August 26, 2011
Chinese police 'to detain suspects without telling families'
Source: guardian.co.uk
Human rights groups condemn proposal allowing officers to hold people for up to six months without informing relatives
Chinese police escort prisoners to a public sentencing. Officers may gain special powers to hold suspects at secret locations. Photograph: China Pix/Getty Images
Chinese police will gain new legal powers to detain suspects for up to six months without telling their families where or why they are held, according to a state newspaper's account of planned reforms.
Human rights activists and legal scholars warned that the change would legitimise an alarming pattern of detentions under the residential surveillance law, which was initially intended as a less punitive measure than formal detention.
Most of those who went missing in a crackdown on activists, dissidents and lawyers this year were taken to secret locations chosen by police. They were held for weeks or even months under residential surveillance. The law does not specify that relatives must be informed, presumably because it was assumed suspects would be held at their homes. In comparison, police must inform relatives within 24 hours of detention and must seek prosecutors' approval for arrest within 30 days.
The proposed changes are part of an overhaul of criminal procedure law now being considered by the National People's Congress (NPC), China's legislature.
"The proposed 'reform' is designed to legitimise this blatantly unfair, police state practice, while leaving the rest of the criminal procedure law as misleading decoration," said Professor Jerome Cohen, an expert on China at New York University's School of Law.
He said he believed police were specifically banned from holding a suspect at an address other than his or her home under binding rules issued in 1996.
Cohen added: "This is a perfect illustration of the dangers of revising the law in repressive times. The problem is that the police use each law revision round to legitimise their convenient practices and they ignore in practice the legislative and administrative reforms designed to bind them."
The draft text has not been published, but the Legal Daily newspaper reported that police would be able to hold suspects in state security, terrorism or major corruption cases at a "designated residence", if holding them at home would impede the investigation. The decision would need to be approved by higher officials.
In state security and terrorism cases the police would not have to notify the suspect's family if they believed it might hinder the investigation – a criterion that scholars say is so vague as to be meaningless. Experts say residential surveillance has been misused in the past.
But Dr Flora Sapio, of Turin's Centre of Advanced Studies on Contemporary China, said its use against dissidents was a new phenomenon.
Sapio, who has been logging proposed amendments, warned that if the change went ahead it would "entrench the powers of police much more formally" and make it harder to criticise disappearances.
Joshua Rosenzweig, an independent human rights researcher in Hong Kong, cautioned that the changes were still at draft stage and might contain restrictions on the use of the measure, but said the change appeared to be "a dangerous legitimisation of a highly suspect practice".
Scholars have praised other amendments for improving protections for individuals, at least on paper. Changes include ruling out the use of confessions obtained through torture and granting the right to judicial review for mental health patients who are forcibly detained.
Nicholas Bequelin, of Human Rights Watch, added: "If these are indeed the [residential surveillance] provisions, and they are adopted, it seems to be a trade-off for the public security bureau to sign off on the improvements in criminal procedure law.
"There is in any case very little restraint on what the police can do in sensitive cases; what's worrying is that this would be a tacit endorsement … It is a very dangerous precedent."
No one at the Ministry of Justice or the NPC was available for comment.
August 25, 2011
Choice of dispute resolution mechanisms in China
I've just been reading an interesting article that reports the results of a 2008 study of dispute resolution mechanisms and preferences sponsored by the Supreme People's Court. The investigators distributed 5,518 questionnaires and got back 5,508 effective responses. The distribution covered urban, suburban, and rural areas. No doubt there are many problems with the data; the article doesn't report how the respondents were chosen, and I doubt very much that it was done truly randomly. Such a high response rate, if nothing else, would be quite unusual, I think, among a truly random group of respondents. Anyway, the data are still interesting, even though we shouldn't put more weight on them than they can bear.
One interesting feature is the relatively strong preference for courts over other dispute resolution mechanisms. All respondents expressed a strong preference for trying first to work a dispute out bilaterally or with the aid of an intermediary; quite sensible, and no surprises there. As a second choice, urban and suburban respondents clearly preferred courts over other options; rural residents picked mediation via the villagers' committee.
There's a common-sense explanation for the villagers' stronger preference for mediation relative to urban and suburban respondents: the village is a more stable community where people know each other, and thus mediation is more coercive (and therefore more effective) than it would be in an urban setting. Anyway, here's a chart I worked up using the data. Click on it for the full-size version.
August 22, 2011
New Supreme People's Court judicial interpretation on the Marriage Law
The Supreme People's Court has just promulgated a new judicial interpretation of the Marriage Law. A large part of it is about how to deal with real property upon divorce. By and large the rules seem sensible to me as a matter of economic principles. For example, each party can keep assets that they brought into the marriage, as well as interest on those assets, but (at least as I read the interpretation) accretions to value attributable to the joint efforts of the partners (including one spouse's staying at home to look after the children while the other works to improve the asset's value) are subject to the rules on marital property.
Wang Yong, a professor at China University of Politics and Law, is not happy with Article 10 of the interpretation, and denounces it here as harmful to women and destructive of marital trust. Article 10 of the interpretation deals with the following kind of real property: both parties sign the purchase contract before they are married, but one party (usually the husband - call it Party A) makes the initial payment and has the property registered in his name. During the marriage, the mortgage payments are made from marital property. Upon divorce, if the parties do not otherwise agree, the property stays in the name of Party A. That party assumes the remaining debt. The other party (call him or her Party B) gets a share of the value in the form of a debt owed to them by Party A.
Let me say first off that it's not completely clear to me that the interpretation calculates correctly the amount Party B should get. Assume for simplicity's sake that both parties contributed equally to the pre-marriage down payment. All post-marriage payments should be deemed to come from marital property, which is presumptively owned in equal shares by the parties. Let's assume that the down payment was 100,000 yuan on a sale price of 1 million yuan, so the couple borrowed 900,000. And further assume that in the course of the marriage the parties paid off 400,000 of the debt from marital earnings, so the remaining debt is 500,000. And finally, let's assume that the residence is now worth 2 million. If the principle is to give the house to Party A and give fair compensation to Party B, then we should give Party B half of the couple's equity in the house: (2,000,000 - 500,000) / 2 = 750,000. If Party A made the initial payment alone, then we must first subtract from 2,000,000, and return to Party A, an amount equal to the initial payment plus the opportunity cost of that payment, which could mean (a) a reasonable rate of interest or (b) a rate equal to the appreciation of the residence's value - this is a policy choice, not a self-evident economic one.
I'm not sure Article 10 does that. It says that Party B should get a share of the appreciation, but it also seems to say that Party B should get some compensation for her (it's most likely the wife) share of mortgage payments made during the marriage. This seems to me liable to lead to double counting.
This is not Prof. Wang's objection (it would work in Party B's favor, in any case). His objection is that this treats what ought to be marital property essentially the same way as property brought into the marriage by either spouse, thus rendering the marital property regime for the residence essentially meaningless. He doesn't quarrel with the economic calculation, but says that Party B is put in a disadvantageous position by having to be the plaintiff in requesting her fair share of the value: she has to pay the legal costs of defending her interests and she has to bear the burden of proof, while Party A can enjoy the benefits of passivity.
There is something to this, if the courts choose to deal with the issue that way. I note, though, that the interpretation says that courts "may" (可) treat the residence in this way. I see nothing in the interpretation that would prevent the court from treating the issue of property division together with the issue of compensation - that is, telling Party A that he can get title to the residence provided, and not until, he gives appropriate compensation to Party B.
Prof. Wang makes a good point when he notes that despite the SPC's professed intention of bringing the Marriage Law into line with the Property Law, Article 10 is actually inconsistent with the Property Law's treatment of the division of jointly-owned property. According to Article 100 of the Property Law, where jointly-owned property can't be easily divided, or where doing so would impair the value (clearly conditions that apply to a jointly-owned apartment), it should be sold or auctioned, with the proceeds divided among the joint owners (each of whom could, of course, bid at the auction). This is an easy way of maximizing the value of jointly-owned property in a way that neither party can complain about (assuming they have easy access to credit, which might not be true).
April 17, 2011
He Weifang addresses open letter to Chongqing legal community
Pretty strong stuff. Available in English and Chinese at the China Media Project web site here. He has some good rhetorical touches. Among other things, he notes the irony that the judge in Li Zhuang's first trial, who excused all seven prosecution witnesses (all of whom were in custody) from appearing and being cross-examined because they "were unwilling" (grounds that have no basis in the Criminal Procedure Law), had written his master's thesis in law school on the necessity of witnesses appearing in court.
Chinese Legal Studies Association of North America
