Saturday, February 13, 2010
John Garnaut has a fascinating piece in the Sydney Morning Herald on the Li Zhuang case and its relation to the princeling community. The factual background behind the article is quoted below; click here for the rest of the story.
The man who must have authorised Li's arrest is Bo Xilai, the only Politburo member who can comfortably wear epithets such as colourful, mercurial or maverick. The Communist Party boss of the central-west city of Chongqing has captivated the nation with a brave but risky war against the city's organised crime.
Bo got to where he is partly because he is the son of Bo Yibo, one of China's "eight immortals" - the tag for an exalted club of revolutionaries who lived long enough to stamp their marks on China's reform era history.
The China Youth Daily hinted at the equally impressive power behind the lawyer that Bo arrested: "As Li Zhuang arrived at Chongqing, he began to play the peacock, saying many times 'do you know my background? Do you know who my boss is?"
What the censors won't let local media spell out is that Li's law firm is headed by Fu Yang, who is the son of Peng Zhen, also one of the eight immortals and more powerful than Bo Yibo. Li's lawyer from the same Kangda law firm, Gao Zicheng, said he could not talk about the background politics: "I can't go there …''
Wednesday, February 10, 2010
Sida Liu is a professor of sociology at the University of Wisconsin - Madison and an expert on the Chinese legal profession. He's written four essays (in Chinese) over the last few weeks on the Li Zhuang case. Here they are:
The No. 1 branch of the Shanghai People's Procuratorate has decided to prosecute Australian citizen Stern Hu, former head of Rio Tinto's Shanghai office, and three local employees, Wang Yong, Ge Minqiang and Liu Caikui.
The Shanghai No. 1 Intermediate People's Court has accepted the case.
The statement by the court said prosecutors accused the four of "taking advantage of their position to seek profit for others, and asking for, or illegally accepting, huge amounts of money from Chinese steel enterprises."
They are also charged with trade secret infringement, but I want to comment here mainly on the bribery charges. As can be seen, they are charged not with giving bribes, which seems to have been the original charge, but with soliciting and taking bribes. The Xinhua report then puzzlingly goes on to say that “they lured the Chinese enterprises' heads with promises, or through other illegal means, to obtain the steel companies' commercial secrets on multiple occasions, causing ‘extremely serious consequence’ for the companies.” If obtaining the commercial secrets is linked with the bribery, this doesn’t make sense. You offer bribes to people to get their secrets; people don’t give you secrets and money. The money and the secrets are supposed to go in opposite directions.
It’s possible, of course, that the charges of illicitly obtaining commercial secrets are quite distinct from the charges of taking bribes. In that case, one wonders how the commercial secrets were obtained, if not through bribery (or if through bribery, why there was no charge of giving bribes). We will have to see what specific facts are alleged in the course of the trial.
Back to the charge of receiving bribes. Commercial bribery has not, at least until recently, been widely criminalized in various countries. (There may be some recent movement in that direction, but I don’t have the details. For a recent book-length study, see Gunter Heine et al. (ed.), Private Commercial Bribery (2003); for a recent academic paper on the subject, see Antonio Argandoña, Private-to-Private Corruption.) Traditionally, it’s been viewed as a private problem for private companies to handle. It’s a breach of trust and an act of disloyalty when an employee takes a bribe to do something he shouldn’t do – for example, when a purchasing manager takes a bribe and causes the company to pay more to a supplier than it could have – but many jurisdictions leave it up to the injured employer to decide how to act. The employer might be able to dismiss the employee, or to bring a civil suit to recover damages. Criminal prosecutions seem to be quite rare. (In the United States, it would be a matter of state law; my brief research didn’t turn up any studies of how the states handle this.) And my guess is that they would be rarer still when, as in the Rio Tinto case, the employer, who is supposed to be the injured party, is not complaining and on the contrary actively supports the accused employee.
In China, commercial bribery is covered under Articles 163 and 164 of the Criminal Law. Article 163 criminalizes the receipt of bribes, whereas Article 164 criminalizes giving them.
Article 163. Company and enterprise work personnel who make use of their job opportunity to demand property from others, or illegally receive others property in exchange for benefits, shall, in cases involving relatively large amounts, be punished with imprisonment or criminal detention for less than five years; for cases involving a huge amount, with imprisonment of over five years, and may be subject to forfeiture of property.
Company and enterprise work personnel, who, in the course of economic contacts, receive personal kick backs and commissions in various forms in violation of state rules, shall be punished according to provisions under the preceding paragraph.
Personnel performing public duties in state owned companies and enterprises, and personnel assigned by state owned companies and enterprises to non state owned companies and enterprises for performance of public duties found to be committing the acts mentioned in the two preceding paragraphs, shall be convicted and punished according to provisions under Articles 385 and 386 of this law.
Article 164. Offering property to company and enterprise work personnel for improper benefits shall in cases involving relatively large amounts be punished with imprisonment or criminal detention for less than three years, for cases involving a huge amount, with imprisonment of over three years but less than 10 years, and with a fine.
Units committing offenses under the preceding paragraph shall be punished with a fine, with personnel directly in charge and other directly responsible personnel being punished according to provisions of the preceding paragraph.
A briber who confesses his bribery act before prosecution may receive a lighter sentence or a waiver for punishment.
Therefore, this case presents several questions.
First, should receiving bribes in a commercial context be a crime at all? That is of course a broad policy question and different jurisdictions will have different rules. I will just repeat my educated guess (given the apparent rarity of such prosecutions in any circumstances) that it would be very unusual in other countries for a criminal charge of receiving bribes to stick where the employer, the supposedly injured party, denied any injury and supported the employee.
Second, what is the standard for “relatively large amount” and “huge amount” in Article 163 that makes the receipt of the bribe criminal? These terms are explained in the Provisions on Standards for Prosecution in Cases of Economic Crime (关于经济犯罪案件追诉标准的规定) passed jointly by the Supreme People's Procuratorate and the Ministry of Public Security in 2001. Article 8 puts the floor for prosecution for receipt of bribes at 5,000 yuan, while Article 9 puts the floor for prosecution for giving bribes at 10,000 yuan for individuals and 20,000 for units (e.g., companies). Thus, it seems that the threshold for “relatively large” will probably be easily met. I am not aware of another public document defining “huge”, but there may be one out there (I haven’t searched carefully).
Third, and finally, if the defendants received criminally large bribes in violation of Article 163, then somebody must have offered them criminally large bribes in violation of Article 164. Where is the prosecution against the bribers?
There's been a lot of discussion on the Chinese internet over whether Li Zhuang planted a hidden message in the six-point confession he delivered orally during his appeal. There is unfortunately no authoritative text of this confession, so the alleged message might in part be the creativity of people who have changed a character here or there to get it. The idea is to take the first character of each sentence to make one phrase, and then take the last character of each sentence to make another. (In the text I have, you have to skip the last character of the 5th sentence and take the last two characters of the 6th sentence.) OK. let's try it out:
I've translated the content of some of this in an earlier post. If you take the first characters of each sentence and then the last characters (with the adjustment mentioned above), this gives you "被比（逼）认罪缓刑，础（出）去坚决上诉" (forced to confess to get a suspended sentence, will insistently appeal after release).
Is this plausible? I'm not the conspiracy-theorist type, but it looks plausible to me. The Chinese is a little odd in places; for example, one commonly says 立场不稳, not 立场不坚. And why should the fourth sentence start with "罪行法定，这是基本原则"? That principle of criminal law has nothing to do with the case in question. I guess we will find out when he's free to speak his mind. Not that it really matters.
Here's a story in English about it from Caixin.
Tuesday, February 9, 2010
Here's a short take on that from Gady Epstein of Forbes.
For some background on the debate, here's the article that got the discussion started, by James ("One Billion Customers") McGregor. He writes, "In my more than two decades in China, I have seldom seen the foreign business community more angry and disillusioned than it is today. . . .Visiting CEOs' banquet-table chatter is now dominated by swapping tales of arrogant and insolent Chinese bureaucrats and business partners. The litany includes purposefully inconsistent and nontransparent enforcement of regulations, rampant intellectual-property theft, state penetration of multinationals through union and Communist Party organizations, blatant market impediments through rigged product standards and testing, politicized courts and agencies that almost always favor local companies, creative and selective enforcement of WTO requirements ... The list goes on."
On the other hand, last summer the US-China Business Council did a survey of its members (who all do business in China); the responses there indicate what the survey report called "cautious optimism" and don't seem to reflect a lot of anger and disillusionment. Perhaps things have gone downhill a lot in the last half year, or perhaps everyone is seeing a different part of the elephant. (See "Survey Reveals Cautious Optimism," China Business Review, Nov.-Dec. 2009, pp. 60-64.)
This is not surprising - as I noted in an earlier post on this case, the "confession" sounded fake all along, indeed so fake that one suspects Li was signalling its insincerity. The language he used in his "confession" sounded entirely scripted and cliched. (“在各级组织各级领导的耐心教育下”，逐渐认识到“自己的所作所为玷污了律师的职责，缺失了一名法律工作者应有的职业道德基础”，并称“刑事辩护人更应该顾大局、识大体，与党中央保持一致。”) According to the report, this confession was delivered haltingly and with certain language mistakes.
Here's the story from Caixin: http://policy.caing.com/2010-02-09/100116950.html
Monday, February 8, 2010
Here's a very interesting commentary on recent developments in the Li Zhuang case by Xujun Eberlein. She notes that although Li Zhuang has, on the surface, admitted guilt, he is maintaining his appeal and planting hints that he is not in fact admitting guilt. In other words, he has been forced to say this in an effort to get his sentence reduced. This seems plausible to me. Consider the language he is said to have used in his courtroom admission of guilt: "在庭审最后阶段，李庄称自己的行为玷污了律师的职责，缺乏作为一名法律工作者的道德基础，在大是大非上执迷不决。而他对未来的期望是：彻底诀别过去" (At the last stage of the hearing, Li Zhuang said that his acts had been a stain on the legal profession, that he lacked the moral foundation of a legal worker, and that he had vacillated in the face of great issues of right and wrong. His hope for the future was to make a thorough break with the past). It sounds as though he is reading from a script written out for him; we have heard this kind of cliched language many times before.
Here is more detail on the appeal hearing from the EastSouthWestNorth blog (in English).
I have received the following announcement:
SUMMER 2010 INTERNSHIP ANNOUNCEMENT
Congressional-Executive Commission on China
Deadline: March 1, 2010
The Congressional-Executive Commission on China (www.cecc.gov) is offering paid internships to qualified undergraduates, graduate students, or recent graduates this coming summer in Washington, D.C. Interns must be U.S. citizens. The application deadline is March 1, 2010 for the Summer 2010 internship that runs from June to August 2010. Summer internships are full-time; interns are expected to work from 32 to 40 hours per week. See application instructions below.
CECC internships provide significant educational and professional experience for undergraduates, graduate students, or recent graduates with a background in Chinese politics, law, and society, and strong Chinese language skills.
Interns work closely with the Commission and its staff on the full array of issues concerning human rights, the rule of law, and governance in China (including criminal justice, democratic governance institutions, environmental problems, religious freedom, freedom of expression, ethnic minority rights, women's rights, etc.).
Interns perform important research support tasks (often in Chinese), attend seminars, meet Members of Congress and experts from the United States and abroad, and draft Commission analyses. Click here for CECC analysis of recent developments in the rule of law and human rights in China. Interns may also be trained to work with the Commission's Political Prisoner Database, which has been accessible by the public since its launch in November 2004 (click here to begin a search).
The CECC staff is committed to interns’ professional development, and holds regular roundtables for interns on important China-related issues.
Summer 2010 interns will be paid $10/hour. Those unable to apply for Summer 2010 internships may apply for the Spring (February-May) or Fall (September-December). Further details are available on the Commission's Web site at http://www.cecc.gov/pages/general/employ.php.
Interns must be U.S. citizens.
Interns should have completed at least some China-related coursework. It is also desirable that they have some background in one or more of the specific human rights and rule of law issues in the CECC legislative mandate.
Interns should be able to read Chinese well enough to assist with research in newspapers, journals, and on Web sites. More advanced Chinese language capability would be a plus.
The successful candidate for an internship often will have lived or studied in mainland China, Hong Kong, or Taiwan.
Although our interns are generally undergraduates, graduate students, or recent graduates, others are also welcome to apply.
Application Instructions for Summer 2010:
Interested applicants should send a cover letter, resume, and the names and contact information for two references, to the CECC via e-mail to Judy Wright, Director of Administration at firstname.lastname@example.org by March 1, 2010. Applications must be received by our office no later than 11:59 P.M. Eastern Time on March 1. Please discuss in your cover letter how your professional goals, interests, and background relate to the Commission's legislative mandate regarding human rights and the rule of law in China.