Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Wednesday, March 28, 2012

English translation of revised Criminal Procedure Law

Here's an English translation of the revised Criminal Procedure Law, courtesy of the Danish Institute for Human Rights.

I have posted twice before on the revisions, with links to Chinese and English texts of the old law, the revised law, and the resolution setting forth the revisions. Here are the links:

March 28, 2012 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 27, 2012

Gao Zhisheng reported alive

It is a sign of the absurd and cruel vendetta that the Chinese government has carried out against Gao Zhisheng (高智晟) that his being seen alive should be headline news. After all, he has been in the custody, acknowledged or not, of that same government more or less constantly since February 2009. He was last seen alive by family members in April 2010.

His wife now reports that his father father-in-law and brother were able to visit him in prison on March 24. His brother has confirmed the meeting. Here's the Radio Free Asia report.

[March 30 correction indicated above.]

March 27, 2012 in Commentary, People and Institutions | Permalink | Comments (0) | TrackBack (0)

Monday, March 26, 2012

Fordham conference on intellectual property in China

Fordham Law School in New York City will be hosting a conference on April 11th entitled "Understanding China's New Environment for Intellectual Property." Registration is free for academics and students. More details here.

March 26, 2012 in Conferences | Permalink | Comments (1) | TrackBack (0)

Sunday, March 25, 2012

What's the deal with Beijing taxis?

Anyone who spends much time in Beijing knows that in the last few years, it's been harder and harder to find a cab. The reason is much less hard to find: more Beijingers are able to afford cabs, and the rate, fixed by law, has not been changed since 2006. Yes, 2006! And this despite the fact that fuel costs have risen from 5.09 yuan/liter to 8.33 yuan/liter. Moreover, the rate for sitting still in traffic hasn't changed, either, even though taxis spend a lot more time sitting still in traffic now than they did in 2006. So: demand up, supply down.

The Beijing government has taken a few steps to fix the problem. In 2009, they allowed a 1-yuan fuel surcharge for rides of over some short distance (I forget how far - basically, the distance covered by the flag-drop fare), and in 2011 that went up to 2 yuan. Needless to say, this is a very crude way of compensating for higher fuel costs, since it is almost unrelated to distance driven. Still, it meant an extra 1 and later 2 yuan per trip for most trips, and was collected in a per-trip basis, thus operating as an incentive to drivers to get out there and drive.

This is, alas, exactly what the latest measure to cure Beijing's cab crisis does not do. The National Development and Reform Commission has announced that all cab drivers will be given a fuel subsidy of approximately 300 yuan per month. As far as I can tell from the news report, this will just be handed out to all taxi drivers regardless of how much they drive.

I'm happy to see taxi drivers earn more, but this subsidy, since it doesn't change incentives at the margin, will do nothing to get cab drivers to spend more time on the street picking up fares. Whatever economic calculations were driving their behavior before will not change. Just as before, taking your cab out to pick up passengers on any given day presents the cab driver with the prospects of earning X yuan and spending Y yuan. The fact that the NDRC cuts you a check for 300 yuan at the end of each month doesn't change that at all.

The real question is, why doesn't the government adopt the obvious solution of simply raising cab fares until increasing supply meets decreasing demand (technically, quantity supplied and quantity demanded respectively)? Why all this monkeying around with clumsy fuel surcharges and subsidies that won't change behavior? The only plausible answer I've heard proposed is that this is a way to keep official inflation figures down; if the inflation index measures cab fares, they will appear not to have changed in six years. I suppose it's also possible that it's a scheme by the auto industry lobby to get people to buy cars, since it's ever more dicey to rely on taxis to get around.

The one thing that to my mind really prevents New York from being a world-class city is its ridiculous taxi system that makes it often hard to get a cab; Beijing used to be terrific in this respect, and it's sad to see it going downhill.

March 25, 2012 in Commentary | Permalink | Comments (1) | TrackBack (0)

CECC seeks professional staff

I have received the following announcement:

CECC Employment Announcement--Professional Staff Members

The Congressional-Executive Commission on China is a bipartisan commission created by Congress in 2000 to monitor and report on human rights and rule of law developments in China. The Commission consists of Senators, Members of the House of Representatives, and senior officials from the Administration. The Commission holds hearings, issues an Annual Report, and maintains a database of political prisoners in China, among other activities. For more information on the Commission, see www.cecc.gov.

The Commission is seeking professional staff members to assist in monitoring and reporting on substantive issues, including worker rights, criminal justice, freedom of residence and movement, access to justice, Xinjiang, ethnic minority rights, freedom of religion, civil society, North Korean Refugees in China, and property in China. The professional staff member will assist in assessing China's compliance or noncompliance with international human rights standards and Chinese domestic law. Successful candidates should have substantive background and/or an interest in one or more of these issue areas. Successful candidates should also possess the necessary Chinese language, English writing, and communication skills to effectively research, analyze, and explain such developments to U.S. policymakers and the broader public.

Main duties:

  • Monitoring and researching Chinese and English language sources (media, government, NGO) for developments relating to their issue area.
  • Identifying and analyzing key developments and reporting their significance orally and in writing, including through drafting sections of the Commission's Annual Reports, short analysis pieces, public statements, and press releases.
  • Researching political prisoner cases and creating and maintaining case records in the CECC Political Prisoner Database.
  • Assisting in organizing CECC public hearings and roundtables.
  • Staff member also may be asked to travel to U.S. cities, China or other foreign locations on official business.

Qualifications:

  • Candidates must be a U.S. citizen.
  • Very strong demonstrated ability to speak, read, write, and perform research in Chinese (Mandarin) is required.
  • The successful candidate will likely have worked or studied in mainland China, Taiwan, or Hong Kong.
  • Candidates will preferably have a law degree or a Ph.D. or M.A. in political science, history, business, economics, or other social sciences. B.A. candidates with very strong credentials will also be considered.
  • Strong oral and written communication skills, and the interpersonal skills and enthusiasm to work under tight deadlines and as part of a team.

Application Procedure:

  • Please submit a brief cover letter, resume, short writing sample (10 pages or less), and the names and contact information for two references to Judy Wright, CECC Director of Administration, via e-mail at judy.wright@mail.house.gov or via FAX at 202-226-3804. PLEASE NO PHONE CALLS. The deadline for applications is Tuesday, April 10, 2012 by 11:59 PM, EST. Applications received after this deadline will not be considered.
  • The Congressional-Executive Commission on China is an equal opportunity employer.

 

March 25, 2012 in Internships/Employment Opportunities | Permalink | Comments (0) | TrackBack (0)

Shanghai mulls law to reward "heroic deeds"

Here's the scoop from the China Hearsay blog.

March 25, 2012 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Saturday, March 24, 2012

Case acceptance in Chinese courts

When you sue someone in a Chinese court, your complaint must first pass through a gatekeeping procedure in which a special division of the court (the case filing division [立案庭]) decides whether or not to accept (受理) and docket (立案) the case. According to Art. 108 of the Civil Procedure Law and Art. 41 of the Administrative Litigation Law (the applicable law depends on the kind of case), courts must, unless an exception applies, accept cases that meet the following standards:

  1. the plaintiff has a direct legal interest (a term of art) in the case;
  2. there is a specific defendant;
  3. there are specific claims, facts, and causes of action; and
  4. the lawsuit is within the court's geographical and subject-matter scope of jurisdiction. 

The decision to accept or not is a pre-trial procedure that is undertaken on the basis of the complaint and evidence you may be asked to submit; if the court doesn't accept the case, you never get the chance to prove your claims at trial. Moreover, it's made in something of a black box without the benefit of adversarial arguments. When the system works as intended, the case filing division makes its own initial determination of the merits, deciding whether there is enough there to warrant going forward. In practice, a court trying to avoid a nettlesome case can use the case filing stage to reject the case.

Any judicial system needs some kind of gatekeeping, of course. Consider how the US system works: when you bring a complaint, the court makes no initial determination of the merits. It's up to the defendant to challenge it. Now the defendant does have a chance to try to make it go away without all the expense of a trial: it can move for dismissal for failure to state a claim. That means that the defendant says that even if all the facts you allege are true, you still have no legal claim. (For example, I sue you for damages because I allege that you published a letter to the editor praising the president, and I don't like the president. We don't need to empanel a jury to decide the truth of your factual allegations; even if I didn't write the letter, I can admit for the sake of the motion that I did, and say, "So what?") Even if I don't win at this stage, I can still cut things off before trial. Suppose you sue me for saying, "Good morning" to you, alleging that in fact it was a secret code phrase known to both of us meaning I was threatening to kill you. OK, perhaps the court will allow you to survive summary judgment and bring evidence to prove your claim. Before the trial gets underway, I can ask the court again to dismiss on the grounds that no reasonable factfinder could, on the basis of the evidence you've brought, conclude that when I said, "Good morning," it was intended as a threat.

In both of these gatekeeping proceedings, both parties appear and make arguments, and the court gives a decision that can be appealed. But this is precisely what doesn't happen in the Chinese case filing stage, and that has led to dissatisfaction and criticism. There are always cases where, for one reason or another, a court won't want to give a judgment declaring the plaintiff the winner (e.g., powerful people or institutions will be offended), but at the same time doesn't want to declare it the loser, either (e.g., the evidence in favor of the plaintiff's case is overwhelming). The best thing to do in these case is simply to avoid taking the case.

I've long thought that this system deserved more attention in the English-language literature on Chinese law, but my own efforts were confined to encouraging students to write about it. I'm glad to see that it's now getting the scholarly attention it deserves. In fact, I'm writing this post solely to call attention to two recent contributions:

  1. Nanping Liu & Michelle Liu, "Justice Without Judges: The Case Filing Division in the People’s Republic of China," 17 U.C. Davis J. Int’l L. & Pol’y 283 (2011)
  2. Mark Cohen, "“Case Filing” In China’s Courts and Their Impact on IP Cases," China IPR blog, March 24, 2012

Apologies if I've missed anyone else's recent contribution.

March 24, 2012 in Commentary | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 21, 2012

Lawyers required to swear oath of allegiance to Communist Party

As reported by Reuters,

China's Justice Ministry has ordered lawyers to take a loyalty oath to the Communist Party, in an unusual move that has drawn condemnation from attorneys worried about the government's attempts to rein them in.

The ministry issued a notice on Wednesday demanding that first-time applicants and lawyers who want to renew their licenses have to take the oath.

 

The story goes on to quote prominent lawyers Mo Shaoping, who calls it "inappropriate," and Pu Zhiqiang, who calls it "baffling."

Both of them condemn it. According to Mo, "If the oath says you must be faithful to the Communist Party and accept the leadership of the Party, that may exclude many other people in the legal profession who belong to other political parties or have other religious beliefs. . . . The oath will hurt the development of the Chinese legal system." According to Pu, the oath "will produce a conflict" among lawyers who want to be independent of the Party.

I think the oath requirement is at least interesting, and possibly important, as a manifestation of the Party's policy toward the legal profession and what it expects of lawyers. I have a hard time believing, however, that it's really going to cramp any individual lawyer's style. Many outspoken lawyers and legal academics are right now members of the Party, and presumably have taken some loyalty oath already. Yet this hasn't stopped them from speaking their mind. Nor do I think that there are a lot of would-be lawyers who will be deterred from taking the oath because they know their conscience will demand that they keep whatever promise of loyalty they make to the Party.

What this oath really shows, I think, is the complete bankruptcy of the imaginative faculties of those in charge of keeping society in line. We have just seen a recent roll-out of yet another Lei Feng campaign, as if this could have the slightest effect on the behavior of an increasingly cynical population. Now we see that whoever is in charge of these things apparently believes that having lawyers swear loyalty to the leadership of the Communist Party will actually cause them to be loyal to the leadership of the Communist Party.

Here's the full text of the oath, translated at Siweiluozi's Blog:

I volunteer to become a practicing lawyer of the People's Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!

Here's the Chinese text

我志愿成为一名中华人民共和国执业律师,我保证忠实履行中国特色社会主义法律工作者的神圣使命,忠于祖国,忠于人民,拥护中国共产党的领导,拥护社会主义制度,维护宪法和法律尊严,执业为民,勤勉敬业,诚信廉洁,维护当事人合法权益,维护法律正确实施,维护社会公平正义,为中国特色社会主义事业努力奋斗!

Thanks to Siweiluozi's Blog for English translation and link to Chinese text.

March 21, 2012 in Commentary, News - Chinese Law | Permalink | Comments (4) | TrackBack (0)

Stanley Lubman on revisions to the Criminal Procedure Law

Here are Stanley Lubman's comments in the Wall Street Journal's China Real Time Report (no paywall!).

March 21, 2012 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 20, 2012

Revisions to the Criminal Procedure Law: source materials

Here are some source materials in Chinese and English for anyone interested in studying the recent revisions to the Criminal Procedure Law:

Note that you can create your own 山寨 English version of the new law by taking one of the English versions of the 1997 text and inputting the changes from the translation of the NPC Decision.

In addition, the Dui Hua Foundation has posted an excellent commentary that focuses on the controversial provisions for secret detentions. There's a nice table showing differences from the August 2011 draft and the final version.

March 20, 2012 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Sunday, March 18, 2012

Revisions to Criminal Procedure Law

Here are the critical texts pertaining to the recent revisions to the Criminal Procedure Law:

March 18, 2012 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 13, 2012

Liang Huixing presents draft "Marriage and Family Law"

Noted civil law scholar Liang Huixing has presented a proposal to the National People's Congress that it adopt a law combining the Marriage Law and the Adoption Law, to be called the "Marriage and Family Law". Among other things, he also suggests a mandatory one-month cooling-off period whenever a couple applies for a divorce. At present, as long as both agree, the divorce is granted pretty much on request.

Here's a brief article (in Chinese) from Caixin; attached to the article is a complete draft of his proposed law.

March 13, 2012 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Ricci dictionary of Chinese law (French/English/Chinese) seeks English proofreaders

Here's a communication I recently received on what sounds like a worthy project:

The Ricci Dictionary of Chinese Law is a trilingual Chinese law dictionary project (Chinese to English / Chinese to French) which is currently ran by a team of practicing and academic lawyers with various legal backgrounds. It is part of a wider dictionary project, the “Grand Ricci” which is the reference Chinese to French dictionary and one of the world’s most complete Chinese to foreign language dictionaries (approx. 13,500 Chinese characters and more than 300,000 terms).

Our project started six years ago and recently reached an advanced stage with more than 23,000 Chinese legal terms listed and translated in both English and French.We are looking for native English speakers to proofread the English translations for these entries. Proofreading will be carried using an online editing tool (web database). Candidates must ideally possess or be in the process of completing a law degree and should be familiar with Chinese legal terms. Ability to read French would be a must. Compensation is to be discussed and will depend on the availability of the candidate.

If you are interested, please submit your resume to Hubert BAZIN, project coordinator (hubert.bazin (at) gmail.com).

March 13, 2012 in Internships/Employment Opportunities, Other, Publications | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 7, 2012

Do China's death row prisoners have a 94% voluntary organ donation rate?

The issue of taking organs from capital convicts in China has been around for quite some time now. The question, of course, is whether the organ donation is truly voluntary. Stories of varying degrees of plausibility and reliability have circulated for some time about the commercialization of organs for transplant from capital convicts, and it's been a very sensitive subject. Human Rights Watch did a path-breaking report on this issue in 1994.

Now we have some new information: Huang Jiefu, China's Deputy Minister of Health, stated on March 6th that capital convicts are the main source of transplanted organs in China. He also supplied some interesting numbers from which we can make a few deductions. According to Huang, every year there are 1.5 million people in China who need organ donations to save their lives, but the number of available organs is less than one percent of that figure. (There is probably already some fuzziness creeping into these numbers, since not all organs available for donation are needed to save lives - consider corneas - and I have to wonder if separate statistics are really kept on specifically life-saving organs.) Using conservative assumptions, let's suppose that "less than one percent" means half a percent, and that "the main source" means half. (Of course, it depends how one classifies "sources"; how many other possibilities are there? "Main" could mean a plurality out of five different sources. Anyway, if you don't like 50 percent, just substitute your own number and see if the conclusion changes.) That would mean that a little over 3,750 organs are coming from executed prisoners every year - and again, this is using conservative assumptions.

What does this number in turn tell us? The actual number of executions in China is a state secret, but informed estimates put it at four figures - according to the Dui Hua Foundation (whom I consider reliable in the sense of trying to get the right number without a bias up or down, and having the expertise to do the job as well as anyone), perhaps around 8,000 in 2006 and maybe around 4,000 last year. Again, these are very, very rough estimates.

If China is really executing only 4,000 prisoners annually, then clearly something extraordinary is going on. Let's make another conservative assumption: that all executed prisoners are physically capable of donating organs. This means that 94 percent of them are donating organs. Given that Vice Minister Huang states that voluntary donations from citizens (non-prisoners) are rare, I can think of only four ways of explaining this extraordinarily high donation rate:

  1. Death row convicts in China have a willingness to donate organs that is completely unrepresentative of the general population.
  2. Convicts donate multiple organs.
  3. Donations from death row convicts are not in fact voluntary.
  4. There are in fact way more than 4,000 executions annually.

I guess I should add a fifth possibility: Vice Minister Huang's numbers are wrong.

Possibility 2 could bring down the 94% donation rate considerably, but let's suppose every donor donated as many as three organs on average - that would still put the donation rate at over 30%, which is undoubtedly way, way over the national average and still needs explanation.

March 7, 2012 in Commentary, News - Chinese Law | Permalink | Comments (2) | TrackBack (0)