Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

A Member of the Law Professor Blogs Network

Saturday, June 29, 2013

U.S. businessman taken hostage by workers released after paying ransom

Here's a follow-up to my previous blog post on this subject.

June 29, 2013 in Commentary, News - Chinese Law | Permalink | Comments (2)

Tuesday, June 25, 2013

Workers taking bosses hostage in China

The Wall Street Journal's China Real Time Report has an article entitled, "Why Chinese Workers Sometimes Hold Foreign Execs Hostage." The report begins:

Beset by stories of runaway bosses, Chinese workers are adopting increasingly drastic methods in negotiating with their employers – including caging them in their own offices.

 As The Wall Street Journal reported on Tuesday, an American medical supplies executive in Beijing has been trapped inside his office since Friday — held hostage, he says, by about 80 employees who believe he is shutting down the factory and who are demanding he pay them severance.

It's important to remember a few things, among them that it is the company, not its executives, that is liable for unpaid wages. The workers are not caging their employers; they are caging senior employees of the employer. As to why they are doing it, the answer is simple: it apparently works. Certainly there seems to be little downside: according to the article, the trapped executive "said local police were bringing him three hot meals a day to him, but had declined to free him from his captivity." In other words, there is an ongoing crime of unlawful detention, possibly kidnapping, going on right in front of their noses, but the police are simply standing by with arms folded. It is hard to imagine a similarly casual attitude were local Party officials to be trapped by a group of Falungong adherents.

It's a little absurd that this kind of official toleration of self-help remedies that violate the criminal law should be going on in the year 2013, in the world's second-largest economy, on the territory of a permanent member of the UN Security Council. Bananas, anyone?

June 25, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Tuesday, June 18, 2013

The Chen Guangheng/NYU affair

The circumstances of Chen Guangcheng's leaving New York University have been in the news lately and the subject of dispute. Essentially, Chen says he is being pushed out due to pressure on NYU from the Chinese government. (Here's his statement (web version here).) NYU says that the original arrangement was that he would come and be supported for a year, and the year is up. (Here's an interview with Jerome Cohen, and here's a good post from China Digital Times that puts the whole story together with links to all these souces.)

My impression is that NYU is more sinned against than sinning here; the one-year deal squares with my recollection, and I think it's beyond question that NYU has been quite generous to Chen during the time he's been there. If you believe that NYU has an obligation to look after Chen indefinitely, then of course you'll see him as being booted out, but I note that neither Chen nor anyone else has offered actual evidence, or even specific (as opposed to general) allegations, of Chinese pressure on NYU to get rid of him. Activist Bob Fu, for example, declines to identify any direct pressure from China, but still manages to imply that NYU did something discreditable: "There is also self-censorship, particularly if a college president believes their China campus or the future enrollment of Chinese students will be sabotaged." In other words, there are absolutely no facts that could prove Fu wrong. He just knows.

Prof. James Feinerman of Georgetown Law School has kindly permitted me to quote his post to the Chinalaw list on this subject:

I'm taking this in from London, where there's little to no interest in this development. However, I have several reactions to the news and to how it's become public. First of all, a little history - Months ago my colleagues and I at Georgetown were approached by Chen's "people" (yes, he has them), sounding us out about a move to Georgetown (and presumably, more importantly, DC). This set off certain "alarm bells" - why was he leaving or interested in leaving NYU? The pretext for his departure to the US less than a year earlier was the fellowship he received to study at NYU; would moving elsewhere upset that? We were assured that, No, he was just "reviewing his options," probably because the term of his stay was coming to an end after one year. Obviously, he's been checking elsewhere, if rumors of his departure for Fordham are true. That's just one reason not to buy his story that PRC interference has caused his "ouster" from NYU. Secondly, he's waited until the very end of his stay at NYU - the term of which was well known all along - to voice his first complaints about the mistreatment he's suffered. If this were an ongoing problem, why not previously? Third, along with others (such as both Don Clarke and I), Jerry Cohen and a host of China scholars in the US regularly write, speak and even testify before committees of the US Congress and other governmental bodies about China's human rights abuses, flawed rule of law and other shortcomings - rarely pulling our punches - and have faced no retaliation for doing so. We still get visas to visit the PRC, have regular interchange with Chinese colleagues and (to my knowledge, at least) have caused no undue problems for our home institutions with our activities. Notwithstanding this, I take [another contributor]'s point that a few Western academics have been targetted - Perry Link and Andy Nathan come immediately to mind. Old habits die hard among the Communist diehards.
We may have to remember back to the era of the Tiananmen dissidents - Wu'er Kaixi, Chai Ling and others - to find a good analog for Chen. They came to the US after the massacre, were lionized for a while as the heroes of the "Democracy Movement," and then faded from public attention in fairly short order. As that happened, they became vocal and bitter, complaining just like Chen, that they were betrayed, that the cushy welcome they received was evaporating as memories faded. In short, they learned (as Jerry Cohen liked to quip at East Asian Legal Studies lunches to the invited speakers) that "there is no free lunch." After a reasonable transition, they were supposed to find something to do, on their own. In Chen's case, he's had a pretty sweet deal - a year of housing in Washington Square, financial support, translators, educational opportunities if he chose. Understandably, he's unhappy. But biting the hand that fed you - well, for a year - makes Chen seem like an ingrate.
Finally, Chen mistakes what he knows (and what he knows works) in China for the way things work in the US. He assumes that the PRC government - or government in general - can make academics fall in line. How little he knows us. Nothing rankles the academy more than a heavy governmental hand - especially that of one viewed by most as a vile totalitarian autocracy - trying to wield influence. It's more likely to cause academics - even academic administrators - to react in opposition. We prize our freedom more than that. It's a shame he's failed to learn at least that much about the institution that has sheltered him and his family for the past 16 months or the country of his exile. This latest screed, however, is likely to backfire. Remember Solzhenitsyn? Despite his heroism, his Nobel prize, and his writerly brilliance, he was remembered more as a reactionary scold, ranting about the West while enjoying its perks. From various accounts, Chen also risks becoming a captive and a mouthpiece for the religious right, anti-abortion, and China-threat factions here in the US. His current story will resonate with them, but in the longer run it promises he will receive even less attention from influential mainstream opinion makers in this country.

 

June 18, 2013 in Commentary, News - Chinese Law, People and Institutions | Permalink | Comments (2)

Wednesday, May 22, 2013

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.

May 22, 2013 in Commentary | Permalink | Comments (0)

Wednesday, May 15, 2013

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.

May 15, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Thursday, May 9, 2013

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).

May 9, 2013 in Commentary | Permalink | Comments (2)

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:

May 9, 2013 in Commentary, News - Chinese Law | Permalink | Comments (1)

Wednesday, May 8, 2013

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

4bdb1fa0jw1e4cnlm22vcj20c81gidl8 (2)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.

May 8, 2013 in Commentary | Permalink | Comments (1)

Friday, March 29, 2013

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:

March 29, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Sunday, March 24, 2013

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, herehere, 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?

March 24, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

Wednesday, March 6, 2013

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.

March 6, 2013 in Commentary | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 5, 2013

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.

March 5, 2013 in Commentary, Conferences, News - Miscellaneous | Permalink | Comments (0) | TrackBack (0)

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.

 

 

March 5, 2013 in Commentary | Permalink | Comments (0) | TrackBack (0)

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.

March 5, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

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.

February 25, 2013 in Commentary, News - Chinese Law | Permalink | Comments (2) | TrackBack (0)

Saturday, February 23, 2013

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.

February 23, 2013 in Commentary, News - Chinese Law, News - Miscellaneous | Permalink | Comments (1) | TrackBack (0)

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.

February 23, 2013 in Commentary, News - Chinese Law, News - Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Friday, February 22, 2013

Chinese law schools: a ranking (sort of)

W020120706304925192407

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

 

February 22, 2013 in Commentary, News - Miscellaneous, People and Institutions | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

Zhejiang man tried for 1967 Cultural Revolution killing

130219 Man tried in Zhejiang for Cultural Revolution killing (small pic)
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.

February 21, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 19, 2013

Pu Zhiqiang barred from all mainland micro-blogging sites