Welaw Monitor (微律观察) #2

I am traveling at the moment, so my time to review articles published on Wechat is limited.  But below are some links of interest.

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Huazhen (Flower Town) emotional counseling

Oldies but goodies

Several prominent media sources, the South China Morning Post among them, are running articles on China’s clean-up of the financial sector, this one pointing to the government’s focus on privately owned insurance companies.

But those reading Wechat would have known that several years ago, China’s legal analysts had been writing  articles such as “China’s private entrepreneurs are all on their way to jail  or China’s businesspeople are either in jail or on their way to jail. 

China’s Good Samaritan case Peng Yu back in the news-  a backgrounder plus-retired SPC judge Cai Xiaoxue criticizes as does former judge & Peking U Professor Fu Yulin.

Detention Center Law draft

The Ministry of Public Security (MPS) has recently issued its draft Detention Center Law for public comments (link to Chinalawtranslate.com’s translation.  The draft has caused a great deal of comment within China and those concerned about the treatment of fellow human beings in criminal detention in China should read these articles:

The MPS is drafting the Detention Center Law, but the entire legal world is opposed

10 years of calls for separating detention from criminal investigation

Professor Chen Ruihua, defects of the detention system and how it should be reformed

Professor Chen Ruihua–the detention centers should be transferred to the justice authorities

Commercial law

China’s distraught buy online counseling packages, but does China’s consumer protection legislation protect them if there are no standards for counseling?

Party discipline

A Cangzhou court president is under investigation. Is it connected to the strip search of a woman lawyer?

In CCDI hearing procedures, will evidence provided by the accused be considered?  The answer is, the scope is limited

Criminal law

Three SPC judges (likely to have been on the drafting team) unpack the asset recovery regulations (discussed in this January blogpost). It shows they looked to foreign legislation when doing so;

 20 years of bribery prosecutions, with 9 acquittals

SPC on anti-drug day, with white paper and 10 typical cases

Is it rape if the sexual contact comes after the coercion?

Supervision Commission

The first father’s day after being transferred to the Supervision Commission

Labor law

Does “remote working” in China mean the place of employment has changed?

Don’t make these 10 mistakes when terminating employees

Family law issues & property

Leta Hong Fincher’s book Leftover Women discusses the Marriage Law interpretation & home purchases.  This Wechat post sets out a chart with various scenarios related to marriage & home purchase--a very handy reference.

Bankruptcy

10 typical bankruptcy cases from Suqian, Jiangsu Province, including some real estate companies

Chongqing courts borrow concepts of personal bankruptcy from abroad when dealing with private (shadow) borrowing cases

The many inadequacies in China’s non-performing asset legislation

Judiciary

A review of the Party’s work at the SPC since the 18th Party Congress

 

 

 

 

Welaw Monitor (微律观察) #1

I am tweaking the type of content on the blog, cutting down on the long analytical blogposts.   I will provide links to reports and analysis on court and other legal matters on Wechat. I am concentrating on writing a book and some other related writing and editing projects.

It remains my hope that some followers with the financial wherewithal to do so will consider supporting (in some fashion) the blogs that are enabling the English speaking and reading public to perceive (through translation or bite-sized analysis) the “elephant” that is the Chinese legal system, among them Chinalawtranslate.com and this blog.

Commercial law

14 situations where the corporate veil can be pierced

Criminal law

Public security v. SPC & SPP on what is prostitution–does that include other types of sexual services?

SPC vice president Li Shaoping on drug crimes–relevant sections of Criminal Law should be amended, better evidentiary rules needed for drug crimes, & death penalty standards need to be improved

Hebei lawyer’s collateral appeal statement, alleges torture during residential surveillance, procedural errors (part of China’s innocence project

China’s financial crime trading rules are unclear

Defendant changed his story on appeal but the appeal court ruled he was the killer

25 criminal law case summaries from People’s Justice magazine 

Criminal procedure law

public security does not want the procuratorate supervisors in police stations

A corrupt official’s polygraph problems

Supervision Commission

Its power should be caged

Beijing supervision authorities take someone into custody, will shuanggui be abolished?

Party discipline

On confession writing

10 No nos for Party members using Wechat

Administrative litigation law

SPC issues 10 typical administrative cases, including one involving the Children’s Investment Fund

Those disputing compensation for expropriation of rural land must first apply for a ruling–land is now part of the Harbin Economic and Technical Zone (unpacking of  case #46 of #2 Circuit Court’s case summaries)

Labor law

Important study by the Guangzhou Intermediate Court on labor disputes 2014-16, with many insights & a section devoted to sex discrimination issues

Don’t make these 10 mistakes when terminating employees

Family law

Status report on family court reforms (& difficult issues for judges)

 Why it’s so hard to deal with school bullying in China

How juvenile justice should be improved (the semi-official view)

Judiciary

300 cases in 100 days–a team of young judges & expedited criminal cases

Environmental Law

Procuratorate has brought 79 public interest law suits in Yunnan (press report)

Bankruptcy

Why bankruptcy is so difficult and what needs to improve

Lawyers

 legal qualification system needs changing, the profession needs those with non-law undergraduate training

 

 

 

Private lending leaves the shadows for the courtroom

Supreme People’s Court (SPC) President Zhou Qiang’s report to the National People’s Congress in March of this year omitted data on private lending disputes.  In 2016, Zhou Qiang stated that the courts dealt with approximately 1.5 million cases, up 41% from the year before. According to a widely cited study issued in November, 2016, private lending disputes were the leading type of  civil dispute in the Chinese courts in 2011-2015.  Data on private lending disputes in 2016 seems to be missing from year end reports by many local  courts, although the the SPC is promoting the use of big data.  The report discussed below is an exception to the general trend this year. Beijing’s Chaoyang District  Court, one the busiest basic level court in China, recently published a report on private lending cases.

Data from Beijing’s Chaoyang District, numbers of cases accepted, 2013-2016:

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2013-16, number of private lending cases accepted

The court noted that the year on year growth rate for private lending cases was 8.1% (2013-2014), 128.9% (2014-2015), 160.3% (2015-2016), with 2016 cases over five times the number in 2013. In the first four months of 2017, the Chaoyang  court accepted 8777 new cases. The court expects the number of private lending cases to increase substantially during 2017.

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2013-16 cases , amounts in dispute, in units of 100 million RMB

Cases involving large amounts in dispute are on the rise: in 2013, 21 cases involved more than 10 million RMB, 31 in 2014, 61 in 2015 and 95 in 2016, with one case in 2016 involving 96 million RMB.  Total amounts in dispute in 2016 were over 821 million USD.1f8c0005df46479e9f11

Comments by court researchers:

  • Almost 1/3 of the cases involved one company.
  • Many of the cases involve P2P platforms (no specific numbers supplied);
  • because insufficient information is supplied, courts have problems serving process;
  • many platforms circumvent the restrictions on the rate of interest by imposing intermediary fees;
  • the loan agreements are badly drafted, making it difficult for judges to decide these  cases;
  • Few cases were settled and over 20% were default judgments.

Comment

Failing to release judicial statistics about private lending on a national level does not send positive signals about the state of judicial transparency, but does indicate the way that the SPC needs to serve government strategies.  These statistics, at a local level, do send signals about the state of the economy. Their absence at a national level does not mean the underlying economic concerns have vanished. Further concerns are raised by the fact that the Shanghai Justice Bureau, as of early April, has ordered public notaries to stop notarizing private lending agreements (notarizing an agreement makes court enforcement easier