Tuesday, October 25, 2011
Saturday, October 22, 2011
George Washington University Law and Fordham Law School will be jointly sponsoring a full-day program, called “Patents, Trade and Innovation in China: A Public Discussion on Practical Strategies for Engaging China.” The program is scheduled for December 13, at GW Law School. David Kappos, Director of the USPTO, will be the keynote speaker, and Chief Judge Rader of the Court of Appeals for the Federal Circuit will also be presenting. The program is divided into four sessions: the overall economic and rule-of-law challenges to China becoming an innovation society; assessing China’s efforts at patent catch-up with the West; how China has implemented its WTO and other IPR commitments; and how to collaborate and engage with China on innovation and IP issues. The program is intended as a series of roundtable discussions, with interaction from attendees. In addition to IP and trade lawyers, government officials, political scientists, and company executives, China lawyers who are scheduled to discuss include myself, Carl Minzner (Fordham) and Mark Cohen (Fordham). The program follows up on a highly successful smaller meeting sponsored by Chief Judge Rader and will also likely involve distribution of research and other reports and coordination on technical assistance. There is no charge for the event and no CLE will be offered. Those interested in participating should RSVP to email@example.com with the subject line: “China Conf.”
Wednesday, October 19, 2011
... is apparently blind activist and barefoot lawyer Chen Guangcheng, judging from the extraordinary level of security thrown up around his home to prevent him from having any communications with the outside world. None of this has any known legal justification, by the way. Here's a report from China Human Rights Defenders (Chinese here). Think of how much all this must cost!
Attempts to visit the lawyer and activist Chen Guangcheng (陈光诚) in Shandong Province have often been thwarted by the constant, stifling presence of guards blockading Dongshigu Village, where Chen lives under illegal house arrest (see reports below). The intensive operation is fortified by surveillance cameras and monitoring points set up at four village entrances and around Chen’s home. As groups of Chinese activists continue their “Operation Free Chen Guangcheng” by making repeated visits to Dongshigu Village, CHRD has released an aerial photo that charts the locations of village entrances and monitoring posts while describing these in detail.
The village’s widest concrete road—at three meters across—runs along its eastern edge and intersects China National Highway 205, which connects the provinces of Hebei and Guangdong. A small bridge lies in the middle of this road, and after crossing the bridge and turning right, Chen’s home is the first one on the north side, and is surrounded at all times by seven or eight guards.
The highway entrance near Chen’s home is guarded by 20 individuals who work in two shifts, scrutinizing each vehicle and person entering the village. At another location are two small structures that function as the guards’ work stations, with a pair of vehicles parked nearby. Thugs use one of them in case they need to chase after visitors, and the other is stationed next to a small bridge. Seven to eight individuals, also working in two shifts, man these vehicles.
Another concrete road entrance faces a neighboring village, Yazi Village, to the southeast of Dongshigu, and is located about 600 meters down the highway. A monitoring point in this area is set up about 100 meters after crossing a bridge, and guards—close to 20 people divided into two groups—reportedly stay hidden behind a pile of firewood and are able to see anyone crossing over the bridge, which leads to a trail into Dongshigu. On one side of the trail is a row of bungalows where tobacco is grown, and guards keep three vicious dogs on the other side.
A third entrance—a drainage area beneath a highway—lies along the village’s southwest edge, and is a path so narrow and rugged that it can only be undertaken on foot. There are six or seven guards stationed at this entrance, which is also equipped with a monitoring camera. Northwest of the village, there is a fourth passage off a small bridge to neighboring Xishigu Village. There are two monitoring points, one at the entrance of Xishigu Village and another after crossing a bridge and turning to the left, with close 20 guards.
In sum, there are two surveillance points in front and behind Chen’s home, and six other points set up at various locations on the four narrow roads that enter Dongshigu Village. There are a total of six surveillance cameras in the village. Two mobile phone jammers are set up at the homes of Chen’s neighbors to the west and east.
Reportedly, almost 100 hired thugs keep Chen under surveillance, and all are recruited from outside the village. They are divided into two large squads and 12 smaller groups, and maintain radio communication with each other while working around the clock. And like many extensive operations, monitoring Chen and the entire village is also wealth-generating. Given two daily meals, each person pockets 100 RMB a day—far more lucrative pay than the average villager (even the village party secretary earns just 3,000 RMB in salary per year). The guards are led by Gao Xingjian (高兴见), who comes from a nearby village. Gao was appointed as head of the guards after fighting off past visitors on many occasions, and has supposedly amassed a good deal of wealth from filling that role.
Wednesday, October 12, 2011
Check out this article by Jeremy Daum at the web site of the US-Asia Law Institute, with a set of very useful links as well. As Daum notes, rejecting evidence obtained by unlawful interrogation (I'll call it that instead of torture, since it didn't involve the kind of extreme measures - waterboarding, lit cigarettes on the skin, etc. - that we normally associate with the term) is exactly what judges in China are supposed to do according to applicable rules, but in practice it's far from becoming a ho-hum dog-bites-man story.
Sunday, October 9, 2011
In a previous post, I promised more comments on the proposed revisions. My comments here will be about the controversial provisions on residential surveillance (监视居住) (RS) (also known as supervised residence). First, though, let me post here a translation of the amendments done by Johannis Bayer and Li Changshuan of the Danish Institute for Human Rights.
Now for the comments:
The current Criminal Procedure Law (CPL) provides for residential surveillance to be imposed on suspects while they are being investigated (Art. 50). While it doesn't define what residential surveillance actually entails, it is clear from the context and other documents that it involves something akin to house arrest: the subject's liberty is restricted but not absolutely, and the subject remains at home. This is clear from the following sources:
- Art. 57 of the CPL contemplates that those without a fixed place of abode must stay at a designated place (presumably designated by the police); this implies that those with a fixed place of abode would remain there.
- According to a 1984 Reply issued by the Supreme People's Court (最高人民法院关于依法监视居住期间可否折抵刑期问题的批复), time spent under residential surveillance, unlike time spent in any form of coercive detention, cannot be used to set off time imposed in a subsequent criminal sentence. The rationale is precisely that residential surveillance does not involve the type of restriction on liberty that accompanies detention. If the subject is coercively sent to a place of detention under the label of "residential surveillance", then this is not really residential surveillance; it is a form of detention proper, and the time served can set against the time imposed in a criminal sentence.
- According to a 1991 Reply issued by the Supreme People's Court (最高人民法院行政审判庭关于对公安机关采取监视居住行为不服提起诉讼法院应否受理问题的电话答复), it is unlawful for public security organs, on the basis of a decision to impose residential surveillance, to shut the subject up in a station house, detention center, or other place. The original question posed to the SPC makes clear that "other place" includes "guest houses", hotels, work units, etc. (The SPC did not, however, offer a judicial remedy for this illegality; it suggested that the victim bring the matter to the attention of higher-level public security authorities.)
As the above makes clear, the police have for years had a practice of locking people up in places other than their residence, but calling it "residential surveillance". Let's call it "non-residential residential surveillance" (NRRS). Although NRRS is unquestionably unlawful, it is apparently too useful to be dispensed with. One advantage is perhaps that, unlike detention or arrest, RS carries no notification requirement. To be sure, the notification requirements for detention (Art. 64) and arrest (Art. 71) are weak because the police can evade them entirely by a unilateral and unreviewable determination that to notify family of the detention or arrest would impede the investigation. But perhaps the police still feel it's better to have no restraints at all than to have even this weak one. In any case, the lack of a notification requirement makes sense under the proper understanding of RS: the suspect is still at home and able to communicate, so the family is bound to know. The lack of a notification requirement would make no sense if NRRS were a legitimate practice.
All right: fast forward to August 2011, when the proposed amendments came out. The provisions on RS have attracted a great deal of criticism on the grounds that they legitimize NRRS. I was recently at a meeting with Chinese officials and academics where the revisions were discussed. They were a bit miffed at criticism of these revisions and felt that some important improvements had been overlooked. To some extent I think they had a point; certainly my own understanding was aided by the discussion we had.
Here’s one part of the key language from new Art. 73: 对于涉嫌危害国家 安全犯罪、恐怖活动犯罪、重大贿赂犯罪，在住处执行可能有碍侦查的，经上一级人民检察院或者公安机关批准，也可以在指定的居所执行。This is translated in the Bayer/Li translation as: “Where, in cases of a crime suspected to threaten national security, crimes of terrorist activities and major crimes of bribery, it may, upon approval by the next higher people’s prosecutor’s office or public security authority, be enforced at a designated place of residence[.]”
I would modify this slightly to make the term “suspicion” apply to all three crimes: “Where there is suspicion of the crime of endangering national security, the crime of terrorist activities, or the crime of receiving bribes in serious circumstances, then …” I don’t see any reason for confining “suspicion” to just the first crime, and it’s not grammatically necessary to do so.
More controversial are the provisions re notice. Here’s the Chinese: “指定居所监视居住的，除无法通知或者涉嫌危害国家安全犯罪、恐怖活动犯罪，通知可能有碍侦查的情形以外，应当把监视居住的原因和执行的处所，在执行监视居住后二十四小时以内，通知被监视居住人的家属。”
This is rendered in the Bayer/Li translation as: “Where residential surveillance is enforced at a designated domicile, the family members of the person under surveillance shall be informed of the reason for and the place under residential surveillance within 24 hours upon enforcement, save where a notice cannot be furnished or where crimes threatening national security or crimes of terrorist activities are suspected and a notice may impede the investigation.” In other words, notice must be given within 24 hours except where either of the following two conditions applies: (1) notice cannot be furnished, and (I say “and” because this is a list, but note that they are alternatives) (2) (a) a crime of threatening national security or terrorism is suspected, AND (b) giving notice might impede the investigation.”
As noted above, under current law, there is no notification requirement for residential surveillance. At the same time, current law (as well as applicable SPC interpretations) contemplates that residential surveillance will really be at the residence. Now a requirement of notice has been added, but note that it applies only to the new, permitted type of “residential surveillance” not at your residence (i.e., NRRS). Moreover, it is not completely discretionary, since the exception for impeding the investigation applies only to two types of cases. In other words, yes, the revisions legalize the current practice of non-residential residential surveillance, but only in three types of cases, and they also add a restriction that notice must be given (subject to a non-open-ended exception).
Note also that the new notice requirement is essentially duplicated for detention (new Article 84) and arrest (new Article 92). Here it’s unambiguously good from a civil liberties or restraint-on-power perspective. Under current law, police can decide not to notify family of a suspect's detention or arrest if they unilaterally decide in any case that it would impede the investigation. Under the revisions, police can decide not to notify only if they (again unilaterally and unreviewably) decide that it would impede the investigation and it’s one of two types of case: national security or terrorism.
In short, then, the revisions tighten up the existing notice requirement for detention and arrest, and add in the same requirement for NRRS.
Of course, in the end these are all just words, and since police action is essentially unreviewable by external authority if it takes place in the claimed context of a criminal investigation (see the above-mentioned 1991 Reply issued by the Supreme People's Court), the police are under no real obligation to apply the words in good faith. But the words are, on the whole, more restrictive of police powers than before, and that's worth noting.
Finally, I want to note one mistake in this part of the translation: Item 32 of the amendment amends Art. 57, changing it to Art. 75. Paragraph (b) as translated says that someone subject to residential surveillance may not "meet or correspond with certain designated persons without the prior approval by the enforcement authority." I don't see any support in the original Chinese for the idea that the prohibition applies only to "certain designated persons." The original Chinese says that those subject to RS may not meet or correspond with anyone without approval: "未经执行机关批准不得会见他人或者通信".
This is more than a trivial point, because as translated the burden is on the police to come up with a list of prohibited people; as actually written, however, the default rule is that meetings or communications with anyone are barred; it's up to the subject to seek permission (which he might not get) to escape what could become a form of solitary confinement. I don't believe this aspect of the proposed revisions has been widely commented on.
Sunday, October 2, 2011
I've been asked to post the following announcement. Here's a more specific agenda for the event.
The United States Department of Commerce
in partnership with
China’s Ministry of Commerce
The 2011 U.S.-China Legal Exchange
Changes in China’s Commercial Law and Implications on
Doing Business in China
During the week of October 17, 2011, the U.S. Department of Commerce, along with China’s Ministry of Commerce (MOFCOM), will co-host the 16th U.S.-China Legal Exchange, a unique forum that provides an opportunity for the business, legal, and academic communities in the United States to hear directly from Chinese officials about the new and important developments in China’s commercial legal and regulatory landscape. High-level government officials from MOFCOM, the State Council’s Legislative Affairs Office, and the Standing Committee of the National People’s Congress will present to a public audiences in San Francisco, CA (Oct. 17), Denver, CO (Oct. 19), and Atlanta, GA (Oct. 21) on two areas of China’s commercial law regime that impact the U.S. business and legal community, providing an unique opportunity for U.S. companies, lawyers, local and state government officials, and other interested persons to discuss with Chinese Government officials the impact of those changes on U.S. business opportunities. During the one-day event, Chinese officials will present on:
(i) China’s review of mergers and acquisitions under its Anti-Monopoly Law; and
(ii) New developments in consumer product safety and tort liability in China.
Department of Commerce General Counsel Cameron Kerry will lead the event from the U.S. side, and MOFCOM Vice Minister Chong Quan will lead the Chinese delegation.
San Francisco, CA
October 17, 2011
Website and Registration: https://secure.acceptiva.com/?cst=4817bd
October 19, 2011
Location: Denver University, Sturm College of Law
Website and Registration: https://emenuapps.ita.doc.gov/ePublic/newWebinarRegistration.jsp?SmartCode=2Q0Z
October 21, 2011
Location: Metro Atlanta Chamber of Commerce
Website and Registration: http://metroatlantachamber.com/content/Event.aspx?Code=54a6a540-2e75-413c-9165-5e84319a212f
To register for the Legal Exchange, please visit this website. Please note that Continuing Legal Education (CLE) credits have been applied for and are currently pending with the State Bars of California, Colorado, and Georgia.
Sponsorship opportunities will be available. Should you or your organization be interested in sponsoring the Legal Exchange, or for additional questions about the Legal Exchange, please contact Brett Gerson, Attorney-Advisor in the Department of Commerce, Office of General Counsel, Office of the Chief Counsel for International Commerce, at firstname.lastname@example.org or (202) 482-5595.
Saturday, October 1, 2011
It might seem a bit odd to post about this on a Chinese law blog, but the matter concerns religious law and its interaction with secular law in a territory under the control of the government in Beijing, so why not? Just as important, I'm posting an explanation of what it's all about by Tibetologist Robbie Barnett of Columbia. Those who don't understand the finer points of Tibetan Buddhism - that is to say, most of us - are going to miss important aspects of this announcement if we don't read Professor Barnett's Cliff's Notes (which I post here with his permission). I doubt if this level of understanding is accessible to the layman anywhere else, so here it is.
Here is the Dalai Lama's statement
Here are Prof. Barnett's notes on this statement; below are the first three paragraphs:
On September 24 2011 The Dalai Lama issued a statement on “the issue of his reincarnation”. The full text is at http://dalailama.com/messages/tibet/reincarnation-statement. It was issued following a meeting of the leaders of the main schools or sects of Tibetan Buddhism in Dharamsala, Northern India.
The timing is in part a response to the series of announcements by the authorities in Beijing in recent years that only they can select the next Dalai Lama. This claim was formalized in a legal document known “Order No. 5” issued by the State Administration of Religious Affairs in August 2007 (see http://english.peopledaily.com.cn/90001/90776/6231524.html and http://www.savetibet.de/fileadmin/user_upload/content/berichte/Briefing_Papier_Reinkarnationsgesetz.pdf).
It also relates to the decision by the Dalai Lama this March, formalized on May 29th, to end the “Ganden Phodrang” system. That term had referred to the government led by the Dalai Lamas in Tibet since 1642 and in exile since 1959. Since May, it refers just to the private estate or office of the Dalai Lama. Technically the Dalai Lama is now just a religious figure, and his announcement relates to this new role, addressing the future continuity of his lineage if indeed it is decide that it is beneficial to continue it. But in practice his statement is much greater significance than that, because he remains the symbolic heart of Tibetan nationhood – a role noted in the exiles’ new constitution – and of far greater importance to Tibetan people, and therefore to Chinese policy-makers, than the government.