the trial be closed on the grounds that commercial secrets (presumably those involving Chinese ore purchasers) are involved. As noted above, DFAT is now saying that it was a "Chinese commercial party," but it remains to be explained how there can be a Chinese commercial party in a criminal case. [4/20 UPDATE: I now have the explanation; I overlooked Art. 82(2) of the Criminal Procedure Law, which defines "party" to include victims (alleged victims, really) of a crime. Thus, the Chinese steel producers could have been parties within the meaning of Chinese law. My mistake.]

The second main issue is whether, assuming that these rules do give the prosecution - or somebody - the right to close the trial on the grounds of commercial secrets, the rules are valid and superior to the rule of the CPL, even though they seem to contradict that rule. Chinese law is very clear that laws like the CPL, passed by the National People's Congress, are higher than anything promulgated by the Supreme People's Court (SPC), and that the SPC has the power only to interpret ambiguities, to fill in the gaps, etc. In fact, the SPC engages in extensive legislative activity that often seems to go way beyond its lawful authority, and the system more or less accepts that reality. But is the Chinese government prepared to say that the SPC can, in practice, override what the NPC says?

Perhaps one could say that the SPC hasn't exactly overridden the rule of the CPL, since the CPL never said anything about commercial secrets one way or the other. It didn't say commercial secrets could not be grounds for closing a trial, and so the SPC is just adding a condition, not contradicting the CPL. This argument strikes me as silly. Chinese law is quite capable of saying "etc." and "and in other similar cases where it is deemed necessary." But it doesn't say so in Art. 152 of the CPL. It says all trials shall be open with the exception of trials in circumstances X, Y, and Z. If the failure to specify that commercial secrets can't be added to the list means that the SPC can add them, then what about the failure to say anything about trials on Tuesdays, or trials of people surnamed Zhang or who have beards?

For these reasons, I conclude that (a) the rules issued by the SPC do not in fact provide grounds for the procuracy to ask that the trial be closed, and (b) even if they do, those rules cannot override the CPL rule to the contrary.

Second issue: China's treaty obligations

But suppose you don't buy any of the above and believe that Chinese domestic law justifies closing the trial on the grounds of commercial secrets. That doesn't end the discussion. We still have to ask whether China as a state has a treaty obligation to allow Australian consular representatives to attend the trial.

Here the answer seems to be pretty clearly Yes. The argument in summary is this: (a) the Chinese-Australian agreement on consular access very clearly gives Australia the right to send consular representatives to attend trials of its nationals in all cases, with no exceptions listed; (b) there is evidence that this provision was important and was specifically negotiated; and (c) the arguments that other provisions take away this right are not strong.

Article 11(1)(f) of the Agreement on Consular Relations Between the People’s Republic of China and Australia [Chinese text] states:

[I]n the case of a trial or other legal proceeding against a national of the sending State in the receiving State, the appropriate authorities shall make available to the consular post information on the charges against that national. A consular officer shall be permitted to attend the trial or other legal proceedings (遇有派遣国国民在接受国受审判或其他法律诉讼,有关当局将向领馆提供对该国民提出指控的情况,并应允许领事官员旁听审判或其他法律诉讼)

Seems pretty clear, right? No exceptions contemplated. But what about Article 11(2)? That says:

The rights and obligations referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, provided however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. (本条第一款所规定的权利和义务的实施应遵守接受国的法律规章,但此项法律规章务须使本条所规定的权利的目的得以充分实现。)

So first of all we have what might appear to be an exception: the rights must be exercised in conformity with Chinese laws and regulations. But is it plausible to suppose that the parties intended that phrase to mean that the laws and regulations of the receiving state could utterly nullify the rights just granted? Even without the "provided, however", that interpretation is implausible. And it becomes impossible to maintain once we take into account the "provided, however" phrase, which makes it clear that a state cannot use its domestic law as an excuse to override the rights granted in Art. 11(1).

That the parties meant what they said becomes even more likely when we look at the Vienna Convention on Consular Relations, to which China and Australia are both parties and from which they borrowed a lot of the relevant language. The parallel provision in the Vienna Convention is Article 36. Para. 2 of Art. 36 tracks Art. 11(2) of the Australia-China consular agreement virtually word for word - far too closely for it to be an accident. But Para. 1 is different - the consular agreement adds in things not present in the Vienna Convention. Here's Art. 36(1) of the Vienna Convention:

With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State, shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

And here's Art. 11(1) of the bilateral consular agreement, with new matter highlighted:

With a view to facilitating the exercise of consular functions relating to nationals of the sending State: 

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; 

(b) consular officers shall be entitled to ascertain conditions in life and work of a national of the sending State in the receiving State and provide him or her with necessary assistance at all times; 

(c) consular officers shall be entitled to request the competent authorities of the receiving State to ascertain the whereabouts of a national of the sending State, and the competent authorities of the receiving State shall do everything reasonable in the circumstances to provide the relevant information; 

(d) consular officers shall be entitled to receive and take into temporary custody money or valuables of a national of the sending State in accordance with the laws and regulations of the receiving State; 

(e) the competent authorities of the receiving State shall within three days inform the consular post of the sending State if, within its consular district, a national of the sending State is arrested or committed to prison or to custody pending trial or is detained in any other manner, unless that person expressly requests that the consular post of the sending State should not be informed. The authorities of the receiving State shall inform the consular post of the reasons for which a national has been arrested or committed to prison or to custody pending trial or detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the detained person concerned without delay of his or her rights under this sub-paragraph; 

( f ) in the case of a trial or other legal proceeding against a national of the sending State in the receiving State, the appropriate authorities shall make available to the consular post information on the charges against that national. A consular officer shall be permitted to attend the trial or other legal proceedings; 

(g) in the case of a trial or other legal proceedings against a national of the sending State, the appropriate authorities of the receiving State shall make available adequate interpretation to that national when necessary; and 

(h) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him or her, and to arrange for his or her legal representation. They shall also have the right to visit, to converse and correspond with any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Access to detained nationals of the sending State shall be guaranteed by the competent authorities of the receiving State to a consular officer of the sending State within two days of initial notification of arrest or detention as specified in paragraph 1(e) of this Article, and at least once a month thereafter. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he or she expressly opposes such action.

In other words, the language about access to trials isn't just meaningless boilerplate. One or both of the governments involved felt that the Vienna Convention was inadequate in a number of ways, wanted these provisions put in, and got what they wanted.

Thus, I conclude that China has a treaty obligation to Australia to allow access to the trial, whether or not it has an obligation to open the trial to anyone else.

The Chinese government's answer

Finally, it's worth looking at what the Chinese government has to say about this. Regrettably, it has offered no serious, reasoned defense. On March 18th, Ministry of Foreign Affairs spokesman Qin Gang addressed some of these questions in a way that should forever put to rest accusations that Chinese government bureaucrats don't have a sense of humor. When asked about the closing of the trial, he insisted it was being handled in accordance with the Australian-Chinese agreement on consular relations and added this bizarre observation: "China has from ancient times stressed silence in the courtroom because the courtroom is a dignified place; one can't make a lot of noise before the trial has begun, one can't interfere with the independent handling of the case by China's relevant departments" (中国自古讲究开庭肃静,因为法庭是一个庄严的地方,不能在还没开庭的时候就冒出各种杂音,不能干扰中国有关部门依法独立办案). What this has to do with excluding Australian diplomats from the trial is not clear. Perhaps it is the Aussies' reputation for loving a good party. Are they afraid the diplomats will try to interrupt the trial with a barbecue?

When asked again about the matter, he responded, "Please don't mix up the relationship between a country's sovereignty, particularly its judicial sovereignty, and the Chinese-Australian Agreement on Consular Relations. The Chinese-Australian Agreement on Consular Relations must be premised on respect for China's sovereignty and judicial sovereignty" (请你不要混淆一个国家的主权,特别是司法主权和《中澳领事协定》的关系。《中澳领事协定》应以尊重中国的主权和司法主权为前提). Um... I hate to be the one to break the bad news, but the right to do exactly as you please is precisely what you give up when you enter into an international treaty. It is your sovereignty that makes your promise meaningful. Does the Ministry of Foreign Affairs really back Mr. Qin's interpretation of what it means to sign a treaty - that any obligation can be waved off by saying the magic word "sovereignty"? Does China expect those with whom it signs treaties to treat their obligations similarly? This would certainly be a new direction in Chinese foreign policy.

March 21, 2010 in Commentary, News - Chinese Law | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 9, 2010

Environmental group seeks senior researcher on China (London-based)

I have received the following announcement from the International Institute for Environment and Development:

Dear Colleagues,

We are currently advertising for a new Senior Researcher position to
work on China. The post holder will join the Group which best suits
their background.  The purpose of the role is to understand more clearly
the influence of China on environment and development challenges, the
new geopolitics and innovation.

The position will be permanent, full time and based in London.

The closing date is 12 noon on Monday 29 March. Interviews will be held
by telephone on 12 April, second interviews to be confirmed.

Full details are available on our website:
http://www.iied.org/general/jobs/senior-researcher

I would be grateful if you could pass this information on to your
contacts and networks as appropriate.

Best wishes,
Caroline

HR Officer
www.iied.org
3 Endsleigh Street
London
WC1H 0DD
020 7388 2117

March 9, 2010 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (0)

Monday, March 8, 2010

AIDS law database launched

Here's the press release from Asia Catalyst:

(Gejiu, China, March 9, 2010) -- Asia Catalyst is proud to announce the “public beta” launch of its Asian AIDS Law Database.  The database is a free, user-friendly resource, searchable in Chinese and English, to help researchers to find HIV/AIDS-related statutes throughout Asia. It is the first database exclusively dedicated to this purpose.

With the “public beta” launch, Asia Catalyst invites lawyers, experts and organizations to share AIDS-related laws and policies from around Asia that may not yet be online. The database has over 100 records, ranging from Cambodia’s draft law on drug control to the national policy on HIV/AIDS of Bangladesh.

“The database will enable lawyers to analyze AIDS-related laws, and use them in their own advocacy,” said Ken Oh, editor of Asia Report (http://www.yazhoudiaocha.com), the news site that hosts the database. “Asian AIDS activists tell us that some governments are more responsive to model language from another Asian law.”

The project was born in response to growing demand from Asian AIDS advocates engaged in legal analysis and advocacy. The database was created by a volunteer team of law students and pro bono lawyers working with Asia Catalyst.

Asia Report, the Asia Catalyst-sponsored site that hosts the database, provides Chinese and English-language news about economic and social rights in North, South and Southeast Asia, with links to Asian rights groups, and announcements of upcoming conferences and events.

Asian AIDS Law Database users may choose countries, topics and levels of government from drop-down menus in both English and Chinese. The database will provide the text of the law or policy and a link to its location online. All records are in English, with Chinese translations provided where available.

“The international AIDS law field is growing quickly,” said  Ken Oh.“We hope our colleagues in Asia will use the database to analyze existing laws–and draft new ones.”

The database may be visited at http://www.yazhoudiaocha.com/laws/.

Asia Catalyst is a US-based resource for grassroots organizations working on HIV/AIDS in Asia. For more information, please see our website at www.asiacatalyst.org.

March 8, 2010 in News - Miscellaneous, Research Resources | Permalink | Comments (0) | TrackBack (0)

NPC Delegates Say the Darnedest Things

That's the headline for an amusing post on the Wall Street Journal's China Real Time Report, quoting various remarks made by delegates at the current NPC session and captured on tape (well, captured on digital recorder, more likely).

According to the post, NPC delegate and Hubei governor Li Hongzhong was asked by a reporter about the Deng Yujiao case.

–Li Hongzhong, governor of Hubei province, was asked by a People’s Daily reporter about last year’s case of a hotel worker whose murder charges were dismissed after she claimed she had acted in self-defense when an official and his colleague tried to rape her. His reply: “Are you really from the People’s Daily? And you ask such a question? What kind of Communist Party mouthpiece are you? Is this how you guide public opinion? What’s your name? I’m going to find your boss.”

Caijing reported it a bit differently on its web site. According to its report, which it says it gathered from eyewitnesses, at the very end of a press conference held by Li the reporter asked him what his views were on the case. Li's face suddenly went dark and he left the room. Two minutes later he returned and demanded of the reporter (named Liu Jie, who worked for Jinghua Shibao, a newspaper within the People's Daily system), "Where are you from?" (i.e., which media outlet). She, apparently stunned, just said, "Huh", and he repeated, "Where are you from? Where are you from?" She finally answered, "The People's Daily." He said, "The People's Daily ... Why are you always going on about this affair. It's already over. I'm going to talk to your chief, right, OK?" He then grabbed her recording device from her and stalked out of the room with it. Later on the afternoon of the same day, a staff member with the Hubei delegation returned the recording device to the reporter, but with no apology.

Note to non-North American readers: the headline is a reference to "Kids Say the Darnedest Things," a segment of a popular TV show that ran in the fifties and sixties. The host would interview small children, who would answer questions in some cutely funny way (the answers that weren't funny were presumably edited out).

March 8, 2010 in Commentary, News - Chinese Law, News - Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Saturday, March 6, 2010

Legal knowledge in propaganda posters

The Dutch sinologist Prof. Stefan Landsberger has amassed a huge collection of Chinese propaganda posters. Check out the law-related material here. Particularly quaint is the picture of the upright official turning down a bribe of two bottles of liquor and some cigarettes. Nowadays even the official's amah would be insulted at such a pathetic bribe.

Lk13

March 6, 2010 in Commentary, Other, Research Resources | Permalink | Comments (0) | TrackBack (0)

Chinese law conference at George Washington University Law School

Jacfestall
 

The materials for the above conference in honor of Jerome Cohen's 80th birthday, held on Feb. 19th, 2010 at George Washington University Law School (co-sponsored by Georgetown University Law Center), are now available on line at the conference web site: a program, video recordings of all the sessions, and photographs.

March 6, 2010 in Conferences | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 3, 2010

Chinese law conference at Washington University in St. Louis School of Law

The above conference was held on Feb. 25th, 2009. Here's the conference web site; there's a program and video recording available there.

March 3, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

Jiang Ping: "China's Rule of Law Is in Full Retreat"

Jiangping
Here's a rough translation of a remarkable recent speech by Jiang Ping. The translator has declined credit.

China's Rule of Law is in Full Retreat
February 21, 2010

Attending today's lunch and hearing so much praise makes me feel very uneasy.   I don't know how many times I have celebrated my birthday this year, and here comes Sun Guodong, hosting yet another event.

The first celebration was with fellow scholars and the second with my family, but I felt like something was missing.  There was no event with lawyers, or rather we might say some lawyers wanted to have a birthday celebration for me but didn't have a chance.  I think today's event might settle that.  However, in listening to these words of praise my ears have pricked up, as I must say you have expressed aspirations I have definitely never fulfilled.  Perhaps it was just the circumstances around me.  Because today the situation for the rule of law in China is grim.  So in these circumstances perhaps your expectations of me are even higher.  But I think I have not been able to do enough.

Strictly speaking, in the 30 years of reform what I did was call for private rights.  I chose civil law and private rights because those areas were weak in China, or rather in a China with such strong public powers, private rights were always in a weak position.  Private rights include the rights of private enterprise, of private property, and perhaps even broader personal rights.

Today, I will just mention three issues, but these are not the same three you all just suggested.  The first private right I will mention is the Shanxi coal mine problem [private coal miners were encouraged to invest then their mines were taken by the state at low or no compensation].  The Shanxi coal miners demonstrate a violation of the rights of private property and private enterprise, a brazen violation of constitutional guarantees.

The second is the Li Zhuang case [the defense lawyer convicted of inciting false testimony in the Chongqing mafia crackdown].  When Wu Xiaoji brought over Li's defense lawyer to talk to me, we chatted for a long time about what happened in court that day and the entire procedural history of the case.  After hearing about it, I was furious.  No matter what you think about it, from the most basic level, procedural justice was violated.  The evidence was not brought out and many of the witnesses did not appear in court.  From the perspective of evidence, that case had serious problems.

The third is the Liu Xiaobo case.  When I heard about the Liu Xiaobo verdict, I felt it was a crime of speech -- a very dangerous thing.  China has a long tradition of criminalizing speech, and if we let that tradition continue today, and if those with a sense of justice can't express their views, then our problems are just too serious.  Or perhaps, for those of us engaged in the rule of law, if even we take a hands-off approach -- if there is not a single voice of justice among us -- then I think that is really dangerous.

So, looking at China's current situation, I think we are in a period where the rule of law is in retreat.  Or perhaps, building the rule of law, judicial reform, and political reform are all moving backwards.  This is my first thought.

My second thought: In the last two books I published, I used the term "cry out" in the title.  The first book was called "What I can do is cry out."  I recently published a book that I edited by hand, putting together some of my prior work in a careful compilation that I called "Private Rights Cry Out."  This latest is part of a series of 100 works of top people in the humanities; in that series I am the only one from the legal field.  Why did I choose the word "cry out," and why in the last two years?  Of course, I have been enlightened by Lu Xun's example, but it is not only that.  I think that choosing "cry out" is important because the situation has become more oppressive.  That is to say the environment outside has become more and more difficult.  In those circumstances, one must "cry out."  No matter what words you choose, when the circumstances are urgent, you must call out with your voice.

I also use "cry out" to to be clear about another issue: we must both dare to fight and be good at fighting.  Given the conditions for building the rule of law today, these two things need to be merged.  This is something I have pondered a long time, and it is very difficult.  Perhaps you are good at fighting but you don't dare stand up.  Or you dare to fight, but lose your sense of proportion.  Because the basic essence of the problem in China is problem of the Party's leadership, the foundation of the political system.  If the political system does not reform, then nothing else can reform.  If the political system does not reform, then your rule of law, your judicial reform, your anything-else will not be much of an achievement.  In those circumstances, it is easy for you to "cross the line," to step into forbidden territory. So in China's circumstances how to put those two things together -- to both dare to fight and be good at fighting -- this is a formidable task.

I remember that Ji Weidong once wrote about this problem, and this has given me something to think about.  He wrote: How is it that someone like Jiang Ping can exist in China's current political conditions, how is that he does not "cross the line" too far?  Of course, the leadership values you, but they are also conscious that they need to be careful about you.  I could be regarded as "inside the line" and also be regarded as "outside the line."  That position is actually very difficult.  I think that at this moment we should carefully position ourselves as in between of those "inside the line" and those "outside the line", this way everything will be a bit better.

My third thought is that overall I am still an optimist.  In the past, I used to love to say that China's rule of law was two steps forward, one step back.  I still haven't changed that view today.  Because in terms of the protection of private rights, today's China is vastly improved over the past.  Needless to say, this is the case in the last thirty years, or even more needless to say it is the case compared to the decade of the Cultural Revolution.  In the 30 years of reform, with the "baptism" of the Property Law, rights consciousness about private rights protection has been enormously improved.  The Chengdu self-immolation case, or other cases, already demonstrate that people's sense of private rights have woken up.  Add the function of law to the awakening sense of rights consciousness and that is something that can be extremely powerful.

Twenty years ago, when we passed the Administrative Litigation Law, it was hard to imagine that such a law could help protect private rights.  But today, whether by litigation or other methods, protecting your own rights is something we can say everyone understands.  Everyone understands that their rights cannot be infringed.  Perhaps in some places the projection of private rights is overlooked, or in some places it is abused.  But no matter what, today when we stress protecting private rights, we want to stress two things: first, ordinary personal rights must be protected, but we also must pay attention to not abusing power.  If we grasp this, everything will be fine.

So today I would like to thank everyone here.  So many of you are still here.  Some of the scholars have left, but you lawyers have persisted to the end.  This also helps explain an important issue, as Pu Zhiqiang just put it as well.  Like our lawyers today, more and more people are genuinely interested in the fate of China's rule of law.  Lawyers definitely don't only want to make money; many lawyers have come to understand and think about our country's destiny, the future of the rule of law, and the protection of human rights.  That way of thinking, and that theme, has already taken root in our heads.

I think this is very heartening phenomenon.  I believe that China certainly has a bright future.  The world trends are unmistakable: whether human rights, democracy, or freedom, these are irresistible trends.  All the world's people are moving forward.  That we are moving backward is only temporary.  Or perhaps, for the time that some people reign, they can do as they please.  But after he steps down, he has no status.  I think this is the truth.

March 2, 2010 in Commentary, People and Institutions | Permalink | Comments (1) | TrackBack (0)

Some comments on the Li Zhuang case

I was recently invited to write some comments on the Li Zhuang case by a Chinese journal. But then they told me that the Central Propaganda Department had issued a circular forbidding publication of material on the case. Since I can't bear to have all that work go for nothing, here's the comment as it would have been published:

美国教授眼中的李庄案
 
郭丹青(Donald Clarke)/文
 
李庄案涉及到有名的中国刑法第306条。对于李庄究竟是否做了伪证或者妨害作证,本人没有参加庭审过程,不敢断然定案。但我认为有几个问题值得怀疑。 

首先,关于实体问题,律师会见被关押在看守所的客户时,律师和客户的交往都会受监督,李庄对此肯定是了解的。在受监督的情况下,教唆客户做假证的难度相当大。根据检察院的控诉,李庄“走到铁窗边靠近他小声地教”龚刚模怎么样做。在场的看守所人员怎么会没有注意到? 

第二,关于程序问题。根据刑法第306条的规定,伪造证据必须是在刑事诉讼中发生的。该罪名的危害在于妨碍审理者根据事实定案。但是,李庄案中,李庄的客户(当事人)龚刚模案审判还没有开始,假证(如果有的话)还没来得及举,律师就已经被抓了。从法律技术上来说,罪名能否成立很成问题。法院没有接受上述辩护意见,理由是该罪行是行为犯而不是结果犯。但这样分析解决不了关键问题,即法律所禁止的行为必须在什么情况下发生?据我了解,以往第306条的案件追究的都是在审理过程当中(在法庭里)发生的行为,从这个意义上说,李庄案看起来是个理论突破。 

另外,不能忽视刑法第306条的有关背景。根据我所看到的研究资料,从1997年到2002年,有100多个中国律师被指控违反第306条,但最后90%都没有被判刑。这个就很能说明问题。根据前任最高人民法院院长肖杨在2006年的讲话,在中国的刑事诉讼中,一般99%以上的被告人最后都会被判有罪,最后被判无罪的是0.66%。如果我们发现有一个罪名很例外,被指控者多数或者被判无罪,或者因指控不当而撤诉,那么就足以怀疑,原本那个指控是没有多少根据的;也就是说,实际上这个条款在很多时候被警方和公诉方滥用了。此外,很多人都指出过,刑法第306条只是针对辩护方,没有相应同等地针对警方和检方,如果他们伪造证据怎么办? 

美国的伪证罪和中国刑法306条规定不同,不限于律师,任何人都可能构成伪证罪。其实,据我了解,因制造伪证或者隐瞒证据而受到处罚的,是警察和公诉方占压倒性多数,涉及辩护律师的案件则微乎其微,原因如下。第一,被告很少当证人,所以被告很少有机会在法庭里撒谎,律师从而没有教唆撒谎的可能。第二,司法制度所追求的社会价值是多元的甚至相互冲突的。发现案件的真实情况只不过是其中之一。大家都知道,虽然证人如果开口的话必须说真话,但宪法第五修正案规定,一个人可以拒绝陈述不利于自己的事情,保持沉默。这明明与发现案情的真实情况是有冲突的。律师与客户之间的关系也是受司法制度的保护。所以,给律师的空间是比较大的,只有最突出、最明显、最严重的违法行为才会被追究。既然不可能以百分之百的准确率保证既不冤枉一个好人又不放纵一个坏人,则美国的制度选择是以接受一些边缘性的行为为代价买来对律师与客户间关系的保护。如果中国在制度上不这么重视律师与客户之间的关系,那么很自然就不愿意为保护这种关系而付出任何代价。 

还有另外一个涉及证人出庭的问题。一审时一个证人都没有出庭,这很明显地违反了中国刑诉法的强制性规定。中国刑诉法第47条说得清清楚楚,“证人证言必须在法庭上经过公诉人、被害人和被告人、辩护人双方讯问、质证,听取各方证人的证言并且经过查实以后,才能作为定案的根据。”首先应该明确一点:很多国家有类似的看起来很硬性的规定,但也容许例外存在。比如按美国宪法,任何一个被告人有权面对不利于他的证人。虽然有例外(比如有时候已经死去的证人的话可以作为证据),但例外的情况是很有限的。特别是如果证人在公诉方的控制下,那么就没有理由不让他出庭。比如李庄案一审时龚刚模为什么不出庭?他是最重要的证人,而且在控方的控制之下,他不出庭非常奇怪。 

如果中国法律要规定一些例外情况,这在原则上无可非议。问题是,刑诉法连原则性的例外情况都没有规定。法院拿出了刑诉法第157条来反驳辩护方对证人没有出庭的意见。虽然该条确实对证人不出庭有所考虑,但它并没有规定在什么情况下可以接受没有出庭的证人的证据。那么,在目前的情况下,似乎检察院可以自行决定要不要让证人出庭,这样刑诉法第47条完全失去了意义,成为可有可无的东西。我认为这不可能符合立法者(人民代表大会)的原意。“必须”毕竟是“必须”吧。 

可能是因为见惯不怪吧,中国律师以及法学界对证人不出庭的问题好像采取了无可奈何的态度。很多观察家把这个问题当作一个很遗憾的事情,但强烈指出它的明显违法性的却不多。 

二审中有证人出庭了,但有证人拒绝回答辩护方发问,而且法官允许证人不回答问题。这个也说明程序有问题。中国的法律规定,凡是知道案件情况的人,都有作证的义务。法律并没有规定证人方便开口就开,不方便就可以不开。 

李庄案中,有说法说有一个辩诉协议,但检方并未承认。 

美国的辩诉交易是有两方面的。一方面是关于最后的控诉是什么,例如有几项指控,有的指控证明起来难度很大,有的证明难度较小,公诉方和辩护方可以就此进行有约束力的谈判。比如杀人案中,但到底是预谋还是过失,公诉方觉得很难证明有预谋,可以选择只指控过失杀人,而辩护方也可以对此认罪,接受公诉方的指控。这个谈判跟法官没关系,法官不能决定指控是什么。这个协议是控辩双方同意的,公诉方不能违背。
另外一方面是量刑问题。既然辩护方认罪,到底如何判刑,这是法官来控制的,一般来说,公诉方和辩护方会同意一个量刑幅度,比如说,辩护方提出同意判刑三年到六年,公诉方也说我们不要求六年以上。法官一般来说会考虑双方的建议,但不受此约束。美国没有政法系统,也没有政法委同时领导公检法的工作。法院完全独立于公诉方,连一个共同的上级都没有,所以即使公诉方想约束法院还是约束不了。中国的情况就不一样。虽然法院名义上独立于检察院,但实际上两个都在地方政法委的领导下,如果政法委愿意出面定案,检察院和法院都没有办法说“不”。总之,地方党政领导作出的承诺应该是有能力履行的,如果说,“对不起,我们控制不了法院,”那就没有说服力。 

如果的确有这么一个协议的话,它是否类似于美国的辩诉交易?我认为不太像。美国辩诉交易的背景是,刑事案件太多了(美国的人均关押率居世界最高),要节省司法资源。如果没有辩诉交易,如果每一个刑事案件都要经过审判过程,那是完全行不通的,美国的刑事审判制度就运转不了。这样,公诉方会对自己认为不太重要的案件跟辩护方(被告人和律师)达成协议,公诉方降低指控,被告人认罪,那样可以避免审判过程对双方的风险。 

李庄案的协议就不太一样。首先,它不是为了节省司法资源。这个案件对检察院来说应该算一宗很重要的案件,值得花司法资源来震慑其他的律师不要做假证(如果认为李庄是无辜的,那么就是为了震慑其他律师不要为被告人提供辩护)。第二,检察院并没有什么需要避免的风险。所以,这样的协议只能是为了让政府下台阶。 
 
作者为美国乔治华盛顿大学法学院教授
 

March 2, 2010 in Commentary, People and Institutions | Permalink | Comments (0) | TrackBack (0)

Monday, March 1, 2010

Chinese law events honoring Jerome Cohen

As Prof. Cohen, one of the founders of Chinese law studies in the United States, will be celebrating his 80th birthday this July 1st, the Chinese law community has been planning various events in his honor. Most recently, on Feb. 19th the George Washington University Law School and Georgetown University Law Center jointly put on an afternoon conference in Washington, DC. The program is here; videos of the proceedings will be available shortly.

Later this month, the William S. Richardson School of Law at the University of Hawaii will be holding a series of events from March 15th through 18th. Here are two informational flyers: an overview and a panel discussion program. The panel discussion will be recorded and made available on line.

March 1, 2010 in Commentary, Conferences, News - Miscellaneous, People and Institutions | Permalink | Comments (0) | TrackBack (0)