Chinese Law Prof Blog

Protesting Sichuan parents detained

Here's a report from Radio Free Asia on police detentions of parents protesting shoddy school construction. Although some predicted a new era of openness and citizen activism following the tremendous social response to the Sichuan earthquake, the government seems to have reverted quickly to form, with local authorities suppressing inquiries into the cause of widespread school collapses and the central government standing by, complicit certainly in effect and probably in intent.

The parents of children killed in school collapses are going to be very difficult to deal with. Many feel that having lost their only children, they have nothing else left to lose. I think it's very likely that some number of them - how many, it's impossible to know, but certainly more than a negligible number - will become diehard petitioners: the type who simply won't give up no matter what the government tries by way of threats and cajolery, even though there is no possibility that the government will yield. The authorities have already brought out the "emotionally unstable" label; is this a sign that obstreperous parents may ultimately disappear into what purports to be a psychiatric facility?

Violent demolition of homes in Yingbei Village, Shandong

Here's a video recently posted to Youtube showing the beating by thugs of villagers resisting demolition of their homes. The Chinese titles are below (thanks to a colleague who wishes to remain anonymous for the translation). This kind of thing doesn't just happen out in the sticks; the July 4th edition of the New Beijing News (新京报) reports here that a villager in Miyun County, which belongs to Beijing, was beaten to death for resisting demolition.

Here are the titles to the Youtube video:

1) With the formal promulgation of the Property Rights Law on October 1, 2007, the useage rights of residents to their homes became sacred and inviolable.

2) However, in Yingbei Village, Weikuiwen District, Shandong Province, many people, as they were beaten and cursed, lost their homes.

3) In order to renovate the old village, the village chief Gao Zhigang, without having achieved a consensus of a majority of the people in the village, led his son, gang members and others, to force demolitions of homes.

4) May 28, 2008

5) They beat up some poor old people.

6) (at time 1:25) forced them out of their own homes

7) (at time 1:54) they beat up young people who dared to defend their homes. [DC: I think this should be in the singular.]

8) (at time 2:34) beating them over and over again.

9) (at time 3:53) the young people were beaten unconscious

10) (at 4:04) Not that nobody cared, but nobody dared to care

11) (at time 4:44) Send to the hospital for emergency treatment

12) (at 5:32)  The local government blocked any information of this incident. The peasants had no where to turn.  In today's society, peasants still suffer from this kind of oppression!

13) (at 5:44)   I hope that everyone will notice this incident, and notice how the power and violence are abused in our harmonious society! -- tw

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

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

RMB problems and the foreign investment approval process

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

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

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

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

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

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

New Chinese visa policies explained, sort of

Chinese visa policies are something of a moving target these days - and the target itself is in part well lit, in part camouflaged, and in part completely invisible. Here's a web site with some updated information, gathered from here and there, on current Chinese policies. The information here is unofficial, subject to change, and possibly inaccurate, but it's more comprehensive than anything the Chinese government has chosen to make available so far.

Chinese chafe under tightened rules about (it seems) everything

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

First Beijing case on access to government information

The New Beijing News (新京报) yesterday carried a report on what purports to be the first case heard by Beijing courts on access to government information under the Regulations on Open Government Information (政府信息公开条例), which came into effect on May 1.

The facts of the case are quite interesting and involve all kinds of historical complications. The plaintiff's father owned quite a bit of housing stock in various parts of Beijing prior to 1949. In 1951, the (Beijing?) Real Estate Administration Bureau (房屋管理局) confirmed his ownership. (Urban land was not officially uniformly nationalized until the 1982 constitution declared all urban land to be state-owned.) Later, for "historical reasons" (usually a code word for things that happened during the Cultural Revolution), the housing "underwent changes" such that the plaintiff's family could no longer occupy and use the housing. In May, the plaintiff apparently decided to try to trace what had happened with a view to asserting her rights over the property. She went to the Dongcheng District Real Estate Administration Bureau to present an official request under the Regulations to see ownership records for the properties. A week later, the Bureau officially refused her request.

The Bureau's Notice of Refusal did not specify a particular reason for refusing, stating instead that the reason was "other circumstances under laws, regulations, or relevant rules in which information is not made public" (this language appears in quotation marks in the news report, but the Notice of Refusal does not appear to be quoting any passage from the Regulations). Needless to say, this wasn't very helpful to the plaintiff. Upon further inquiry, she was told that the housing in question had become "managed rental property" (经租房). This refers to housing stock that around 1958 was essentially taken over by the municipal government and rented out by it to tenants, possibly with some symbolic payment to owners and without any formal expropriation proceedings. (This was 1958, remember; it was consistent with the spirit of the times to say that landlords could own real property but that all rentals should be under unified state control, just as peasants could own their crops but all sales had to be under a uniform state purchasing system.) According to Document No. 2007107 issued by the Beijing Construction Commission (date unspecified), the housing's ownership had changed; the ownership of managed rental property vested in the state, and so individuals had no right to see information about it.

The plaintiff naturally disagreed, and so filed suit under the Regulations. She has also asked the Beijing Construction Commission for a copy of Document No.  2007107, but has not yet received a response.

Interesting case on non-competition clauses in employment contracts

In the course of doing some research on fiduciary duties, I just ran across an interesting 2005 case from the Haidian Basic-Level Court in Beijing. In this case, a director, shareholder (albeit small), and senior executive of a company affiliated with the Chinese Academy of Sciences violated a contractual agreement not to compete for two years following separation from the company. The plaintiff sued both the executive (in contract and tort) and the competitor that hired him (in tort, for unfair competition).

The judgment contains two interesting employer-favorable rulings. First, it allows an escape from the normal rule that employment disputes must first go through labor arbitration proceedings (PRC Labor Law, Chapter 10) - proceedings that are often (or so I'm told) tilted in favor of the employee. The court held that there was no legal objection to the plaintiff's choosing to sue both the executive and the competitor jointly in tort for unfair competition arising out of the breach of the contract, and that such a choice turned the dispute into an ordinary civil case ("本案中原告以竞业禁止为由起诉被告陈晋苏和索贝公司不正当竞争，明确主张陈晋苏违反竞业禁止约定成为侵犯原告权利的手段，索贝公司 由于共同侵权而成为不正当竞争者，原告选择的不正当竞争之诉于法不悖，该争议已转化为普通的民商事纠纷").

Second, the judgment allowed an exception to the normal rule that non-compete agreements must be supported by specific, separate, and identifiable consideration. In this case, the plaintiff argued that the consideration was part of the defendant executive's overall compensation package, and the court agreed.

I'm not a labor law expert, but it's my impression that Chinese courts and labor arbitration bodies have been pretty rigid in their rejection of this kind of argument, even though I think it's a sensible one: employees sign on to a package of rights and obligations, and employers sign on to a package of rights and obligations. It makes no more sense to insist on separating out the value of the non-competition agreement than it does to separate out the value of the agreement to do any other part of the job. The court may have accepted the plaintiff's argument in this case for very idiosyncratic reasons unlikely to be repeated in other cases. First, the plaintiff was a company affiliated with the Chinese Academy of Sciences, a quasi-state organ. The non-compete obligation was spelled out not only in an employment contract, but also in internal rules of the CAS and in the company's Articles of Association, which (it was argued but not clearly decided here) can bind shareholders, directors, and senior executives. Second, the defendant was a highly compensated senior executive, shareholder, and director, in addition to being a co-founder of the company, and so his argument that the non-competition obligation was something forced on him against his will and that he did not understand was not terribly convincing. Thus, that the plaintiff was almost a state organ and that the defendant was a highly compensated and sophisticated person seem to have been important facts.

It's also worth noting that this decision pre-dates the explicit requirement of consideration contained in the recent Labor Contract Law - consideration that must be paid during the post-employment period during which the restriction is in effect. To be sure, there was a requirement of consideration in effect at the time - it was spelled out in a 1996 Ministry of Labor document  (see para. 2), and has generally been interpreted to mean explicit, separate, identifiable consideration. Thus, the decision might be helpful in thinking about how courts might interpret similar rules. But the rule now strikes me as much harder to get around.

Three PRC lawyers comment on amended Lawyers Law

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

Dirty dealings in Shanghai real estate

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

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

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

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

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

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

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

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

CECC translation of indictment of Hu Jia

The Congressional-Executive Commission on China has published a translation of the indictment of Hu Jia; it's available here.

Enforcing environmental law in China

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

Local governments issue regulations implementing three-day mourning period for earthquake victims

It seems that public entertainment, including entertainment web sites, are to be shut down, but the scope is very unclear and no doubt varies from place to place. Obviously, a mourning period is appropriate and understandable, but it seems that a wide range of perfectly legal businesses are being ordered to shut down for three days simply because the local government says so. For the text and translation of Hefei regulations (and some commentary), see here.

Libel cases in China

Here's a note on libel cases in China from the China's Scientific & Academic Integrity Watch blog. In a recent case, a manufacturer sued CCTV for a report it had made criticizing its products. Although apparently part of the CCTV report was factually false, it won on the grounds that manufacturers should put up with sharp criticism from the media. This is similar to the principle enunciated in a 2003 case from Guangzhou: that journalists should be immune from suit if their is backed by a source that is reasonable and credible and not based simply on rumors. (Text of judgment and commentary by Pu Zhiqiang here.) Can citizen critics benefit from these court decisions in favor of media defendants with government connections? China does not of course have a system of precedent (even if it did, these lower-court decisions wouldn't bind other courts), but judges do look at what other judges are doing.

Shaanxi court tries new cases in the old style

Well, not really. It was actually fictitious cases based on literary characters tried in the old style for the purpose of spreading legal knowledge. Drawing on the story of Pan Jinlian (潘金莲) from the classical novel "The Water Margin" (水浒传), the court tried the divorce case of Pan Jinhua. The petitioner Pan was (again) a beautiful young woman, this time married to plain but good-hearted villager Wu Dafa (Wu Dalang in the novel). In order to make more money, Pan took to the road (probably to Dongguan) to seek work. There she met the wealthy and licentious Ximen Da (Ximen Qing in the novel), who we are told was from Guangdong. Together they cooked up a scheme whereby Pan would claim Wu had beaten her and get a divorce, and thereafter they could live together. (Pretty harmless compared with the story in "The Water Margin", in which Pan had to kill her husband to be rid of him, and not even necessary at least according to the formal law of the PRC, in which fault on the other side's part is nice to have but not a necessary condition for divorce.) But the court saw that Wu was an honest-looking fellow and didn't look like a wife-beater at all. Further investigation revealed the hand of Ximen Da. The court then explained to Pan what kind of person Ximen really was, at which point Pan's heart was moved so that she rejected Ximen and got back together with the faithful Wu.

One of the court's personnel explained that there were many cases like this in some respect - people leave the village and get exposed to life in the big city, and their values change (presumably for the worse).

Here's the news report.

The emergence of real trade unionism in Wal-Mart stores

Here's a fascinating report from China Labor News Translations on what's been going on with labor unions in some Wal-Mart stores in China. I'll quote the first paragraph to whet your interest:

The trade unions in Chinese Wal-Mart stores are often dismissed as hollow shells set up by the All China Federation of Trade Unions (ACFTU) without workers’ involvement. But through monitoring Chinese media and online blog discussions among Chinese Wal-Mart employees, CLNT has found workers who take an active interest in their store union, and at least in one case, of an elected rank and file trade union chair using the trade union platform to actively defend workers’ interests. While most – if not all – of the trade union branches are heavily dominated by Wal-Mart management or local governments, some workers have seized this union-building exercise and try to turn the unions into a body that they identify as their own to protect and to use in their struggle against Wal-Mart management.

Enforcement problems with State Compensation Law awards

Here's an interesting article about problems faced by victorious plaintiffs in collecting awards under the State Compensation Law. The courts have no compulsory enforcement powers against state organs, and so if the state organ in question simply refuses to pay, there's not much anyone can do about it.

CNN sued for Cafferty's "thugs and goons" comment

CNN has now been sued in China over Jack Cafferty's now-famous "thugs and goons" comments. Lawsuits have been brought in both Beijing and Luoyang. According to news reports, the Beijing court has not yet "accepted" the case (this might refer to formal docketing (li'an 立案)); the Zhengzhou court has "accepted" (接受) the complaint (in this case, presumably meaning it has agreed to read it and think more about it), but has not yet decided whether to docket it.

Here's my quick-and-dirty analysis (I'm busy preparing for a class):

Chinese law does allow damages for what under US law would be considered merely insulting expressions of opinion (and therefore non-actionable) - I'm thinking of the case in which a journalism professor sued a web site for posting a student's derogatory opinions about him and his teaching materials. (Discussed here.) Thus, under existing Chinese law, I think the Dalai Lama, Nancy Pelosi, Chris Patten, and Chen Shuibian might have a good case against Xinhua and various Chinese government officials (although of course the prospects of their being allowed to sue and win are, to say the least, remote). The problem here, though, is different: can individuals who feel offended by a general derogatory reference about their group do anything about it? (Let's assume for the sake of argument that Cafferty was including all Chinese, and not just the government.) To allow this kind of suit is opening a real can of worms. The relevant precedent in this case might be the Zhengzhou lawyers who sued the Shenzhen Public Security Bureau because they were offended at the PSB's insulting banner about Henan criminal gangs. (Discussed here.) That case ended in a mediated settlement, though, so we don't have a court ruling. Still, I guess it's significant that the court accepted the case in the first place, and didn't throw it out immediately as not stating a claim. At the same time, though, the court in question was a Zhengzhou court, and in any case may not have analyzed the complaint in terms of whether or not it stated a claim for which relief could be granted.

SUPPLEMENTAL POST: Prof. Eugene Volokh, a First Amendment expert at UCLA School of Law, has very kindly responded to my invitation to comment on US law aspects as follows:

Indeed, under U.S. law the "thugs and goons" comment would be clearly constitutionally protected opinion.  Even under Beauharnais v. Illinois (1952), which upheld some sorts of group libel laws, such a statement about a foreign country would likely be protected.  But Beauharnais is widely (and correctly, I think) viewed as having been implicitly overturned by New York Times v. Sullivan (1964) and later libel cases.

Leading scholars comment on the death penalty in China

In this article in the Legal Daily (法制日报), three expert commentators (Hu Yunteng of the SPC research department, Chen Weidong of the Renda Law School, and Liu Renwen of CASS Law Institute) look back on the first year of the Supreme People's Court's exercise of its exclusive review power over death penalty cases.

HT: Joshua Rosenzweig

Hu Jia's lawyer says government illegally blocks appeal

Hu Jia's lawyer Li Fangping states that following his conviction, Hu Jia was held incommunicado and barred from consulting with his legal team to discuss an appeal. The period for lodging an appeal has now expired. Here's the AFP report.

Here's my previous post on this subject.

Aha - I knew it...

On March 31st, the Beijing municipal government promulgated a set of rules, effective May 1st, that banned smoking in many public places, including restaurants. My thought at the time was that if they could really make this ban stick, we would have to rethink many of our ideas about Chinese state capacity. It looks like we can postpone the rethinking: the China Daily reports that "Beijing restaurants, bars and Internet cafes have been exempted from a proposed smoking ban at public venues in response to concerns expressed by business owners." Here's the Associated Press report.

What's the value of a day of freedom?

The State Compensation Law provides (Art. 26) that "If a citizen's freedom of the person is infringed, compensatory payment for each day shall be assessed in accordance with the state average daily pay of staff and workers in the previous year." For better or for worse, this establishes a uniform national standard of compensation for lost freedom, no matter where you are or what your earning power is. (Better, because surely a poor person's freedom in subjective terms cannot be said to be systematically less valuable to him or her than a rich person's; worse, because in terms of actual lost earnings of which the wrongfully imprisoned person and his or her dependents are deprived, the poor person's freedom really is less valuable.) The Supreme People's Procuracy has just told us what the number is for 2007 (and hence will be used in 2008): 99.31 yuan (US$14.17) per day.

Incidentally, this way of measuring damages - that is, with reference to average values instead of being precisely tailored to the person in question - is not limited to state compensation; it's found in wrongful death damages as well.

Dui Hua Foundation on Hu Jia's conviction

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

Report (with pictures) on Hu Jia's sentencing

Here's a report from Boxun of Hu Jia's sentencing.

Teng Biao and other lawyers offer assistance to Tibetan detainees

Fresh from his kidnapping by the police, Teng Biao has now joined an effort to offer legal assistance to Tibetans detained in the recent unrest. Here is the open letter in which he and several other signatories offer assistance. Teng is a brave man; the rabid nationalists - and there sure seem to be a lot of them - may be less polite to him than the police were.

PBOC official says housing prices out of line

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

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

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

My very last post on Tang Wei

There is now a petition circulating in China addressed to Hu Jintao and Wen Jiabao asking that the government withdraw the ban. Here's an English translation; here's the Chinese original. Interestingly, some of the language tracks that of the report in the Procuratorial Daily that I translated here a few days ago.

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

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

WTO panel issues final ruling against China in auto parts case

Last month I posted about the WTO's interim ruling; the final ruling has now been issued (but won't be public until July). Those who have access to the BNA's WTO Reporter can see a full report here. Here are the first few paragraphs, the quoting of which will not, I hope, exceed the bounds of fair use:

A World Trade Organization dispute panel has issued a final ruling upholding complaints filed by the United States, the European Union and Canada against China's discriminatory tariff treatment of imported automobile parts.

The final ruling circulated to the four parties March 20 maintains the findings in the panel's interim report issued Feb. 13, according to officials familiar with the ruling (30 WTO, 02/14/08).

The panel rejected China's arguments in defense of regulations that the United States, the EU, and Canada said resulted in illegal duties being imposed on imported auto parts.

Officials said China contested only one part of the panel's findings during the review of the interim report, namely that Beijing's decision to subject imports of completely knocked-down (CKD) and semi knocked-down (SKD) auto kits to the same 25 percent tariff as complete motor vehicles violated China's WTO accession commitments. The panel rejected China's claims in the final ruling, the officials said.

The final ruling is due to be issued to all WTO members and made public sometime in July.

And we need this... why?

Here's a remarkable article about one CPPCC's delegate's call for the State Council to enact regulations on physical fitness (全民健身条例). Despite going on at length about the urgent need for such regulations, the article manages to avoid entirely telling us exactly (or even inexactly) why they are needed. It seems that every sphere of human activity in principle has to have a governing statute.

More on the banning of Tang Wei

Having chivalrously taken up the cudgel on behalf of Tang Wei, I now present some follow-up. A report in the Procuratorial Daily discusses some of the legal issues involved in the banning order. Here's a summary (i.e., a hasty, selective, and inexact quasi-translation, with the really inexact parts in square brackets):

Just before March 7, the media reported that Tang Wei, the star of "Lust, Caution," had been "banned," and that cosmetics advertisements in which she appeared as a spokesperson were no longer being broadcast.

On March 9, Zhang Haitao, the vice director of the State Administration of Radio, Film, and Television, in response to reporters' questions, said, "This policy is directed at subject matter, not people." But he did not reply as to the reason for the banning. Zhang's words were interpreted by the media as a first direct official confirmation of Tang Wei's having been "banned." The company on whose behalf Tang had appeared in advertisements [i.e., Pond's] also confirmed that many television stations had stopped broadcasting Pond's advertisements with Tang Wei, but that the reason was by no means clear.

On March 13, at a press conference in connection with the Two Meetings [i.e., the National People's Congress and the Chinese People's Political Consultative Congress], the Vice Minister of Culture, Zhou Heping, upon being asked about the banning order, said, "As long as they are in accordance with China's rules, in accordance with China's relevant rules about the administration of advertising, then I think these things should be permitted."

On March 18, a relevant person at SARFT, during a media interview, said that SARFT had not "completely banned" Tang Wei, but was simply not encouraging the continued expansion of her influence. Tang Wei was a good actress, but many young people thought that they could be like her and strip their way to fame; this could easily have a negative effect on the maturation of young people.

The news of Tang Wei's being banned drew a lot of attention. On March 19, a large number of legal scholars participated in a meeting held in Beijing on the legal aspects of the phenomenon of banning. Some experts believed that the racy scenes in "Lust, Caution" had a bad influence on society, particularly on young people, and should have been banned; that the actions of SARFT were welcomed by the people; but that this banning order had a number of legal problems.

"'Lust, Caution' was shown on the mainland in a cut version that was approved by SARFT, and didn't contain any over-the-top sex scenes. If it had any problems, it is SARFT's behind that should get paddled first, because it was SARFT that approved it. How can Tang Wei be asked to take responsibility?" "Fundamentally, this is not a problem of just Tang Wei alone; the whole movie crew is responsible." Scholar Hao Jian from the Beijing Film Institute believes that when "Lust, Caution" was shown and under discussion, there was no overt administrative interference from the government, but then SARFT issued its banning order against Tang Wei appearing in advertisements in film or on television. The issuance and implementation of the banning order will have a great effect on Tang Wei and on artistic creation on the Chinese mainland.

[The article then has a few more quotes from Hao Jian saying it's absurd to ask Tang Wei to shoulder all the responsibility for this; how is she supposed to know what the government considers artistically and historically appropriate? If anyone, it's the censors who should be punished.]

[Other scholars are then quoted saying that the banning order should be in the form of an official document that sets for the nature of and reasons for the banning; that the government has to justify its actions to Tang Wei and to the public. One says it's not about whether the movie is good or bad, or what kind of a person Tang Wei is, but rather about the need for limits on government power. Another one looks at SARFT's listed powers and responsibilities and finds no legal basis for the issuing of a banning order.]

Report on Hu Jia trial

Here's a report on the Hu Jia trial.

"Lust, Caution" star Tang Wei banned in China

The China Digital Times reports that in a telephone memo, the State Administration of Radio, Film and Television has banned media in China under its authority from having anything to do with Tang Wei, the actress who starred in "Lust, Caution." The memo reportedly says, among other things, ""All television programs, including news, features, entertainment, advertising and live broadcasts, must not cover Tang Wei or stir up issues related to her from now on." The memo, reportedly issued on March 6th, seems to coincide with the issuance by SARFT on March 3rd of a notice restating its policy on censorship.

The banning was reported on March 8th by the Hollywood Reporter, and although SARFT clearly doesn't want to talk about it - what doesn't exist can't be effectively challenged, after all - a SARFT official acknowledged the action in remarks at the meeting the Chinese People's Political Consultative Congress currently taking place in Beijing.

This action raises all kinds of interesting questions, the primary one of which of course is whether she would have standing to sue SARFT under the Administrative Litigation Law (or indeed, any other law) to make it justify the legality of its action - assuming unrealistically that any court would take the case. After all, the order isn't directed at her; plenty of reason for a nervous court to decline to take the case.
 

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

The link is here.

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

Teng Biao released

Those following the Teng Biao case will be pleased (well, most of them will be pleased) to know he has been released.

There has been some discussion on the Chinalaw listserve about the legality of his detention. Without rehashing the discussion - the archives are available to anyone who joins the list, and joining is free - I thought it might be useful to highlight the two issues that emerged.

First, of course, is the main issue of whether his detention and the manner in which it was effected are lawful under Chinese law. Under Chinese law, restrictions on personal freedom may be justified only pursuant to legislation passed by the National People's Congress or its Standing Committee. Thus, it is acknowledged by just about everyone that the "shuanggui" (double designation) system of detention by Party disciplinary organs is illegal, even though it continues to operate unembarrassed by this problem.

In Teng's case, the relevant statute would seem to be the Criminal Procedure Law. But was he detained as part of a bona fide criminal investigation? And does the CPL justify detentions that are not part of a bona fide criminal investigation? I don't ask these questions rhetorically, but I think the answer to both is no.

The second issue is whether observers should spend energy trying to figure out if a lawful basis for the detention might have existed, and what conclusions, if any, should be drawn from the failure of the Chinese government to provide information or a justification. As one contributor pointed out, while it's legitimate for the detainee to argue that the detention is illegal unless the state shows legal grounds, the position of the outside observer is different. The detainee is trying to obtain his freedom, while the observer is (or should be) trying to understand the Chinese legal system; the notion that the government should pay a cost for its silence is good advocacy but poor scholarship.

In any case, an interesting discussion.

Supreme People's Court official states that 15% of death sentences were rejected upon review

According to a Chinese press report (reported by Reuters here), Huang Ermei (黄尔梅), the president of the Supreme People's Court's criminal chamber, stated that in 2007 - the first year the Supreme People's Court reviewed all death sentences - it rejected 15% of the cases it reviewed. The number of death sentences still remains a secret, it appears, but more and more numbers are coming out. For example, Judge Huang said that in 2007 the number of suspended death sentences (with a two-year reprieve) was for the first time greater than the number of ordinary death sentences.

Rights lawyer Teng Biao kidnapped; rights lawyer Li Heping rammed

Since the normal procedures for arrest do not seem to have been followed, "kidnapping" seems about the best term to describe the seizure of attorney Teng Biao (滕彪) by unknown persons in a black car without license plates. Needless to say, the probability that these are agents of the state is very high. Here's the news story from The Guardian; a statement by the Hong Kong organization China Human Rights Lawyers Concern Group is here.

The statement also mentions a contemporaneous incident in which the car of attorney Li Heping (李和平), who was recently kidnapped and severely beaten by unknown assailants (again, very probably state agents), was rammed by a police vehicle as he was taking his young son to school.

Here's a press release from Human Rights in China with many useful links.

US and EU initiate WTO complaint against China for financial information restrictions

I noted this dispute in an earlier post last January. Here's the latest story on the official request for consultations filed on March 3rd.

More Chinese dissidents sue Yahoo

See the report on Rebecca MacKinnon's blog.

State Council issues White Paper on rule of law in China

The English text can be found here; the Chinese text is here.

UPDATE: The English text posted by the Chinese government requires you to do to 21 separate web pages to view the whole thing. Here are downloadable texts in English [Word | PDF] and Chinese [Word | PDF].

"Black jails" in Beijing: video report

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

Supreme People's Court gives the green light (sort of) to shareholder suits for market manipulation and insider trading

As is well known at least among those of us who study Chinese corporate and securities law (a kind of "well known" that reminds me of a phrase I once read: "as popularized by Lacan"), the Supreme People's Court in a series of edicts in 2001, 2002, and 2003 cut back on shareholder rights to sue for violations of the Securities Law, essentially restricting them to suits for misleading disclosure where there had been a previous administrative or criminal sanction for the same violation. (Brief discussion here.) Last fall, however, I read an article in Caijing in which the author, Prof. Luo Peixin, stated that "according to the spirit of a recent judicial document," suits for insider trading and market manipulation would now be allowed. But Prof. Luo did not mention the name or any other details of the document to which he was referring.

I have now been able to track down the document and what it's all about. It seems that courts have now been instructed internally to accept suits for insider trading and market manipulation under the rules applicable to suits for misleading disclosures set forth in the SPC's 2003 document.

On May 30, 2007, SPC Vice President Xi Xiaoming (奚晓明) gave a speech [part 1|part 2] at a national court conference on civil adjudication in which he stated, "The revised Securities Law has provided more clearly for civil liability for tortious acts of insider trading and market manipulation. At present, with respect to civil litigation brought by investors against tortfeasors, the relevant People's Court should determine the acceptance of the case by reference to rules on predicate conditions set forth in the judicial interpretation on misleading disclosures, and determine jurisdiction over the case in accordance with the rules on jurisdiction." (修订后的证券法进一步明确规定了内幕交易和操纵市场侵权行为的民事责任。当前，对于投资人对侵权行为人提起的相关民事诉讼，有关人民法院应当参照虚假陈述司法解释前置程序的规定来确定案件的受理，并根据关于管辖的规定来确定案件的管辖。) He went on to say that the SPC would later issue a relevant judicial interpretation on the basis of experience gathered by courts in the course of adjudicating lawsuits on insider trading and market manipulation. This speech was circulated to lower courts as an internal document.

The speech was further discussed and analyzed by plaintiffs' securities lawyer Song Yixin (宋一欣) at a conference on November 13, 2008, and Song is soliciting plaintiffs to bring suit in a number of recent cases.

While I'm glad to see that the SPC has loosened its restrictions on shareholder suits - the original restriction seemed to have no basis in law, and was just for the convenience of the courts - it's disappointing that it has chosen to do so in such an opaque way. The word has now gotten out, of course, as it was meant to; so why not just issue a formal interpretation modifying the 2003 rule in the first place?

More on the WTO auto parts ruling against China

Readers who have access to the BNA's WTO Reporter can see a fuller report here. The panel's report is a preliminary ruling that is still confidential. A final ruling is expected at the end of March.

For those not familiar with the dispute, it involved the imposition of increased duties on auto parts (normally about 10%) equivalent to the duties on complete cars (normally about 25%) if the imported parts exceeded a fixed percentage of the final vehicle content. China's argument was that this was necessary in order to prevent evasion of the duty on complete cars by simply importing the parts and assembling them in China. According to the BNA report, "Officials familiar with the confidential ruling told BNA that the panel rejected nearly all of China's arguments in defense of regulations that the United States, the EU and Canada said resulted in illegal duties being imposed on imported auto parts. The panel also declined to rule on a number of claims made by the complainants on grounds of judicial economy."