Chinese Law Prof Blog

Beijing rights lawyer Xu Zhiyong's Open Constitution Initiative slapped with 1.42 million yuan tax fine

Take a good look at the Open Constitution Initiative's web site; it may not be around much longer. This organization - in substance, a non-profit NGO but technically a company, since organizing as a non-profit NGO is extremely difficult in China - was just slapped with a gigantic 1.42 million yuan fine by the tax authorities for alleged tax violations. While the OCI's leader Xu Zhiyong does not deny the possibility of minor violations, one can reasonably suspect that more is going on here that just tax problems. I'm reproducing below two documents: (1) a statement from Xu Zhiyong on this matter; and (2) a joint statement from several Beijing NGOs.

Statement of Xu Zhiyong (July 15, 2009)

苍天在上----公盟要被处罚142万多元

2009年7月14日，公盟接到北京市国家税务局和地方税务局同时送来的《税务行政处罚事项告知书》，拟于7月24日之前做出行政处罚，地税拟处罚30多万元，国税拟追缴18万多元所得税并处93万多元罚款，两项加起来一共是142万多元。

其中，地税的30万元处罚是针对耶鲁大学法学院自2006年以来的四笔资助以及公盟研究员王功权先生于2009年4月的资助，耶鲁大学的四笔资助我们于2009年5月已经交了税，功权的资助刚刚报给会计还没有来得及上税就被查了。国税的处罚同样是针对耶鲁大学法学院的合作项目，我们努力解释过，2007到2008年度的合作合同直到2009年初才确认完成，2008到2009年度的合作项目还没有完成，给我们的钱只能算是预付款，而且，公盟得到的捐助全部用于法律研究和弱势群体的法律援助等事项，没有任何剩余，哪里来18万多元的所得税并处93万多元的罚款？

公盟是一家公益组织，无奈注册成公司，我们一直在申请民政注册。我们认识到了管理确实不够规范，我们都不太懂工商税务，尽管我一再强调过我们的税务不能出现法律问题，但我们聘请的专业会计没有及时帮助我们。在税务稽查的时候，我们默默尽力配合，主动更正一些过错。但是，在丑陋的敌意面前，所有这一切努力都已经没有意义。我们已经缴纳的营业税还是被处罚，我们没有任何盈余还是被处罚所得税，而且，根据法律处罚额度在50%到5倍之间，税务部门没有任何理由一律按最重的5倍处罚。

142万的处罚，也许对很多企业而言都算不得什么，可是对于公盟而言，这是残忍而邪恶的，这不是对公盟的处罚，这是对毒奶粉受害的孩子、打工子弟学校的孩子、遭遇物业公司欺负的业主、为内心正义奔走呼号的上访者......是对千千万万最需要帮助的无权无势者的处罚，这处罚丧尽天良！

我们已经很谨慎了，考虑到一些没有良心的畜生们说三道四，我们拒绝接受一些基金会资助，我们选择了耶鲁大学法学院是因为他们也给一些政府部门资助，我了解他们，他们爱中国。公盟与耶鲁大学法学院的合作项目包括北京户籍制度改革研究，提出新移民准入制度的建议；就钉子户问题、西丰县委书记进京抓记者等问题召开研讨会；为小区业主维权呼吁；反对打工子弟学校强制拆迁；为河北承德五次被判处死刑的无辜公民、为被警方打死的杜学磊等一些列极端的冤案提供法律援助；提出司法改革建议；两会期间提出给人大代表的建议，等等。我们所有的努力都是理性的建设性的，我们怀着善良的愿望推动民主法治公平正义，我们从来都是这样怀着纯真的愿望。

合作项目的钱已经用完了。公盟是一个志愿者团队，我们所有的成员是凭内心的良知和正义感做事，除了很少的办公室专职人员外，我们大部分成员不拿工资，我们把所有的钱都用于良心和正义的事业，我们没有任何利润，从来也没有打算获得利润，我们的收获只是感动。现在如果税务部门要公盟补18万多元的所得税并作出93万多元的处罚，这巨额的罚款只能来自公盟现有的钱----素不相识的朋友们那100元、200元甚至5元、10元的捐助。

这是不可能的！作为公盟的法定代表人，我宁愿接受七年的刑事处罚，也绝不会把这些5元、10元的捐助交给丧尽天良的畜生们。说我许志永犯了偷税罪，就像临沂的警察指控我是小偷一样，可笑！

也许有人在背后恶狠狠地说，公盟有政治目的，我对这种说法报以同情。我们的政治目的很清楚，是为了这个国家民主法治公平正义，为了每一个人的自由和幸福，不仅为了我们具体帮助的个体，更是为了建立民主法治健全的制度，让所有的人，包括那些至今仍然对我们怀有敌意的同胞也能获得正义、自由和尊严。

有人说，公盟就是为社会制造麻烦。我仿佛看到了一张被仇恨和猥琐弄脏了的脸，说，终于逮到了，罚，给我狠狠地罚，只要沾一点边的都给我罚，让你们再给我制造麻烦！不是我们制造麻烦，一年数万起群体性事件不是我们制造的，杨佳不是我们制造的，相反，我们努力把贪官污吏制造的矛盾纳入法治轨道，我们倡导绝对的非暴力，希望我们的社会没完没了的仇恨和冲突能够用爱化解。我们不仅是为了那些遭遇邪恶不公正的受难者，也是为了高高在上的肉食者，我们对这个民族怀有深深的责任----不要让这个国家再出现动荡以至于权贵们死无葬身之地，不要让我们民族的悲剧重演。

为什么，为什么我们要遭到如此报应？因为我们一身浩然正气，因为我们倡导美好的政治，因为我们的愿望太美好了，因为我们对这个民族从没有放弃希望，因为无论遭遇什么我们内心从来充满希望的阳光。

我很荣幸再次成为小偷。第一次是在临沂，我被指控为小偷并被带到派出所，在没有辩护人的情况下我的朋友----一个从小双目失明为当地村民的尊严而奔走呼号的中国人以故意毁坏财物罪判处四年徒刑。这次是在北京，我偷税，哈----哈----哈----！我是一个穷人，穷的只剩下信仰了。大人，把我的美好的信仰贡献给您一点行吗？你们应该需要这种信仰，你们应该有能力像我一样心怀慈悲，慈悲地看着鬼魅魍魉们不安的灵魂。

我是一个穷人，我们是一群穷人，你们不能从我们这里敲诈钱财，也夺不去我们执着的信念。我们没有愤怒，更没有仇恨，我们满怀慈悲，继续走自己的路。公盟不会灭亡的，这个民族的良心和正义的希望不会灭亡的。

许志永2009年7月15日

Statement of Beijing NGOs (July 16, 2009)

北京民间机构对公盟被税务机关处罚的联合声明

今日从公盟法定代表人许志永处惊闻，公盟研究所，工商注册为北京公盟咨询有限责任公司，被北京市海淀区地税局和国税局征税加处罚，金额合计142万余元。民间组织呼吁税务部门重新考虑对于工商注册的民间组织的选择性处罚。

在中国想以民间的力量服务社会，成立不盈利的组织，迫于现行法律规定，最佳的渠道竟然是成立盈利性质的公司。目前，大量机构不得不在筹资、服务社会之余，还面临巨额的赋税压力。近期，北京市税务部门对于部分从事人权工作的非盈利机构进行了选择性的税务检查，包括北京知爱行信息咨询有限责任公司，北京京鼎律师事务所，北京传知行社会经济咨询有限公司等等。公盟很不幸在今年的税务稽查中被处以高额的罚款。无论如何，今日对于公盟的选择性处罚，明日即可能落在任何一家工商注册的民间组织身上。这种选择性的高额处罚，堵死了民间机构服务社会的最后一条路。

为此，我们呼吁：

1，北京市海淀区税务机关重新考虑对于工商注册的非盈利组织的选择性处罚；
2，企业管理机构取消对于工商注册的民间机构的歧视性执法；
3，开放民间机构的注册工作，从根子上消除非盈利机构注册成盈利性机构的的尴尬现状，
4，向国际接轨，为非盈利组织提供财政支持。

联署人：

北京慧灵
北京益仁平中心
无国界爱心
德先生研究所
打工之友
中国律师观察网
北京爱知行研究所
NGO诚信网

2009年7月16日

Prof. Benjamin Liebman and Chinese courts

Here's a nice profile of Ben Liebman, a fellow Chinese law professor at Columbia. It has some interesting points about Ben's work on Chinese courts.

Supreme People's Court Work Report: comments

I finally got around to reading Wang Shengjun's Supreme People's Court Work Report delivered to the National People's Congress on March 10th and released a week later. In a genre that practically demands platitudinousness, Wang went beyond the call of duty. I was thinking of having an RA do a statistical count of meaningless 4-character phrases such as 开拓奋进 and 扎实工作 and then compare the frequency with previous years' reports, but gave it up because of difficulties of definition.

Anyway, here are a few comments:

• The Supreme People's Court itself hears a very large number of cases: it accepted 10,553 cases in 2008, up from 7,725 in 2007. Assuming death penalty review (for which they hired literally hundreds of new judges) counts as a case, then I would guess that the great majority of these cases are death penalty review cases. They don't have jurisdiction over many other cases - appeals as of right from any of China's provincial-level courts and cases of national significance, over which they have original jurisdiction. One Chinese scholar estimates (Chinese | English) that death penalty review in and after 2007 would be about 90% of the SPC's case load; if so, then this jibes with rough estimates of the number of death sentences in China, which generally put it at around 10,000; the lowest possible number is 1,718 in 2008, which is the number of public announcements of executions actually counted by Amnesty International.
• Once again we get a statistic of how many people were sentenced to punishments of at least 5 years' (or maybe "more than 5 years"; the Chinese can be read both ways, but it's probably "at least") imprisonment (including life sentences and death sentences): 159,020. This strikes me as the world's most useless number. Is there any purpose served by lumping together someone who gets 5 years (or a bit more) and someone who is executed? I have to admit that this way of categorizing criminal sentences was not just invented by Wang, though - it has a long history in Chinese Communist Party criminal law. In the Chinese Soviet Republic (1931-1934), the longest fixed-term sentence was 5 years; after that, it was death. I guess they didn't want to feed anyone longer than 5 years, or perhaps correctly anticipated they wouldn't last that long against the Guomindang encirclement campaigns.
• Incredibly, Wang boasts that in the melamine-tainted milk case that poisoned about 290,000 babies (as well as in other emergencies such as the Wenchuan earthquake), the SPC "promptly formulated judicial measures" to address the issues. The judicial measure formulated by the SPC in the melamine case seems to have been a secret instruction to lower courts not to accept any tort suits; although lawyers and plaintiffs made many attempts, no case was accepted until March 25th, more than two weeks after Wang delivered his report.
• Labor disputes were way up: 94% more than the previous year. This statistic has been out for a while and is generally interpreted as reflecting both the new Labor Contract Law and harder economic times. But it might also reflect a new willingness of the courts to accept such cases; perhaps in the past they were turning many away.
• Wang states that the rate for executed judgments (presumably civil) was 87%. It's hard to know what this number means. I don't think it could possibly mean that 87% of civil judgments not voluntarily performed were subsequently fully performed through the execution process. The 87% figure must, I think, include partial performance. But 5% and 95% are both partial, so it's hard to know really how significant it is.
• We see renewed praise for the "Ma Xiwu adjudication style." The populist, from-the-masses-to-the-masses, procedure-be-damned Ma Xiwu style is definitely making a rhetorical comeback. When I was in Beijing last December I picked up some recent books on the "Ma Xiwu adjudication style." For more on the Ma Xiwu adjudication style, click here. Ben Liebman of Columbia Law School will shortly be publishing a great paper on the return of populism in China's courts. (See E. Perry and S. Heilmann (ed.), Mao's Invisible Hand (forthcoming).)
• In line with the resurrection of praise for the Ma Xiwu style, there's also a renewed emphasis on mediation; in 2008, apparently 59% of civil cases were settled by court mediation.
• The people's assessor system seems to be developing into a system involving a small cadre of semi-professional citizen judges who hear a very small (and probably well defined) number of cases. This is what I guess on the basis of the following statistic: 55,681 assessors sat in on a total of 505,412 cases. This is about 5% of the total number of cases in 2008, no matter how defined (10.7 million accepted, 9.8 million completed); not a lot. On the other hand, that's about 9 cases per assessor, and even more when you consider that very often there is (or is supposed to be) more than one assessor per case. This jibes with what I've heard elsewhere: that assessors are selected with a view to them serving for what amounts to a term and sitting in on several cases.
• Because China has a process for changing the verdict of judgments that have already become "legally effective", there is concern in some quarters that no Chinese judgments are ever really final. If the report is correct, then as a practical matter it seems a legally effective judgment is pretty final; only 0.19% of such judgments were changed. On the other hand, I suppose one has to do an individualized determination in each case; procuratorates managed to get judgments changed in at least 2,273 (24%) of the 9,604 legally effective judgments they challenged.
• According to Wang, the caseload of the courts has gone up twentyfold in the years from 1978 to 2008 (the statistics are readily available, but I haven't checked this statement); at the same time, the number of court personnel has increased by only 168% (at least, that's how I interpret "增加了１．６８倍").
• Finally, a great deal of time seems to have been spent getting judges to study the Three Supremes (the obvious joke is too obvious to be worth making, so I won't): Supremacy of the Cause of the Party, Supremacy of the Interests of the People, and Supremacy of the Constitution and Law (the last one coming, well, last).

Comments welcome. Remember that they won't show up until I review them - that's how the system is configured - so don't keep re-posting in frustration when you don't see them.

Xu Zhiyong

From the China Digital Times, a profile of Xu Zhiyong (许志勇), a very admirable person whom I had the privilege of finally meeting for the first time last summer.

Podcast interview with Stanley Lubman

The Asiabizblog has a podcast interview with Stanley Lubman here (posted Oct. 24). For readers who don't know Stanley, here's the introductory blurb:

Asiabizblog kicks off a new season of podcasts with an interview of Stanley Lubman, China law scholar and practitioner. Mr. Lubman has, over 40 years, been witness to and participant in China's veritable earthquake of changes.

Whether as student of Chinese law at Columbia University School of Law in the 1960s, as delegate to the earliest Guangzhou trade fairs in the 1970s, as attorney for energy deals in the 70s and 80s, as scholar/practitioner at Harvard, SOAS or Allen & Overy in the 80s and 90s, Stanley Lubman always seems to be one step ahead of the pack.

Such also seems to be the case with his journal article, "Looking for Law in China," available here. While much of the world, including academia, seems to approach China with an "irrational exuberance," a subject upon which I have discoursed a often (see below for links), Stanley Lubman's take on China's development is nuanced, endowed with a subtlety of understanding that comes only with experience. Many thanks to Stanley for his willingness to share his expertise with the Asiabizblog audience.

Huang Songyou placed under detention

Huang Songyou (黄松有), a vice president of the Supreme People's Court, is reported to have been detained under the extra-legal (a polite word for illegal) "double designation" (双规) system of Party disciplinary investigation. Huang is familiar to many in the Chinese law world as the chief promoter of the Qi Yuling decision, in which the Supreme People's Court instructed a lower court to grant a plaintiff relief based directly on a violation of rights found in the Constitution. This was widely considered to be a first step toward the eventual justiciability of the Constitution, but in the end the decision disappeared like a stone in the sea and hasn't been mentioned for years.

Here's a translation of a piece he authored at the time. I'd like to give credit for the translation, but I don't even remember who gave it to me, let alone who translated it. My apologies to the translator.

FOLLOW-UP, 18 Oct. 2008: Here's the Chinese version of Huang's article [source 1|source 2]. HT: Eva Pils.

Teng Biao in the Financial Times

Here's a mini-profile of Teng Biao (腾彪) in the July 23rd issue of the Financial Times. Check out in particular the embedded video in which Teng talks about his work. I have met Teng on several occasions; this soft-spoken man is truly admirable. I would be proud to have half his courage.

When people like Teng stick their necks out, what values are they sticking them out for? This, I guess, is my disagreement with those who insist that it's Eurocentric or narrow-minded or whatever to support the standard menu of human rights in China, and that "the Chinese" must find their own way, perhaps on some kind of Confucian foundation. When you get right down to it, the proponents of various schemes of managed democracy, popular consultation, corporatist assemblies, etc. do not risk their livelihoods and their personal safety to promote their views in China; people like Teng Biao do. He is as Chinese as all the others, and what he does is a legitimate part of China finding its own way. If he is willing to take these risks to support the standard menu of human rights, should the rest of us be too paralyzed by the fear of being accused of unthinkingly subscribing to the assumptions of some hegemonic ideology to support him? (Rhetorical question!)

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].

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.

Revised document on Chinese LLM degrees for foreigners

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