Saturday, April 5, 2014
"Minor property rights" (小产权) is the term used to describe the rights you get (or think you get) when you "buy" rural, collectively-owned land. I use quotation marks because you can't actually buy collectively-owned land. You can't even buy a long-term use right to it, the way you can buy a 70-year use right to land for residential use in urban China. But villages purport to sell these rights and urbanites purport to buy them, because they're cheaper than the fully lawful and relatively robust rights you get when you buy urban land. And the developments on minor property rights land can be pretty substantial (see the photo below); we're not talking about tarpaper shacks here.
Now the media is reporting that minor property rights land is being occupied not just by the living, but by the dead - and for the same reasons. It's getting too expensive to die in China, so people have to find cheaper options. Here are some reports:
Friday, February 14, 2014
Confucius Institutes, which are part of the Chinese government's soft power efforts, have been in the news recently (at least in the academic community) following this blast last fall by the noted University of Chicago anthropologist Marshall Sahlins. I recommend it.
At the same time, I also recommend this recent and very cogent response by my GWU colleague Ed McCord, which he has kindly consented to have me post here. It's must reading for anyone who wants to have a fully informed view.
[Feb. 16: Replaced earlier version of McCord piece with a later, slightly modified version.]
Tuesday, February 11, 2014
Here's a good piece by Jeff Bader of Brookings on the Obama administration's recent explicit rejection of China's "nine-dash line" as the basis for maritime claims.
If you want to dig deeper, here’s a good relevant resource put together by OUP: http://opil.ouplaw.com/page/222/debate-map-disputes-in-the-south-and-east-china-seas. They call it a "debate map" for the East China Sea and the South China Sea controversies. It breaks down the issues and provides links to various official sources and commentary relevant to each.
I posted yesterday about Prof. Zhang's upcoming talk at GWU Law School (Feb. 12th, 6 p.m. EST); here's the URL to the live webcast. The talk will also be recorded and made available on line; URL to be announced.
[Post slightly edited and URL changed after initial posting.]
Wednesday, February 5, 2014
Thursday, January 30, 2014
This doesn't have much to do with Chinese law, but I think it's a pretty interesting development. From my friend Dan Rosen at the Rhodium Group (copied here with permission):
Full year 2013 China GDP was released on January 29. The total was just over $9 trillion USD for the first time, at CNY 56.9 trillion (2013 average CNY/USD rate: 6.313). That’s up 7.67% over 2012 (and is the level the United States was at in 1992, in 2009 dollars; versus just about $16 trillion today). Here is a significant fact: as of the end of 2013, China’s services sector is officially the largest segment of its economy for the first time in the modern era, at 46%, versus 44% for industry and manufacturing and 10% for primary activity such as farming. That updraft in the share of services started in about 2006, and should keep going for, oh, I’d say about another 20 years before flattening out. That’s a pretty important change in the structure of growth, and one that Xi Jinping’s Plenum reforms both recognize and react to, on the one hand, and aim to bolster and sustain on the other. Remember: investment in services sector capital stock doesn’t just mean ice rinks, movie theaters, hospitals and schools, but also the injection of value-adding services activity into manufacturing giants like China Aluminum, which to date have been all about smelting and little about sales and marketing, R&D, environmental engineering, new applications development and other white collar multipliers of profit.
Wednesday, January 29, 2014
Sunday, January 26, 2014
I recently came across a very short notice from the Supreme People’s Court instructing lower courts how to handle certain arbitration disputes. I think it’s worth writing about because in a few short sentences, it encapsulates a key feature of the Chinese legal system—that is, its essentially bureaucratic nature—that I think make it fundamentally different from systems that are essentially adjudicatory. One can have a view as to whether that difference is a virtue or a vice in general or in particular cases, but it’s not my purpose here to take a stand on that issue; I just want to argue that the system is indeed different.
First, some background. China has rules about the recognition and enforcement of arbitration awards by courts; there are two relevant ones here.
(1) A valid arbitration agreement must clearly stipulate the forum. This is a general rule of contract law and not unique to China—if we can’t find a meeting of the minds on where to arbitrate, there’s no agreement to enforce—although Chinese courts have tended to be overly demanding about what constitutes “clearly”.
(2) Domestic arbitration can be carried out only by state-approved arbitration bodies; ad hoc arbitration (i.e., arbitration by persons or institutions not recognized by the state even if agreed upon by the parties) is not recognized by courts.
One of China’s major officially recognized arbitration bodies is the China International Economic and Trade Arbitration Commission (CIETAC). In 2012, when the problem I am about to describe arose, CIETAC had offices (sub-commissions) in Beijing and other Chinese cities, including Shanghai (Shanghai CIETAC) and Shenzhen (South China CIETAC). Thus, if the agreement said, “Arbitration at Shanghai CIETAC” or “Arbitration at CIETAC in Shenzhen”, it would have met the requirements of both of the above rules and been valid; everyone knows which arbitration forum is meant and it’s an officially recognized one.
In 2012, CIETAC issued new arbitration rules that came into effect in May of that year. Shanghai CIETAC and South China CIETAC didn’t like the rules and essentially declared independence. South China CIETAC changed its name to “South China International Economic and Trade Arbitration Commission” or “Shenzhen Court of International Arbitration”, and both the Shenzhen municipal government and the Guangdong provincial government have recognized it as a qualified arbitration organization. In April 2013, Shanghai CIETAC changed its name to Shanghai International Arbitration Center, and I believe has also been officially recognized by the Shanghai government.
In response, CIETAC issued an announcement on Dec. 31, 2012 stating that it was terminating the authorization of Shanghai CIETAC and South China CIETAC to accept and administer arbitration cases and forbidding them to conduct any further arbitration in the name of Shanghai CIETAC and South China CIETAC. CIETAC has also opened a new sub-commission in Shanghai (I’m not sure about Shenzhen) and sent its arbitrators there. In its Dec. 2012 announcement, CIETAC stated that when parties had designated Shanghai CIETAC or South China CIETAC in their arbitration agreements, they should submit their requests for arbitration to CIETAC (in Beijing), which would then take care of it. (For a good backgrounder on the dispute, see this memo from Winston & Strawn.)
Obviously, we have here a recipe for great confusion. Try to apply Rule 1: when an arbitration agreement says, “CIETAC Shanghai,” for example, which arbitration body does it mean? And what about Rule 2: do the new local arbitration bodies count as officially recognized? Who has the authority to recognize them? The Arbitration Law doesn’t say. Until this confusion is cleared up, parties have no way of knowing whether their arbitration agreement will be upheld. Courts in Ningbo and Suzhou refused to uphold arbitration awards of the newly independent Shanghai CIETAC, but were overturned on appeal.
Clearly it’s time for somebody—anybody—to step in and make a definitive ruling on these issues. The Supreme People’s Court is the obvious candidate. In September 2013, it did so. Here’s the full text of a Notice (tongzhi 通知) it issued to lower courts at that time:
Supreme People’s Court Notice on Problems Related to the Correct Adjudication of Cases Involving Judicial Review of Arbitration
To the Higher-Level People’s Court of each province, autonomous region, and separately administered city; the military courts of the People’s Liberation Army; and the Production and Construction Corps branch courts of the Higher-Level People’s Court of the Xinjiang Uighur Autonomous Region:
Recently, the China International Economic and Trade Arbitration Commission’s (“CIETAC”) May 1, 2012 implementation of its revised rules of arbitration, together with the name changes and implementation of new arbitration rules on the part of the CIETAC Shanghai Subcommission (“Shanghai CIETAC”) and the CIETAC South China Subcommission (“South China CIETAC”), have led to disputes among parties related to issues such as the application of rules of arbitration and the jurisdiction of the above-mentioned arbitration organizations. The people’s courts of all areas have accepted case after case of arbitration review resulting from such disputes. In order to unify the standard for judgments and ensure that people’s courts correctly adjudicate cases, we now notify you as follows regarding relevant issues:
With respect to cases in which the above-mentioned disputes result in parties applying for a confirmation of the validity of the arbitration agreement, as well as cases in which the above-mentioned disputes result in parties applying for a cancellation or ruling of non-implentation of awards rendered by CIETAC, Shanghai CIETAC, or South China CIETAC, the people’s court must, before making a ruling, submit the matter for discussion by its Adjudication Committee and then report up level by level to the Supreme People’s Court. Only after the Supreme People’s Court has made its reply may the ruling be made.
Supreme People’s Court
Sept. 4, 2013
There are two things worth noting about this document. First, it was not publicly issued. It’s an internal instruction to courts immediately below it, and they are to pass it on to courts below them. Second, and most importantly, it does not solve the problem. It does not purport to state any rule or even vague principle that courts should use in addressing problematic cases; it does not state how the SPC intends to handle them. Yet the SPC certainly does intend to handle them, and it will produce a result. If the result is the same in cases where the relevant facts are identical, then that’s a rule of law that it would be helpful to let parties know about; if the result is not the same, then apparently there are more relevant facts than we thought.
The key point here is that the SPC is not acting as adjudicator-in-chief in a system that applies laws. It’s acting as decider-in-chief in a system that maximizes administrative discretion to the point where even here, where it would be simple to come up with a rule to resolve any ambiguity, it is unwilling to do so and reserves the right to reach different results in cases that, as far as statutorily relevant facts are concerned, are identical.
Saturday, January 25, 2014
Here's the report (in Chinese) from the court's Weibo feed, and here's some pre-sentence commentary from the Global Times. The spin is that Xu Zhiyong is being punished not for the content of what he was seeking, but for the way in which he sought it. Of course, the article contains the usual tendentious claims that people like Xu demand legal immunity for whatever actions they might take in pursuit of their goals - claims that are not backed by any evidence and are too silly to bother refuting.
[Some text and links changed from original post.]
Friday, January 24, 2014
Thursday, January 23, 2014
In a puzzlingly familiar pattern, the authorities in Xu Zhiyong's trial - who after all control the outcome - have gone out of their way to avoid even the appearance of fairness. According to the New York Times, the court told Xu and his lawyers that no prosecution witnesses would appear in court to be cross-examined, and Xu would not be allowed to present any witnesses of his own. The response of Xu was to remain silent and refuse to present a defense. Nevertheless, he did attempt to make a closing statement, which was stopped by the court after ten minutes. Here it is: Chinese | English.
On another listserv of which I'm a member, there's been some discussion of whether Xu can be called a "moderate" and whether his recent actions have been a strategic mistake.
If you read anything Xu Zhiyong has written, including his closing statement above, or consider the actions he has taken, it’s hard to see why the word “moderate” should not apply. What is immoderate and extremist are the government’s actions against him and others like him. I cannot see any reason to call Xu immoderate unless anything that gets you persecuted is by definition immoderate. That logic would make it impossible to conclude that governments ever persecute moderates, and so doesn’t seem very helpful as a tool of social science analysis, in addition to its unacceptable moral privileging of governments over their opponents.
A discussion about whether Xu made some kind of strategic mistake seems to me to miss the point of what Xu is doing and why he is doing it. He is not engaging in some kind of Chicago-school cost-benefit analysis; who would be an activist and oppose this government on rational cost-benefit grounds? The collective action problems are insurmountable. I have met Xu only a few times and can’t claim intimate knowledge of what motivates him, but my own take is that he does what he does because he feels he must, and cannot do otherwise. This accounts for his calm and steadfastness in the face of intense pressure, and explains why he inspires such fear and loathing in the mighty state. I’m not suggesting he doesn’t have a healthy streak of pragmatism as well, but in many cases analyzing what people like him do in terms of tactical or strategic mistakes will miss the point, since they aren’t trying to avoid “mistakes.” We don’t analyze why people tip at restaurants they’ll never go back to by (a) assuming they believe it will somehow benefit them down the road, and then (b) asking whether that belief is mistaken. Same here.
I've previously blogged about SEC proceedings in federal district court against Deloitte China; they have also been engaged in administrative proceedings against the Chinese affiliates of the Big Four, and a decision in that matter was issued on Jan. 21 (WSJ report here (paywalled)). That decision imposes a six-month bar on auditing US-listed companies. It can still be appealed to the full Commission and from there to the federal courts, so we probably haven't seen the end of it. As I've been involved as an expert witness, I won't comment further on the substance here. But it's quite important. For some high-quality commentary, see Paul Gillis's China Accounting Blog; he's been following these cases closely. Here's his take on the decision. His conclusion: "Ultimately, the only way this gets settled is if China agrees that companies that list in the U.S. are subject to all U.S. securities laws. For those companies that are too sensitive for that, like some large SOEs, China should pull their U.S. listings."
Tuesday, January 21, 2014
The International Consortium of Investigative Journalists has completed its investigation of offshore holdings by China's elite and has published a story in English and Chinese. It will be naming and shaming on Jan. 23rd.
Needless to say, the Chinese government has
publicly thanked the ICIJ blocked the ICIJ's web site for its contribution to Xi Jinping's anti-corruption drive, and has demonstrated its determination to go forward by releasing Xu Zhiyong putting Xu Zhiyong on trial today.
Sunday, January 19, 2014
Here are some thoughts by Jerome Cohen on the upcoming trial of Xu Zhiyong:
This Wednesday's trial of Xu Zhiyong (and Wang Gongchuan) may make a public mockery of the recent efforts of China's Supreme People's Court to prevent further wrongful convictions by requiring investigation and verification of criminal evidence in an open court hearing.
The SPC and the country's leader, Xi Jinping, have been emphasizing greater transparency and openness in judicial conduct. Yet it is very difficult to learn what transpired at last Friday's pre-trial conference since official court sources have published nothing, and there seems to be a domestic news blackout on the case. Foreign and Hong Kong press reports based on contacts with Xu's counsel suggest that, while the trial will be "public" in principle, its openness will be highly restricted in practice, as is customary in sensitive criminal cases. despite the new verbal emphasis on openness of trials. For example, a very small courtroom has apparently been selected, and arrangements have reportedly been made for the admission of only two members of Xu's family, and no other supporters, to the courtroom. I assume foreign media have been excluded.
As my January 14 essay in World Politics Review pointed out, the SPC's November 21, 2013, major instructions newly emphasized the importance of the courts conducting "open trials" that "make courtroom hearings the center of the trial" so that "evidence is investigated in the courtroom, conviction and sentencing debated in the courtroom and the court's judgment shaped in the courtroom." I noted that "The forthcoming trials of Xu Zhiyong and other recently-persecuted human rights advocates, now the topic of fierce intra-Party debate, will provide an early test of how the new emphasis on open trials will be applied in practice."
Press reports of the pre-trial conference indicate that the court will not require prosecution witnesses to testify in the court hearing and that it will not permit defense witnesses to testify in the hearing. Nor will it permit those defendants who are to be separately tried for their involvement in the incidents for which Xu and Wang are being tried to appear and take part in the hearing of the Xu/Wang case. Xu's lawyers made a long argument about why, since these were allegedly joint offenses, the law requires all accused to be tried together, which would have allowed the defendants in the other cases to testify about Xu's participation, but the court apparently rejected the argument.
Thus Xu and his lawyers are being denied the right to cross-examine prosecution witnesses that has long been authorized by Chinese legislation but seldom permitted to be exercised, and the court also denies him the opportunity to demonstrate through the live, in-person demeanor evidence of his own witnesses and the defendants in the other cases the correctness of his version of the disputed facts.
This is not a case where the facts are not in dispute and the only issues will be the application and interpretation of the relevant legal standards for conviction. In this case there is a serious conflict in the evidence that calls for resolution through the open court hearing that is supposedly to be held. Even Bo Xilai and his lawyer had the opportunity to cross examine some of the witnesses against him. Yet Xu will not have that legally-required opportunity. The court apparently will "investigate and verify" the evidence against Xu in open court by simply having it read into the record, leaving the defense with no meaningful chance to demonstrate its falsity or inaccuracy. One can't cross examine a piece of paper. If this indeed proves to be the case, it will demonstrate how hollow the SPC's new emphasis on testing the evidence in open court hearings is in practice. In other words, no change from the previous practice, so that the SPC's new strictures would clearly be seen, as Shakespeare put it, to "keep the promise to the ear but break it to the hope."
Non-PRC newspaper reports indicate that, to protest this denial of a fair trial, Xu will remain silent during the court hearing. At least one report suggests that his lawyer may also remain silent. The precise extent of this silent protest is unclear. Will Xu refuse to answer relevant court questions put to him? Will he invoke a privilege against self-incrimination? While the new Criminal Procedure Law forbids the court to force the accused to answer, will the court take the refusal as an implicit admission of guilt? Will the defense lawyer and Xu challenge the prosecution evidence as best they can or remain silent on that score as well? Will they silently introduce written defense evidence? Will the accused and/or his lawyer refuse to make a closing statement?
The stage appears to be set for another wrongful conviction.
Saturday, January 18, 2014
And indeed, it has been mostly politics - as opposed to, you know, law. Here's the link. Unsurprisingly, Mao does not come off too well. Here's a choice quotation from some instructions of his to Shanghai officials: “Shanghai is a large city of six million people; given that Shanghai has arrested more than 20,000 people and only killed over 200, I think that in 1951 you should kill at least 3,000 people who have committed major crimes such as bandit leaders, hardened bandits, standover merchants, spies and secret society bosses. And in the first half of the year at least 1,500 people should be killed.”
Monday, December 2, 2013
I recently posted on a controversy involving the use of language from Wikipedia in expert opinions, and want to follow up on one point that makes the case for disqualifying Prof. Feinerman (or any expert in a similar situation) even weaker. The Bloomberg news report said that what was involved was a "report summarizing his proposed testimony" (emphasis added). I now understand the significance of this. The document Prof. Feinerman submitted was not his testimony; it was a disclosure submitted to the defense that summarized what he was going to say on direct examination during the trial. If I understand matters correctly, that document would not even be read by the fact-finder; it is solely to put the defense on notice as to what the expert intends to say. As such, the source of the words in that document is completely unimportant, and it is missing the point to apply academic standards to such a document. I have already explained in my previous post why it misses the point to apply academic standards to expert testimony, and now it appears we are talking about a document that is itself once removed from expert testimony. It is in effect notes for an oral presentation of expert testimony.
Look at it this way: suppose I am an expert astronomer called upon to present oral testimony about the structure of the solar system. I tend to ramble, so I want to make sure I cover all the important facts, but concisely. I read the Wikipedia entry on the solar system and think, "Hey, this is pretty good. No mistakes, and it says what I want to say quite well." I print out the Wikipedia entry and send a copy to the other side so they'll have advance notice of the content of my testimony. I also take it with me to my oral testimony. I might or might not look at it as I testify to remind me what needs to be said. My oral testimony does not, of course, duplicate the Wikipedia entry word for word, but nobody who had read the Wikipedia entry would be taken by surprise by anything I said. Can there possibly be anything improper about any of this? What unfairness is perpetrated by my failing to note that the source of the words in the document I sent to the other side was Wikipedia? Those words weren't even my actual testimony. The more I think about it, the more it all seems just a silly tempest in a teapot.
As with my first post, I have not discussed this matter with Prof. Feinerman; my view here is based on my understanding of the facts, which may be incorrect.
Thursday, November 28, 2013
Why Chinese needs a good word for "irony", and why it's too soon to bid farewell to re-education through labor
I'm not one of those people who says that people whose language doesn't have a word for X can't conceive of X - after all, somebody conceived of the smartphone before there was a word for it - but it's really too bad Chinese doesn't have good word for "irony". Most ways of expressing the idea of irony in Chinese involve using the same term that's used to express the idea of satire (讽刺); they are serviceable in context, but hey, so is a sparkling wine when you really need champagne. Some situations just cry out for the perfect mot juste and not a clumsy workaround.
I was moved to this thought upon seeing (H/T: David Cowhig) this notice issued to a petitioner, apparently just a few days ago (full Chinese text and English translation appended at the end of this post):
The notice is issued by a department of the Changre [CORRECTION: should be "Changshu"] municipal government in response to a complaint by someone named Hu Cheng that he was detained for two days under the rubric of "legal study class". The notice informs him that it's because he insisted on going to Beijing to petition during the 18th Party Congress, and that his detention under this rubric was justified under a document issued by the Jiangsu Province Department of Public Security. The notice helpfully adds that the document is secret.
The idea that the authorities behind this notice and document it refers to can teach Mr. Hu about legality offers, to use a seasonal metaphor, a whole cornucopia of irony. First, it is not illegal for Chinese citizens to go to Beijing to petition. Second, it is a bedrock principle of Chinese law that the liberty of the person may not be restricted - it doesn't matter whether you call it punishment, study class, whatever - except as authorized by a law passed by the National People's Congress or its Standing Committee. (Law on Legislation, Art. 8(v); that's one reason why re-education through labor, with its flimsy statutory basis, has been under attack.) Third, even if the Jiangsu Department of Public Security had the authority to issue regulations providing for the compulsory restriction of personal liberty (which it doesn't), it is another bedrock principle of Chinese law that administrative punishments of this kind must be justified by publicly available documents. You can't say, "Hey, we can lock you up, but we can't show you the basis for out authority - just trust us!"
This has implications for the much-trumpeted imminent abolition of re-education through labor (RETL) that was announced in the Decision of the recent 3rd Plenum. The abolition of RETL, while advocated by many in the legal community for years, has been long delayed because it seems the public security folks are just too loathe to give it up. They like the informality and unaccountability it offers. When the Decision came out, many wondered: can this really be true? Will it not just re-appear in another form?
"Study class" may be that other form (although it is unlikely to last as long as RETL sentences, which can be up to three years plus an additional year in some circumstances). I was at a conference just a week or so ago at which one of the attendees recounted his conversation with a Supreme People's Court judge on this very subject, and the judge said that people freed from RETL might just go into legal study classes. One should never underestimate the ability of the public security bureaucracy to think of new names for holding people without statutory authority. The fault, though, does not really lie with the police. They're just doing what police do. The fault lies with the system that allows creative re-naming to become a successful strategy, and fails to enforce the simple rule that restriction of personal liberty requires a statute from the NPC or its Standing Committee.
* * * * *
Text of Notice and Translation
Changre City Office of the Joint Conference on Handling Mass Incidents and Prominent Problems in Petitioning
Comrade Hu Cheng:
With regard to the issue you have reported of a legal study class being implemented upon you from Nov. 1, 2012 to Nov. 3, 2012:
During the period of the Party’s 18th Congress, when the Jiangsu Higher-Level People’s Court rejected your application for a re-trial, you did not listen to persuasion but stubbornly insisted on going to Beijing to petition. According to the relevant provisions of the Jiangsu Province Department of Public Security Notice No. 120 (2008) entitled “Opinion on Several Issues Relating to Handling According to Law the Unlawful Behavior of Persons Who Go to Beijing to Petition” (Secret), legal education may be imposed by Party and government organizations of the petitioner’s domicile or place of usual residence. Legal education shall be carried out through the implementation of study classes and other means. Therefore, implementing a legal study class upon you is in accordance with the stipulations of the above document.