Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Saturday, July 27, 2013

Attention US government officials with a Chinese law interest

Mark Cohen is looking for you! Mark is a Chinese IP law expert now (back) at the US PTO, and recently circulated the following message on the Chinalaw list. With his permission I'm re-posting it here. I hope all in his target audience will respond; it would be great to have a list of such people available (but in responsible hands, of course).

If your work in the US government involves Chinese law and you are interested in meeting colleagues and exchanging experiences and updates, please contact me at my official address: [email protected].
 
Knowledge of Chinese is not required.  My sense is that there is an expanding community of us, and that it would be useful to exchange views on common concerns.
 
I am personally particularly interested in getting to know people who are involved in areas such as public international law, securities regulation, environmental protection, labor standards, law enforcement, human rights, etc. (in addition to the trade and IP community I know), that need to look at Chinese legal matters and would benefit from getting involved in a larger community of people.
 
If you work on the Hill, or you are a judge or judicial official, and you are interested in Chinese law, please give me your name as well. 
 
We will probably meet informally at some point after I have collected all the names - either virtually or perhaps a lunch or dinner.

July 27, 2013 in Other, People and Institutions | Permalink | Comments (0)

Sunday, July 21, 2013

A conversation with a gay activist lawyer in China

I just had an interesting lunch with one of China’s few openly gay lawyers, who also engages in activism on behalf of the LGBT community. Here are some interesting points from our conversation:

  • We discussed the differences between antigay prejudice in the United States and in China. I asked whether he would agree with the idea that while in the United States one tended to have wide variation between two extremes – increasing toleration for same-sex marriage on the one hand and murderous hatred by some people on the other – in China there was a more widespread but much shallower kind of antigay prejudice. (Here and elsewhere I’m going to use “gay” and “LGBT” pretty much interchangeably, and the former should not be understood to exclude the latter.) He agreed that this was generally true, but noted that this was very possibly because gay people were simply not highly visible in China, and that once gays became more visible there might be a strong reaction from people who felt threatened. A fair point; let’s hope this does not come to pass. Still, I think that we can see extreme homophobia in many eras of European history when open homosexuality was virtually unthinkable (and therefore not plausible as a cause for extreme homophobia), but not in Chinese history. Come to think of it, it’s hard to find ideological extremism of any kind in traditional Chinese culture. When was the last time Chinese killed each other over religious differences?
  • The LGBT community’s interactions with government are mostly with health departments. This is unfortunate, since that encourages thinking about homosexuality as a health problem, not (say) a civil rights issue. Officials are generally not hostile, but don’t see a need for laws protecting LGBTs from discrimination or violence on the grounds that they’re not seeing a lot of discrimination or violence going on. If my interlocutor is right, though, that may well be only because LGBTs are not (yet) highly visible.
  • One discouraging part of our conversation: he noted that in general it was the house churches that were the most visible and outspoken homophobes in China. Generally Christian parents in the house churches, for example, have a much harder time accepting gay children than non-Christian Chinese parents (and you can imagine how hard it must be for them, in a culture that places such importance on transmission of the family name). This is truly unfortunate, because there doesn't seem to be anything about Christianity that requires homophobia of its adherents; many Christians manage to be so without obsessing over people's private sex lives. Unlike homosexuality, homophobia is a choice. I observed that many weiquan lawyers had converted to Christianity and wondered whether they had adopted the antigay views of the house churches as well. Unfortunately, it appears that some of them have. Take Wang Yi (王怡), for example – a constitutional law scholar and distinguished weiquan lawyer who’s now a pastor in a house church in Chengdu. He and his weibo followers are not, shall we say, sympathetic to equal rights for LGBTs. (See, for example, this post, which predicts that allowing gay marriage will lead to the destruction of marriage as an institution, or this one, which says that homosexuality is a form of idolatry, or this one, which says that homosexuals are sinners who will be judged - one presumes unfavorably - if they are not saved.) With China having so many human rights problems and the weiquan community facing so many difficulties, it seems unfathomably boneheaded to waste time and energy, and alienate potential allies, by worrying about what people want to do with their private parts. This kind of obsessive homophobia has no roots in traditional Chinese culture; it’s imported. But when shopping for values to import from the West, why on earth would one want to line up first at the hate counter?

July 21, 2013 in Commentary | Permalink | Comments (0)

Friday, July 19, 2013

The constitutionalism debate in China

Check out this blog post by Rogier Creemers, who's been following it.

July 19, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Xu Zhiyong: intolerable and undiscussable

I guess to the Chinese leadership, Xu Zhiyong is like that girl who broke your heart: not only do you not want to see her, you don't even want to hear people talking about her. Here's William Farris's excellent blog post on all the censorship steps undertaken to prevent discussion of Xu's detention. He includes a screenshot of the detention order.

July 19, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Thursday, July 18, 2013

Xu Zhiyong's detention and its significance for Chinese political reform

The following is a very slightly modified version of my contribution to the ChinaFile conversation on this subject:

When I heard that Xu Zhiyong had just been detained, my first thought was, “Again?” This seems to be something the authorities do every time they get nervous, a kind of political Alka Seltzer to settle an upset constitution. I searched the New York Times web site to confirm my intuition. Although my hopes were briefly raised by a pop-up ad that optimistically proclaimed, “We know where Xu Zhiyong is” and offered me his address, telephone number, and credit history, the stories in the results list were depressingly as expected: “A leading human rights advocate is detained in Beijing” (July 13, 2013); Xu Zhiyong “in the company of security agents and unable to talk” (Feb. 20, 2011); “Just before dawn on Wednesday, the founder of Gongmeng, Xu Zhiyong, was taken into police custody, and he has not been heard from since” (July 31, 2009). Two other detentions, on June 7, 2012 and in June 2011, didn’t show up. There may be more I’ve missed. In any case, this is clearly a man who knows his way around the back seat of a Black Maria.

Today’s topic is what, if anything, this detention means for the broader question of political reform in China. Let’s be clear: Xu Zhiyong is an extremist in his moderation. As Jeffrey Prescott, then at Yale’s China Law Center, said in 2009, “He is someone of rare idealism, judgment, commitment to law, selfless dedication, and fundamental decency. So that makes his detention very hard to understand.” Unfortunately, it is hard to understand only if we think that those responsible for detaining him share his values. Xu Zhiyong does not throw bombs. Unlike, say, Wei Jingsheng, he does not say insulting things that hurt the tender feelings of the leaders. He is the soul of reason and respectful discourse with all, including his police tormentors. Yet even this man is apparently intolerable.

Xu’s offense this time seems to have been his advocacy of asset disclosure by officials. (The charge, “assembling a crowd to disrupt order in a public place,” is the same laughably implausible one brought against Chen Guangcheng – both were under informal house arrest and constantly guarded at the time of their alleged offense.) The move against him is of a piece with recent detentions and harassment of citizen anti-corruption campaigners.

For some reason new leaders in socialist dictatorships are always thought to be reformers – even KGB boss Yuri Andropov upon his ascension to the Soviet leadership was hoped to be a closet liberal because he liked jazz and spoke English. The same expectations, with about the same justification, have greeted Xi Jinping. So far, he has not had time to do much. What he has done – for example, the anti-corruption campaign – he may well be quite sincere about; I see no reason to write it off as a show designed just to keep the masses distracted while the looting continues. But what he has not done is to show any sign of plans to make the Party accountable to the people. This does not mean that he and other leaders don’t want real reform in certain areas, or that they can’t accomplish it. But it does mean that reform will not involve outside accountability. We’ll handle it ourselves, thank you very much. Sorry, citizens: it’s really none of your business.

UPDATE: Now his lawyer has been detained as well - same absurd charge. Guys, can't you show a little creativity?

 

 

July 18, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Tsinghua Law prof Yi Yanyou in hot water over rape comments

The Li Tianyi rape case has been in the news lately. Li is the son of a famous singer with the rank of general in the People's Liberation Army, and I think it's fair to say he is not the kind of nice boy you'd want your daughter to be dating. Back in September 2011 he was sentenced to a year in detention (at age 15) for having assaulted a couple in a fit of road rage:

The teenage boy, who is too young to drive legally, was behind the wheel of a BMW car with no licence plates when he found a middle-aged couple in another vehicle blocking his way in Beijing.

Li Tianyi and a second teenager, who was driving an Audi, leapt from their vehicles and, it is reported, assaulted the couple while shouting at shocked bystanders: "Don't you dare call police".

Half a year after getting out, he was allegedly involved in a gang rape at a Beijing hotel; formal charges were brought earlier this month

Apparently things have not been going well with the defense; two attorneys have resigned. His new attorneys have taken their case to the media, arguing that the complainant was a bar hostess. Apparently they plan to plead not guilty, presumably on the grounds that she consented, or perhaps that in the case of bar hostesses the law should presume consent. Obviously I have no inside information on what actually happened on the night in question, but the general tenor of netizen opinion is that this is a typical case of a spoiled rich kid who thinks he can get away with anything. He's become the Joffrey Baratheon of Chinese pop culture.

Into this mess stepped Yi Yanyou (易延友), a professor at Tsinghua Law School and the head of its Evidence Law Center. Yi declared on his microblog that "raping a bar hostess is less harmful than raping a woman of good family" (强奸陪酒女也比强奸良家妇女危害性要小). This led to an outpouring of harsh criticism among netizens. Ignoring the first rule of holes - when you're in one, stop digging - Prof. Yi then clarified his remarks by revising the above sentence to read, "It does more harm to rape a woman of good family than to rape a bargirl, a dancing girl, an escort or a prostitute" (强奸良家妇女比强奸陪酒女、陪舞女、三陪女、妓女危害性要大). Somehow the critics were not mollified. By last Wednesday Prof. Yi had had enough - he deleted his post and apologized.

Prof. Yi's remarks don't come out of nowhere - he is in fact channelling a distinction well known in traditional Chinese law (it is codified in the Qing Code) between woman of good family (良家妇女) and licentious women (犯奸妇女). If, for example, a man saw a women engaging in illicit sexual intercourse with another and then raped her afterward, then because she was a licentious woman it could not be called rape but should instead be classified as illicit intercourse by trickery ("又如见妇人与人通奸,见者因而用强奸之,已系犯奸之妇,难以强论,依刁奸律"). (I'm relying for my translation on the Grand Ricci dictionary, which translates 刁奸 as "seduire une femme par la ruse"; that may not be correct as a translation of the legal term.) For more on this, see Vivien Ng, "Ideology and Sexuality: Rape Laws in Qing China," Journal of Asian Studies, vol. 46, no. 1 (Feb. 1987), pp. 57-70. Although the distinction finds no formal expression in modern Chinese law (not to my knowledge, anyway), here we see it alive and well in legal culture, so to speak, and expressed in exactly the same words as it was centuries ago.

July 18, 2013 in Commentary, News - Chinese Law | Permalink | Comments (1)

Wednesday, July 10, 2013

Teemu Ruskola on his new book, "Legal Orientalism"

Here's Teemu Ruskola on Vimeo talking about his new book, Legal Orientalism. Having seen parts of it before, I can highly recommend it as brilliant and provocative, even though I don't agree with all of it. Certainly anyone writing about Chinese law will have to deal with his arguments one way or the other.

July 10, 2013 in Commentary | Permalink | Comments (0)

Sunday, July 7, 2013

International Environmental Moot Court Competition - East Asia Regional Round

I've been asked to post the following announcement:

The Int'l Environmental Moot Court Competition has long welcomed teams from China and East Asia, but in previous years, teams from East Asia had no local regional rounds to practice their skills prior to flying to Florida. In a partnership between Stetson University's and Soongsil University's Colleges of Law, there will be an East Asia Regional Round (EARR) held in Seoul, South Korea this year. 

The EARR will be an all-English language moot contest held on November 19 - 23, 2013. The most successful teams at the EARR will be promoted to the International Finals at Stetson University to be held in April 2014. The EARR is designed to support teams from China, including Hong Kong, Macau, and Taiwan, as well as teams from Japan, South Korea, Mongolia, and other countries nearby who would like to participate in English-language moot competition. 

The full set of competition materials are posted on Stetson's IEMCC website: http://www.law.stetson.edu/international/iemcc/

Any teams wishing to compete may should contact Roy Andrew Partain with their registration questions: [email protected]

July 7, 2013 in Conferences, News - Miscellaneous, Other | Permalink | Comments (0)

Friday, July 5, 2013

Call for Submissions: Fordham International Law Journal, Asia-Pacific Issue

My friend and colleague Carl Minzner has asked me to post the following announcement. He adds, "In an unsolicited advertisement on their behalf, I will say that I had a very good experience working with them in publishing my recent article on Chinese legal education, and they were quite capable of handling all of my Chinese-language footnotes."

Call for Submissions: Fordham International Law Journal, Asia-Pacific Issue

In the 2013-2014 academic year, the Fordham International Law Journal will publish its first issue devoted exclusively to legal and policy topics related to the Asia-Pacific region. Similar to the Journal’s annual European Union issue, in which many distinguished scholars, practitioners, and officials have been published, the annual Asia-Pacific issue aims to be a preeminent resource for legal and policy scholarship on the Asia-Pacific region. The Fordham International Law Journal has consistently published a diverse array of notable authors, including Madeleine Albright, Kofi Annan, Boutros Boutros-Ghali, and Philippe Kirsch, and is seeking to provide support and opportunity for authors focusing on this critical region.

The Journal thus invites all scholars, commentators, practitioners, and officials interested in being published in the Journal’s first annual Asia-Pacific issue to submit relevant articles, essays, comments, notes, or reviews for consideration. If selected for publication, submissions will be edited by the Journal’s staff and Editorial Board throughout the summer and fall, with publication planned for the spring.
 
Submission Guidelines

Draft submissions should be emailed as Word document attachments to [email protected], along with the author’s curriculum vitae (CV) and “Fordham ILJ Asia-Pacific Issue Submission” written in the subject line. Generally, submissions should range between 5,000 and 25,000 words (approximately 10 to 50 pages), though the Journal recognizes that different topics demand various lengths and will not reject submissions solely because they fall above or below this range. To the extent possible, footnotes should follow standard Bluebook formatting rules.

Submissions will be reviewed on a rolling basis, though should be sent as soon as possible for best consideration. All submissions will be reviewed by the Journal’s Executive Board, which will consider, among other things, the quality of the writing, the timeliness of the topic, and the importance of the issue.

 

July 5, 2013 in Other, Publications | Permalink | Comments (0)

Thursday, July 4, 2013

Another shoe drops in the Chinese arbitration mess

Some readers may know that the Chinese international arbitration system is in a confused mess following the declarations of independence from CIETAC of its Shanghai and Shenzhen branches. (The whole thing is admirably summarized in this May 2013 post from the China Law Blog.) The basic problem is whether courts will recognize and enforce awards from the now independent Shanghai and Shenzhen entities. A Suzhou court has said no - but on the grounds that Shanghai entity that conducted the arbitration, having declared independence from CIETAC, wasn't the arbitration body the parties had agreed to. There still remains an unanswered question: since China doesn't recognize ad hoc arbitration, it's still not clear whether an unambiguous agreement on arbitration at one of the new entities will be uniformly enforced. Will courts recognize them as properly authorized arbitration organs? A Shenzhen court has said yes (see the linked report above), but other courts don't have to follow suit.

July 4, 2013 in Commentary, News - Chinese Law | Permalink | Comments (1)