Chinese Law Prof Blog

Judge Dee: coming to a PC near you

Most people who study Chinese law learn early on about Judge Dee, "a semi-fictional character based on the historical figure Di Renjie, magistrate and statesman of the Tang court. The character first appeared in the 18th century Chinese detective novel Di Gong An. After Robert van Gulik came across it in a second-hand book store in Tokyo, he translated the novel into English and then used the style and characters to write his original Judge Dee stories." (The quoted text is from the Wikipedia entry.)

Now in addition to van Gulik's great stories, we have the Judge Dee computer game. I have no idea if it's any good, and they've written the wrong character for Dee on the main page (蒂 instead of 狄), but hey, anything as amazing as a computer game about Chinese legal history is worth a mention. If anyone tries it out, please let me know what you think in the comments.

Compulsory "legal education" as a substitute for Re-education Through Labor?

The Dui Hua Foundation has an interesting article on its web site about local authorities' newfound enthusiasm for legal education - this time, of the compulsory kind, where petitioners are forced against their will to stay for days or even months at a facility where they are ostensibly to be educated to understand and obey the law. This is apparently being done in response to the declining utility of re-education through labor (RETL) as a measure against petitioners - petitioning per se may soon no longer be subject to RETL, and RETL itself may be on the way out.

I just want to add a couple of comments. First, it bears repeating that petitioning of the kind that typically gets petitioners locked up does not in fact violate any law. It's the local authorities that need the education in that respect.

Second, and more importantly, the Dui Hua Foundation article says only that this kind of compulsory "legal education" violates the Chinese constitution and international human rights norms. This is an unnecessarily weak argument; neither of those two norms are robust sources of law in the Chinese legal system. We can actually say something much stronger. Since compulsory legal education does not have any foundation in statutory law - that is, legislation passed by the National People's Congress or its Standing Committee - then it cannot serve as a basis for the deprivation of personal liberty. This is spelled out clearly in Article 8 of the Law on Legislation, and it's the same argument that has been made against RETL. If a deprivation of personal liberty has no legal basis, then it's either kidnapping or unlawful detention, both of which violate the Criminal Law, which is a robust source of law in the Chinese legal system. So let's call this what it is.

Yu Hua: "In China, Power Is Arrogant"

Here's a nice op-ed by the writer Yu Hua about how the arrogance and unaccountability of power leads to ridiculous regulations in China. Exhibit A in this type of article is usually the Hunan regulation calling for female civil servants to have symmetrical breasts. Since the reaction I usually get when talking about this regulation is one of amused skepticism - people are willing to believe crazy things happen, but not this crazy - I thought it would be useful to emphasize that this regulation really did exist. Here's the news report about it, with specific details (in Chinese).

Kong Qingdong ordered to apologize and pay damages for insulting (anonymous!) commentator online

Here's a story that goes straight to the ridiculous without passing the sublime. Self-styled direct descendant of Confucius, Peking University professor (shame on you, PKU!), and all-around blowhard Kong Qingdong (孔庆东) was ordered on Wednesday by the Haidian Basic-Level People's Court to apologize and pay 200 yuan to Guan Kaiyuan, a 22-year-old law student at the China Institute of Industrial Relations. After Guan had criticized a poem by Kong as not following proper composition rules, Kong responded on Sina Weibo (Chinese Twitter), "You haven't even read the poem, you dog and traitor," and added some salty references to Guan's mother.

Guan, who is obviously one of those Chinese people we keep hearing about from the government whose delicate feelings are easily hurt, sued. It's not clear from news reports what the exact claim was - presumably defamation. Anyway, Guan still isn't satisfied - he wants Kong to be required to apologize on his Weibo account, not just in some national newspaper.

While one hates to be in the position of defending someone like Kong, this is ridiculous. Guan posted his critique, and received the insult, under a pseudonym. In other words, even if we decided that ordinary insults like "dog" and "traitor" should be actionable as defamation - something that would already severely crimp ordinary speech - in this case nobody knew the insult was directed against Guan until he outed himself. Do the courts really want to overload themselves with cases from every anonymous troll who managed to provoke a rude response?

Some relevant references:

• South China Morning Post report
• Shanghaiist report
• Beijing News report (in Chinese)
• Language Log post showing that everyone in China and probably many outside are descended from Confucius, too

Supreme People's Court directive to lower courts on cases involving internet censorship

Here's a great translation and commentary from the Siweiluozi blog regarding a 2009 Supreme People's Court directive to lower courts on "internet management" (i.e., censorship). In a typical case, a user posts something on the internet, perhaps on a blog or weibo account. The authorities, finding it distasteful, instruct the host to delete it. The host duly deletes it. The user then sues the host for violating the terms of the service contract. Because the censorship instructions to the host have a flimsy legal status - they are probably an oral order from a Party, not state, body delivered over the phone - mounting a defense is difficult and embarrassing.

To the rescue rides the SPC, which instructs courts simply not to accept this kind of case. That way, the flimsy legality of the censorship regime is not exposed.

As Siweiluozi points out, this merely highlights the nature of the courts as administrative and not really judicial bodies. They have precisely as much independence as the Party-state allows them for the sake of convenience, but when a political decision is made to use (or avoid the use of) the law in a certain way, they must fall into line. This instruction from the SPC requires courts to act contrary to statutory law, which already sets forth conditions under which courts should and should not accept lawsuits for hearing. None of the considerations in the SPC's directive can be found in the statute. Indeed, the SPC acknowledges the flimsy legal status of its own directive, by making it secret and prohibiting public comment.

Hotel Loses Case in Breaching Contract for “Stability Maintenance”

Here's a fascinating case that makes for an interesting data point in what we think we know about the Chinese legal system. An anti-discrimination NGO reserved rooms at a hotel in Suzhou for a conference. The police got wind of it and instructed the hotel to cancel the reservations in the name of stability maintenance. The hotel, needless to say, did as it was told. Yawn. Dog bites man.

Now it gets interesting. The NGO sued the hotel for damages in a Suzhou. What would we expect? That no court would accept the suit, and that if it did, the plaintiffs certainly would not win. But what happened is that the court not only accepted the suit, but found for the plaintiffs. It rejected the hotel's argument that the police order to close was a kind of force majeure and that the state had expropriated the rooms ("政府临时征用客房开会"). But apparently the government did not in fact take the rooms in question for some other purpose, and the court rejected the force majeure argument, stating that it wasn't one of the events of force majeure spelled out in the contract.

Astonishingly, the vice-chief of the local police station, Mr. Pan, appeared in court and testified that they had indeed orally ordered the hotel not to allow the meeting to go forward:

　　  （潘）：2012年4月29日左右，我们派出所接到上级相关部门的口头通知，五一期间维稳工作需要，对辖区内酒店宾馆要求不允许接待从事会议的集会活动……为此，我们口头要求莫泰公司停止接待活动。这一次主要目的是不允许大型的会议举行。

        Pan: Around April 29, 2012, our station received an oral notice from the relevant superior departments saying that during the period of May 1st, because of the needs of stability maintenance work, hotels within our jurisdiction were requested not to permit the hosting of meetings. . . . Because of this, we orally requested the Motai Company [i.e., the hotel] to discontinue their hosting activities. The main objective at that time was not to permit large-scale meetings to go ahead.

　　（法院）问：关于公安的此次举措有无书面的材料？ 

        Court: Are there any written materials pertaining to this measure by the police?

　　（潘）答：没有的，都是自上到下口头传达的。当时的平江公安分局治安大队和我们所的民警一起到被告莫泰酒店向他们的店长封晓军做工作的。

        Pan: No. Everything was orally transmitted from above to below. At the time, officers from the Security Brigade of the Pingjiang Public Security Branch Bureau went with policemen from our station to the defendant Motai Hotel and worked on the hotel manager Feng Xiaojun. [I have translated "做工作" as "worked on"; the basic idea of the term is to try to persuade someone, but one can imagine it was done in a pretty coercive atmosphere.]

It's hard not to have some sympathy for the hotel here. It's unrealistic to suppose that they could just have blown the police off; I would have thought there was indeed a good case to be made for force majeure. What message is the court sending to hotels in cases like this? That they should not listen to police instructions? It seems extraordinary that a court, especially on in the same city as the police in question, should have come up with a judgment like this. Does this mean that courts are not as subservient to local powerholders as we thought? Or is there some fascinating behind-the-scenes story that explains this apparent anomaly? My inclination is to suspect the latter, but if enough data points like this accumulate then the former will start looking more plausible.

It's the old question of whether you make the observations fit the theory ("My theory tells me that this stuff doesn't happen, so there must be something fishy about the observation") or the theory fit the observations ("Time to reassess what we think we know about Chinese courts"). Although many people think the first method is obviously wrong - of COURSE we should adjust our theory to fit the facts, right? - in practice we constantly, and often correctly, question the validity of our observations precisely because they seem so out of whack with a theory in which we have confidence. Remember the Italian scientists who thought they might have found neutrinos that traveled faster than light? Even they doubted their own findings.

Here are two news reports:

• http://www.lvngo.com/ngo-31467-1.html
• http://china.caixin.com/2013-03-25/100506031.html

New developments in China-Philippines UNCLOS arbitration: tribunal appoints representative for China

In the latest development in the China-Philippines UNCLOS arbitration, the International Tribunal for the Law of the Sea has appointed a representative for China, since China failed to do so. 

I've previously blogged about this arbitration (in chronological order, here, here, and here). China has objected to the arbitration on the substantive grounds that the complaint lacks merit, and possibly on procedural grounds that the tribunal for various reasons doesn't have jurisdiction. What the Chinese government doesn't seem to understand (perhaps willfully) is that you don't get to be your own judge of these issues; whether the complaint has merit and whether the tribunal has jurisdiction are things the tribunal decides. To fight the claim in no way acknowledges its legitimacy. What it does acknowledge is the legitimacy of the UNCLOS dispute settlement system. That's presumably an important part of UNCLOS. Does China really want to promote the principle that the system applies only to states that consent to its jurisdiction after the dispute arises?

Risk of Loss of Freedom for Serving as Legal Representative of a Company in China

That's the title of this very important blog post from the Chinese Lawyers in Shanghai blog. Yes, if your company owes money to suppliers or employees, you, the local expat manager and legal rep, may find yourself detained until the creditors are satisfied even though it's a corporate debt over which you may have no control. If you ever might be in this position, read this post.

USCC Hearing on Corporate Accountability, Access to Credit, and Access to Markets in China’s Financial System

The US-China Economic and Security Review Commission (USCC) is holding a hearing this Thursday in Washington, DC on the above subject. Among those testifying will be Prof. Paul Gillis, the author of the excellent China Accounting Blog. His testimony is a good summary and review of the current problems faced by the SEC and the PCAOB in their efforts to get information about audit procedures from Big Four-affiliated Chinese accounting firms. (I say "affiliated" because the Chinese firms are separately owned and I don't know what kind of contractual arrangements actually bind them to the foreign firms whose name they share.)

Because I have provided expert testimony on this issue, it's probably important to add that I don't necessarily agree with everything Prof. Gillis says in his testimony. In particular, I have expressed here my own views on the issues of how far China's laws on state secrets and archives actually constrain the auditing firms.

Ghost Cities: What Do They Mean?

First ghost weddings; now ghost cities.

Ghost cities in China have been in the news a lot lately. The term refers to places like Ordos in Inner Mongolia, where a vast expanse of residential and office buildings lies uninhabited, the product of somebody’s miscalculation as to where people would like to live and work.

Ghost cities have often been Exhibit A in various arguments about China’s economic problems, in particular the argument that the system massively misallocates investment. But wherever there is conventional wisdom, there’s going to be contrarian pushback because it’s always fun to challenge conventional wisdom. Nevertheless, I don’t find two recent examples terribly convincing.

First, the contrarians have been talking up a recent report by Jonathan Anderson of Emerging Advisors Group provocatively entitled “Hurray for Ghost Cities.” I don’t have a copy of the report, but according to a description of it at the Wall Street Journal’s China Real Time Report, it is less than a resounding hurray. In fact, the argument (again, as reported) seems to be only that ghost cities aren’t quite as bad as you think, because if the money hadn’t been invested in ghost cities, it might have been invested in creating overcapacity in industry, which would have been much worse for the economy:

His point is that by investing in “ghost cities” to underpin growth, China saved itself from even more unwise overinvestment in areas that could have done lasting damage to the economy, such as manufacturing.

[text omitted]

They’ve certainly been a black hole, he says, but a hole that has emptied largely into the equally dark vaults of China’s state-owned banks, where bad debts can remain buried for a long time.

“Lesson learned: If you’re going to waste capital best to waste it completely, where it will do the least damage to everyone else,” writes Mr. Anderson.

Or, to put it another way, he offers: “Why truly crap investment projects help ‘save’ China.”

As George Will would say, in a paragraph all its own: "Well."

Anderson’s analysis in no way undermines the idea that ghost cities represent a massive misallocation of investment. If the money had been spent on digging holes and then filling them up again, Anderson could equally well have written “Hurray for Holes in the Ground.” Anyone who cites this piece as support for the contrarian case hasn’t read beyond the headline.

Second, in a recent column in the New York Times, Bill Bishop cites Tom Miller’s book “China’s Urban Billion” as being dismissive of the “ghost cities” problem. Here’s what Miller writes, as quoted by Bishop:

The truth of the matter is that China is not building too many apartments, and a handful of empty urban districts are not evidence of a giant property bubble. Chinese property investment may be inefficient, but it is sustained by a huge, growing and sustainable demand for new housing. …

China’s current modern housing stock, defined as homes with individual bathrooms and kitchens, is around 150 million units. But 200 million migrant workers currently live in dormitories or slum housing. If one believes that the urban poor deserve to live in proper flats, the corollary is that Chinese cities actually have a significant shortage of housing – somewhere in the region of 70 million units. China is not building too many new apartments; it is building too few.

My first comment is about what Bill Bishop says, with which (if I understand him correctly) I must respectfully disagree. I can’t see how what Miller says counts as dismissive of the ghost cities problem. Chinese cities may well have a significant shortage of housing. But the fact that people may want housing in Beijing or Shanghai or any one of hundreds of other cities does not mean that they want it in Ordos. Of course it is silly to argue that overinvestment in Ordos means there must be a housing bubble everywhere in China, but it would be equally silly to argue that underinvestment in some places means that the phenomenon of ghost cities can be dismissed as unimportant. To be clear, I don’t read Miller as making that argument in this excerpt. That’s why I disagree with Bishop’s citing Miller in support of the contrarian thesis.

My second comment is on what Miller says here. The argument that there is overinvestment in housing, as I understand it, does not address the issue of who deserves what. It addresses the issue of what kind of return one can expect from the investment. If it costs $10 million to build a block of 100 “proper flats” for the urban poor, the project won’t even break even unless the urban poor have $100,000 per family to spend on flats. If they don’t, then we have to ask where the money will come from. Economic analysis cannot, of course, answer the political question of whether such housing should be subsidized in some way, but it’s useful for thinking about the question of whether it will need to be subsidized. Merely asserting that poor people will need housing, and deserve it, doesn’t help us answer the question of whether housing developers will make back their investment, and therefore whether the banks from which they borrow will or will not get stuck with a big pile of non-performing loans.

If the housing is intended for a class of people who can afford it, then that is of course a different story. But Miller’s argument that China has too little housing is premised on the existence of precisely that group that can’t currently afford a decent flat.

I should add that I can’t agree with the way Miller loads the emotional dice here: apparently, if you think there’s overinvestment in housing in China, you’re not only wrong on the economics, but you’re also a bad person who thinks that the urban poor don’t deserve to live in proper flats. I don’t see this as a useful way to start a discussion of a complex issue.

 

 

Four Funerals and a Wedding: Chinese Police Crack Down on "Ghost Weddings"

This heading is, alas, not my own. It comes from my colleague, Jonathan Turley, to whom I forwarded this item knowing that he could say something wittier about it than I could.

When does law matter in China?

Does law matter in China? This is a question I'm often asked (skeptically) when I tell people what I study. As with just about everything related to China, no simple answer is possible. But sometimes you run across nice examples of how it might.

I was struck by this article on the Caixin web site today. Apparently the Ministry of the Environment possesses detailed data on soil pollution in China. Lawyer Dong Zhengwei made a request under the "Regulations on Open Government Information" for that data to be made public. In response, the MOE stated that the information could not be released as it was a state secret.

Surprise, surprise, right? Of course the government does not want to release this information. But think about how this scenario could have played out in an era not so different from today: (1) Lawyer requests information. (2) No response. And this could have happened whether or not there were regulations on open government information.

Instead, the existence of these regulations combined with a shift in what for want of a better term we might call legal culture has meant that the MOE apparently feels the need to respond in some way. It has to come up with a justification for not revealing the data. And that means it has to put itself in the embarrassing position of lamely claiming that this information is a state secret, implying that releasing it would somehow harm national interests.

Let's make two assumptions: (1) an action based on an explicit rationale is easier to criticize than one for which no rationale is supplied; and (2) government officials and agencies would, all other things being equal, prefer not to put themselves in the position of exposing themselves to criticism. If you buy those two assumptions, then at the margin we should expect to see more information being made available as a result of the regulations.

In other words, this law matters not because there is some institution out there (for example, courts) that can force the government to reveal information, but because the very procedure, even if it results in an effectively unreviewable decision not to disclose, puts some pressure on government to operate differently from the way in which it has operated in the past.

Still more on China-Philippines UNCLOS arbitration: the significance of China's 2006 declaration against UNCLOS dispute settlement

Some commentators on my first post on this issue have raised the following objection:

First commenter: "Sorry but China made a reservation when ratifying UNCLOS and expressly does not accept the compulsory dispute settlement regime under s 287."

Second commenter: (a) "The researcher commenting in the Global Times is actually right. When China ratified UNCLOS, it made a reservation which excludes all forms of dispute settlement in section 2 of part XV of UNCLOS (see http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20Upon%20ratification). These kinds of reservations, although unfortunate for those in favour of increased international adjudication, are perfectly legal and it therefore does seem that the arbitral panel is without jurisdiction."

Second commenter (b): "A correction to my earlier post: China made the Declaration in which it does not accept the dispute settlement provisions of UNCLOS (which would normally be a reservation) ten years after ratification, which raises issues under treaty law; most likely the Declaration is invalid, but the question is who decides."

I appreciate the comments, but don't agree with them. First, it is not crystal-clear that China's declaration in fact covers the current dispute. The Philippines was of course aware of China's declaration and strove to phrase its case in a way that avoided its effect. For an excellent analysis (with hyperlinks) of the effect of China's declaration and its applicability to this case (concluding that China has a good case but not an airtight one), see this blog post.

Second, and most important, is the issue raised in the last part of Second commenter (b)'s statement: "the question is who decides." Exactly. My point is that this is not in fact a question. The arbitral panel decides. The parties do not get to be judge in their own case even on issues of subject-matter jurisdiction. Once challenged, they have to make their arguments in front of an arbitral panel.

More on China-Philippines UNCLOS arbitration

I blogged a few days ago about China's purported rejection of arbitration under UNCLOS of the Philippines' complaint over the Nansha islands. After speaking with colleagues who are international law specialists, I can add a bit more to the following paragraph:

As I read the Xinhua report of China's rejection, China also seems to be arguing that the Philippines is precluded from bringing this type of action because of obligations it has undertaken in other international agreements, specifically, the Declaration on the Conduct of Parties in the South China Sea. For this argument to work, it would have to be true that (a) the Philippines has indeed undertaken contradictory obligations, and (b) those obligations, under international law as recognized by the UNCLOS arbitral tribunal, will trump its rights under UNCLOS. I have no informed (or even uninformed) opinion about whether either part of this argument is sound. But I suspect that these questions must themselves be resolved in the arbitration proceedings.

It is theoretically possible that Country A could have rights against Country B under Treaty X, but has waived those rights under Treaty Y. This is what China is in effect arguing - that even if UNCLOS gives the Philippines a right to arbitration with China (and perhaps even the right to win the arbitration, although of course China would never admit even that hypothetical), it has waived that right by signing on to the Declaration of Conduct (the "DOC").

Here's the problem with that argument. First, it doesn't work in substance. Even if seeking arbitration under UNCLOS did violate a commitment made in the DOC - a very questionable proposition - the Declaration of Conduct does not amount to a formal treaty commitment of the kind that could override a contrary right to arbitration under UNCLOS. But hey - maybe you think that's not crystal-clear. What is crystal-clear is the second point, though: that the argument doesn't work procedurally. Parties don't get to judge the merits of their own arguments. China's argument about the effect of the DOC, like its argument about subject-matter jurisdiction (should it choose to make it) is one that must be made before the UCLOS arbitral tribunal, which has the power to decide its own jurisdiction.

In short, no matter how strong China's case is, it's one that has to be argued before an UNCLOS arbitral tribunal if another UNCLOS member starts proceedings. By joining UNCLOS, you agree to this procedure even in cases you think are frivolous. Is there anyone explaining this to the Standing Committee of the Politburo? They seem to understand it well enough when it comes to the WTO.

Chinese law schools: a ranking (sort of)

I just came across a ranking of Chinese law schools, posted on the web in April 2012. The source is a book entitled "Picking a University and Selecting a Major: A Guide to Applying to the 2012 College Entrance Examination" (挑大学 选专业－2012高考志愿填报指南). I'm reprinting the list below, translated by Google Translate with a few modifications by me.

A few caveats and observations:

1. These rankings appear to have been compiled as an individual effort of the author of the book. I have no idea what methodology he used.
2. This doesn't exactly rank "law schools." What it ranks is "the study of law." And the study of law here is defined to include law (narrowly defined), Marxist-Leninist theory, sociology, political science, and police studies. Thus, even if you think that Peking University ought to outrank Renmin University as a law school, maybe Renmin University really does outrank Peking University in Marxist-Leninist theory by more than enough to make up the difference.
3. Law studies at the Institute for International Relations, well known as China's spy school, don't do very well at 95th. Maybe they're putting their resources into computer science these days.
4. In another table on the same web page you can see what people are studying these days. Not surprisingly, engineering is pretty popular (801379 graduating undergrads in 2011). What did surprise me was the comparable figures for some of the other majors: apparently the romantic types who take literature (288014) and arts (181158) still outnumber (separately; you don't even need to add them together) those who take all of the courses subsumed under "law" combined (113342).

Ranking	Grade	School Name
1	A + +	Renmin University of China
2	A + +	Beijing University
3	A + +	Wuhan University
4	A + +	Tsinghua University
5	A + +	China University of Political Science and Law
6	A + +	Jilin University
7	A + +	Fudan University
8	A + +	Southwest University of Political Science and Law
9	A + +	Nanjing University
10	A + +	Sun Yat-sen University
11	A + +	East China University of Political Science and Law
12	A +	Central China Normal University
13	A +	Beijing Normal University
14	A +	Xiamen University
15	A +	Zhongnan University
16	A +	Shandong University
17	A +	Zhejiang University
18	A +	Nankai University
19	A +	Nanjing Normal University
20	A +	Northeast Normal University
21	A +	Huazhong University of Science and Technology
22	A +	Chongqing University
23	A +	Shanghai Jiaotong University
24	A +	Suzhou University
25	A +	Sichuan University
26	A +	Northwest University of Political Science and Law
27	A	East China Normal University
28	A	Xiangtan University
29	A	Zhengzhou University
30	A	Shanghai University
31	A	Heilongjiang University
32	A	Yunnan University
33	A	Hunan University
34	A	Shanxi University
35	A	Hunan Normal University
36	A	Hebei University
37	A	South China Normal University
38	A	Foreign Affairs College
39	A	Central South University
40	A	Shenzhen University
41	A	Southwestern University of Finance and Economics
42	A	Tianjin Normal
43	A	Jinan University
44	A	Xi'an Jiaotong University
45	A	Yantai University
46	A	Shanghai University of Finance and Economics
47	A	University of International Business and Economics
48	A	Nanchang University
49	A	Liaoning University
50	A	South China University of Technology
51	A	Southwestern University
52	A	Shanghai Normal University
53	B +	Tongji University
54	B +	Capital Normal University
55	B +	Shanghai Institute of Politics
56	B +	Central University for Nationalities
57	B +	Southeast University
58	B +	Anhui Normal
59	B +	Beijing University of Aeronautics and Astronautics
60	B +	Yangzhou University
61	B +	Central University of Finance and Economics
62	B +	Anhui University
63	B +	Central University for Nationalities
64	B +	Ningbo University
65	B +	Guangdong College of Commerce
66	B +	Lanzhou University
67	B +	China Youth Political College
68	B +	Jiangxi University of Finance and Economics
69	B +	Shenyang Normal
70	B +	Hehai University
71	B +	Shanghai International Studies University
72	B +	Hubei University
73	B +	China Agricultural University
74	B +	Zhejiang Gongshang University
75	B +	Henan University of Economics and Law
76	B +	East China University of Science and Technology
77	B +	Beijing Institute of Technology
78	B +	Henan Normal University
79	B +	Guangxi Normal
80	B +	Henan University
81	B +	Huazhong Agricultural University
82	B +	Zhejiang Normal
83	B +	Fujian Normal University
84	B +	Ocean University of China
85	B +	Changchun University of Science and Technology
86	B +	Jiangxi Normal
87	B +	Guangzhou University
88	B +	Guangdong University of Foreign Studies
89	B +	Dalian Maritime University
90	B +	Guangxi University for Nationalities
91	B +	Hebei Normal
92	B +	Hainan University
93	B +	Sichuan Normal
94	B +	Hainan Normal
95	B +	Institute of International Relations
96	B +	Northwestern University
97	B +	Jiangsu University
98	B +	Northwestern Polytechnical University
99	B +	Gansu Institute of Politics and Law
100	B +	Hunan University of Science and Technology
101	B +	Wenzhou University
102	B +	Nanjing University of Finance and Economics
103	B +	Zhejiang University of Technology

 

Zhejiang man tried for 1967 Cultural Revolution killing

Here's a pretty astounding story that's currently agitating the Chinese twittersphere/blogosphere: a Zhejiang man in his eighties was tried for a murder that took place in 1967, at the height of the Cultural Revolution. According to the China News Service story, the defendant, surnamed Qiu, was directed by the local militia to strangle the victim, a doctor suspected of being an informant for unspecified others - perhaps a rival group. Qiu was arrested in July 2012, after having been out of the area of decades. (The South China Morning Post story linked to above says he was "on the run", but the Chinese text doesn't support that interpretation; it just says he had been away from home for decades, without any implication that he was trying to avoid capture.)

This case raises two interesting legal issues.

First, is there no statute of limitations in China? Yes, there is. The longest period allowed is 20 years; that's for crimes punishable by life imprisonment or the death penalty (Art. 87 of the Criminal Law). There are two ways this prosecution could lawfully go forward, however, in spite of the passage of time. First, Art. 88 says that the ticking of the clock is suspended if the suspect flees investigation after authorities have initiated one or a court has already accepted the case. Thus, I suppose the case could be brought now as long as the authorities initiated an investigation within 20 years of the killing and the suspect is deemed to have fled. (If they waited longer, then there would be no crime left to prosecute, at least as I understand the rule.) That's possible: twenty years later puts us in 1987. Second, Art. 87 says that prosecutions can when necessary be brought even after twenty years have passed, but only with the permission of the Supreme People's Procuratorate. The short press report we have does not, of course, say anything about this.

Second, aren't the courtrooms of China going to get a little, ahem, crowded if we start prosecuting everyone who was involved in extrajudicial killings during the Cultural Revolution? One can understand the policy decision that some cans of worms should be left unopened. The Chinese Communist Party does not do Truth Commissions. Indeed, this very issue has already been thought about, and there was in the past an official poicy on it.

In 1984, the Supreme People's Procuratorate (the body in charge of prosecutions) issued an official Reply to a question from the Hebei Provincial Procuratorate about whether to prosecute those who had caused injury or death in the course of struggle sessions or forcing confessions through torture during the Cultural Revolution. The answer: "Cultural Revolution cases took place during special historical conditions. The issue of whether or not to prosecute these cases is highly political. In accordance with the spirit of relevant rules of the Central [Party Committee] and the Provincial Party Committee, the matter should be handled by political-legal organs according to law after reporting to the Party Committee [the administrative level of which is left unspecified] for examination, approval, and decision. If relevant organs have different views in the course of carrying out [this policy], they should report to the Party Committee for resolution through adjustment." In other words, it is recognized that these cases are not simple murder cases, and essentially a fact-intensive political decision must be made each time one of them comes up.

The legal effect of this document, however, was annulled in 1993 by another document from the Supreme People's Procuratorate. No reason is provided; perhaps it was just embarrassing to have this reminder around, or perhaps someone thought the language about having everything decided by the Party, instead of by legal professionals, was a little outdated and reminiscent of the Bad Old Days. The document does not explain why the earlier document was annulled or what policy should take its place, so it's a little unclear where we now stand: since the 1983 document essentially establishes a restriction on prosecutions and then provides a way to proceed, does annulling it abolish the restriction or does it abolish the way to proceed?

Whether this prosecution is a one-off or a harbinger of more to come is a question of more than just academic interest. The Cultural Revolution has not yet (despite the Party's best efforts) passed into the mists of history, where "the memory of man runneth not to the contrary," as they say in property law. People who were 20 in 1967 - certainly old enough to beat people to death - are now 66 and possibly still in good shape if they been doing their tai-chi. People who lost relatives are still alive, too. This case may awaken what was perhaps a long-dormant desire for vengeance.

I've provided a screen shot of the Chinese news story at the top of this post; it's already been scrubbed from several sites, and by the time I post this and you read it, it may be unavailable at the link I've provided.

Pu Zhiqiang barred from all mainland micro-blogging sites

Here's the story from the South China Morning Post.

So much for Xi Jinping's call for the Party to tolerate "sharp criticism".

China rejects arbitration with Philippines under UNCLOS; can it?

The news today is that China has rejected - or more accurately, purported to reject - the Philippines' attempt to resolve a dispute over sovereignty (over the Nansha Islands in the South China Sea) through arbitration under the UN Convention on the Law of the Sea. According to the Philippines' Department of Foreign Affairs, "The Department received this afternoon from Chinese Ambassador to the Philippines Ma Keqing a Note Verbale stating that China rejects and returns the Philippines’ Notification and Statement of Claim."

The Department goes on to say, "In its Note Verbale, China reiterated its often stated position that it has indisputable sovereignty over the entire South China Sea encompassed by its 9-dash line claim." This is interesting, if true. One perplexing aspect of the 9-dash line, which dates from the late 1940s when China was under Chiang Kai-shek's Kuomintang, is that successive Chinese governments have refused to say exactly what they mean by drawing it. Are they claiming, for example, that all islands within the line are Chinese, which would imply territorial waters 12 miles out from each island (and an Exclusive Economic Zone of 200 miles) but no further? Or are they claiming that the entire South China Sea is in effect a Chinese lake? The Chinese report of the rejection states only that China claims sovereignty over the Nansha Islands "and their adjacent waters." This is a more limited claim than the one the Philippines' government is reporting.

In any case, what I want to write about is the legal effect of China's rejection upon the arbitration proceedings. As far as I can see, it has no effect at all. According to China's Global Times, "The international court would not take the case without agreements from all parties involved, Dong Manyuan, a researcher at the China Institute of International Studies, told the Global Times." Sorry. No. Read your UNCLOS again. The proceedings do not require the agreement of both parties; or more accurately, each defendant has already agreed in advance to arbitration by the mere fact of joining UNCLOS. The Philippines has, pursuant to Article 286 and 287(1)(c), requested the formation of an arbitral tribunal under Annex VII. And Annex VII makes clear that the failure of a state to show up and cooperate does not bring the proceedings to a halt; they go on without it.

China's argument that the Philippines' notice of arbitration is factually flawed and contains false accusations is of course bogus; you don't get to reject otherwise justified proceedings against you just because you don't agree with the charges. Of course you don't agree with the charges; that's why arbitration is necessary.

As I read the Xinhua report of China's rejection, China also seems to be arguing that the Philippines is precluded from bringing this type of action because of obligations it has undertaken in other international agreements, specifically, the Declaration on the Conductof Parties in the South China Sea. For this argument to work, it would have to be true that (a) the Philippines has indeed undertaken contradictory obligations, and (b) those obligations, under international law as recognized by the UNCLOS arbitral tribunal, will trump its rights under UNCLOS. I have no informed (or even uninformed) opinion about whether either part of this argument is sound. But I suspect that these questions must themselves be resolved in the arbitration proceedings.

It's going to put China in an awkward position if it loses and simply blows off its treaty obligation to respect the arbitration decision.

[UPDATE: For a cogent analysis that's congruent with this one but discusses somewhat different issues, see Julian Ku's post here at Opinio Juris. In an earlier post, Prof. Ku argues that China may have a pretty strong jurisdictional claim. But typically arbitration panels decide their own jurisdiction to decide, so it's risky to refuse to appear and make that argument.]

Accounting fraud in China: here's how it's done

With Caterpillar's $580 million write-down on its acquisition of a Chinese company whose books turned out to be less than totally reflective of what was really going on, accounting frauds are in the news. Here are two good sources on how it's done:

• An interview with Paul Gillis, professor of accounting at the Guanghua School of Management at Peking University.
• An article by Naomi Rovnick, "The Simplicity of Chinese Accounting Scandals," at the Quartz web site.

The main point here is that Chinese accounting scandals generally don't involve complex schemes to dress something up as something else; they usually just involve out-and-out lying and deception, such as saying you have cash when you don't, or claiming that you just got a huge order from a customer when the supposed customer doesn't even exist.

More on the timing of the Bo Xilai trial

Now we're being told (Global Times story here) that it will be after the March meetings of the National People's Congress and the Chinese People's Political Consultative Conference. According to the report, unnamed insiders say that the case is complicated and that the trial might last ten days.

Ten days would be extraordinarily atypical in a criminal trial. A recent study of a large sample (non-random, but those are the limitations of research in China) of criminal cases found that two thirds of Basic Leval court cases and one third of Intermediate Level court cases were completed within one hour, including adjournments. Of course, that's hardly surprising - in the vast majority of cases, the defendants admit most or all of the prosecution's case, so these trials are functionally similar to a US court's processing of a plea- bargained deal. (This is by no means to claim they are identical or problematic in the same way.) What empirical research shows, however, is what anecdotal evidence has long suggested: that matters of importance are almost never decided at the trial stage, and that the mere fact that the case has gotten that far is evidence that a guilty verdict will be forthcoming. (The acquittal rate is below 1%.)

But the Bo case is of course an atypical case. Still, if he’s not contesting the charges (Chinese criminal procedure doesn’t have a formal guilty/not guilty plea), one wonders what can be so complicated about it. If he is contesting the charges, then going forward with the trial really is atypical. Possibly he is being allowed to contest some minor aspects of the charges – for example, did he take $10 million in bribes or was it only $9 million – and the court will reject a few elements of the prosecution’s case in an attempt to show that it wasn’t all pre-ordained from the start.