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George Washington University Law School

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Tuesday, April 27, 2010

Debt hostages

When is kidnapping not kidnapping? Apparently when it's for the purpose of getting a legitimate debt paid. This, at least, seems to be the social understanding of kidnapping in China, and there's even legal support for it (the law falls it unlawful detention in that case). The latest case is reported in the Dongguan Times (Chinese | English): a couple can't pay the hospital bill for the wife's delivery of a baby, so the hospital is holding the baby hostage until the parents pay up. They've had it for over 100 days so far. One amazing thing about it is that this is apparently a government-run hospital, and the hostage-takers have even held a press conference to justify their actions (apparently they felt the father had not been "sincere" in his efforts to pay). The other amazing thing about it (to me) is that this is seen as relatively acceptable. The newspaper report uses quotation marks around the word "hostage", as if the baby somehow weren't really a hostage. And the most a local lawyer can bring himself to call this is "inappropriate."

I've been seeing reports of creditors taking debt hostages for years [5/2 CLARIFICATION: I mean that I've been seeing the reports for years], and they are always similar in key points: the creditor keeps a human being in forcible detention and demands payment of a debt as a condition for release. What's more, the hostage-taking and the identity of the kidnapper are not secret; that would defeat the whole purpose. And finally, the police do nothing. They think of it as a civil dispute having nothing to do with them. For example, back in 1992 I read of a case where a jilted suitor took a woman's baby as hostage for the return of over 1,000 yuan in gifts. The police didn't immediately arrest this known kidnapper; instead, the go-between, the village committee, and "judicial departments" tried for five months to persuade him to return the child. Only then did they finally give up and arrest him.

Actually, I was wrong to say the police do nothing - sometimes they actively assist in taking debt hostages. In a book entitled One Hundred Strategies for Using Law to Clear Up Debts (运用法律手段清债百策), the writer mentions as an aside that a plaintiff trying to collect a debt asked the police and the procuracy to assist. They helpfully detained three people from the defendant organization for up to eight months, but were unsuccessful in collecting.

Remarkably (to me, anyway), even the formal legal system treats hostage-taking as less reprehensible when it's coupled with a demand for debt repayment. Although the 1979 Criminal Law curiously did not directly prohibit kidnapping for ransom, it did prohibit kidnapping for sale, and made unlawful detention punishable by up to three years' imprisonment. The 1997 Criminal Law contains a new provision punishing kidnapping for ransom by up to life imprisonment (Art. 239). The taking of debt hostages, however, is not considered a type of kidnapping for ransom. Instead, it is assimilated into unlawful detention (Art. 238) and punished by no more than three years' imprisonment. (I suppose this is progress; the specific mention of debt hostages is new to the 1997 Criminal Law, and presumably is there to make clear that hostage-taking is still unlawful even when you think you've got a good reason for it.)

The point, though, is that what the hospital is doing is unambiguously prohibited in the current Criminal Law; the drafters foresaw exactly this kind of situation and made it a criminal offense. Yet the hospital has openly kept this hostage for well over three months, and has even held a press conference about it. Nobody has apparently accused the hospital or its staff of a criminal offense; the police seem uninvolved; and a lawyer interviewed by the reporter merely calls it "inappropriate".

I suppose the lesson here is that social understandings often trump the explicit words of the law, even when we know for sure that the law was intended to cover precisely the situation at hand. They can legislate away all they want in Beijing, but in Dongguan it's the local understandings that count. The question now is whether, now that it's been reported in the press, more senior people will get involved to put an end to this.

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Comments

Yet another warning for foreigners doing business in China. Hasn't there been several cases of foreigners held hostage by unpaid Chinese suppliers due to quality control issues?

Posted by: stuart | Apr 28, 2010 12:08:06 AM

As ridiculous as that is, at least the lawyer also admits that they hospital has violated the law:
"吕军律师说,但把孩子留在医院作为筹码,这说明医院非常无奈,也值得同情,但事实上已经违反了法律。"

That is, unless I'm missing something and he is saying that the parents have already broken the law by not paying in full...

Posted by: Benjamin | Apr 28, 2010 7:01:34 AM

Thanks, Benjamin - indeed, the lawyer does say that the hospital has violated the law. It's not clear to me, though, what law he thinks the hospital has violated. Normally if we think someone has violated the criminal law by kidnapping a baby, we don't say they deserve our sympathy. The lawyer seems to view the law violation as akin to illegal parking.

Posted by: Don Clarke | Apr 29, 2010 9:11:59 AM

Although I discussed this with you personally, I find that when you clarify law enforcement's role in the detainment is simply priceless. It makes me wonder how often police officers go directly against the law in China?

Posted by: Christina | May 2, 2010 1:28:16 PM

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