Chinese Law Prof Blog

Luxury prisons for well-connected officials

Apparently the wages of sin are not so bad - at least if you have connections. The latest scandal to roil the Chinese internet involves photos of luxurious prison facilities apparently reserved for high-ranking or otherwise well-connected officials.

Here are the photos.

Here are some new reports:

• People's Daily Online
• South China Morning Post (subscription required)

New CSRC rule on avoidance

I've recently started following (and recommend) the Wall Street Journal's China Real Time Report blog. The other day it reported on a new rule of avoidance promulgated by the China Securities Regulatory Commission. Officials who leave the CSRC cannot work for regulated parties for a period of three years (senior officials) or two years (others) (Chinese source here). A problem, however, is that apparently the rule is not enforceable by any third party. The only way it can be enforced seems to be via the CSRC's giving a hard time to violators and their employers if they ever need action on something from the CSRC (the rule itself speaks of "giving the cold shoulder to" (冷淡对待) such people). This could be effective in many cases and is a cheap enforcement mechanism. On the other hand, if the problem is that people who leave the CSRC for the private sector are valuable because they have friends and contacts remaining in the CSRC who will do them favors, how can we be confident that those friends and contacts will follow the "cold shoulder" rule?

Wentong Zheng on China's Antimonopoly Law

Wentong Zheng of SUNY Buffalo Law School is doing a series of posts on China's Antimonopoly Law over at the Antitrust and Competition Policy Blog. Here's what he's done so far:

• China’s Antimonopoly Law—One Year Down
• China’s Antimonopoly Law—One Year Down: Part 2. China’s new merger review regime
• China’s First Court Decision under the Antimonopoly Law: A Misreading of the Law?

A move toward formal equality for rural residents

Two years ago I blogged about the gerrymandered National People's Congress ("gerrymandered" is not really the right word, but what's done is done) in which, by formal legislative design, there are four times as many delegates from urban areas as from rural areas relative to population. (I am deliberately not using terms such as "representation", since that word assumes that the NPC is actually a representative body, an issue I don't want to get into here.) Although seeing this as a problem and fixing it won't make China a democracy, it seems to me to be a very important - and welcome - symbolic step toward reversing the anti-rural bias that has characterized PRC politics since the beginning. And that step seems to be in the cards.The latest draft of the Election Law to go to the National People's Congress Standing Committee for review apparently removes distinctions between urban and rural residents, at least as far as they affect the number of delegates that come from particular areas. And that would mean the end of the four-to-one rule. Here's the news report.

The trial of Chen Shui-bian

The US-Asia Law Institute at NYU Law School recently sponsored a very good discussion of this case; here's the link to the videos.

Hubei regulations on the privacy of minors

There has recently been a minor tempest over regulations passed by the Hubei Provincial People's Congress Standing Committee on July 31, 2009. The provincial regulations implement the national Law on the Protection of Minors.

One provision that excited a lot of comment was the rule supposedly forbidding parents from seeing the text messages of their children. (The headline of this report, for example, is "Hubei legislation forbidding parents from checking their children's text messages is criticized as not conforming to China's situation." And the English-language Global Times reports, "Parents barred from peeking at kids' emails." ) But a look at the actual text suggests that this is a misreading.

It takes a little chutzpah to say that everyone is wrong and I'm right, but I've been saying it for so long about so many things that there's no reason to stop now. The provision in question, article 34, says, "No organization or individual may reveal private information about minors. With respect to letters, diaries, e-mails, on-line chat records, cell phone text messages, and other personal communications, no organization or individual may conceal or destroy them. Without the permission of the person or his/her guardian, it is forbidden to open and/or inspect them. The preceding does not apply when the law provides otherwise." (任何组织和个人不得披露未成年人隐私。对未成年人的信件、日记、电子邮件、网上聊天记录、手机短信及其他个人信息，任何组织和个人不得隐匿、毁弃，未经本人或其监护人同意，不得擅自开拆、查阅。法律法规另有规定的除外。) If the guardian can give permission to any Tom, Dick, or Harry, it would be silly to say the guardian could not give permission to himself. And it would further make no sense to read "guardian" in a narrow sense so as to exclude parents. Thus, it seems sensible to conclude that the provision in question does not in fact bar parents from monitoring their children's private communications, and Hubei is not an outlier after all.

This conclusion is reinforced by the fact that an earlier draft of the bill explicitly forbade parents from checking children's text messages without the permission of the child. That provision didn't make it into the final draft, presumably because that effect was not intended.

The provincial regulations do enhance the privacy of minors by broadening the scope of protected communications; the national law speaks only of letters (信件). On the other hand, the national law (perhaps unintentionally) is actually more, not less, protective than the Hubei law with respect to what it covers: it seems to forbid even parents and guardians from opening the letters of minors who have the capacity to act. Here's the provision (Art. 31 of the national law), translated quickly and inelegantly: "No organization or individual may conceal or destroy the letters of minors. With the exception of police organs or the procuracy who undertake inspection according to provisions of law because of the needs of criminal investigation, or of parents or guardians who open [letters] on behalf of minors without the capacity to act, no organization or individual may open [letters of minors]." (对未成年人的信件，任何组织和个人不得隐匿、毁弃；除因追查犯罪的需要由公安机关或者人民检察院依照法律规定的程序进行检查，或者对无行为能力的未成年人的信件由其父母或者其他监护人代为开拆外，任何组织或者个人不得开拆。)

I read the Hubei regulations as actually diminishing the protection of the privacy of minors (in a formal sense only, of course - I don't believe parents now are actually considered to be violating the law if they open their children's mail) in making it legally possible for parents and guardians to give permission to themselves to monitor their letters and other communications. But of course it also makes sense to treat letters, e-mails, and text messages similarly, whatever you decide to do about them.

More news about Gao Zhisheng

At a CECC hearing yesterday in Washington, DC, John Kamm (Duihua Foundation) released the following information that he obtained from the Chinese Embassy in Washington:

"In late June, Gao Zhisheng was allowed to return to his home village in Shaanxi Province to pay his respects to his ancestors.

"He is not being mistreated and is not being subjected to coercive legal measures."

Let me add some editorial comment:

1. This is consistent with earlier news about a phone call Gao was reported to have made in July.

2. The claim that he is not being subjected to "coercive legal measures" is of course beyond laughable, and in contradiction to the notion that he was "allowed" to return to his home village. I know the old saying about a diplomat being someone who lies for his country, but I don't think they are supposed to tell you to your face that black is white and insist that it's pitch dark at high noon.

3. I suspect that the reason they are using this particular language is that it is the exercise of coercive measures (nothing about "legal" or "illegal") against the person that requires a legal basis (i.e., an appropriate document passed by the NPC or the NPC Standing Committee) and triggers various detainee rights and state duties. If there is no legal basis, then it's just kidnapping.

4. This represents some kind of progress, because at least the government is now admitting that is has information about Gao.

Brick mill worker gets 615,000 yuan in worker's compensation claim

Here's the remarkable story [Chinese | English] of Zhang Haichao (张海超), a young brick mill worker who contracted black lung disease and, after a long struggle, eventually got 615,000 yuan from his employer as worker's compensation.

The struggle involved the fact that under China's rules on worker's compensation, the diagnosis can't come from just anyone; it has to come from an approved diagnostic facility in the worker's place of residence. When Zhang started having symptoms (in 2007, three years after he started working), he went to at least four different hospitals seeking treatment; all recognized it as black lung disease, but apparently are not allowed to make official diagnoses where occupational diseases are concerned. All they could officially say on their diagnoses was, "Appears to be black lung disease."

The facility that did have the authority to issue a diagnosis of occupational disease, the Zhengzhou Occupational Disease Prevention Institute, apparently interprets its mandate to prevent occupational disease to mean that it should prevent anyone being diagnosed with an occupational disease. 眼不见，心不烦 ("What the eye does not see, the heart does not concern itself with"), I guess. It required Zhang to produce, among other things, a work history, a history of exposure to dangerous substances, an assessment report of dangerous elements, his occupational health records, and the record of results from employer-conducted examinations. (And of course, all these documents need to be produced by some official body; the claimant can't just create them himself.) With requirements like this, it would be remarkable if any worker ever managed to make a successful claim, and Zhang's chances weren't helped by the fact that his employer quite predictably refused to produce documents Zhang needed for his claim to succeed.

Zhang ultimately got his chest cut open so a doctor could directly observe and diagnose the black lung disease, but even that was of no avail. It was only when the media heard of and took up Zhang's case that the authorities pressured his employer to settle with him and a few others with similar complaints.

The story is interesting in itself, but the broader issue for the legal system is why it relies so much on these formal procedures for evidence. This doesn't occur just in worker's compensation cases, although here the rules of evidence go beyond mere formalism and seem almost deliberately designed to discourage claims. It occurs in other areas of law as well, where documents must be properly notarized even though there is not any real doubt as to their authenticity. Some of this obsession for formal authentication can perhaps be traced to civil law influences on China's legal system, but since China has in other parts of its legal system felt free to ignore what's done in continental Europe, I think the real answer to this still lies in Chinese legal culture. And it's a bit puzzling, since most of the time when state officials make decisions, they are not artificially constrained in the types of information they can take into account. Strict rules of evidence make more sense in jury systems, when there is a concern that lay people might misinterpret certain kinds of information. But China doesn't have juries (the system of "people's assessors" can't really be compared to the jury system), so what's the problem?

Finally, I have a hunch that because of the way China's tort law operates, it might have been cheaper for the employer to kill him instead of just making him very sick. Compensation when death occurs, unlike compensation when injury occurs, takes no account of lost earnings and is based on the average cost of living in the place of the decedent's residence. I may try to work out what the actual numbers in this case might have been, and if so will post later on that.

A small victory for the rule of law in China

A Bulgarian woman apparently caused quite a stir by going topless at a Qingdao beach; according to reports, "because no clear law exists prohibiting this sort of behavior, beach employees simply could not intervene."

Story here.

Supreme People's Procuratorate sends working groups to hear petitions at the provincial level

China's central government has recently been making efforts, involving both carrots and sticks, to prevent petitioners from showing up in Beijing. This policy thrust showed up in a recent directive from the Party's Central Commission on Politics and Law (中央政法委员会) (abbreviated "ZhengFaWei" below).

Here's an interesting communication I received on this from a correspondent who wishes to remain anonymous. The last paragraph has been slightly edited:

The Supreme People's Procuratorate has acted upon ZhengFaWei's recent directive to send working groups to select provinces to hear Shang Fang grievances locally.  The first five provinces named are Hebei, Shanxi, Inner Mongolia, Liaoning and Henan.

The pronounced policy is that the groups will only hear claims that warrant proper SPP jurisdiction in the first place, which encompasses two categories: claims of (usually completed) unfair trials (shensu claims) that have gone through provincial-level xinfang offices and tips and allegations regarding high-level corruption.  The policy means two things.  Those already in Beijing with proper claims will not be entertained at the SPP and will be directed back to the provinces; those who may come before the working groups without proper claims will be ignored and redirected to the provincial-level offices.

It remains to be seen how long the mission will last and if the coverage will be expanded in future.

With the help of a map, it is not difficult to realize that the first four provinces directly abut or surround Beijing and [seem to have been chosen to] create a buffer zone.  Talk about priorities.  Henan, being the lone exception, must have had an exceptional record in this department.

http://news.163.com/09/0908/08/5IM6V9FB0001124J.html

China's first foreign "nail household"

Here's an interesting post from the China Law Blog on the fate of Tim's Texas Roadhouse in Beijing. As the writer (Dan Harris) shows, these things are often not as straightforward as they're made out to be. Worth reading.

Update on Gao Zhisheng

Gao Zhisheng was "disappeared" by the security forces in February, and it's been speculated he may in fact be dead, given his savage treatment before and the fact that the authorities still refuse to acknowledge they have him (to say nothing of providing a legal justification for the manner and length of his detention). But apparently he called family in July. Here's an update from the blogger Siweiluozi.

Shijiazhuang Administration of Industry and Commerce sued for failing to allow access to corporate records

Here's an interesting story from Caijing. Plaintiff wanted access to corporate records held by the local AIC (whose job it is to hold such records) in order to help resolve a dispute over stock ownership. The AIC refused to give access, claiming that it had lost the records in a move, and that in any case the type of records it held could not prove her case. Corporate records are supposed to be public, but I'm told (I've never tried) that in fact you can't just walk in and get access; you need to satisfy the AIC that you have some legitimate need. The plaintiff here is claiming a violation of both the Company Law and the Regulations on Open Government Information. No judgment yet.

A real-time account of a wife's effort to get her husband out of administrative detention

It's going on right now and she's blogging about it. It's best to start with the first entry here. The wife is a US citizen; the husband is a Chinese citizen. (I mention this only because she reveals this in one of the blog entries.)

The end of an era

The Procuratorial Daily (检察日报) reports on the imminent removal from the corpus of Chinese law (it appears in a few places) of the crime of "speculation" (投机倒把). This crime is a typical feature of planned economies, but because it often means nothing more than buying low and selling high (and it is typically not strictly defined), is obviously unsuited for the current Chinese economy. The resolution now before the NPC Standing Committee amending various laws reflects that fact.

My sense is that there have been very few prosecutions for speculation in the last several years, and what there has been has not been for acts such as buying low in place X and selling high in place Y. Instead, they have been for acts that were administratively prohibited but not explicitly criminalized. For example, many years ago the Chen brothers started an IP telephony service in Fujian that irritated the Ministry of Posts and Telecommunications; they were raided and convicted (possibly later reversed - I don't recall) on speculation charges. (Memo to pack rats: keep the faith! I stored materials on this case for years and finally seem to have thrown them out last spring, thinking I would never use them, in a general office clean-up.) More details here.

Thus, what we're seeing here is more a legislative tidying-up than a major shift in policy.

Xu Zhiyong, Zhuang Lu, and Ilham Tohti released from detention

Here's the New York Times story. The NYT speculates that it may have to do with the arrival of the new US ambassador the day before. Unless you believe that the wheels of justice, grinding apolitically in each case, just happened to reach the point where all three could be released on exactly the same day, this is yet more evidence (if more were needed) that these are entirely political cases.

Documents in the Tan Zuoren case

Tan Zuoren is an activist in Sichuan who was recently tried in Chengdu for incitement of subversion of state power. Here are some relevant documents:

• New York Times report at the start of the trial

• Indictment [China Digital Times - English only] [Chinese text]

• Defense plea [China Digital Times - English only] [alternate source - English and Chinese]

Still more on the Xu Zhiyong case

Xu Zhiyong has now been formally arrested on a charge of tax evasion. Here's a copy of the arrest warrant. (Note that he was already in detention at the time of his arrest.)

In addition, Gongmeng's business registration has been revoked; here's a copy of the decision.
[Aug. 23, 2009: Previous erroneous text deleted, following text added.] The decision cites Art. 69 of the Regulations on the Administration of Company Registration, which states: "提交虚假材料或者采取其他欺诈手段隐瞒重要事实，取得公司登记的，由公司登记机关责令改正，处以5万元以上50万元以下的罚款；情节严重的，撤销公司登记或者吊销营业执照。" (Where a company registration is acquired by false submissions or other fraudulent means, a company registration organ shall order correction, and impose a fine of not less than 50,000 yuan but not more than 500,000 yuan; if the case is serious, shall revoke the company registration or revoke the business license.)

"If you want to file a petition, don't come to Beijing, please"

That's the heading of Flora Sapio's latest blog post, reporting on a new document issued by the Central Political-Legal Committee of the Communist Party.

He Weifang versus China's legal establishment on the "Three Supremes"

An interesting debate is going on over the doctrine of the "Three Supremes". This is the doctrine, credited to Hu Jintao and propagated by the new Supreme Court President Wang Shengjun, that political-legal work should uphold the supremacy of the Party's work, the supremacy of the people's interests, and the supremacy of the constitution and the law.

On June 25 of this year, the Supreme People's Court convened a conference on the Three Supremes attended by a number of prominent legal academics (i.e., most at at the level of dean and vice dean). I have to confess that when I sat down to read a report of their remarks, I was not expecting a lot. Clearly it was not part of the conference's agenda to call into question the whole appropriateness of the slogan. But I was pleasantly surprised. Of course, there was a certain amount of repetitious platitudinousness - six of the eleven contributors referred to the Three Supremes using the terms "organic whole" or "organic unity". But I thought that between the lines one could read a certain amount of pushback. Several of the contributors stated clearly that when it came to actual adjudication work by judges, there was only one supreme, and that was the constitution and the law. The place for the Party and the people's interests, in this view, was in the formulation of the law, and to allow consideration of these in the course of actual adjudication could easily lead to arbitrariness and corruption. Those making this and similar points included Jia Yu (President of Northwest University of Politics and Law), Wang Zhenmin (Dean of Tsinghua University's Faculty of Law), Han Dayuan (Dean of People's University Faculty of Law), Ma Huaide (Vice Dean of China University of Politics and Law), and Zhu Jiping (professor at Northwest Univ. of Politics and Law).

Needless to say, it is not exactly new to say that lawmaking activity should take into consideration what the Party wants as well as the interests of the people, so to relegate those Two Supremes to that realm is really to deny that the doctrine of the Three Supremes requires anyone to do anything they weren't already doing before.

He Weifang has a comment on the whole thing here. He doesn't necessarily criticize the attendees for what they said - indeed, he notes astutely that some of the attendees (he singles out Han Dayuan and Jia Yu) essentially reduced the Three Supremes to nothing by transforming them into a One Supreme (the constitution and the law), and suggests sarcastically that perhaps they were invited by mistake. There is some suggestion that perhaps they should have pointed out the inherent contradictions in having three supremes, and he notes their failure to address the reality that conflicts among those three supreme goals could exist. But his real complaint seems to be that they showed up at all for this kind of ceremonial rite, and suggests that they have sullied the reputation of scholars - including their own reputation - by doing so. Noting that all but one are all colleagues and friends whom he knows personally and respects, he ends by sighing for them.

SUPPLEMENTAL POST: Eva Pils of the Chinese University of Hong Kong points out that I have perhaps understated He's criticism of the doctrine itself. My purpose was to discuss what he said about his colleagues more than what he said about the doctrine, so I didn't address that part. I'll just add her remarks, with which I agree:

• He compares it to the doctrine of the Holy Trinity in Christian religion, and says that in the case of the Holy Trinity, there was no way of producing a rational argument or proof, hence the doctrine was declared to be based in some sort of mysterious (or divine) communication. (虽然人们从《新约全书》里可以发现“三位一体”学说的权威依据，但是这毕竟是一种难以作出验证的事项，所以教会宣称这属于“奥秘”的“启示”，无法用理性作出论证，只能因为信仰而接受)
• He provides the example of someone accused of ‘counterrevolutionary’ activity at the time and rehabilitated later, pointing out how difficult it would be to adjudicate that sort of case fairly, using the new doctrine.( “文革”不就是一个殷鉴未远的例子么？当年张志新对于“文革”提出非议，结果被以“反革命罪”起诉。面对这样的起诉，法院如何判决才是符合“党的事业”或“人民利益”？那时的法院当然判处无期徒刑，后来又改判死刑立即执行。只是“文革”后不得不平反，因为只有平反才符合“党的事业”和“人民利益”的要求.) 
• In the last paragraph, he laments not only the loss of scholarly reputation but also the damage the new doctrine has done in judicial practice. (“三个至上”就是一句不适当的口号，将其作为司法机关的指导思想必然——实际上已经——带来法律实施中的巨大混乱。在学界不断批评，司法界怨声载道的今天，最高人民法院不仅不迷途知返，幡然改过，反而变本加厉…)