Chinese Law Prof Blog

Seeking government information about the South China tiger photograph: Hao Jinsong's odyssey

The Economic Observer Online has a very interesting story about the efforts of lawyer Hao Jinsong (郝劲松) to uncover government information about the notorious "South China tiger photograph" both in court and through administrative processes, including the new Regulations on the Disclosure of Government Information. Here are the links: English | Chinese. (Hat tip: China Digital Times.)

Punishment for perpetrators in corporate scandals

I came across a great paper the other day: Peng Sun and Yi Zhang, "Is There Penalty for Crime: Corporate Scandal and Management Turnover in China" (March 2006). The authors are trying to figure out whether top executives suffer when they perpetrate corporate frauds. [UPDATE: A correspondent has noted that, strictly speaking, the paper is talking about what happens to executives when the company or the executive perpetrates a fraud. Thus, the sample could include cases where we would not want to say that the executive had actually perpetrated the fraud.] They discover, somewhat to their surprise, that CEOs and board chairmen (COBs) do tend to lose their jobs after a scandal. But then the authors take an interesting extra step that, surprisingly, few studies in this area seem to take: they track what happened to the executives after they lost their jobs. And here's the amazing result: fully 70% of COBs and 66% of CEOs actually get promoted to higher positions in industry or government, or move across to positions no worse than the ones they had. Only a tiny number suffered severe administrative sanctions (banned from the market, barred from serving as officer of listed company, or recommended for dismissal by CSRC) or legal sanctions (prison time). Finally, Party membership was positively correlated with milder sanctions.

Here are the numbers and a graphic I put together:

RMB problems and the foreign investment approval process

Here’s an interesting story about the foreign investment approval process in China, and in particular about how the RMB valuation problem is infecting policy in strange ways all across the board.

A lawyer for a foreign law firm in China told me about his experience negotiating with the foreign investment approval authorities in a certain large, commercially sophisticated city. His client was acquiring a privately owned Chinese firm in that city. In accordance with relevant regulations, a valuation report had been prepared by an independent appraiser. The price negotiated by the parties (unrelated parties negotiating at arm’s length), however, was 50% than the appraised valuation.

A market price higher than an appraised value is not surprising or indicative of anything wrong; Chinese appraisers often rely on book values that take no account of certain intangibles and future earning power. In the past, foreign acquirers have run into difficulties with approval authorities when the negotiated price was lower than the appraised price; the authorities, who have more faith in the solidity and apparent objectivity of book numbers than in evanescent and subjective market valuations, would suspect that assets were being sold off cheaply to crafty foreigners, or that kickbacks or other underhanded dealings were involved.

In this case, however, the authorities objected that the negotiated price was too high. The foreign buyers should pay less money. When asked what an acceptable margin on either side of appraised value might be, they responded, “10 percent.”

What’s going on here? The problem is that apparently approval authorities are now more worried about hot money inflows than they are about Chinese sellers getting taken to the cleaners by crafty foreigners. They just don’t want all this money coming into the country. Surely there is something wrong with an exchange rate policy that leads to this kind of result. Michael Pettis over at the China Financial Markets blog has written frequently about the dog-wagging effect on monetary policy of the tail of exchange rate policy; here’s another dog being wagged.

By the way, the resolution of the lawyer’s problem is as interesting as its original cause. The lawyer insisted that the negotiated price couldn’t be changed; it was the product of four months of hard bargaining between the parties. (Who could have imagined that a lawyer would be put in the position of saying, "My client insists on paying more than you want it to pay!") Eventually the approval authorities were convinced that the price was reasonable. The agreed solution? Amend the appraisal report!

Chinese chafe under tightened rules about (it seems) everything

Readers of this blog will probably already be familiar with the litany of complaints about the Olympics-related tightening of rules on visa issuance, among other things. I am not a security expert, but I can't disagree with the general notion that those in charge have lost all sense of proportion. The other day when I went back to my apartment - an ordinary apartment in an ordinary apartment complex, just like hundreds or thousands of other complexes in Beijing - I had to walk through a double line of camouflage-suited young men (quite friendly, however) at the entrance. I don't know what threat they were guarding against, or who had the idea that wearing green leafy-colored clothing in Beijing would make you blend in with your surroundings. In any case, here's an interesting Chinese view: an essay [Chinese | English] on an MP3 player that could not be sent through the mail. (HT: China Digital Times.)

NGOs in China

Here's an excellent article on NGOs in China by Amy Gadsden in the latest issue of the Far Eastern Economic Review.

June 4th anniversary

Nineteen years have passed since this tragic date in Chinese history. Since it is easy to forget what actually happened, here's an excellent article published in 1990 by an eyewitness, Robin Munro, entitled "Who Died in Beijing, and Why".  Well worth reading.

Three PRC lawyers comment on amended Lawyers Law

The China Human Rights Lawyers Concern Group has posted translations of commentaries by three PRC lawyers (Teng Biao, Li Heping, and Zhang Jiankang) on China's amended Lawyers Law. The document is here [PDF on this site | HTML on CHRLC site].

Dirty dealings in Shanghai real estate

Here's an interesting article from the English-language on-line edition of Caijing on corruption and cronyism in Shanghai real estate deals (surprise, surprise). Here are the first few paragraphs:

A massive villa project advertised in glowing terms as a “super large-scale community” -- an appeal designed to attract investors and house-hunters alike -- is still under construction in Shanghai's Jia Ding District, nearly two years after its confident developer launched an initial public offering to kick-start financing.

Today, the unfinished project stands as a sprawling testimony to the cronyism and greed that spread through city hall and the real estate sector in recent years, infecting business leaders as well as top officials including, authorities say, Yin Guoyuan.

On April 4, a Shanghai intermediate court indicted Yin, a former deputy director of the city's Real Estate Department, on charges of abuse of power, illegal possession of ammunition, accepting 36.7 million yuan in bribes, and holding US$47,900 in cash as well as more than 8 million yuan in property that could not be legally accounted for.

Yin had been under investigation for an unrelated social security issue in April 2007 when authorities tied him to players in the now 2-year-old Shanghai pension scandal, which involved the illegal diversion of city pension funds for real estate deals and led to convictions for several ex-officials including former party boss and mayor Chen Liangyu and wealthy tycoon Zhou Zhengyi.

Officials connected Yin's activity to the ex-mayor's brother Chen Liangjun and city land officials including Zhu Wenjin, who worked as director of planning and management in Yin's department.

The case dates to December 2002, when Yin was in charge of a restoration in Shanghai's old city. Authorities said he violated regulations on behalf of Chen and Zhou by ruling that a land plot in Gao Jing City, Bao Shan District, met conditions for restoration, when in fact it failed to meet the criteria, costing the state about 46 million yuan in land transfer fees.

After reselling the plot, Chen pocketed a cool 118 million yuan profit. Now he's now being investigated -- and may become the next member of the real estate web to face trial. Zhu Wenjin, convicted of accepting bribes, is already serving a 15-year jail term following a conviction last year.

Citation of Chinese sources in English

Here's something that's been bugging me for a long time; I'm finally writing about it because I came across instances of it three times in the last two days. What am I talking about? The practice of citing Chinese-language sources in English-language writing using only an English translation of the source, such that there is no way to find the original Chinese source. Why is this bad? Because it forgets a very important purpose of citation: to allow the interested reader to track down your sources herself and verify that they say what you say they say. It's like spelling out your experimental method in a science paper so as to allow others to attempt to reproduce your results. When you don't allow the reader to find your source, a citation is merely an acknowledgment that you found the language in question somewhere else or an unverifiable claim that you found the fact in question somewhere else. It says to the reader, "Hey, trust me!"

In one case the offending author supplied only the English-language title of the article, but also supplied a URL. Not bad, but not satisfactory. URLs go bad and web sites disappear. What we need is the Chinese title of the article because if it's publicly available on one Chinese web site, it's probably publicly available on many others. Knowing the Chinese title allows us to find it easily through Google or Baidu.

In another case, the UN's Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in his report on China, actually invites us in footnote 27 to "see" the Study of the Prevention of and Counter Measures for The Extortion of Confessions by Torture of the Legal Studies Association (The Task Group On The Prevention of the Use of Torture in Interrogation), March 2005. Without knowing the Chinese title of this work, how are we supposed to find it, let alone see it?

It's no excuse to say that it takes too much space to include Chinese titles; why not just have no footnotes at all, if space is the problem? If citations are going to be used, they have to serve their purpose. Otherwise it's just a waste of space. Authors and editors, when citing a source, please ask yourself: could an interested reader competent in the field and with access to the internet and inter-library loan facilities find this source with the information you've provided?

Revised document on Chinese LLM degrees for foreigners

Last week I posted here on Chinese LLM degrees for foreigners. As some useful comments have come in response to that, I'm posting a revised document; please use this one (Version 2) instead.

Enforcing environmental law in China

Here's a piece from the May 1st edition of The Economist about the problems of enforcing environmental law in China, and the fate suffered by whistle-blowers such as Wu Lihong, who is now languishing in prison for his efforts while his wife is the target of continued surveillance and harassment. I'm not an expert in environmental law or policy, but I cannot offhand think of any societies that managed to tackle the pollution caused by industrialization solely through top-down government efforts of the kind with which the Chinese state is comfortable. Of course, state law has played an important role, but citizen involvement, whether as a spur to government action or as plaintiffs in environmental lawsuits, appears indispensable. Government officials cannot monitor every pipe end in the country.

Chinese LLM degrees for foreigners

Some time ago, a discussion on the Chinalaw list about LLMs for foreigners (typically English-language) offered by Chinese institutions prompted me to ask for those with views on the subject to write to me so I could assemble a document that would answer questions that often came up.

Here's the result; hope it's useful to all.

MAY 26 UPDATE: I have posted a revised document here.

Internet controls in China

Here's a good article by James Fallows in the March 2008 issue of The Atlantic explaining how internet controls work in China. There's a follow-up e-mail interview with him here.

International Trade Commission releases report finding decreased Chinese governmental involvement in economic decision-making

The BNA's WTO Reporter reports as follows (below is just an excerpt):

China's government is less involved now than in the past in attempting to influence decisionmaking in various sectors of the economy, the International Trade Commission found in a report released April 10.

The report, China: Description of Selected Government Practices and Policies Affecting Decision Making in the Economy, is the first of three requested by the House Ways and Means Committee. In the first report, the committee asked the ITC to describe practices and policies China's central, provincial, and local government bodies use to influence decisionmaking in the economy, including in the manufacturing, agricultural, and services sectors.

"The pace and magnitude of China's economic changes create challenges to understanding the role of the government in firm-level decisionmaking in China's manufacturing, agricultural, and services sectors. Although the extent of government involvement varies by sector in China's economy, the government is less involved than in the past," the ITC report found.

A PDF copy of the report (Investigation No. 332-492, USITC Publication 3978, December 2007) is available here. You can also get a copy by sending an e-mail request to Pubrequest@usitc.gov.

Human Rights Watch publishes report on lawyers in China

Human Rights Watch has just published a report on lawyers in China. Here are two ways of getting it: HRW web site | download from this site.

AmCham China publishes 2008 White Paper on American Business in China

The report is available here.

Dui Hua Foundation on Hu Jia's conviction

Here are some observations on the conviction of Hu Jia from the Dui Hua Foundation. The article compares the time taken to process Hu's case and finds it extraordinarily fast, compared with other similar cases in Dui Hua's database. It concludes that one "cannot help but suspect that the relevant authorities were reluctant to announce a judgment against Hu too close to the Olympics (where it might cause image problems), preferring instead to send an early warning to other activists not to make trouble." It also suggests that based on what we know of sentences in similar cases, there is no reason to consider Hu's sentence particularly lenient, contrary to Xinhua's claim.

PBOC official says housing prices out of line

Here's an interesting news report quoting People's Bank of China official Zhang Tao as saying that housing prices in China are, relative to both income and rental prices, disproportionately high compared with the ratio in other countries. Zhang attributes this among other things to the (presumably disproportionate) desire of people to buy instead of rent, and in particular to buy a new residence. (This latter point squares with my own experience talking to Chinese acquaintances. Although people feel richer when housing prices go up after they buy, the increased wealth may be an illusion; the prices people see are for new housing, whereas there seems to be a very significant discount for "used" housing.)

What's interesting are the remedies Zhang proposes: essentially, to make it easier to buy through such mechanisms as government-guaranteed mortgages or direct aid to low-income buyers. Surely these remedies would have exactly the opposite effect: by making buying easier relative to renting, as well as easier for any given level of income, they would exacerbate the disproportionality of housing prices relative to rents and income levels. I'm no economist, but if one wants to narrow the gap, isn't the solution to make renting more attractive and buying less attractive? Rent subsidies, for example, would both decrease the price of bought housing by reducing demand and increase the general level of rents by giving renters more resources. (The slope of the supply and demand curves for rental housing would determine how the subsidy ended up being shared between landlords and tenants.)

What the disproportionality (if true) suggests to me is that housing prices are in a bubble, and indeed we are already beginning to see signs of softness in the housing market. If incomes in China have historically supported a particular ratio between rental and purchase prices, then it makes sense to think (absent particular reasons to think the contrary) that disproportionality will eventually be brought back into line.

Visiting (or trying to visit) Zeng Jinyan at Bobo Freedom City

Here's a video of Time reporters Simon Elegant and Austin Ramzy trying to visit Hu Jia's wife Zeng Jingyan at her apartment at the ironically named Bobo Freedom City apartment complex. Zeng is under what amounts to house arrest, although as far as I know no legal justification has been offered. Here's a video shot by Hu Jia earlier of their life under house arrest. And here's the story of an attempt to bring milk powder to Zeng Jinyan and her baby. Fascinating stuff.

Xiao Yang's SPC work report to the National People's Congress

The link is here.

UPDATE March 11, 2008: This is not the actual full text of the report as delivered; it's a truncated version. The full text should be available after the NPC meeting is over.

Open information legislation in China

Here's an article on recent developments in this area by David Bandurski at the China Media Project. Hat tip: China Digital Times.

Shuanggui and extralegal detention in China

Flora Sapio of the Institute for Cultural Studies, Julius Maximilian University in Germany has just published an excellent article on shuanggui (双规), a form of extralegal detention by Party disciplinary bodies. The article is very well researched; she has found lots of relevant documents, many of which are probably not, strictly speaking, public.

Shuanggui poses a challenge to our understanding of the Chinese legal system. It is frankly admitted by just about everyone involved to be unlawful - in the Chinese system, all forms of detention must be authorized by law passed by the National People's Congress or its Standing Committee, and shuanggui has no such authorization. Yet it is open - the existence of the system itself is not a state secret - and pervasive. Thus, it cannot be dismissed as a mere aberration; a proper understanding of the system has to account for shuanggui as a constitutive element, not a mistake.

Ben Read on homeowners' protests in Shanghai

Here's an interesting e-mail interview with Prof. Ben Read of the Department of Political Science, Univ. of Iowa, on homeowners' protests in Shanghai against the maglev train extension and related topics.

"Black jails" in Beijing: video report

Here's a video report on illegal jails for petitioners in Beijing, done by Britain's Channel Four.

Damages for wrongful death in Chinese law

My guest-blogging stint at The Conglomerate is now over; here's my last post, on the above topic.

Chinese corporate law: where's the beef? (3)

Here's my final post on this topic at The Conglomerate.

Chinese corporate law: where's the beef? (2)

Here's my latest post on The Conglomerate about this.

No trespassing in Chinese law?

Here's my post on The Conglomerate about this.

The elementary particle of Chinese real property law: the suite

Here's my post on Congomerate about this.

Sky News video report on petitioning and land requisitioning

Here's an interesting Sky News report on petitioning and land requisitioning. It includes some amazing footage of a pitched battle in a village between enforcers and residents. Thanks to China Digital Times for the reference.

Top ten legal news stories of 2007

The China Court Net (中国法院王), the People's Net (人民网), and CCTV International (央视国际) have collaborated to produce lists of last year's top ten legal news stories, law cases, and people in the legal news. Here's their list of top ten legal news stories. Some of them might seem less than earthshaking, but I'm only the reporter. Readers are encouraged to add their own stories in the comments. (Remember that comments don't get published immediately, so don't worry if you don't see yours right away.)

1. Hu Jintao's Oct. 15, 2007 report to the 17th Party Congress stresses the rule of law, mentioning terms such as "law," "rule of law," and "according to law" no fewer than 85 times.
2. Property Law (Law on Real Rights) (物权法) goes into effect on Oct. 1, 2007.
3. Labor Contract Law (劳动合同法) passed on June 29, 2007.
4. Death penalty review power fully re-centralized back to Supreme People's Court as of Jan. 1, 2007.
5. Cabinet-level State Bureau for the Prevention of Corruption (国家预防腐败局) established on Sept. 13, 2007.
6. State Administration of Industry and Commerce leads crackdown on illegal sex toys, sex medicines, and associated advertising (Nov. 2007).
7. Slavery in Shanxi brick kilns (山西黑砖窑) exposed in May 2007.
8. The story of the Chongqing "nail household" (钉子户) hits the media in March 2007.
9. Lanzhou municipal authorities issue controversial order on June 25 putting a ceiling on the price of beef noodles (牛肉面).
10. Pregnant woman Li Liyun (李丽云) dies in hospital because husband refuses to sign consent and hospital refuses to operate without it (Nov. 2007).

Who owns Mao's millions?

An under-noticed aspect of Mao's personality cult is that it made him millions in royalties from sales of the Little Red Book and other works. His estate is now apparently worth over US$17 million, and the money keeps piling up because the leadership can't figure out who should get it. (A decision of this magnitude is not going to be made by a mere judge.) Jiang Qing apparently made a claim to it - unsuccessfully, of course - as apparently have two of Mao's children. Here's a recent BBC article on the issue. Thanks to China Digital Times for the tip.

Liang Jing on China's Labor Contract Law

Here's an interesting piece on China's new Labor Contract Law by political commentator Liang Jing (a nom de plume). Translation courtesy of David Kelly.

Liang Jing, "Why does the new labor law have more failures than successes?"

A story was widely reported in the Chinese media on December 2 that the government-run All-China Federation of Trade Unions, in the face of an emerging wave of layoffs as an increasing number of employers attempted to circumvent the impending enactment of the Labor Contract Law on January 1, had recently issued a circular to safeguard employees' legitimate rights and interests, urging the resolute correction of actions such as forced resignations and re-signed labor contracts. The ACFTU's "notification" pointed that the actions employers' in violation or evasion of the labor laws "impacted negatively on building a socialist harmonious society." It required trade union organizations at all levels to "search out actions by employers that violate existing labor laws and regulations, or evade  the Labor Contract Law in violation of employees' rights, and resolutely demand their rectification. They should actively report and express their views and recommendations to local Party committees and governments, and coordinate with labor administrative agencies in seriously dealing with them. Representative cases that were evil in nature and most influential must be grasped in toto, and not tolerated." This meant that the highest levels of the CPC was carrying out a political mobilization through the government-run trade union, and launching a political offensive against employers who make good profits, and whose treatment of workers is much better than the general level.   

Have China's higher levels gone crazy? Why did they have to mobilize such a political offensive where there can be no winner? Are workers' rights really the objective of this political offensive? Those who understand the situation in China are quite clear that ringleader in destroying social harmony is none other than the authorities themselves, who in their wisdom enacted the Labor Contract Law. 

The low level of labor rights has not only become a disgrace to China, but is also an enormous threat to global economic balance and stability. However, the Communist Party rulers, who refuse to give up dictatorship, do not know how to solve the problem. What is more, the old Bolsheviks, represented by Song Ping, were foolish enough to believe that they could use the protection of labor rights to achieve the political aim of consolidating the Communist dictatorship. This tendency of Song Ping, who was Hu Jintao's mentor, was a major influence on the new labor legislation, to the extent of writing some unrealistic labor standards  into the Labor Contract Law. Triggering the massive layoffs by employers prior to the implementation of the new law, were the provisions for contracts with no fixed terms. This new requirement caused Chinese enterprise employers with the best operating conditions to be tremendously concerned, and one after another to get older workers to abandon their rights to "no fixed term contract"  at high prices before the implementation of the new law. It has been reported that one company, Huawei spent 1 billion yuan on this. Of course, not all enterprises' retrenched workers could be as fortunate in their compensation as in the case of the Huawei workers.   

Clearly, the run-up to enactment of the new labor legislation has been a lose-lose for both parties. Faced with an ever-rising tide of layoffs, China's rulers find themselves in great embarrassment. Hence they have instinctively switched on the one-party authoritarian state machinery, exerting political pressure on employers to try to check the wave of layoffs. However, the real purpose of the political offensive is not safeguarding workers' rights, but saving the authorities' face.   

While the political offensive against employers may suppress the wave of layoffs, it once again fully exposes that, rather than the rule of law, what the CPC truly believes in is politics with an iron fist. The problem is that this is able to safeguard the rights neither of employers nor of labor, because the CPC's power base is neither capitalists nor workers, but bureaucrats.   

Both the newly promulgated Labor Contract Law and the forthcoming Labor Dispute Handling Law inevitably have more failures than successes, causing much trouble for Hu's "harmonious society." The fundamental reason for this is not that unrealistic labor standards are formulated, but that the new legislation fails to grant Chinese citizens more autonomous rights, and in particular fails to allow workers to organize themselves to struggle for their own rights and interests.   

While the Chinese authorities now say the new labor law is being misinterpreted, it is in fact quite clear to everyone apart from a few self-deluding leaders that the losers are the employers, while the winners are not the workers, but labor officials who have won more power. With the new labor laws, having devoured the accused they can polish off the plaintiff, and in the game of "maintaining fairness" in cutting the cake, carve themselves a bigger slice.

Land requisitioning in China: some photos

There has been quite a lot of social ferment recently over land issues, and PRC media carry open calls for another land revolution. Here are a couple of great photos; thanks to David Kelly for the tip.

"Land Requisition Work Teams": the signboard labels number them off.

Demolition squad on its way to a village. This looks so much like something out of a movie that I'm not quite ready to guarantee its authenticity. Get a load of the tough character leading the way: decked out like a KMT bad guy from a 1950s PRC movie.

China Labour Bulletin translation of Ministry of Public Security regulations on mass incidents

Here's a set of interesting regulations issued in April 2000 by the Ministry of Public Security, noting among other things that the police should "protect the lawful rights and interests of the people" when the latter are engaged in legitimate protest. For more details, see the commentary by China Labour Bulletin; a translation is available here.

Criminal procedure in the Qing: an eyewitness report

When Enlightenment Europeans such as Voltaire first encountered Chinese civilization, they were impressed by its rationality. Later visitors during and after the suppression of the Taiping Rebellion were horrified by what they witnessed. Here's an interesting eyewitness account of late 19th-century Qing criminal procedure I recently ran across in a book published in 1877. It is on the whole quite sympathetic - although one wonders whether the author would have recommended the same system for his own country.

A conversation between the ruler and the ruled

Here's an interesting account by Ma Shaofang, one of the student organizers of the 1989 Tiananmen hunger strike and now a businessman in Shenzhen, of a recent conversation over a mandatory "tea" with some agents of the Ministry of State Security. Thanks to China Digital Times for the translation.

Will death penalty review overwhelm the Supreme People's Court?

The Dui Hua Foundation has published a translation of a very interesting article with the above title.

Here's their introduction:

The following opinion piece, which appeared on November 21, 2007 in The Beijing News (新京报, Chinese original in PDF) and was then translated by Dui Hua, raises concerns about the future of China’s Supreme People’s Court. Faced with an "extremely large number" of death sentences to review, the SPC has been forced to take on hundreds of new criminal court judges, many of whom have lower qualifications than judges in the past. The author suggests this influx of less-qualified judges who focus on reviewing individual capital cases presents an obstacle to the SPC’s progress toward a more ideal goal, one in which high-court decisions contribute to the nation’s social and economic development. At stake, he warns, is the court's ultimate ability to ensure judicial authority.

It’s unclear how much consideration the author (who is very likely writing under a pseudonym) has given to the most obvious solution: a substantial reduction in the application of the death penalty in China. If, as he argues, the burdens of death-penalty review are hindering the efficiency of China’s legal institutions, this could be yet another argument in favor of further reducing the use of capital punishment.

Responsibility for death in Chinese criminal law

Two cases from the last few years have got me thinking about the way Chinese criminal law thinks about responsibility for death. In the first case, a man was convicted of intentional homicide in Tianjin for allowing his wife to succeed in her suicide attempt. After a domestic spat, the wife had leapt into a sewer canal in an attempt to drown herself. The husband jumped in after her and attempted to coax her out. After she refused to do so, the husband returned to the bank, got out, and left. He then went to a relative's house, explained what had happened, and called police. By the time the police got to the scene almost an hour later, the wife was dead. Perhaps in recognition of these facts, the sentence was only six years - somewhat low, one would think, for a crime characterized as intentional homicide.

In the second case, a man caught a 17-year-old boy stealing his bicycle and, with the aid of two others, began beating him. The boy fled, eventually jumping into a river in an attempt to swim to the other side. Running out of strength, he began to swim back, but began sinking. The three men stood watching on the bank long enough to ensure that he had drowned and began to leave. They were in turn stopped by some boatmen, who kept them until the police arrived. The men were then charged with intentional homicide.

The second case doesn't seem to stretch traditional notions of homicide very far, if one views the men as having intentionally forced the boy into a life-threatening situation even though their original intention was probably not to kill him. The first case, however, is another matter.

Here I think we can separate out several issues: (1) What is the duty to help people generally? (2) What is the duty to help people with whom we have a special relationship? (3) What is the duty to help when the consequences of not doing so are fatal? My tentative hypothesis is that the first duty may be a bit stronger in China than in other countries, but probably not by much. I believe the second and third duties, though, are probably much stronger. In particular, the fact of death seems very important in Chinese criminal law; someone has to be held responsible.

Zhu Suli (朱苏力) in his book "Sending Law to the Countryside" (送法下乡) mentions a case in which the decedent (call him "D") had been drinking with two friends and was joyriding on a motorcycle around midnight. They ran two consecutive police checkpoints; when they approached the third, a policeman (Wang) fired two warning shots. After the motorcycle failed to stop, Wang fired again and hit one of the passengers (not D) in the leg. D continued driving the motorcycle for another kilometer until he collided with another vehicle and was killed. D's mother, who had lost her other son to drowning a year earlier, demanded Wang's arrest for murder. When the police refused, she committed suicide in protest. (Case summary taken semi-verbatim from Frank Upham, "Who Will Find the Defendant if He Stays With His Sheep? Justice in Rural China," 114 Yale L.J. 1675, 1683-84.)

The death of the motorcycle driver, and the subsequent death of the mother, put irresistible pressure on the local government to punish Wang. I think the criminal law as implemented in these cases reflects a genuine social belief that deaths don't just happen; someone needs to be held responsible. My hypothesis is that Wang's case and the case of the suicidal wife would have been seen quite differently if only injury had resulted, even though logically the cause-and-effect relationship would have been the same, and intentional injury is as much a crime as intentional homicide.

Comments?

China Labour Bulletin issues report on child labor in China

The China Labour Bulletin, Han Dongfang's Hong Kong-based NGO, has just issued an English-language report on child labor in China. It is a revised and updated version of a Chinese-language report issued last year.

• English report [local copy | CLB web site]
• Chinese report [local copy | CLB web site]

Given the current almost toxic zeitgeist about all things Chinese (at least inside the Beltway, where I live), it's important to stress that the CLB is a serious organization that produces high-quality and credible work. This is not just more China-bashing. Indeed, the report acknowledges the complexity of the issue at the very beginning:

Child labour in any society poses a complex challenge, one simultaneously ethical, legal and economic in nature, and China is no exception to this rule. The income generated by underage workers is often critical to a family’s overall livelihood, especially in the poorer rural areas from where most such workers originate, and so identifying “culprits” who can be suitably punished under the law is not always the best way to proceed. Indeed, except in the most egregious of cases,6 the sternly punitive approach may even be counterproductive, both by forcing this sector of the economy further underground and by pushing underprivileged families – and hence the children themselves – deeper into hardship and poverty.

Yang Jianli and China's Passport Law

Here's a piece by Joshua Rosenzweig of the Dui Hua Foundation on the Chinese government's issuance of a passport to the dissident Yang Jianli.

An interesting aspect of Chinese law pointed out by the article is that Chinese citizens cannot enter China without a valid passport. If the government chooses to invalidate, or refuses to renew, a Chinese citizen's passport while he is abroad, he won't be allowed back in. This is odd in a number of ways. Traditionally, a passport is a request from one sovereign to another to let the former's citizen or subject pass without let or hindrance. It's something foreign governments insist on seeing before they will let you in. But it's got nothing to do with the relationship between the citizen and her own government. To turn it into something your own government insists on seeing before it lets you in seems odd to me. At most it is convenient evidence of citizenship, but not the same as citizenship itself. (I recognize of course that few governments will let in people without valid passports simply because they claim to be citizens. You may have to wait at the border until you can prove your citizenship some other way. But typically you can't be expelled.)

One could argue, of course, that there's no reason why China's use of passports has to follow everyone else's. Still, there is Article 13 of the Universal Declaration of Human Rights, which states that "[e]veryone has the right to leave any country, including his own, and to return to his country." In short, it rejects exile as a governmental measure. It must be said that the ICCPR is a bit more ambiguous: it states that "[n]o one shall be arbitrarily deprived of the right to enter his own country[,]" suggesting that exile is permissible if imposed pursuant to due process of law. I would think that the refusal by a government ministry to issue a passport, where not preceded by a fair hearing, would be considered arbitrary under most definitions, given the high stakes involved.

When I first read Joshua's article, I thought that he must have misunderstood Chinese law regarding the entry of citizens; that surely Chinese law doesn't make the entry of its own citizens back into China contingent upon holding a valid passport, or that if it does, there's a plausible argument that such a requirement is unconstitutional. But having looked at the relevant legal texts, I must confess my intuition was wrong on both counts.

Comments welcome, especially with regard to whether I'm right about other countries not generally requiring a valid passport for re-entry of their own citizens.

Traffic rules in Beijing

Since this is about traffic rules and customs, I think it counts as related to Chinese law. Here's an analysis of how to make a left turn in Beijing.

China Financial Markets blog

For those interested in - you guessed it - Chinese financial markets, I highly recommend Michael Pettis's blog, China Financial Markets. Pettis is a former New York-based investment banker and adjunct professor at Columbia who now teaches full time at Beijing University's Guanghua School of Management. The blog also comments frequently on issues in US-China financial relations such as the valuation of the Renminbi and the bilateral trade balance. I think it's an excellent antidote to much of the complete nonsense that passes for common knowledge in both Beijing and Washington. See, for example, the series of posts entitled "Good for the US, Less Good for China."

More on antimonopoly consciousness

Last month I blogged here about the way Chinese producers would publicly announce, and the press report, price-fixing agreements, all apparently quite unaware that such agreements violate the Price Law. Not everyone accepts these things, however. According to a Xinhua report dated July 30, 2007,

Meng Suhe, an official with the Chinese branch of the World Instant Noodle Association, told media last week that major instant noodle makers, who hold a combined 95 percent share of the domestic market, had met and made a collective decision to raise prices.

This caught the eye of Qiu Baochang, a legal consultant for the China Consumers' Association, who wrote to the National Development and Reform Commission, asking it to investigate the legitimacy of the recent rise in the price of noodles. (Interestingly, he did not go directly to court to seek relief. I believe harmed consumers are allowed to sue under the Price Law, but there are big difficulties these days in bringing collective suits - the court system basically hates them - and a collective suit is the only kind that is economically feasible in this kind of case.) So far he has received no response. (News report in English here.)

Another lawyer, Hao Jiguang, was also distressed by this report, and took another tack: he asked the Ministry of Civil Affairs to investigate whether the Chinese branch of the International Ramen Manufacturers Association (referred to in some reports as the World Instant Noodle Association) was a lawful entity. So far he has received no response.  (News reports: Chinese | English.)

What part of "colluding to fix prices" don't you understand?

My friend Lester Ross sent me the following tidbit (appended at the end of this post) about the Chinese dairy companies getting together to agree not to engage in certain kinds of competitive activities. According to the report, the five big dairy companies have agreed to exercise "self-discipline" in the Beijing retail market. Fierce competition is driving down profits, and the price of milk is apparently the same as it was in 2005. Moreover, once the dairy companies succeed in driving up retail sale prices, they plan to turn their attention to procurement end of things, and to "standardize" their purchasing activities.

Although China does not yet have an antimonopoly law, this would seem to be a pretty clear violation of the Price Law, which states in Art. 14: 经营者不得有下列不正当价格行为： （一）相互串通，操纵市场价格，损害其他经营者或者消费者的合法权益 ("Operators may not engage in the following acts of improper pricing: (1) colluding with each other to manipulate market prices, harming the lawful rights and interests of other operators or consumers"). Yet the above report was not the result of a muckraking expose; it was the result of an official, public announcement made by the Dairy Industry Association.

This shows in an interesting way, I think, the absence of what might be called a certain culture of the market. I doubt if the Dairy Industry Association had any intention of breaking the law, or even of doing anything legal but improper. It just seemed to them that when profits are going down because of disorderly markets, collective action to maintain profit levels is entirely appropriate. And journalists and the public have not yet learned to be cynical about assertions of the virtues of "orderly" markets.

买几送1将淡出北京乳品市场
2007年07月20日
新京报

　　行业整体压力加剧；北京率先执行行业自律

　　本报讯（记者 胡红伟）牛奶买几送1的捆绑销售行为，下周一起将从京城乳品市场逐渐消失！昨日，北京市奶业协会召集伊利、蒙牛、三元、三鹿、光明5大行业巨头，表示在全国率先执行终端销售自律行为。

　　价格战将被限制

　　北京市奶业协会理事长范学珊介绍，销售自律首先就是“取消所有涉及乳与乳制品产品的捆绑、搭赠（包括其他产品或礼品）销售行为。”范表示，最常见的250克利乐包装奶，保底成本价1.7元，不算一些税收和物流等成本，现在市场上一般销售价格为1.9元，但如果买5送1，该产品就不会赢利，如果买3送1，甚至买2送1，那属于严重亏损。记者昨天在崇文门新世界超市发现，大多数品牌正在“清仓”，捆绑促销行为比平时更多，一款三元早餐奶买 3送1，折算下来价格仅为1.2元。第二为禁止低于成本价的倾销行为，取消特价、降价销售。对于特殊的临逾期（已超过二分之一保质期）产品，其销售价也不得低于成本价。另外，鼓励优质优价。

　　据悉，奶业协会检测小组将从5家核心企业各抽调一名监督员，长期监督，另外奶业协会还对普通消费者开通了一条监督电话，并与各大商超进行了沟通。

　　乳业重负威胁奶源地建设

　　范介绍说，执行行业自律是迫于当前整个乳品养殖和加工行业不断增加的压力。

　　据范介绍，原料奶收购和终端产品销售两个环节价格低，秩序混乱。尤其液态奶同质化严重，供大于求，高端产品少，在激烈价格战下，行业整体利润率降低。“终端的混乱直接威胁全行业的效益。”他表示，“尤其今年养殖成本迅速增加，畜禽产品都涨价，惟独牛奶不涨，与2005年的价格持平，实在不正常。”他说，终端销售环节再打压，中小企业必定无法承受，最后就会伤害奶业的根本———奶农，杀牛卖肉等现象，已威胁奶源地建设和奶业发展后劲，北京地区的奶源问题也很严重。

　　范表示，在终端销售出手后，接下来将对原料奶收购进行规范。

Guangzhou police accused of slave trafficking

Last month, I wrote about the Shanxi brick kiln slave scandal. This story has had quite an impact in China, and has brought forward other even more shocking revelations. The latest is from Li Datong (李大同), a Chinese journalist who was formerly the editor of Freezing Point (冰点), a we