Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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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)