Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Tuesday, August 30, 2011

Leitner Center Asian Law and Justice Fellowship

I have received the following announcement:

Leitner Center for International Law and Justice at Fordham Law School
http://www.leitnercenter.org

2012 Asia Law and Justice Fellowship
 

The deadline for applications is January 30, 2012.  Applications postmarked after this date will not be considered. 
 
The Asia Law and Justice (ALJ) Program, part of the Leitner Center for International Law and Justice at Fordham Law School (http://www.leitnercenter.org), studies and promotes the rule of law and adherence to basic human rights throughout Asia. The Program does this through research and advocacy projects; conferences, symposia, and panels; capacity-building initiatives, such as exchanges of lawyers, judges, and scholars; and partnerships with NGOs based in the U.S. and Asia. The program’s primary focus has been on rule of law and justice initiatives in China, including the independence of criminal defense lawyers, women’s rights, and the legal status of North Korean refugees in East Asia.

The ALJ Program is administered by a Fellow who is a law school graduate. The Fellow will conduct research and advocacy for the Program; identify new areas for research; work with the Program’s partners; advise students seeking relevant internships and post-graduate employment; coordinate the work of the Committee to Support Chinese Lawyers (http://www.csclawyers.org), an initiative housed in the Program; and manage day-to-day administration, including arranging events and lectures. The Fellow may also teach a seminar at the Law School as a member of the adjunct faculty.

Candidates should hold a J.D. or equivalent, and have a demonstrated interest in international human rights and Asia. The ideal candidate will have some familiarity with Chinese law or legal developments in other parts of Asia; experience in international human rights advocacy as exhibited by past internships, clinical experience in law school, and/or post-graduate human rights experience; and proficiency or fluency in Mandarin Chinese or another regional language.

The Fellowship begins in mid-August 2012, and is a 12-month position with the possibility of an extension for an additional year. The Fellow’s salary is $55,000 and includes benefits.

Applicants should send a statement of interest (including detailed description of your international human rights experience, teaching/mentoring/advising experience, language skills, and how the fellowship will advance your professional goals), a résumé/CV, an official law school transcript, and at least two letters of recommendation in one complete application package by January 30, 2012. The complete application package should be sent to:
 
“2012 ALJ Fellowship”
Leitner Center for International Law and Justice
Fordham University School of Law
33 West 60th Street, 2nd Floor
New York, NY 10023

Please direct inquiries to leitnercenter@law.fordham.edu
For more information about the Leitner Center, see: http://www.leitnercenter.org

August 30, 2011 in Fellowships/Research Opportunities | Permalink | Comments (0) | TrackBack (0)

Thursday, August 25, 2011

Choice of dispute resolution mechanisms in China

I've just been reading an interesting article that reports the results of a 2008 study of dispute resolution mechanisms and preferences sponsored by the Supreme People's Court. The investigators distributed 5,518 questionnaires and got back 5,508 effective responses. The distribution covered urban, suburban, and rural areas. No doubt there are many problems with the data; the article doesn't report how the respondents were chosen, and I doubt very much that it was done truly randomly. Such a high response rate, if nothing else, would be quite unusual, I think, among a truly random group of respondents. Anyway, the data are still interesting, even though we shouldn't put more weight on them than they can bear.

One interesting feature is the relatively strong preference for courts over other dispute resolution mechanisms. All respondents expressed a strong preference for trying first to work a dispute out bilaterally or with the aid of an intermediary; quite sensible, and no surprises there. As a second choice, urban and suburban respondents clearly preferred courts over other options; rural residents picked mediation via the villagers' committee.

There's a common-sense explanation for the villagers' stronger preference for mediation relative to urban and suburban respondents: the village is a more stable community where people know each other, and thus mediation is more coercive (and therefore more effective) than it would be in an urban setting. Anyway, here's a chart I worked up using the data. Click on it for the full-size version.

Choice of dispute resolution mechanisms

1st choice on left, 2nd choice on right. Y axis shows percentages.

UNTITLED

Source: Liang Ping 梁平, "Duoyuanhua jiufen jiejue jizhi de zhidu goujian 多元化纠纷解决机制的制度构建," Dangdai Faxue 当代法学, No. 3, 2001, pp. 118-127

August 25, 2011 | Permalink | Comments (2) | TrackBack (0)

Monday, August 22, 2011

New Supreme People's Court judicial interpretation on the Marriage Law

The Supreme People's Court has just promulgated a new judicial interpretation of the Marriage Law. A large part of it is about how to deal with real property upon divorce. By and large the rules seem sensible to me as a matter of economic principles. For example, each party can keep assets that they brought into the marriage, as well as interest on those assets, but (at least as I read the interpretation) accretions to value attributable to the joint efforts of the partners (including one spouse's staying at home to look after the children while the other works to improve the asset's value) are subject to the rules on marital property.

Wang Yong, a professor at China University of Politics and Law, is not happy with Article 10 of the interpretation, and denounces it here as harmful to women and destructive of marital trust. Article 10 of the interpretation deals with the following kind of real property: one party (usually the husband - call it Party A) signs the purchase contract before the marriage, and makes the initial payment and has the property registered in his name. [NOTE (Sept. 4, 2011): The preceding sentence has been revised to correct a mistake in the original post.] During the marriage, the mortgage payments are made from marital property. Upon divorce, if the parties do not otherwise agree, the property stays in the name of Party A. That party assumes the remaining debt. The other party (call him or her Party B) gets a share of the value in the form of a debt owed to them by Party A.

Let me say first off that it's not completely clear to me that the interpretation calculates correctly the amount Party B should get. Assume for simplicity's sake that both parties contributed equally to the pre-marriage down payment. All post-marriage payments should be deemed to come from marital property, which is presumptively owned in equal shares by the parties. Let's assume that the down payment was 100,000 yuan on a sale price of 1 million yuan, so the couple borrowed 900,000. And further assume that in the course of the marriage the parties paid off 400,000 of the debt from marital earnings, so the remaining debt is 500,000. And finally, let's assume that the residence is now worth 2 million. If the principle is to give the house to Party A and give fair compensation to Party B, then we should give Party B half of the couple's equity in the house: (2,000,000 - 500,000) / 2 = 750,000. If Party A made the initial payment alone, then we must first subtract from 2,000,000, and return to Party A, an amount equal to the initial payment plus the opportunity cost of that payment, which could mean (a) a reasonable rate of interest or (b) a rate equal to the appreciation of the residence's value - this is a policy choice, not a self-evident economic one.

I'm not sure Article 10 does that. It says that Party B should get a share of the appreciation, but it also seems to say that Party B should get some compensation for her (it's most likely the wife) share of mortgage payments made during the marriage. This seems to me liable to lead to double counting.

This is not Prof. Wang's objection (it would work in Party B's favor, in any case). His objection is that this treats what ought to be marital property essentially the same way as property brought into the marriage by either spouse, thus rendering the marital property regime for the residence essentially meaningless. He doesn't quarrel with the economic calculation, but says that Party B is put in a disadvantageous position by having to be the plaintiff in requesting her fair share of the value: she has to pay the legal costs of defending her interests and she has to bear the burden of proof, while Party A can enjoy the benefits of passivity.

There is something to this, if the courts choose to deal with the issue that way.  I note, though, that the interpretation says that courts "may" (可) treat the residence in this way. I see nothing in the interpretation that would prevent the court from treating the issue of property division together with the issue of compensation - that is, telling Party A that he can get title to the residence provided, and not until, he gives appropriate compensation to Party B.

Prof. Wang makes a good point when he notes that despite the SPC's professed intention of bringing the Marriage Law into line with the Property Law, Article 10 is actually inconsistent with the Property Law's treatment of the division of jointly-owned property. According to Article 100 of the Property Law, where jointly-owned property can't be easily divided, or where doing so would impair the value (clearly conditions that apply to a jointly-owned apartment), it should be sold or auctioned, with the proceeds divided among the joint owners (each of whom could, of course, bid at the auction). This is an easy way of maximizing the value of jointly-owned property in a way that neither party can complain about (assuming they have easy access to credit, which might not be true).

August 22, 2011 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Thursday, August 4, 2011

Will political violence in China increase?

Here's a sobering thought:

Recall that at higher levels of income societies are safer.  It turns out that all the benign effect of higher income depends upon the society being democratic.  Indeed, it is more striking than that: in the absence of democracy, as a society starts to get rich it becomes more prone to political violence.  Democracies get safer as income rises, whereas autocracies get more dangerous.  If it helps, you can think of this as two lines, an upward-sloping one showing how democracies get safer as income rises, and a downward-sloping one showing how autocracies get less safe.  The level of income at which democracy has no net effect on violence, $2,700 [per capita], is simply the point at which these two lines cross over.  Applying this to the society with the most astounding income change in our times, China has now passed the income threshold - per capital income has soared past $3,000.  So, if China runs to form, year by year its spectacular economic growth is now making it more prone to political violence unless it democratizes.

Paul Collier, Wars, Guns, and Votes (Harper, 2009), p. 21.

August 4, 2011 in Commentary | Permalink | Comments (5) | TrackBack (0)

Monday, August 1, 2011

Property rights conference in Beijing in October

I've been asked to publicize the following conference. Here's the material they sent:

Beijing Conference Explores the Importance of Property Rights on a Global Scale

As China continues to emerge as an economic superpower, one of the challenges it faces is deciding how to further enhance its market economy through its private property laws. It is against this backdrop that, on October 14-15, William & Mary Law School's Property Rights Project will host the law school's first international conference at Tsinghua University in Beijing, China. The eighth annual Brigham-Kanner Property Rights Conference will bring together esteemed scholars, jurists, and practitioners from the United States and China to discuss the evolution of property rights on a global scale.

Justice Sandra Day O'Connor will receive the 2011 Brigham-Kanner Property Rights Prize at the conference and will be a featured speaker. O'Connor served as an associate justice of the Supreme Court from 1981 to 2006. She made history in 1981 as the first woman nominated to serve on the high court. Her widely cited dissenting opinion in Kelo v. City of New London (2005) has been hailed as a pivotal opinion in property law jurisprudence. She became Chancellor of the College of William & Mary following her retirement from the judiciary. A formal reception will be held on October 13 at the United States Embassy in Beijing to honor Justice O’Connor and the conference’s Chinese host, Tsinghua University School of Law.

The conference is being held at and in cooperation with Tsinghua University School of Law, one of China’s top universities and law schools. The conference will be a featured event during Tsinghua University's celebration of the 100th anniversary of its founding.

Holding the conference in China "will foster a comparative framework for the discussion of property rights that is long overdue given the strong ties between the United States and China and China's dynamic role in the world economy," explained Chancellor Professor of Law Lynda Butler, the Project's director.

William & Mary Law School Dean Davison M. Douglas said the slate of participants comprised many scholars "whose work forms the foundation of contemporary American property law jurisprudence." He added that while plans are still preliminary, he looked forward to having a number of China's pre-eminent scholars also participate.

The annual Brigham-Kanner Property Rights Conference is named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights. Now in its eighth year, the conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights. During the conference, the Project presents the Brigham-Kanner Prize to an outstanding figure in the field.

All previous prize recipients will participate in the conference. They include: Richard A. Epstein, formerly of the University of Chicago Law School and now at New York University School of Law, Robert C. Ellickson of Yale Law School, James W. Ely, Jr., professor emeritus of Vanderbilt Law School, Frank I. Michelman of Harvard Law School, Richard E. Pipes, professor emeritus of Harvard University, Margaret Jane Radin of the University of Michigan Law School, and Carol M. Rose of the University of Arizona James E. Rogers College of Law and professor emerita of Yale Law School.

The Conference program will explore the following panel topics:

** Legal Protection of Property Rights: A Comparative Look
** Reflections on Important Property Rights Decisions
** Property as an Instrument of Social Policy
** How Practitioners Shape the Law
** Culture and Property
** Property as an Economic Institution
** Property Rights and the Environment
** The Future of Property Rights

An optional post-conference tour of China and Hong Kong has been arranged.  The tour will run from October 16 through 23.  Prior to the conference, on October 13, day trips will be available to the Forbidden City and Great Wall.

For information about the conference, CLE credit, and the optional trips and tour, please visit the Brigham-Kanner Property Rights Conference website at www.bkconference.com or contact Kathy Pond at ktpond@wm.edu.

Dean Douglas’s video message:

http://www.youtube.com/watch?v=f64MYI3bs9A&feature=player_embedded

 

Conference Poster:

http://law.wm.edu/academics/intellectuallife/conferencesandlectures/propertyrights/beijing-poster.pdf

August 1, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)