Chinese Law Prof Blog

Full Private Land Ownership Returns to China’s Cities

{MAY 17th UPDATE: A much fuller and better piece about this development is available at the Foreign Affairs website here.]

Did that headline get your attention? If it’s an exaggeration, it’s not much of one.

Last week a student brought to my attention a statement Li Keqiang made last month that I and just about everyone else (I can’t be sure) seem to have missed. At a press conference at the end of the National People’s Congress session, Li announced that full private ownership of land has been restored in China’s cities. Of course, he didn’t use those exact words, but the effect of this statement was the same. Here’s why.

Since the mid-1990s, the state—the owner of all urban land—has sold long-term leaseholds in that land called “land-use rights” (LURs): a maximum of 70 years for residential use, 40 years for commercial use, and 50 years for everything else. These LURs are a lot like long-term leases in Western countries: you can sell them, and if the government takes them, it has to compensate you. There are restrictions on use, but they aren’t different in nature or degree from the zoning restrictions you see in market economies. (I’ve written in detail about the urban land regime here.)

Also like Western long-term leases, when they expire, they expire. If you want to keep using the land, you have to pay again. At least that used to be the rule. But everyone would like something for nothing, and after the new regime went into effect, LUR-holders began to complain that the rules about renewals were unclear or unfair or both. (They were neither.) But LUR-holders are a powerful group; by definition, the group consists exclusively of people rich enough to own urban LURs, and it certainly includes every powerful family in China. Thus, pressure mounted for free renewals at the end of the term, at least for residential LURs.

In 2007, the authorities granted a teaser: the Property Law was promulgated, and it stated that residential LURs would, at the end of their term, be renewed “automatically.” But it didn’t say what “automatically” meant. As Professor Wang Liming, a member of the drafting team, later admitted, this lack of clarity was no accident; the drafters had deliberately opted for ambiguity.

Why? Think about what automatic, no-fee renewal implies. It means that the 70-year term becomes meaningless; the LUR becomes perpetual. The fact that the land would ultimately revert to the state at the end of the term was what had allowed the government to maintain all along that the LUR regime was consistent with socialism and state ownership of land. If the LUR-holder has the right to the land in perpetuity, that story, already somewhat implausible, becomes impossible to maintain.

On the other hand, if the drafters had stated clearly that renewal required the payment of a fee, LUR-holders would have been outraged. Hence Prof. Wang’s almost comically self-contradictory assurance: “There will be no conditions on extension. As for the term of the extension and the cost, specific measures will be made clear through the promulgation of implementing rules.”

Ten years have since passed. The holders of the first batch of 70-year LURs granted in the mid-1990s are getting itchy. Everyone has been waiting for increased clarity—and by “clarity” they mean “clarity that favors LUR-holders.”

It is that shoe that finally dropped in Li’s statement last month. In answer to a reporter’s question (very possibly planted) about what would happen when the 70-year LURs expired, Li said:

There’s an old saying in China: Economic security brings peace of mind. . . . [T]he term can be renewed, there is no need to apply for renewal, there will be no pre-conditions, and there will be no effect on the ability to buy and sell. Of course, some people may say, “That’s what you say, but is there any legal guarantee?” Let me stress this here: the State Council has already tasked the relevant departments with urgently studying the laws relating to the protection of real estate and coming up with a proposal.

中国有句古话：有恒产者有恒心。. . . 可以续期，不需申请，没有前置条件，也不影响交易。当然，也可能有人说，你们只是说，有法律保障吗？我在这里强调，国务院已经责成相关部门就不动产保护相关法律抓紧研究提出议案。

I don’t see how to read this other than as a promise of perpetual free renewals. This means that people who paid for a 70-year LUR now find themselves with a perpetual LUR: the equivalent of full fee simple ownership. That’s worth noticing.

Correction/retraction to post on China granting self authority to hack into foreign servers

Yesterday I posted about an article on the excellent Lawfare blog that discussed the significance of some Chinese regulations on digital evidence collection. I now think that the Lawfare blog post's interpretation, which seemed plausible to me when I read it, is not correct. This change of view is prompted by an excellent analysis by Jeremy Daum of the China Law Translate site. I recommend it highly.

Note that he is not saying that China does not hack into foreign servers without the host country's permission. (As I noted in my blog post, "[I]f I had given the matter any thought before this, I would have assumed that Chinese investigative authorities were already doing this whenever they wanted to.") He's just saying that this is not the rule whereby the authorities authorize themselves to do so. Instead, it's just a rule about evidence.

China grants self carte blanche to hack into foreign servers in criminal investigations

Check out this recent post from the Lawfare blog. I've read the regulations to which it refers, and the post describes them accurately. Frankly, if I had given the matter any thought before this, I would have assumed that Chinese investigative authorities were already doing this whenever they wanted to.

Note to the "everybody does it" chorus: The blog post is also accurate in stating that this is not the normal practice of domestic police authorities, including in the United States; they seek permission from the foreign sovereign the same way they would seek permission for sending agents abroad to rifle through someone's file cabinet. Not that China necessarily has to follow the crowd in everything, but China would undoubtedly consider it the gravest violation of its sovereignty were foreign criminal investigators to hack into Chinese servers without permission in a search for evidence.

Here's the relevant language from Art. 9 of the regs:

具有下列情形之一，无法扣押原始存储介质的，可以提取电子数据，但应当在笔录中注明不能扣押原始存储介质的原因、原始存储介质的存放地点或者电子数据的来源等情况，并计算电子数据的完整性校验值：

　　（一）原始存储介质不便封存的；

　　（二）提取计算机内存数据、网络传输数据等不是存储在存储介质上的电子数据的；

　　（三）原始存储介质位于境外的；

　　（四）其他无法扣押原始存储介质的情形。

　　对于原始存储介质位于境外或者远程计算机信息系统上的电子数据，可以通过网络在线提取。

　　为进一步查明有关情况，必要时，可以对远程计算机信息系统进行网络远程勘验。进行网络远程勘验，需要采取技术侦查措施的，应当依法经过严格的批准手续。

Random comments on China's new civil code

On March 15^th, the National People’s Congress passed the long-awaited General Rules of Civil Law (中华人民共和国民法总则) (GRCL), a collection of general principles that will come into effect on October 1, 2017. Interestingly, the GRCL will not replace the 1986 General Principles of Civil Law (民法通则) (GPCL) when they come into effect; for various reasons, the decision was made to have the GPCL continue in effect to the extent that their provisions do not conflict with GRCL provisions.[1]

The GRCL are accompanied by three documents explaining features of the text and certain amendments:

• Explanation
• NPC Law Committee's Report on the Results of the Deliberation of the Draft
• NPC Law Committee's Report on Suggestions for Revising the Revised Draft

What follows are some more or less random comments on particular features of the GRCL that struck me as I read through the text. They are not intended as a comprehensive evaluation.

1. Liability of legal persons

Art. 62 states that legal persons (for example, corporations) shall be liable for damages caused to others by the acts of their legal representative in carrying out his responsibilities. Of course the legal person should be liable in such a case, but why apparently limit it to the acts of the legal representative? Surely it should state that the legal person is liable for the acts of any employee in the course of work (assuming such acts give rise to a claim for damages, of course).

2. Characteristics of non-profit organizations

Art. 87 and Art. 95 state that non-profit organizations do not and may not distribute their profits to investors, founders, or members. One sees what they are getting at. But why stop there? It would be simpler just to say that non-profits may not distribute their profits to anyone. That’s what makes a non-profit a non-profit: not the fact that it has no profits (if its revenues exceed its costs, it has profits), but the fact that nobody is entitled to a distribution of those profits. They have to be plowed back into the work of the non-profit. Situations where the non-profit wants to donate to another organization or liquidate are dealt with in Art. 95; it makes more sense to specify the limited number of situations where profits may be distributed to someone than to specify a few types of people to whom profits may not be distributed.

3. Standard of compensation for takings

Art. 117 sets the standard for compensation for takings as “fair and reasonable” (公平合理). The point to note here is that this is understand as meaning something other than (and probably less than) fair market value. The GRCL could have specified this but elected not to, so it’s significant.

4. Conditions of validity for civil acts

Here’s where things get interesting. In Art. 143, one of the conditions for validity of a civil law act (民事法律行为) (for example, the making of a contract) is that it not “violate mandatory provisions of laws or administrative regulations” (不违反法律、行政法规的强制性规定) and that it not go against “public order or fine customs” (不违背公序良俗) (Art. 143).[2]

Let me take the second condition first. What does “public order or fine customs” mean? Both the term and the rule seem to have been taken from Art. 90 of the Japanese Civil Code. The term only started appearing with any frequency in legal documents in the last few years, and has been used in an official enactment of the National People’s Congress or its Standing Committee only once before, in an interpretation of the GPCL and the Marriage Law issued in 2014. No doubt it is intended as a catch-all term, similar to the “public policy” on grounds of which a common-law court can declare a contract invalid.

Interestingly, the GRCL take a different approach to validity than the GPCL, which list a number of grounds on which civil acts were invalid instead of listing the grounds for validity. Those grounds do not include any language about “public order or fine customs.” They do, however, include language about acts in violation of law (i.e., statute) (法律) or public interest. Note that “statute” here has a technical meaning in Chinese law: something passed by the NPC or its Standing Committee. A rule passed by a lower-level body—even the State Council – is not a statute (法律).

The GPCL also invalidate acts that use a lawful form to cover up an unlawful goal (以合法形式掩盖非法目的的). In this part of the GPCL (and in Art. 52(5) of the Contract Law, which duplicates the language), however, the scope of “law” in “unlawful” has been debated. “Unlawful” (非法) can plausibly be read to cover much more than formal statutes passed by the NPC or its Standing Committee.[3]

But this language has been dropped from the GRCL. Instead, all we are left with is the potentially very broad reach of “public order or fine customs” and the much narrower “mandatory provisions of laws or administrative regulations.”

This brings us to the first condition. Here, “laws” means (again) statutes: stuff passed by the NPC or its Standing Committee. It might well also include enactments of certain high-level sub-central people’s congresses.[4] “Administrative regulations” means enactments of the State Council (not just, for example, a ministry or commission under the State Council). This condition, therefore, is quite narrow. If a civil act violates a mandatory provision of a regulation passed by, say, the Beijing municipal government or the Ministry of Commerce, it’s still valid. In fact, it might be even narrower than that: the identical provision in the Contract Law has been interpreted to mean that contracts are invalid where they violate mandatory provisions of laws or administrative regulations respecting the validity of contracts (for example, requirements of government approval for validity), but not otherwise.

In short, the GRCL seem to make it impossible to argue that a contract or other civil law act is invalid because it contravenes some low-level rule unless that contravention can be called a violation of public order or fine customs. Indeed, the GRCL add even more confusion to the subject when they revisit it in Art. 153, which embodies the logical corollary of Art. 143 by stating that civil law acts are invalid when they (a) go against public order or fine morals or (b) violate mandatory provisions of laws or administrative regulations (in each case understood in a restrictive, technical sense as explained above). But Art. 153 adds a kicker to part (b) of the previous sentence: “except when said mandatory provisions do not result in invalidity of the civil law act.” Result: violations of mandatory provisions of laws or administrative regulations will result in invalidity except when it doesn’t.

5. Conditionality of civil law acts

Article 159 states that civil law acts may be made conditional on the occurrence of certain events. It adds that where a party, for its own benefit, improperly prevents a condition from occurring, it shall be deemed to have occurred, and where it improperly causes an event to occur, it shall be deemed not to have occurred.

One understands what they are getting at, of course, but as stated this rule is going to create problems. Consider, for example, a contract under which an employer promises to provide housing to the employee as long as the employee is employed. The employer is (subject to the provisions of employment law) able to cause the event of non-employment to occur; does this mean that it must continue to provide housing even after lawfully terminating the employee? Of course, one could respond that that’s why the addition term “improperly” has been put there. But that’s an awful lot of weight for a vague and non-technical term to bear, and I have no confidence that Chinese courts would pay any attention to it at all.[5]

6. Liability for damages inflicted in the course of lawful self-defense

Article 181 provides that a party shall not be liable for damages inflicted in the course of proper self-defense (正当防卫, which could perhaps include defense of others). If this means damages inflicted on the assailant, there is nothing to quarrel with here, although the premise that the self-defense was within appropriate bounds would seem to make liability a non-starter even without this provision. But as worded, it seems that if I am attacked and smash a shop window to grab a knife to defend myself, then as between me and the shopkeeper, the shopkeeper must bear the cost of the broken window.

7. Good Samaritan provision

Article 184 provides, somewhat startlingly, that those who attempt to aid others in emergency situations shall never be liable under any circumstances. If I see you coughing, assume you are choking, and attempt a tracheotomy with a butter knife despite a complete lack of medical training, your next of kin cannot sue me. The legislative history makes it clear that this is in fact the desired result. The original version of this article presented to the NPC provided that the Good Samaritan could be liable for gross negligence, but some delegates objected that this would be too discouraging. (Bear in mind that this provision comes in the wake of a number of incidents widely reported in China over the last several years of egregious bystander indifference to suffering or of those who were aided suing those who aided them.) As a result, the provision was amended to state that where the aided party could prove that they had suffered serious damages as a result of the aider’s gross negligence, the aider should bear “appropriate” liability.[6] (Note that the burden of proof would have been on the aided party even without this amendment.)

But even this not enough for some delegates, and so the language specifying liability for aiders was removed altogether.[7] In other words, it is very clear that the NPC does not want aiders to be liable even for palpably gross negligence.

8. Liability for defaming heroes and martyrs

Apparently discussions at the NPC actually resulted in the addition of a new article in the GRCL providing for liability for infringement on the name, image, reputation, or dignity of “heroes, martyrs, etc.” (英雄烈士等). This comes in the wake of two court decisions imposing liability (rather trivial, to be sure: an apology in one case and a fine of 1 yuan in another) on persons who questioned the truth of some stories about Communist Party heroes, and fits in well with growing official denunciations of “historical nihilism” (i.e., questioning the official version of history).

But the provision itself is an outlier relative to the rest of the GRCL in its vagueness and slipshod drafting – although the very vagueness may be deliberate message about its essentially political and therefore untouchable nature. Most obviously, how are “heroes,” “martyrs,” and especially “etc.” to be defined? Second, how will damages be measured? (We are talking about dead people here.) Third, who will have standing to sue?

In the two cases mentioned above, it was reported that “the family” sued, and in a previous case of defamation of the dead, the daughter of the allegedly defamed person was granted standing. Thus, it is possible that standing will be limited to those who would have standing in any ordinary defamation-of-the-dead case. But in that case, it is hard to see why this provision was necessary or how it changes existing law.

[UPDATE 3/20/2017: Existing law on this point is set forth in a Supreme People's Court interpretation of 2001, which states that "close relatives" (近亲属) of a deceased person have standing to bring suit for emotional damages where the defendant has, by means of insult, slander, disparagement, vilification, or other methods that go against social public benefit or social public virtue, infringed on the deceased's name,  image, reputation, or dignity (以侮辱、诽谤、贬损、丑化或者违反社会公共利益、社会公德的其他方式，侵害死者姓名、肖像、名誉、荣誉). Thus, the new provision in the GRCL can be seen either as a codification of this rule, but with respect to heroes and martyrs only, or as simply a political statement with no legal consequences. Since the NPC does not seem to object to the wide scope of the 2001 interpretation, the codification options would seem to be to codify all of it or none of it. Thus, I opt for the political explanation.]

9. Abolition of certain types of prescriptive acquisition

Article 196 says that if you have rights in real estate (registered or not) or registered title to movable property, it cannot be acquired by prescription – ever. The statute of limitations does not apply. Statutes of limitations are called rules of repose: if you fail for a sufficiently long period to vindicate your rights, the law won’t recognize them any more. This law was intended to help rural residents who leave the farm for the cities, find it difficult to keep tabs of their interests in land, and may end up losing them. That’s understandable. But surely after the passage of some period of time – twenty years, forty years? – it’s time to say that courts aren’t going to recognize ancient and hard-to-prove claims that nobody bothered about for decades. Otherwise you just generate a new set of injustices.

10. Non-waivability of statute of limitations

Another interesting wrinkle in the rule on statute of limitations is that of Article 197, which says that the period, calculation, suspension, and re-starting of the limitations period is a matter of law and cannot be the subject of negotiations between the parties. Similarly, the parties may not consent in advance to waive the benefit of the limitations period.

This has some important practical implications. In more than one case of which I have personal knowledge, defendants sued in the United States on China-related matters have attempted to have the suit dismissed on forum non conveniens grounds, and as part of their motion have promised that if sued in China, they will not raise a statute of limitations defense. Article 197 suggests that such a promise may be worthless; that the limitations period is a matter of subject-matter jurisdiction for the courts, not personal jurisdiction, and as such something that the parties simply lack the power to give the court if it does not already have it.

Notes

[1] See 关于《中华人民共和国民法总则（草案）》的说明, March 8, 2017. This might also be the place to note that calling the GRCL the “General Rules” to distinguish them from the “General Principles” is a bit unsatisfactory as a matter of translation, since the word that is different in the Chinese is the term for “general”, not the term for “principles” and “rules”. But the name of each statute essentially means “general rules”, so the main point is just to use different words to distinguish them for the English-speaking reader.

[2] Article 8 also states that civil activities (民事活动) may not violate law (法律, i.e., statutes) or go against “public order or fine customs.”

[3] I will discuss this question more fully in an upcoming blog post on a recent interesting Supreme People’s Court case involving a Variable Interest Entity.

[4] The details are too complex to go into here.

[5] As I have discussed in an article on the Peter Humphrey/Yu Yingzeng prosecution on charges of unlawful acquisition of citizens’ personal information, neither the prosecution nor the court spent any time showing that the defendants’ acquisition of information was unlawful. The presence of the word in the statute appears to have been entirely superfluous.

[6] 第十二届全国人民代表大会法律委员会关于《中华人民共和国民法总则（草案）》审议结果的报告, March 12, 2017, Sec. 10.

[7] 第十二届全国人民代表大会法律委员会关于《中华人民共和国民法总则（草案修改稿）》修改意见的报告, March 14, 2017, Sec. 5.

Chinese court enforces Singapore judgment on the basis of reciprocity

Here's a report on an interesting case in which a Chinese court (the Nanjing Intermediate-Level People's Court) enforced a Singapore court judgment.

Under China's civil procedure law, Chinese courts may enforce foreign judgments that are not fundamentally offensive in some way under two circumstances: (1) there is a treaty with the foreign country calling for mutual enforcement of judgments; or (2) on the basis of reciprocity, which has been interpreted to mean that the foreign country has a practice of enforcing Chinese judgments, or at least has done so before.

There is no Singapore-China treaty calling for mutual recognition and enforcement of judgments. The Nanjing court found, however, that in 2014 a Singapore court had enforced a Chinese judgment. On that basis, it decided to recognize and enforce the Singapore judgment (a default judgment against a Chinese corporate defendant).

The report does not claim, and I don't know for a fact, that this is the first foreign judgment Chinese courts have enforced on the basis of reciprocity. (It says it's the first enforcement of a Singapore judgment on that basis.) But I think it's fair to say that such cases are pretty thin on the ground.

The report lists cases where foreign courts have enforced Chinese judgments in the absence of a treaty, suggesting that a basis for reciprocity exists in those cases. The list includes the Robinson Helicopter case, one that I have always thought was a bad example, given that the defendant had already argued in previous US forum non conveniens proceedings that the Chinese legal system was just dandy, and so could hardly be heard to argue otherwise when it came time to enforce a Chinese judgment against it. But if I were trying to enforce a US judgment in a Chinese court, I'd certainly bring it up. To the best of my knowledge, Chinese courts have not yet enforced a contested US money judgment. (I'm attaching those qualifications because they may, for example, have recognized a US divorce decree for some purpose.)

Watch Chinese trials on your monitor

Not quite live streaming, but apparently close. You can see recorded Chinese court proceedings at this new website: http://tingshen.court.gov.cn/. Check it out.

More on defamation law in China

The other day I posted about the concept of group defamation in China, noting that Chinese courts have upheld complaints in which members of a particular group sought damages or other legal remedies against those they believed had insulted their group.

The two interesting legal issues in cases like this are (1) under what circumstances can any group member sue for an insult to the entire group, and (2) what sort of commentary counts as an actionable insult (i.e., does the insult have to be an allegation of a particular fact that could be verified as true or not true (such as Donald Trump's allegation that Mexican illegal immigrants are rapists), or can it be just an offensive expression of opinion ("so-and-so is a jerk")?

In the United States, the answer to question 2 is that it must be an untrue allegation of a particular defamatory fact, not just something that is clearly the expression of an opinion that nobody would mistake for a factual allegation. The answer to question 1 is that if it's the group that has been insulted, an individual cannot sue unless the group is so small and identifiable that those who heard the defamatory statement would readily connect it to that individual. (This at least is my understanding; I'm not a libel law expert.) I note this only for comparative purposes and not to suggest that the U.S. rule is one that everyone else should follow.

As my post noted, in China neither of these is true. One can sue for a generally insulting expression of opinion, and group members have standing even when the group is huge (for example, all Henan residents).

That being said, there is an exception to these restrictive rules on free speech: we find courts sympathetic to expansive protection of speech when the insulter reflects government views. This is not the rationale courts provide, of course, which means that we can find different and quite irreconcilable principles cited by courts in these cases.

The latest example of this is two decisions handed down by the Beijing 1st Intermediate Court and the Beijing 2nd Intermediate People's Court on the same day last February in the cases of Hong Zhenkuai and Huang Zhong. (For a full account, from which the following borrows liberally, please see this post on the Fei Chang Dao blog.) They were the writer and editor respectively of an article in the liberal journal Yanhuang Chunqiu (炎黄春秋) that questioned the accuracy of historical accounts of some revolutionary heroes. 

After the publication of the article, Mei Xinyu (梅新育) posted this response on his Sina Weibo (Chinese twitter) account:

"What is motivating these editors and writers at 'Yanhuang Chunqiu'? . . . . Is it too polite to say this kind of writers and authors are sons of bitches?"

《炎黄春秋》的这些编辑和作者是些什么心肠啊？. . . . 说这样的作者和编辑属狗娘养的是不是太客气了？

The same day, Guo Songmin (郭松民) reposted Mei’s post and added the following comment on his Sina Weibo account:

Oppose historical nihilism; if nothing is done about this gang of sons of bitches it's a joke!

反对历史虚无主义，不动这帮狗娘养的就是笑话！

Hong and Huang sued both Mei and Guo and lost. The reasoning of the courts boiled down to the following propositions: (1) Neither Mei's nor Guo's posts identified the plaintiffs with sufficient specificity for the court to find that the remarks were directed at them; (2) in casting doubt on revolutionary heroes, their posts hurt the feelings of the defendants and therefore they had it coming to them.

Group defamation in Chinese law

Ten years ago (can it really have been that long?) I posted about defamation law in China, noting that one feature that differentiates it from defamation law in at least some other jurisdictions is that while on the one side there is a recognition of the harm that can be done by nasty speech, there is not on the other side any pushback from a countervailing value of free speech (in the case of the U.S., for example, a constitutionally-protected countervailing value). Thus, it has the potential to go very far in the direction of policing everyday speech quite stringently.

The latest development is a case where Hu Wei, a CCTV television personality, made a series of posts last month on Sina Weibo (Chinese twitter) insulting people from Henan province (a common target of popular prejudice, combining a Manhattanite's image of Appalachians with Donald Trump's image of Mexican immigrants). Apparently he really has it in for Henanese, having made another Weibo post in April saying that they were all good-for-nothings who knew only how to have babies, steal, and boast.

Jing Changshui, a resident of Henan [NOTE: corrected from "Hunan"] decided he had had enough and brought suit on August 31st against Hu and the operator of Sina Weibo in a local court in -- you guessed it -- Henan (in the city of Zhengzhou). He seeks removal of the offending posts and a commitment to post no more of them, an apology to the people of Henan in national and provincial media, and damages of 1000 yuan for emotion distress. For various reasons, he wishes to characterize his suit as a public interest suit, not an individual suit.

When a suit is brought, there's a preliminary gatekeeping stage in which court decides whether there's enough there to justify going further. This decision is called li'an (立案), often translated as "docketing". Courts have a week to make this decision. Just as the deadline was approaching, on Sept. 7th, the Zhengzhou court decided to docket the case. This means that it will now go forward: the plaintiff will have the opportunity to plead and prove his case, and the defendant will have to show up and defend.

Although docketing the case does not mean that the plaintiff wins, it does mean that the court is unwilling to say that as a matter of law, the facts as alleged by the plaintiff simply don't state a legal claim. Put another way, the court is saying that at least in some circumstances, making nasty generalizations about a group can lead to liability.

This is not at all surprising, given what we already know about the operation of defamation law in China. Nevertheless, it does clarify (and a decision in favor of the plaintiff might clarify even further) the scope of defamation law: that it extends to groups. At the same time, I'm not sure why this is being presented in the press as some kind of breakthrough or difficult case: a similar case on similar grounds was brought in 20o5 and accepted by a Henan court; it ended in a settlement. 

I found this case especially interesting when I ran across it today because it was only yesterday that I ran across an instance of what is arguably group defamation committed by Air China against Indian, Pakistani, and black residents of London (and possibly worldwide). The photograph below is from an article in Air China's inflight magazine about London:

I confess I can't remember (or perhaps never knew) the precise rules on suing a defendant inside China under Chinese law for a tort when the victim is outside China. Presumably the effect of the tort is felt both within China (when the magazine is read on a domestic flight) and outside. I'd welcome comments on whether a lawsuit in China against Air China by offended residents of London would be at least theoretically possible, given the endorsement of group defamation theories by the Zhengzhou court.

"Patriotic" Chinese companies warns that workers who buy iPhone 7 will be fired

Here's the story from the South China Morning Post. What the company seems to have forgotten in its patriotic indignation is that China actually has some employment laws that forbid employers from firing employees simply on a whim - especially if they have long-term contracts, which after a certain period of time all of them will have.

China-Philippines UNCLOS arbitration ruling: the documents

Here they are, courtesy of Andrew Erickson (spoiler alert: China lost).

 

China to require government agencies and SOEs to hire lawyers and to listen to them

Here's the report from Xinhua. According to the report, 

China's central authorities has [sic] ordered the adoption of a legal counsel system at governments and Communist Party committees above the county-level as well as state-owned enterprises (SOE) before 2017, a major step to promote rule of law.

. . .

Government and Party organizations are urged to hear the opinions of legal counsels before making major decisions, involve them in the process of decision-making, formulation of major government policies and intra-Party rules, and the handling of some legal cases and emergency situations, said the guideline.

Legal counsels are also required to participate in negotiations involving the government or party organizations and deal with other legal matters.

Matters that are deemed illegal or in violation of regulations in the opinion of legal counsels should not proceed, said the guideline.

I cannot see this as a "major step" to promote the rule of law. If government agencies and SOEs don't follow the law today, it's because the system does not make it important for them to do so. If they don't consult lawyers, it's likely because they make a rational calculation that the advice of lawyers is not important to what they do. Requiring them to hire lawyers does not change any of that. By way of comparison, US financial institutions do not have huge compliance departments, and corporations do not pay securities lawyers millions of dollars, because the government requires them to do so. They do these things voluntarily because the way the system works makes it in their interest to do so. This new Chinese policy is perhaps a nice full-employment program for lawyers, but there's no reason to think that by itself it will increase rule-compliance by its targets.

White Paper on Judicial Reform

Last March, the Supreme People's Court posted on its website an English version of its White Paper on Judicial Reform, but for some reason did not make the original Chinese version available online. I now have a scanned version of the original Chinese text; it's available here.

New web address for Chinese court judgments site

The official web site for court judgments, 中国裁判文书网, has changed its URL from http://www.court.gov.cn/zgcpwsw/ to http://wenshu.court.gov.cn/. Thoughtfully, they have neither installed an auto-redirect at the old web site nor even provided information about the new web address.

 

China's criminal conviction rate stays high

According to this report from Caixin, in 2014 the percentage of not-guilty verdicts was 0.066%, or fewer than 6 in 10,000. (Figures for 2015 are incomplete.) The report cites figures for other countries, including 2% in Finland, 9% in the US, and a whopping 25% in Russia.

I last blogged about this almost ten years ago, and as far as I know the situation is still pretty much the same:

Without information on what kind of cases are brought to trial - information that only in-depth fieldwork would reveal - it's hard to know what to make of this number. It is theoretically possible that doubtful cases are never brought to trial, although recent well publicized cases of miscarriages of justice (for example, here and here) make that hypothesis a bit implausible. But just how implausible is impossible to say.

Moreover, there is no particular reason why China should look like the US - and in any case, I'd want to know more about where that number for the US came from, given the complexity of the US legal system with its state and federal courts. Still, one can say a few things with a reasonable degree of certainty:

1. Guilt is obviously not really being determined in any serious way at the trial state. Therefore, either the Chinese system railroads suspects, or it makes a good-faith determination of guilt before the trial so that the non-guilty never get that far. If the latter, then a criminal procedure system that doesn't give suspects full rights to a defense at that critical pre-trial stage is inadequate.  And one must say that there are lots of cases that make one wonder how careful investigators are in their pre-trial investigation.
2. A high acquittal rate, such as we see in Russia (if it's really that high) would be evidence that judges and prosecutors aren't in bed together. A low acquittal rate is not evidence that they are, since again it could be that prosecutors are really, really careful, but it's consistent with that hypothesis.

Paul Gillis on the PCAOB's China troubles

Last Tuesday I blogged about the breakdown in talks between China and the Public Company Accounting Oversight Board. Here's a blog post on the same issue from Paul Gillis at the China Accounting Blog. Check out the comments as well.

Criminalization of test cheating? Less than meets the eye.

The Shanghaiist blog recently reported on a recent amendment to the Criminal Law that will come into effect on Nov. 1st, saying, "Chinese students who cheat on exams could now face up to 7 years in prison." (Here's a similar story from the China Daily headlined "Cheating in civil service exams means seven-year jail".) Well, not exactly. Actually, not even close.

There is indeed a new rule about cheating on official state examinations, including the all-important gaokao (university entrance examination). It will appear as Article 284A (第二百八十四条之一) in the revised Criminal Law.

Here's the full text in Chinese:

• 在法律规定的国家考试中，组织作弊的，处三年以下有期徒刑或者拘役，并处或者单处罚金；情节严重的，处三年以上七年以下有期徒刑，并处罚金。This provision provides for up to seven years' imprisonment for those who organize cheating in serious circumstances. This is not a punishment for the cheaters themselves.

• 为他人实施前款犯罪提供作弊器材或者其他帮助的，依照前款的规定处罚。 This provides punishment under the previous paragraph for those who assist in the above offense by providing cheating equipment or other assistance. Again, no punishment for cheaters themselves.

• 为实施考试作弊行为，向他人非法出售或者提供第一款规定的考试的试题、答案的，依照第一款的规定处罚。This provides punishment under Para. 1 for those who sell or other supply exam questions and answers in order to help people cheat. No punishment for cheaters themselves.

• 代替他人或者让他人代替自己参加第一款规定的考试的，处拘役或者管制，并处或者单处罚金。Finally, we have some language that provides punishment for cheaters themselves. But it applies only to one kind of cheating: impersonating a test-taker to take the test, or having someone impersonate you to take the test. There is no punishment for any other kind of cheating. And the punishment for cheating by impersonation is light: detention (拘役), which is for between one and six months, or control (管制), which is similar to probation.

Bottom line: The headline should read, “Chinese students who cheat in one particular way on exams could face up to six months in detention.”

Follow-up to post on contempt for law by lawmakers

I recently blogged about a notice of "residential surveillance at a designated place" (RSDP) that I stated was blatantly illegal because it wasn't for investigation of one of three statutorily designated crimes. I didn't discuss one exception to the restriction--RSDP may also be imposed where the suspect has no fixed residence (无固定住处的)--because I figured (and still believe) that the suspect in this case was not homeless, and since I was tired it didn't seem worth undertaking an extended discussion only to conclude that the exception didn't apply.

I still believe it doesn't apply, but my friend and colleague Joshua Rosenzweig has kindly permitted me to reproduce an email he sent me (part of which quotes from a forthcoming paper of his (earlier version here)) that shows that the issue isn't quite as undeniable and blatant an illegality--at least from the standpoint of the police--as I had originally supposed.

Both the MPS and SPP [have issued] regulations [that] define ‘fixed residence’ as a ‘legal’ (合法) residence (住处 or 居所) in the city or county where the case is being handled. There is, however, no clear standard for what constitutes ‘legality’ of a residence in the context of criminal procedure, leaving the matter open to a degree of interpretation. According to the definition of ‘domicile’ under civil law, legal residence might be defined as the place of household registration. Many Chinese reside in locations different from their places of household registration, however. Chinese civil law provisions also contain the concept of ‘habitual residence,’ which requires a period of continuous residence of one year or more. But there is also the problem of determining whether a rental unit can be considered a ‘fixed’ residence or how to handle individuals who reside in shared rentals or dormitories.61

This probably has something to do with why the case is being handled by police in Tianjin. Since the lawyers are all from Beijing, they don't have 'legal' residences and thus become eligible for this form of detention.

In other words, this is how the police could respond if accused of violating the Article 73, whereas if the language about "no fixed residence" weren't there, they would really have no defense at all, even a spurious one.

Josh of course is not defending any of this; he's just making the point that there is this linguistic escape hatch. It's a pretty spurious defense, though. If there were a neutral arbiter deciding these issues, I would argue back that given the intention of the new Article 73 (to reduce long-standing police abuse of RSDP by strictly limiting its application), it couldn’t possibly be correct that it could still be used on anyone not living in the place specified in their domicile registration, since that’s probably hundreds of millions of people, and neither could it be right that all you need to do to get around it is to send in police from somewhere other than the suspect’s place of usual residence. And of course mere departmental regulations can’t override a statute, anyway.

But this just underscores the real problem: there is no neutral arbiter, and the police are the judge in their own case. Before the revision to the Criminal Procedure Law, the police were already violating the law on residential surveillance by cooking up RSDP, which had no statutory basis. The law allowed residential surveillance, and there is no basis for thinking that the lawmakers really meant to include surveillance not at the suspect's residence. But there was no institution in China willing and able to call them on this and rein them in. Then in 2012 the legislature decided to try again by allowing it, but only in limited circumstances. As before, the police can issue their own interpretive regulations and engage in practices that clearly violate the spirit of the law and the intention of Article 73, but there is no neutral third party capable of making that call. All the legislation in the world is not going to change police practices; what's needed is institutional change. This is not a breathtakingly original insight; I mention is just to put this particular phenomenon in context.

Should the United States send Ling Wancheng back to China? Could it?

The New York Times recently carried a story confirming a long-standing rumor that Ling Wancheng, brother of the toppled top aide to China’s former top leader, Hu Jintao, was living in the United States. Apparently China wants him back in China—not surprisingly, given his intelligence value. Presumably—apparently it’s all unofficial so far—China is telling the US that he’s wanted on corruption or other criminal charges. This has led to quite a bit of discussion on the question of whether the US could or should send Ling back. (This blog post is a slightly expanded and more legally technical version of my contribution to a discussion at the Asia Society’s ChinaFile site.)

I think it might be useful to lay out some of the legal issues involved here. First of all, let’s distinguish between extradition and deportation. Extradition would take place pursuant to a treaty between China and the US, and critically would not require a finding by US authorities that Ling had violated any US law (or even Chinese law). Nor would any other legal basis for sending Ling back (aside from the treaty) be required. All that is necessary would be for China to make a case—presumably meeting some standard of plausibility—that Ling had violated Chinese law and should be returned to face trial. But for the very cogent reasons discussed by Jerome Cohen in his contribution, there is no extradition treaty between China and the US.

Thus, if the US government wants to keep Ling, it has no obligation to send him back. This raises two issues: (1) Should it want to send Ling back? (2) Assuming it wants to send him back, can it?

On the first issue, one of the points raised in this discussion has been the idea that sending Ling back will promote cooperation by China in US law enforcement. I’m dubious about this. In a wide range of fields, China has over the years been consistently and highly uncooperative with both the US and other countries in their efforts to investigate unlawful activities in China. The Securities and Exchange Commission and the Public Company Accounting Oversight Board have experienced years of frustration in seeking Chinese cooperation in their efforts to investigate securities fraud and accounting malpractices involving Chinese firms and citizens. Just two months ago, an Associated Press report described the “legal firewall” shielding Chinese parties from foreign investigations, in this case Italian attempts—utterly stonewalled by China—to investigate the flow of $4.9 billion in laundered money to China. And despite its denunciations of hacking and denials of government involvement, the Chinese government has refused to help foreign authorities bring Chinese hackers to book. China doesn’t need to do more than anyone else, but it does need to offer the degree of cooperation that’s normal in the international community before it can reasonably ask others to cooperate with it. If the US government has good policy reasons for wanting to send Ling back, so be it, but a vain hope that it will induce greater cooperation by China in a range of law enforcement activities should not be among them.

The second issue is whether the US government can send Ling back, assuming it wants to.

The short answer is maybe. There are three general types of legal basis. (There may be others.) The first is contained in 8 USC § 1227(a)(4)(C)(i), which states that “[a]n alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” There are some exceptions to this deportation power but they don’t seem applicable to Ling’s case.

The second legal basis would be in a violation by Ling of immigration law in connection with his entry into the United States. This is not of course to say that Ling did violate immigration law when he entered the United States—I have no knowledge of the circumstances under which he came here—but if, for example, he entered on a non-immigrant visa without the intention, at the time of entry, to depart when the time came, that would be a violation of immigration law and likely grounds for deportation, as would any other kind of false statements (at least if they were material) in the visa application process.

The third legal basis—which I use as a catch-all category—would be the commission of various acts (for example, terrorism and other crimes) that Congress has deemed grounds for deportation. Again, I have no reason to believe that Ling has committed any such acts.

The point, then, is that the US government operates under some constraints where deportation is involved. It cannot just decide to deport and then deport. There must be a statutory basis.

Let us suppose, then, that the US government relies on deportability on foreign policy grounds—the first basis above, which does not depend on any violation of US law by Ling. That is still not the end of the story. There is a further complication posed by the fact that Ling could raise various bars against deportation. He could, for example, claim that he is the subject of political persecution and seek asylum on those grounds. Such a claim would not, of course, necessarily succeed.

A second and more plausible claim—since it relies importantly on conditions in China and not much on Ling’s personal characteristics—would be that he was in danger of being tortured if returned to China. The United States is a party to the United Nations Convention Against Torture (CAT). The CAT is one of the reasons that the Canadian courts made it so difficult for Canada to send Lai Changxing back to China. Art. 3 says, "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The US has declared that it interprets this to mean "more likely than not."

The status of the CAT under US law is complicated, but the long and the short of it is that Ling can raise a claim of possible torture to try to avoid getting sent back to China. (As with all claims, to say he can raise it is not to say he can raise it successfully.) In 1998, Congress passed legislation intended to incorporate the rules of the CAT, which the US had ratified, into US law, precisely because the US had specifically declared upon ratification that the CAT would not automatically become part of US law. Congress specifically directed the executive to enact regulations implementing the US’s obligations under the CAT, and to use as definitions of various terms the definitions of those terms in the CAT. But Congress also added that any regulations so enacted would not be reviewable by courts. In other words, the executive branch would have the last word on what compliance with CAT meant. Other countries might disagree, but that wouldn’t affect anyone’s rights under US law. Thus, Ling could attempt to resist deportation by asserting whatever rights he has under the relevant Department of Homeland Security (DHS) regulations designed to implement the CAT.

Even assuming he can successfully make a case under those regulations, however, there is still a final question: does the Secretary of State’s power to deport under 8 USC § 1227 trump an alien’s right not to be deported under the relevant DHS regulations implementing the CAT? Who wins in case of a conflict? The same conflict could crop up if Ling seeks asylum on the grounds of political persecution. I do not know the answer under US law, but it might well be different from the answer under international law.

Finally, let me caution readers that I am not an expert in this area of law, and would welcome correction where I have got it wrong.

The Ai Weiwei visa mess - how it might have happened, from a Foreign Office insider

With the kind permission of the author, I'd like to share Kerry Brown's take on how this whole mess might have happened:

I worked as the Head of Policy at UK Visas for six months in 2005. It was my last Foreign Office job, though the department was one shared between the Foreign Office and the UK Home Office. Since then I have been fully rehabilitated back into society! I have to say though, from knowledge from that period, that the Ai Weiwei visa case has all the hallmarks of a cock up. In some ways, it would be preferable had there been high level fiat about this, because at least it would have shown that someone, somewhere was making decisions.

The truth is that Entry Clearance Offices, at least in the British system have God like powers, and the only person who can overturn their decisions, in the end (as this case proves) is the Home Secretary. That means that often very junior and inexperienced visa staff, who are more often than not utterly clueless to the changing rules and regulations governing visa issuance, can make the most extraordinarily perverse judgments. The case I remember best from my brief, inglorious stint in this position (it was hard to do a job where the words in the job title were so completely at odds with the reality of what I was doing - there was, and I suspect still isn't, a visa `policy' - just mildly contained bedlam, so I spent my days reading Guy Debord and the situationists and gazing at the MI6 building gardens next door) was that of issuing work visas to people needed to come and be employed in UK abattoirs. Unsurprisingly, these positions were hard to fill with local staff, so at that time, for some reason, they were recruited from (I think) Ukraine. Staff before going out to post to be visa offices were told that unmarried, largely uneducated, young men from underdeveloped countries were the highest risk and the ones they needed to be most careful about issuing work visas too! (Needless to say, UK Visas resisted all attempts to include its work in relevant racial and gender equality legislation). However, it was precisely this demographic that tended to apply to come to the UK for six months to work in abattoirs.

All worked well, and the annual quota of abattoir workers were happily delivered, until a more pure minded, zealous visa official was sent to work in Kiev, and promptly turned down the whole batch of new applicants, causing chaos in the farming community in the UK reliant on this source of labour, who of course used their considerable clout to protest. It was to no avail though, The person who did the refusing was acting within the law, and there was no way that year any were let through. I think it was only resolved with them being offered some other tasty post to exercise their budding bureaucratic skills, and a more compliant official sent to replace them. .

So I can well imagine the scenario with Ai Weiwei. A visa officer with a sheen of knowledge of his case, mostly culled from the Daily Mail (still no doubt shipped by air freight to the post in Beijing), who sees this Chinese avante garde artist attempting to sully the pure morals of the Great British public, and deciding to make a silent majority stand by turning him down. His or her Entry Clearance Manager, probably a Foreign Office appointee with a bit more political sense, would no doubt have had the `discussion' when reviewing the refusal, and suggesting a compromise (the 20 days). We have, ladies and gentlemen, the final result - a classic, great British cock up. I can well imagine the weary sighs in the Chancery the morning this story broke, because as ever they would be left to clear up a mess which, in this case, I truly believe, was not of their making.

Oh that there had been sinister calculations about how to avoid Ai bashing into Xi Jinping during his September visit. Or at least some artfulness and signs of intelligent (albeit perverse) life. But no, I really don't think there was.

But I would be happy (and relieved) to be proved wrong.

More contempt for law from the lawmakers

Over the last month or so, the Chinese authorities have been engaged in a crackdown on rights lawyers of unprecedented ferocity. Here's Jerome Cohen in a Wall Street Journal article about it:

New York University law professor Jerome Cohen, one of the first American lawyers to work in China after the country opened up in the late 1970s, described the sweep as “insane.” China’s leaders “must be in desperate straits to engage in this extraordinary, coordinated attack on human-rights lawyers,” he said.

Strong words! In any case, after all that stuff at the Fourth Plenum about the rule of law and exercising power within a cage, you might think that the authorities, with the power to make law completely in their hands, would manage to abide by it, right? Wrong. There are of course many stories about lawyers and others being rounded up without proper procedures, but today I came across a particularly glaring example that exists in black and white and cannot be denied or explained away.

Take a look at the document below: it's a notice of "residential surveillance at a designated place", i.e., so-called residential surveillance where the police hold you at some place that is neither a nail nor your residence -- and we're not talking about a fancy hotel here. The suspect is the lawyer Xie Yuandong, and the suspected crime is that of "stirring up trouble".

 

The problem with all of this is that under Article 73 of the Criminal Procedure Law, which reflects a 2012 amendment designed to reduce police abuses of this procedure, "residential surveillance at a designated place" may be imposed on a suspect only for three crimes: “Where there is suspicion of the crime of endangering national security, the crime of terrorist activities, or the crime of receiving bribes in serious circumstances, and implementing residential surveillance at the suspect's residence could hinder the investigation, then upon approval by the next higher people’s prosecutor’s office or public security authority, residential surveillance may be implemented at a designated place of residence[.]" (对于涉嫌危害国家安全犯罪、恐怖活动犯罪、特别重大贿赂犯罪，在住处执行可能有碍侦查的，经上一级人民检察院或者公安机关批准，也可以在指定的居所执行。)

Thus, placing Xie in residential surveillance at a designated place is an open-and-shut violation of the Criminal Procedure Law and is nothing more than kidnapping. Of course, the whole problem could easily have been avoided had the authorities had the wit to fill in the blank for the suspected crime with one of the eligible ones. But this is exactly the point: the law means so little to them that they can't be bothered to understand or follow it even when it would be easy to do so.

[AUG. 8th UPDATE: The situation is a bit more complicated. See this follow-up post.]