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

 

 

 

Supreme People’s Court & big data

On 22 December, the Supreme People’s Court (SPC) posted four big data reports drafted jointly by its Information Center and the Judicial Cases Research Center (affiliated with the National Judicial College).

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The bar chart above, from the divorce report, shows the number of divorce cases heard in the courts in 2014-September, 2016, stating that the 2016 cases have increased almost 11% over the same time the year before. A subsequent chart shows that domestic violence as the cause for divorce in 27.8% of cases.screen-shot-2016-12-27-at-7-11-32-am

The reports appear to be products of the recently established SPC big data company.  The analysis in the reports is restricted to bullet points, rather the more detailed analytical reports that are found on the websites/Wechat public accounts of courts and lawyers.  (Suggestion to (any) readers from the SPC–  translations of these reports would be a useful addition to the English version of the SPC’s website).

Anyone looking for more than current statistics and basic analysis is advised to search for more detailed analysis done by law firms, local courts, some of the legal media companies, and some of the other divisions of the SPC.  On the topic of divorce, for example, an SPC judge published this analysis earlier this year, generally considered to be the most authoritative summary of the issues in Chinese divorce law.

The 4th Five Year Court Reform Plan (Court Reform Plan) flagged the SPC’s big data company and the stress that the SPC is placing on big data:

22. Deepen reforms of judicial statistics.Reform mechanisms for judicial statistics with the idea of “big data, big picture, and big service” as a guide; make a system of standards for judicial statistics that has scientific classifications and complete information, gradually building a model for analysis of empirical evidence that complies with the reality of judicial practice and judicial rules, and establish a national archive of court judgment opinions and a national center for big data on judicial information. (translation from @Chinalawtranslate)

The Court Reform Plan signals that the stress is on judicial statistics and using big data for internal use rather than for public access, as “complete information” is not provided to the public, with death penalty statistics the best-known example. Although judicial transparency is greater before (especially for those of us with a historical perspective), from time to time SPC media sources reiterate that judicial personnel are required to keep state secrets (as the Judges Law and other legislation require).

At the moment, transparency of judicial statistics and analysis varies greatly across provinces. Jiangsu Province’s high court, for example, has judicial statistics on its homepage:screen-shot-2016-12-26-at-9-27-32-pm

Many law firms publish big data analysis of specific types of cases in their area of practice, such as this analysis of credit card fraud cases in Guangzhou (22% of the defendants were represented by counsel) and drug cases in Guangzhou (less than 15% represented by counsel). An analysis of drug cases in Guangdong (Jieyang, a center for the  methamphetamine business) by the local court, has important insights into the routinization of criminal justice, the inadequacy of court judgments, and the way that the trial itself and the role of defense counsel (if hired) is marginalized.

Big data analyses can be found in a range of substantive areas, ranging from finance disputes to construction disputes, some by law firms and others by local courts.  My fellow blogger, Mark Cohen, recently highlighted the data analysis provided by IPHouse, a firm started by a former SIPO Commissioner.  They are useful to the lawyer/in-house counsel planning or considering litigation strategy, as well as for policy-makers and academics. Each provides a glimpse of how (and sometimes why)  the Chinese legal system works as it does.

 

Supreme People’s Court rushes to achieve year end targets

imgres-4The rush towards year end in the Supreme People’s Court (SPC), as in the business world, means a flurry of announcements of important developments, to ensure that the SPC meets its own performance targets.  Among the recent announcements are:

  • reform of the maritime courts, to make them internationally influential (this has both political and legal implications, blogpost to come);
  • approval by central Party authorities of the third round of judicial reform pilots, and the holding of a large scale meeting of representatives from the Leading Group on Judicial Reform with the SPC and Supreme People’s Procuratorate (SPP),  on the focus (personnel reforms) and roll out of these projects.  Jiang Wei,deputy director of the Office of the Central Leading Group for Judicial Reform, spoke along with his SPC and SPP counterparts.  Political legal committee secretaries from the pilot areas attended, along with court and procuratorate officials.
  • Reform of the family court system, announced at a conference held in Guangzhou, attended by Justice Du Wanhua, highlighting that the rush of judges to meet performance targets (closing cases) Iamong other factors) has had a negative effect on children, elderly, disabled, and women.  The SPC likely published typical/model family law cases in November (discussed in this  blogpost)  because pulling together those cases was part of the preparations for the Guangzhou conference;
  • progress report and further plans on improving judicial assistance (separate but related to legal assistance), with the release  of the2014  multi-agency document (Central Political Legal Committee, SPC, SPP, Ministry of Finance, Ministry of Public Security, Ministry of Justice), stating that the central government had allocated 700 million RMB for judicial assistance and local governments  1.7 billion RMB, targeted at financial assistance for victims of crimes and others, with funds allocated to about 80,000 in 2014, (certainly a fraction of what is needed)
  • long pronouncement by Justice Shen Deyong on the “standardization” of the courts, citing the important status and important role of the judiciary in the governance of the country, but the growing contradiction between the needs of the people and  judicial resources and judicial capacity, decrying the lack of “top level design,” and calling for the implementation of related reforms.

This list will be supplemented later this month, as further announcements are made.

 

Some typical Chinese family law cases in 2015

dd9a8f4c1a39797ea5a7e4843c8a2724 (1)Each month (as highlighted this earlier blogpost), the Supreme People’s Court (SPC) issues typical cases at a press conference. In November, family law cases were the center of attention for a change and were briefly reported by the South China Morning Post.

This month’s typical cases were selected from the Beijing, Shandong, and Henan courts and are aimed at educating the general public rather than legal professionals.  The cases, statistics, and comments from the Supreme People’s judiciary  give a glimpse into the social, economic, and cultural changes that have affected Chinese families over the past 20 years and reflect the differences between rural and big city life.

Statistics

Judicial statistics is one of the areas slated for reform by the Court, which has the potential to improve (or not) the situation for analysts of the Chinese court system.

  • 4,000,000 family law cases have been heard in the past year and 10 months. President Zhou Qiang reported earlier this year that  1,619,000 family law cases were heard in 2014, accounting for about 30% of civil cases, which would mean that over 2 million cases had been heard in the first 10 months of 2015 (assuming the cases are classified the same way in both years).
  • 124981 family law cases have been heard in the Shandong courts this year, constituting about 24% of all civil cases.
  • In the Beijing courts, 38, 619 first instance family law cases were heard in 2014.

Issues for Chinese judges

The press release hinted at some of the difficult issues facing Chinese family law judges nationally, which are many of the same facing their counterparts in Shenzhen:

  • Division of property when spouses divorce, which means both division of family home(s) and family business(es).  Parents often provide some or all of the funds for the home, before marriage, and the controversial rule set out in the #3 Marriage Law Interpretation
  • Child custody;
  • Divorce after a second marriage.

Divorcing spouses are increasingly antagonistic, making it difficult for judges to mediate a settlement, which is the preferred resolution for Chinese judges.

Summaries of some of the 30 typical cases

Must engagement gifts be returned? A case from a rural court in Shandong

Zhang and Zhao were introduced by Zheng, and became engaged. Zhang gave Zhao 40,000 RMB cash, four rings, and other gifts as betrothal gifts (彩礼).  The couple did not marry, and Zhao refused to return the cash and gifts. Zhang sued in the Jining District Court.  At trial, Zhao returned the 4 rings.  The Jining Court ordered Zhao to return the cash but not the gifts.

The SPC commentary noted that although the cash and other items are in form a gift, the legal consequences are different, and according to the #2 Interpretation of the Marriage Law, the gifts must be returned. Article 10 (1) of that interpretation addresses this situation: if the court finds in pleadings a demand for the return of the betrothal gifts given to the other party according to the traditional practices because the parties fail to register their marriage, the people’s court shall uphold the demand.

Concealing property from ex-spouse (Beijing)

Sun and Li divorced in 2004.  The arrangements the couple made were that the wife Li would have custody of the child, the formerly state-owned housing would belong to the wife, and the business, cars, etc. would belong to the husband, who would provide alimony and child support.  In the process of demanding child support from Sun in 2014, Li discovered that Sun had bought property during the marriage, but had concealed that fact from her. She went to court to demand that ownership of the apartment be transferred to her name. Sun said that the apartment was bought when the couple was living apart, he had told her, the divorce settlement provided that the business, cars, etc. belonged to the husband and besides the statute of limitations had lapsed years ago.

The Changping District court decided that because the apartment had been bought during the marriage, it was joint marital property and Sun could not provide credible evidence that Li knew of the property during the marriage.  Therefore the statute of limitations argument failed. The court decided that ownership of the apartment should remain with Sun, but that Li was entitled to half of its market value, or 1,400,000 RMB.  The couple appealed to the #2 Beijing Intermediate Court which upheld the lower court.

The SPC commented that because traditional attitudes of marriage for life have changed, there are more and more divorce cases.  In this case,  because Sun concealed the purchase of the apartment, under Article 47 of the Marriage Law that when the court partitions the property, it could allocate less or no part to Sun.

Does the non-custodial parent of a child born to an unmarried couple have visitation rights? (case from a rural Henan court)

Wang and Chai were introduced and subsequently had a wedding celebration according to local customs, but never formally registered their marriage. They lived together and Chai gave birth to little Wang.  Thereafter the couple separated.  The couple went to the Xun County court to resolve their disagreements about the child.  The court decided that Chai should have custody of the child, until the child is old enough to express her preferences.  A month later Wang went back to court to demand visitation rights.

The Xun County court relied on Art. 38 of the Marriage Law, concerning visitation rights of the non-custodial parent in divorce to decide that the father could visit the child the first Sunday of each month from 9 am to 5 pm.

The SPC commented that visitation rights are a basic legal right of a non-custodial parent to have contact, visit, and live together for short periods, but visitation must be done in a way that does not affect the normal life and studies of the child.

Do the elderly have the right to support from their children? (a Beijing case)

Seventy seven year old Mrs. Liu was in poor health and in financial difficulties.  She sued her two children in Beijing’s Xicheng District Court to require them to provide her support in the amount of 900 RMB monthly.  The daughter said she had no income and the son said his after- tax income was only 6500 RMB and refused.  The court ordered the son to pay 800 RMB per month and the daughter 500 RMB (on the grounds that based on her work history she must have income).

The SPC commented that grown children have the legal duty to support their parents [under the Law on the Protection of the Rights and Interests of the Elderly], but the amount will depend on the elderly person’s cost of living, the health of the elderly person, and life style, and if the elderly person has several persons to look to, the amounts each will need to pay in support will depend on each person’s financial situation.