April 19, 2008
Asian Journal of Comparative Law: latest issue
Here's the latest issue of the AJCL, containing several articles related to Chinese law. Downloads are free, but registration is required.
April 06, 2008
Latest issue of CECC newsletter
March 10, 2008
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.
March 05, 2008
China: Creating a Legal System for a Market Economy
I recently posted a paper with the above title on SSRN; it can be downloaded here: http://ssrn.com/abstract=1097587. It's a pre-publication version of a somewhat shorter piece that has appeared in the China Quarterly (the full reference is in the paper).
Here's the abstract:
Since the early 1990s, China has come a long way in legislating the foundational rules for its reformed economy. Virtually all of the important areas - contracts, business organizations, securities, bankruptcy, and secured transactions, to name a few - are now covered by national legislation as well as lower-level regulations. Yet an important feature of a legal structure suited to a market economy is missing: the ability of the system to generate from below solutions to problems not adequately dealt with by existing legislation. The top-down model that has dominated Chinese law reform efforts to date can only do so much. What is needed now is a more welcoming attitude to market-generated solutions to the gaps and other problems that will invariably exist in legislation. The state's distrust of civil-society institutions and other bottom-up initiatives suggests, however, that this different approach will not come easily.
March 01, 2008
Shuanggui and extralegal detention in China
Flora Sapio of the Institute for Cultural Studies, Julius Maximilian University in Germany has just published an excellent article on shuanggui (双规), a form of extralegal detention by Party disciplinary bodies. The article is very well researched; she has found lots of relevant documents, many of which are probably not, strictly speaking, public.
Shuanggui poses a challenge to our understanding of the Chinese legal system. It is frankly admitted by just about everyone involved to be unlawful - in the Chinese system, all forms of detention must be authorized by law passed by the National People's Congress or its Standing Committee, and shuanggui has no such authorization. Yet it is open - the existence of the system itself is not a state secret - and pervasive. Thus, it cannot be dismissed as a mere aberration; a proper understanding of the system has to account for shuanggui as a constitutive element, not a mistake.
February 28, 2008
Bibliography of Western-language works on Chinese law
For the last few years, Knut Benjamin Pissler of the Max Planck Institute for Foreign Private Law and Private International Law in Hamburg has compiled an annual bibliography of Western-language works on Chinese law. These bibliographies have been published in the Zeitschrift fuer Chinesisches Recht/Journal of Chinese Law published by the German-Chinese Lawyers Association.
Benjamin is currently working on the 2007 edition, and I will post that shortly. I recently realized, however, that I had never posted the last two years' editions. They are below.
State Council issues White Paper on rule of law in China
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].
February 10, 2008
CECC issues January 2008 newsletter
December 31, 2007
New report from China Labour Bulletin
China Labour Bulletin, a worker rights organization based in Hong Kong, has just published a report on the Chinese labor movement from 2005 to 2006. The introductory blurb is below. The full text of the report is here.
A challenge and an opportunity for China's official trade union
The implementation of the Labour Contract Law tomorrow will be both a challenge to and a tremendous opportunity for the All China Federation of Trade Unions (ACFTU) to start acting as an authentic representative of and advocate for labour.
The law provides the ACFTU with the legislative tools it needs to negotiate genuine and meaningful collective contacts with management at the factory level. If however the ACFTU does not utilize this opportunity, China Labour Bulletin believes workers in China will sooner or later find ways to organize an effective counterforce to management on their own terms.
CLB today publishes the second in our two-yearly series of research reports on the state of the workers' movement in China. The report documents the development of the labour movement from 2005 to 2006 and its increasing importance in Chinese society. It concludes that while the movement may still be fragmented and disorganized, migrant workers, laid off workers and those still employed in former state-owned enterprises (SOEs) now share the same experiences and suffer the same injustices. Workers in China increasingly share a common interest and face a common adversary. Indeed, the situation in China today is analogous to the pre-unionized period in Western industrialized countries where workers were routinely exploited by industrialists and factory owners. The trade union movement grew as a response to that exploitation. The challenge for the ACFTU now is either to join China's growing workers' movement or to remain on the sidelines – an increasing irrelevance to the real issues.
CLB's 56 page English language report outlines the economic, legislative and social background to the workers' movement in 2005 and 2006, and examines in detail the worker protests that occurred in this period. It looks at both the "privatization disputes" that arose during the process of and after the restructuring of SOEs, and also the more general labour disputes that occurred, primarily in the private sector, in response to specific and widespread violations of labour rights such as non-payment of wages. It examines the government's twin-track response to these protests - of conciliation in some cases and repression in others, and pays particular attention to the ACFTU and its effectiveness in protecting workers' rights. The report examines the official union's role in drafting and promoting labour legislation, the actions it has taken to lessen the burden of migrant workers and those laid-off from SOEs, and its attempts to organize workers into basic-level unions. Finally, the report discusses the systemic problems that have thus far prevented the ACFTU from making a real difference in workers' lives.
The report is based on documents issued by the Communist Party, the government and the ACFTU, statements of government and union officials, academic articles, official statistics, domestic media reports and the notes recorded from CLB telephone interviews. It is intended to serve as a convenient, one-stop reference source on the major issues and concerns of the Chinese labour movement during 2005-06.
November 11, 2007
Strategic toleration of public protest in China
Here's an interesting game-theoretical analysis of public protest in China. The author, Peter Lorentzen, argues that such protests do not necessarily indicate regime weakness; instead, they are tolerated (in some cases) because they can increase the government's effectiveness. Here's the abstract:
The occurrence of protests in authoritarian countries is often seen as a harbinger of regime collapse. Yet China since the 1990s has seen a significant rise in popular protest while maintaining economic growth and its reform trajectory. Furthermore, the Chinese government has shown its ability to effectively suppress dissent when it chooses to. This paper argues that deliberate toleration of narrow economic protests serves the Chinese government's purposes in two ways. First, it allows the government to identify and defuse discontented groups. Second, it provides a useful signal of local government corruption that can be used to supplement and direct limited administrative monitoring resources. This mechanism has become particularly useful to the government of contemporary China as the processes of decentralization and market reform have made identification and investigation of local corruption more difficult.
October 16, 2007
CECC issues 2007 annual report
The Congressional-Executive Commission on China issued its 2007 annual report last week. Here are some relevant links:
October 10, 2007
"Brits Get Rich in China"
October 03, 2007
SPC Vice President Wan Exiang address to OAS: text and video
October 01, 2007
China Quarterly publishes special issue on the Chinese legal system
The latest issue of the China Quarterly is devoted to the Chinese legal system. All articles are available on-line and may be downloaded here.
September 03, 2007
China Labour Bulletin issues report on child labor in China
The China Labour Bulletin, Han Dongfang's Hong Kong-based NGO, has just issued an English-language report on child labor in China. It is a revised and updated version of a Chinese-language report issued last year.
Given the current almost toxic zeitgeist about all things Chinese (at least inside the Beltway, where I live), it's important to stress that the CLB is a serious organization that produces high-quality and credible work. This is not just more China-bashing. Indeed, the report acknowledges the complexity of the issue at the very beginning:
Child labour in any society poses a complex challenge, one simultaneously ethical, legal and economic in nature, and China is no exception to this rule. The income generated by underage workers is often critical to a family’s overall livelihood, especially in the poorer rural areas from where most such workers originate, and so identifying “culprits” who can be suitably punished under the law is not always the best way to proceed. Indeed, except in the most egregious of cases,6 the sternly punitive approach may even be counterproductive, both by forcing this sector of the economy further underground and by pushing underprivileged families – and hence the children themselves – deeper into hardship and poverty.
August 05, 2007
Latest issue of China Law Reporter
Here's the latest issue of the China Law Reporter, published by the China Committee of the ABA's Section on International Law.
July 10, 2007
Latest newsletter from GTZ Legal Advisory Service
Here's the latest issue (in Word format) of the newsletter of the (German) GTZ Legal Advisory Service. More information is on their web site. Incidentally, they are always looking for interns; see the last page of the newsletter. English is required; Chinese is desirable; German is not required.
June 20, 2007
PBS documentary (and other documentaries) on China's legal system
On July 3rd, PBS will be airing a documentary on the Chinese legal system entitled "The People's Court: China's Legal Revolution" as part of its Wide Angle series. I haven't seen it, but it sounds very interesting. I'm reproducing the press release below; for more information, check out the Wide Angle web site.
Incidentally, I can think offhand of only two other documentaries that have material relevant to the Chinese legal system: China: Beyond the Clouds and China From the Inside. If readers know of more, please tell me about them in the comments. (Note that, as always, as an anti-spam measure your comment won't appear until I've viewed it and clicked "publish".)
FROM NEIGHBORHOOD DISPUTES TO LIFE-AND-DEATH CASES, WIDE ANGLE
FOLLOWS JUDGES, LAWYERS AND ordinary citizens SEEKING JUSTICE AS CHINA
BUILDS A LEGAL FRAMEWORK FROM SCRATCH FOR ITS NEW MARKET ECONOMY, IN
THE PEOPLE'S COURT
WIDE ANGLE Launches Its Sixth Season Tuesday, July 3 at 9 p.m.
When a state judge brings her mobile court to a hillside village
to resolve its first lawsuit, the entire community shows up for the
public spectacle. When a crusading lawyer risks government retribution
to defend farmers rioting against a massive dam project, a teenager is
tried and executed in secret.
It may be the court of "the people," but it's a long,
long way from Judge Wapner's California courtroom.
As WIDE ANGLE returns for its sixth season of in-depth
documentaries about issues that are shaping the world today, The
People's Court takes viewers inside the courtrooms and law schools of
China to provide an unprecedented and unexpected portrait of its rapidly
growing legal system. The People's Court premieres Tuesday, July 3 at 9
p.m. (ET) on PBS (check local listings).
Poised to surpass the United States as the largest economy in
the world, yet facing mounting domestic and international pressure for a
fair and transparent framework of laws, China is racing to reshape the
rules of society. With Chinese from all walks of life taking to the
streets in record numbers (official figures count an average of 200
incidents of unrest a day) to protest land seizures, corruption,
pollution, or unpaid wages, China is under duress to provide a release
valve for mounting social discontents. "Rule of law," originally a
Western concept, was recently adopted in China's Constitution for the
first time ever, and legal reform is high on the state agenda, despite
the Communist Party's continuing monopoly on power. Above all, a market
economy requires a reliable framework of property rights, without which
international investors cannot do business with China.
In the past quarter century, the country has opened nearly 400
law schools, trained hundreds of thousands of judges and lawyers, and
launched education campaigns to encourage people to bring their
grievances to court rather than taking to the streets. Few nations have
ever attempted to create a new legal system so quickly.
Yet the transformation is incomplete and the judiciary far from
independent. Senior judges are appointed by, take orders from, and
receive their paychecks from the Communist Party. Hundreds of Chinese
lawyers have been jailed in recent years for challenging state
leadership or taking on overly sensitive cases. More than 99 percent of
criminal cases end in convictions. And China executes more prisoners
every year than the rest of the world combined. The People's Court
reports the shocking story of the recent secret trial and execution of
one of the 100,000 peasants who protested the loss of their land to a
huge hydroelectric dam project on the Dadu River.
WIDE ANGLE was given exclusive access to film in Chinese courts
- a first for a Western documentary. Profiling itinerant judges, law
students, a human rights lawyer, and ordinary citizens, The People's
Court examines China in flux, revealing the lengths to which Chinese
people must go to obtain justice and raising crucial questions about
their present system of law: Is it possible to get a fair trial in
China today? Will the "rule of law" transform Chinese society into one
that protects the legal rights of all citizens?
After the film, WIDE ANGLE anchor Daljit Dhaliwal will conduct
an interview with a foreign policy expert to examine the global
implications of China's legal reforms and connect the dots for American
For additional information and photography, visit
<http://www.thirteen.org/pressroom/wideangle> or pbs.org/pressroom
Major funding for WIDE ANGLE is provided by PBS, The
William and Flora Hewlett Foundation, Bernard and Irene Schwartz, Mutual
of America Life Insurance Company, The John D. and Catherine T.
MacArthur Foundation, the Miriam and Ira D. Wallach Foundation, The
Jacob Burns Foundation, Josh and Judy Weston, Rosalind P. Walter, and
The Shelley & Donald Rubin Foundation.
WIDE ANGLE is a production of Thirteen/WNET New York for PBS.
Stephen Segaller is executive producer. Pamela Hogan is series
producer. Andy Halper is senior producer. The People's Court was
directed by Bruno Sorrentino and produced by Maggie Still of Xanadu
June 12, 2007
HRIC report on state secrets
Human Rights in China has issued a lengthy (almost 300 pages) report on state secrets in China. See the following sources for more information:
May 24, 2007
Report of UN Committee Against Torture
The United Nations Committee Against Torture recently released a report criticizing lack of judicial independence, an extremely low acquittal rate, statutes of limitations on crimes of torture, and human rights abuses among detainees. It also criticized the late (five years!) submission by the government of the country report, and noted that
the report does not fully conform to the Committee’s guidelines for the preparation of initial reports, insofar as it lacks thorough information on how the Convention’s provisions have been applied in practice in the State party. The initial report has often limited itself to statutory provisions rather than providing analysis of the implementation of the rights enshrined in the Convention, supported by examples and statistics.
Sound familiar? Well, it was a northeast Asian country, but it wasn't China; it was Japan.
- Financial Times report
- Text of UN Committee Against Torture report
- Links to other reports provided to the Committee
Remarkably, the very critical report on the mission to China of Manfred Nowak, the UNHCR's Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, remains available in China (i.e., unblocked) at the UN's web site, both in English and in Chinese.