|
|
Browse by Tags
All Tags » Law
Sorry, but there are no more tags available to filter with.
-
 Zong Qinghou Zong Qinghou, chairman of the biggest Chinese beverage maker, Wahaha has been caught in a string of troubles since the day when Wahaha became involved in a business dispute with its one-time partner, Dannone.
Earlier this year, reports began to appear accusing that Zong of tax evasion. Zong was allegedly avoiding up to 300 million yuan in taxes on undeclared overseas income. Zong responded in a newspaper interview that he was set up by Dannone. Since then, no follow-up reports on the case have appears in the mainstream media.
Yesterday, business newspaper 21st Century Economy Report had an article revealing that Zong has been a holder of a United States Permanent Resident Card - a green card - since 1999. This instantly stirred up controversy partly because that Zong has twice been elected as a representative to People's Congress, first in 2002 and again in 2007. There is no law barring US green card holders becoming a People's Representative as long as they are also a Chinese citizen, but it is astonishing for many to find out that they have been represented by the an "American". Moreover, though the People's Representatives are supposedly selected through voting, most people on the Internet say that they have never even seen a voting ticket.
According to the same article, Zong's wife Shi Youzhen also possess the Permanent Resident Card, and their daughter Zong Fuli has full American citizenship.
Links and Sources
This article is from Danwei.org
|
-
 Life News
May 12, 2008 Today's Life News, a Yunnan newspaper, reported on its front page about a Yunnan lawyer who has launched a lawsuit against CNN and its commentator Jack Cafferty. This is latest of a string of similar legal actions both in China and abroad.
The lawyer, Wu Kaiguo, filed a lawsuit with the Kunming Intermediate Court demanding a public apology by CNN on the “international mainstream media”, and one yuan in damages. In an interview with the newspaper, the lawyer denied that self-promotion played any part in his motivation.
Beijing Youth Daily today ran an article about a lawyer who sued CNN in the US with similar complaints. He announced that he would drop the lawsuit and end his representation of the plaintiffs on May 10. No reason was given in the article for the lawyer's withdrawal.
On April 24, the lawyer filed a $1.3 billion defamation lawsuit in Manhattan on behalf of his two clients: a retired Beijing elementary school teacher Li Lilan and a Chinese American beautician Lydia Leung.
In response to the lawsuit, CNN issued an statement on May 6 but people disagree on whether the statement qualifies as an apology.
According to the article, one of the two plaintiffs, Ms. Leung, hadn't been notified by the lawyer of the withdrawal, but she pledged that she would carry out the lawsuit. A man named Huang Keqiang, who is a leader in the Chinese American community, said he would also join the suit.
Note: The photo of the woman that takes up most of the front page is about a successful sex change operation, headlined "He becomes she".
Links and Sources
This article is from Danwei.org
|
-
 Think before calling Thinking of calling 110 to report a situation to the police? Think again. Today's Southern Weekly printed the following anecdote from "winyear," a Hangzhou resident who posted it to the paper's BBS:
A fine for calling 110?
My office gets burglarized a lot. There were two incidents in the past few days, so we called 110 to report them. The police were amazingly quick and immediately sent someone over to investigate. All told, there were three sets of cops: first, a team from the precinct office, then one from the 110 command center, and finally from the city PSB, which came to collect evidence or something.
The next day, someone from the station came down to fine us. The reason seemed to be that we had called 110 rather than calling them directly. Reading between the lines, it was probably because the 110 system was province-wide, so when we called, it aired the local precinct's dirty laundry and affected how their superiors evaluated them.
Later, I learned that this was due to a "joint deterrence agreement" signed last year (the agreement was not optional: every work unit in the precinct had to sign at the police station), and that things were run according to those rules. Apparently, we've got to think it over before calling 110 in the future.
Links and Sources
This article is from Danwei.org
|
-
 Xie Wanli on a wanted poster At 10 pm on 12 March, Xie Wanchun escaped from Baoding Prison in Hubei. He was recaptured following a six-day province-wide manhunt.
Xie was sentenced to 18 years in prison following his conviction for kidnapping a 20-year-old girl and holding her for ransom in 2005. He had served two-and-a-half years of that before his jailbreak, which will probably add another five years to his sentence.
Southern Weekly visited Xie's family in an attempt to understand why he had turned to a life of crime, and what may have caused him to break out of prison. Although the report contains little that's surprising, it's a brief but interesting look into the life of a convicted kidnapper.
Who is Xie Wanli
by Meng Dengke / SW
Escapee
At 11:03 pm on 17 March, Xie Wanli gave his brother Xie Wanchun a telephone call. This was the first time he had contacted his family since breaking out of jail five days before.
Right then, Xie Wanli was in the Langfang Economic Development Zone, 150 km away from the Baoding Prison. A taxi driver told a Southern Weekly reporter that Xie had gotten into his cab in downtown Langfang that evening and had ridden all over the place, using the driver's cell phone to call up his friends to ask for money. After Xie escaped from prison on the night of 12 March, the PSB spread out across Baoding in a B-level manhunt. Since the incident had occurred during the national legislative sessions, PSB chief Meng Jianzhu had given instructions that it was imperative that Xie Wanli be apprehended, so police forces across the entire province of Hebei had added pressure.
Police checkpoints were set up and the public was mobilized to assist in the search. The reward was upped from 100,000 to 150,000 yuan.
The local television stations ran a constant crawl giving Xie's physical description and warning the public to be on the lookout. The affair was a major topic of conversation for anxious Baoding residents.
Xie wore a jacket over his prison uniform and did not behave at all oddly, so the young taxi driver did not recognize him as the escaped convict who was being pursued all over Hebei.
They drove through the economic development zone for over one hour, and during that time it seemed like no one was willing to lend Xie money. Shot down at every turn, Xie finally gave an imploring phone call to his older brother. According to the taxi driver, Xie had previously called a friend asking for help but had been refused.
"Before long, someone came to get him and paid the 90-yuan taxi fee," the driver said.
That phone call revealed Xie's location.
Xie and his family were unaware that ever since he had escaped from prison, the police were listening closely to the phone calls of all his friends and family.
Xie Wanchun was a truck driver who made frequent trips to Zhangjiakou, so when the police had determined the whereabouts of the two brothers, they organized a checkpoint on the Jingzhang Expressway near Zhangjiakou.
Seven hours later, the police stopped a truck Xie Wanchun was driving (Hebei plate number R23313) on the Shalingzi section of the Jingzhang Expressway.
The news of Xie Wanli's capture rippled through Baoding, but residents near the prison still felt some of that fright that had seized them the night the breakout had taken place.
 Xie's escape route According to the information in the PSB computer system, Xie Wanli was in block 7 of the Baoding Prison that night. During the night production shift, he exited the workroom, turned on the 8-ton hoist (with a front-mounted shovel), and drove it about 1,000 meters to the gate. He crashed through, wrecking the blast doors and entry corridors A and B before pulling down the iron perimeter fence. After driving roughly 1 km to the east, he turned south along Dongyuan Street toward the military school grounds, fleeing the vehicle after he smashed up four cars parked at the side of the road. People's Armed Police and prison police chased him without success.
Financial difficulties
Langfang is the city that Xie Wanli is most familiar with, and it was fated to be his "land of sorrow."
It was in Langfang that Xie fell just short of success followig his jailbreak, and was here, two years before, that he started his tour in prison.
Between the 7th and 15th of August, 2005, in the short space of a week, Xie and his companions committed three crimes: burglaries near the Langfang #3 Middle School and in Shengfangzhen, and a kidnapping and extortion attempt in the dormitory of the Langfang Forestry Department.
Those serious crimes bought him 18 months in prison.
However, his mother Ma Yuefen, clutching seal reading "2001 Voluntary Blood Donor" issued by the Tongzhou Blood Donation Office, said that her son was "not really a bad person."
In June, 2001, half a year after he was discharged from the army, Xie donated 200 ml of blood in Tongzhou, and his mother has kept the certificate ever since. The market value of 200 ml of blood is 1,000 yuan.
Four years later, however, the haul from Xie's first theft was a Samsung mobile phone valued at 1,068 yuan, and that amount had to be split among four people.
Xie was born 28 years ago to a family of real farmers living in Banjiehe Village in Bieguzhuang, Yongqing County, Longfang. The peaceful life of this ordinary rural family was repeatedly torn apart. Before dawn on 13 March, five or six police arrived at the house. When Ma Yuefen heard "your second son has broken out of prison," she sat down limply on the bed.
Xie Wanchun, her eldest son, was with her every day, but Ma's memories of Xie Wanli were not as plentiful.
Ma opened a convenience store when Xie Wanli was young, and he would hide under the counter waving at his mother when customers came in. This was the most vivid memory she had of him.
Xie had few friends. Because their family was poor, and Xie himself was proud, he never invited classmates or friends over to his house for dinner.
Although he was introverted and seldom spoke, Xie "had a strong personality and his own aspirations." When he had just started primary school, he stole a knife from his older brother and lied about it, and Ma struck him with a washboard for it.
Studies didn't interest him. Before he graduated from junior high school, he dropped out and returned home. In December, 1998, Xie joined an army unit in Shihezi, Xinjiang, where his sharp wits got him a position as team captain and a leader of new recruits. After his discharge two years later, he brought home a medal reading "Outstanding Soldier."
Xie gradually discovered that the farming life was not for him, and under the influence of his uncle, "his high standards were not matched by his actions, and he was loath to do any work."
His family told the reporter that around the year 2003, Xie got a driver's license and went to Langfang to find work, but he was hit hard in the job market by his lack of a junior-high diploma.
A long time later, he found a job as a driver from a newspaper classified ad. Before long he had found a girlfriend, and he found his 700-yuan monthly salary an impediment.
In the second half of 2004, Xie and his girlfriend registered to get married, but because Yongqing County was infamous as a poor area, her family opposed the union. Xie could not afford to throw a reception, so according to local custom, their wedding had not taken place.
The couple rented an apartment in Langfang using the family's money, but Xie's family members were entirely clueless as to what he was doing in the city or how his life was going. He rarely spoke of things to his family.
He once joked that his "detective" mother had no idea what her son was doing in Langfang, and to this day this simple country woman has been unable to work out why her son took to theft.
"Financial difficulty was the only motivation behind his crimes," Xie's laywer, Zhou Kewei, told this reporter. Another reason was that he "fell in with bad people"; Zhou said that in the 2005 kidnapping case, Xie's partner Li Guobin was a repeat offender.
Shortly before that incident, Xie had told his uncle that he wanted to open a carwash in Langfang. It was not to be. This youth who had long wanted to change his destiny ultimately chose the road of theft and kidnapping.
Brotherly tragedy
Before Ma Yuefen had time to work out why her son had turned to crime, the nightmare of the prison break occurred.
"Xie Wanli did not dispute the facts of his crimes," said Zhou Kewei. "He just felt that the punishment was too strong." Though disappointed, Xie never exhibited much emotion. Ma never heard anything about her son behaving badly in prison.
After Xie went to prison, his father Xie Shaoqin nearly lost his life in a gas leak accident, and was brain damaged thereafter. For this rural household, which had little furniture or electronics, life became even more difficult, and all the responsibility fell on the shoulders of Xie Wanchun.
 Baoding Prison In the more than two years that Xie Wanli was in prison, his mother visited him twice. Each time, she had to pay 1,000 yuan, "about the annual income of a mu of land [1/15 of a hectare, or 1/6 of an acre]."
"We both cried each time, and he said that he had let me down," Ma said. "He said he would turn over a new leaf and try to get out early."
Just after he entered, Xie worked on the lathe, but later his nimble mind got him a job at the controls. He told his mother that it was "really interesting."
Xie had no contact with his family apart from those visits. During the two and a half years he was in prison, he never sent a letter home.
The explanation circulating inside the prison says that "Xie Wanli broke out because of the shock of his divorce."
At the end of 2007, Xie and his wife got divorced, but his family said "Xie was the one who suggested it": "He didn't want to waste her time." Xie's ex-wife declined to talk to the reporter.
The last time Xie saw his family was this past Spring Festival. "He looked perfectly normal, and he asked us if we'd bring along his nephew, who wasn't present, to see him next time," his sister-in-law said.
But just two months later, Xie Wanli surprised everyone by breaking out of prison.
No one knows the real reason Xie broke out of prison; perhaps only he himself is able to answer that question.
Xie may not have thought about the consequences of his jailbreak. His older brother Xie Wanchun, the family's only means of support, may also face legal consequences for aiding and abetting. And Xie himself may have his jail time extended by five years, as the law prescribes for escaped convicts.
Links and Sources
This article is from Danwei.org
|
-
 License to adjudicate. Xu Ting, who struck it rich when a faulty ATM spit out RMB by the thousands while deducting single-yuan denominations from his account, and who was then sentenced to life in prison for theft, found out last week that he will be getting a new trial.
From Xinhua:
A Chinese court in the southern city of Guangzhou will rehear a case where a man was sentenced to life imprisonment for taking large sums from a malfunctioning automatic teller machine (ATM), a local newspaper reported.
The verdict of the Guangdong provincial higher people's court ruled the intermediate court should rehear the case because "there was insufficient evidence for the previous ruling", according to the New Express Daily.
The high court's decision provided an opportunity for the Chinese media to revisit their earlier analyses of Xu's case in an attempt to identify which part of the evidence was insufficient. Xu was found guilty of robbing a financial institution. Is taking money spit out by an ATM really "robbing a financial institution"? And is it theft if the money is handed over willingly? He was convicted under a law that classifies sums over 100,000 yuan as "especially large" and prescribes correspondingly large consequences for theft. But that standard was put in place ten years ago, when 100,000 yuan was worth far more than it is today. Should the law be changed?
There's no clear agreement among the experts about these questions. A commentator in the Modern Express suggested that the high court returned the case for reassessment to buy it more time to find the answers:
The appeals court was unwilling to decide the facts on its own but chose to use the more complicated procedure of sending the case back for a retrial. It did not want to be left holding the bag in this affair, but in addition, it also hoped to draw things out in order to decide the case after public opinion had shifted elsewhere.
Moreover, the appeals court may intend to use the time of the second hearing to seek guidance from above and wait for a decisive sound from the Supreme Court. Our current judicial environment lacks independence and is subject to a variety of external elements (for example, personnel and financial issues are typically under local control) that restrict its initiative and creativity. Therefore, when judges encounter difficult cases, they employ an unwritten rule of "internal referral." So we cannot rule out the possibility that the appeals court returned the case for a second hearing to provide time to seek instruction, so that when the defendant makes a second appeal, the court will have been granted an "imperial sword of justice" that it can wield in confidence.
"External elements" are frequently mentioned as reasons why rule of law has yet to flourish in China. Journalist Teng Yun brings up the media as another external element that interfered with Xu Ting's case.
Public opinion does not think highly of the banking industry, and the indignation that arose in response to Xu Ting's life sentence provided an opportunity for people to vent about unfair treatment they had received at the hands of bank tellers and ATMs—if a bank hands over an incorrect sum or a counterfeit note, the most it has to do is apologize, if it even acknowledges making a mistake. Their views were aired widely on line and in the pages of the country's newspapers.
Teng, like other observers, suggests that the high court acted partly in response to this outcry, and then goes on to make the case that the legal system should not be beholden to public opinion, regardless of the outcome.
Yet another trial by media
by Teng Yun
Reporters are not to make irresponsible remarks about the verdict before the final judgment is in. This is an iron-clad rule for media professionals. However, the Xu Ting case has dealt a savage blow to this rule. When the case had just opened, the mass media, including some lawyers, began to play up the public's emotions, severely interfering with the judicial process and setting a poor precedent in which a joint decision by the general public took the place of a legal verdict. Now they're all happy: the Guangdong High Court has issued a ruling saying that because the "facts were inconclusive and the evidence insufficient" in the case, it is returning it for a retrial.
I also welcome this outcome, I too felt that Xu's guilt did not demand his life in exchange, but I persist in my objection to the process that led to this outcome. The Guangdong High Court's new ruling, in my opinion, is a result of the law being manipulated by public feeling rather than a reappraisal in the context of the law. This type of ruling is not the real ruling that I was waiting for; instead, the spirit of the law has flinched. Such an experience can only serve to provide a precedent for future cases, leading to a further loss of independence in the judicial process and making the law something that can be coerced.
Perhaps Xu Ting has been dealt a greater injustice than Dou E, perhaps the judge who decided Xu's case was a son of a ***, and perhaps the verdict should have been not guilty. But each "perhaps" must be realized within a judicial scope; they cannot be realized in the court of the media or with the assistance of extra-judicial means. Under this reasoning, Xu's lawyer in particular broke a major taboo. He used his blog to continually influence what the public saw and heard, and he spoke in all kinds of media venues frequently. He forgot that as a counselor in the case, what he was able to do, and what he had to do, was to present his argument within the confines of the law. But he provoked the emotions of the media and the public—an objective interference in the administration of justice. To put it more seriously, he is guilty.
Why can't we have a trial by media? The logic is simple: justice must have absolute independence. Of course, someone might suggest that justice is frequently not independent, so why pick out this instance in particular? Indeed, cases where justice is not independent are not rare, but we cannot just cover over this particular case and continue to interfere with judicial independence. We cannot accept trial by media simply because of the existence of other cases of judicial interference. The press is the fourth estate, true, but the implications of this term mean that media is also an independent voice that cannot be revoked or interfered with. If we can understand why the media is accorded respect, then we also ought to understand that the judiciary deserves the same respect. Any power that over-expands and is taken to excess will end up influencing and disenfranchising the other powers. The media has its own power to be independent, but that power is necessarily limited, and it cannot become a reason to disenfranchise other powers. Returning to what "someone might suggest," if we permit trial by media, then other interventionist forces like "trial by power" and "trial by trade" will similarly find reasons and avenues to infiltrate justice. We must be clear: even if a trial by media is strongly in the public interest, it is nonetheless fundamentally an interference into the independence of justice, no different than interference from other powers.
From a technical perspective, trial by media is similarly dangerous. First, only the parties involved in the case have a full and detailed comprehension of the circumstances. Neither the media nor the public can come to a fully accurate and authoritative understanding of the case, much less presume to speak for the court. Second, trial by media can easily cause things to become overly emotionalized. In Xu Ting's case, we can see that public anger seldom expressed itself reasonably; for the most part it was just abuse directed at banks. Is it a reasonable, logical course of action to use the judgment of Xu Ting's case as a place to vent our anger at banks?
Or perhaps we are looking at a kangaroo court. It's sad, really—there's nothing more we can do, because overturning the case is not within our power. That must be accomplished within judicial proceedings; we on the outside are not qualified to change the law or the judges. We can only place our hope in the independence and impartiality of the judiciary, we must simply look forward to a mature, healthy society under the rule of law. If we are not yet at that point, then we do nothing but wait. If there really has been a trial by media, that is not a call to rebel against the course of judicial proceedings. Rather, we must wait outside the ground allotted to the judiciary, in the space given to the media and the public, to exercise our rights.
Links and Sources
This article is from Danwei.org
|
-
 Drug offenders undergoing re-education through labor Sixty-nine legal scholars and lawyers led by Mao Yushi and He Weifang have sent a letter to the NPC Standing Committee and the Legal Affairs Office of the State Council urging the state to eliminate the practice of re-education through labor.
The system of administrative detention, established in 1957, gives the police the discretion to detain people for crimes that might not merit criminal punishment. Because the practice exists outside of the normal criminal justice system, the letter-writers claim that the it violates article 37 of the constitution (the "freedom of person" guarantee), contradicts laws on criminal justice passed in 1996 and 2000, and violates international treaties on human rights, to which China is a signatory.
The letter also argues from a more pragmatic perspective that re-education through labor is simply bad policy:
- The existence of education through labor gravely harms the authority of criminal law.
- The principle of appropriate punishment: when administrative punishment of re-education through labor is applied to an action that does not rise to the level of a criminal offense is, such detention is worse than criminal punishment.
- Being completely directed by public security agencies, re-education through labor is a classic example of "police punishment," and breaks the balance between public security, the procuratorate, and the judiciary.
- Re-education through labor is highly irregular; the public security agencies have unrestricted freedom of discretion, further inflating the already excessive power of public security.
- Re-education through labor has a completely closed report and approval system. It is not open, and there is no room for argument or advocacy.
- Re-education through labor has become a hotbed of misjudged and erroneous cases. Cases that are unapproved or rejected by the procuratorate, cleared by the courts, or which have insufficient evidence or unlawful detention can be transferred to re-education through labor.
- Out of a desire for profit, some PSBs even use their power of re-education through labor as a way to make money for their department.
- Re-education through labor is increasingly being used as a tool to threaten and attack petitioners, informants, and citizens protecting their rights.
- Re-education through labor is a form of unequal punishment. It distinguishes between citizens and foreigners as well as by class and station. The 1992 issuance of the Notice on Restriction of Detention and Investigation and Re-education Through Labor to Foreigners, Overseas Chinese, and Compatriots of Taiwan, Hong Kong, and Macao by the Ministry of Public Security makes this quite clear. Moreover, illegal activity in the course of duty, such as graft and corruption, coerced confessions, and traps and frame-ups, practically never result in re-education through labor.
A court in Henan recently accepted a suit by a rural resident who also says that the re-education through labor system is illegal.
Chen Chao, a resident of Yichuan, Henan, was the member of a local gang that demanded protection fees from local residents. On 30 December, 2006, the gang got involved in a quarrel with another individual and smashed up his van. Chen was eventually arrested on 26 July this year. But at the end of August, he was set free for want of evidence.
In September, Chen was ordered to undergo two years of re-education through labor by the Luoyang branch of the system. Chen recruited a lawyer and sued.
The Mirror, which reported on the situation when Chen's suit was accepted by the court last month, spoke to one of the judges in the Luoyang Court. Hao Yali, a the vice-director of the court, has a master's degree in law:
When handling this type of sensitive case, the first question the court will ask is whether to accept the case. Apart from certain special cases, the judcial apparatus ought to give the individuals involved in cases that concern re-education through labor issues a chance to appear in open court.
Also, from The Toronto Star, "Forced labor protest backires":
Liu Jie, a small woman with a big heart, thought she had a great idea when she organized a petition that asked the Chinese government to end its harsh system of "re-education through labour" camps.
Now she's locked up in one.
Friends say the 54-year-old ended up there the same way most people do: without the benefit of a trial, a judge or a lawyer.
Links and Sources
This article is from Danwei.org
|
-
 Close your eyes, pick a name, and drop it in. Some letters to the editor printed in this week's Southern Weekly:
Will you vote?
by Liu Bao, Changzhou, Jiangsu Province
It's once again election time for People's Congress representatives in my area, and in the neighborhoods and offices you can see candidates' lists posted. But truth be told, not a single one of the voters I know, including myself, cares about the notices.
At age eighteen we are given the right to vote. Voting is too easy for us—isn't it just drawing a circle on a piece of paper? How to find out about the candidates, and how to pick a qualified representative, is something of a mystery to the average voter. The easiest thing is to simply draw a circle below a name that you may or may not have heard of.
One of my teachers said he attended a civics class more than sixty years ago that discussed how to organize an election and how to cast a ballot, so from an early age they understood the technology behind an election. I never attended such a class; though I have a ballot in my hand, will I vote? This is indeed a problem.
Why can't grandma and grandpa vote?
yfcheng, Junan, Shandong Province
The election for our village committee was very disappointing. The cadres went from house to house with ballots to let the villagers vote in front of them. Some elderly people, including my grandparents, had no opportunity to vote, because the cadres never went to their houses.
My grandparents are not yet sixty, and their minds are still clear—why can't they vote? My grandmother angrily told me about this, so, from the county high-school where I am studying, I gave a phone call to a newspaper in the provincial capital. They said that they could not report on such a sensitive issue. I am saddened that the media cannot exercise effective oversight, and I am troubled by the current state of grass-roots democratic politics.
Casting ballots is not just a formality for citizens
Yan Jingjing, Hong Kong
On 18 November, ballots will be cast in the Hong Kong district council elections. Today (29 October), I received a voting notification about the elections that contained four items in total. The first was a description of voting procedure, telling me where and when I should cast my ballot, what documentation I should bring, and the process of voting. On the back was a detailed map. The second item had brief introductions of the candidates: photos of the three candidates in my district, personal information, and a brief statement of their platform. The third item was a long, thin card, the official "ballot notification." The fourth item was a "voter information" notification issued by the Independent Commission Against Corruption, warning against engaging in any sort of voter malpractice, and providing a detailed description of voting methods.
I remember that when I went to study in Beijing, I encountered an election for People's Congress representatives. The class cadre gave us a verbal notification that on such and such a day and at a certain classroom building we would take part; we cast our ballots in utter confusion. At the time I felt that I was nothing more than a ballot-casting tool. I only saw the list of candidates after I arrived at the polling place. There were three of them, and we were to choose any two. From start to finish I never saw any description of their platform. Aside from their names, departments, and positions, I knew nothing about them. In addition, because the household registration of every mainland student is transferred to their school during their time at university, they had a rule that every student must vote. As a result, even a student like me, with Hong Kong documentation and no household registration, was forced to cast a ballot.
Today, looking at the four items in my hands, my first reaction is that I am being treated as a "citizen." Casting a ballot a democratic process set down in the law, not merely a formality to show off democracy. If you provide insufficient information before the ballot is cast, if you do not give the electorate the respect they deserve, if you only shove a ballot into their hands and then command from on high, "Go. Vote!"—is this a case of not taking the voters seriously, or of not taking elections seriously?
Links and Sources
This article is from Danwei.org
|
-
In retrospect, something like this was bound to happen eventually.
In China's public transit system, bus and subway riders are supposed to get off before new passengers board - at least in principle. But in practice, there's a slight possibility that you'll brush against someone in the process.
In the event that someone gets seriously injured when boarding a bus, should you help them? If you do, you'd better hope that the court shares your idea of common sense - a court in Nanjing recently assigned blame on the basis of a few leaps of logic that have left people scratching their heads.
On 20 November, 2006, at around 9:30 in the morning, Ms. Xu, a 65-year-old woman, was trying to board a bus in Nanjing. She was knocked to the ground and broke her left collarbone. A 26-year-old man named Peng Yu was the first passenger off the bus at that station. He went over to assist Xu, and he helped take her to the hospital once her family members arrived. He also gave her 200 yuan.
Xu says that Peng was the person who knocked her down; Peng claims that it was someone behind him who collided with Xu; he went over to help her out of the goodness of his heart.
Xu sued Peng for 136,419.3 yuan, a sum that included 40,000 yuan in medical expenses, 72,000 in compensation for bodily injury, and 15,000 yuan in compensation for emotional suffering. The Gulou District Court in Nanjing found for Xu this week, deciding that Peng was liable for 40% of 114,690.9 yuan (a recalculated total), or 45,876.36 yuan (US$6,076).
No good deed goes unpunished, eh? That's the prevailing sentiment among BBS commenters. Or, as commentator Wang Lin puts it in The Beijing News, "If things continue like this, in the future when we see someone who's fallen down, will be go and help them up?" The implied answer: of course not!
Bullog boss Lao Luo posted the judgment on his blog, where he expressed his disgust at the defeatism present in the response of much of the BBS world. Under the title "Give Integrity One More Chance," he announced plans to set up a fund for Peng Yu. Here's his reasoning:
1. Having read all of the posts, I tend to believe Peng Yu. However, I ask you to make your own decision based on the materials you can find. Do not donate simply because I have said something. If in the future I am proven to be wrong, then you can condemn me, but don't complain about it.
2. I won't say anything about grandma Xu, for I can't be 100% sure that she's lying. If Xu did this out of poverty, then I sympathize with her, and I ask all of you not to condemn her.
3. If Peng Yu does not appeal, or if his appeal fails, then I'll consider the money as compensation for his being punished for doing a good deed (this is my personal belief). If Peng Yu appeals and wins, then I will still turn the money over to him as a way of expressing my respect for someone who has done a good deed (as I believe him to be).
4. The local Jinling Evening News in Nanjing said "Regardless of who is right and who is wrong in this incident, the negative effect it has on society is quite large, and has the danger to directly damage social trust." I agree with this statement, so I feel that even if Peng Yu was the one who knocked the old woman to the ground, donating money is still meaningful. Perhaps in doing this we let a scoundrel off lightly (we were not at the scene, so we cannot rule this out completely), but your actions will warm the hearts countless people who want to do good in the future. This is much more important than simply helping one individual.
As heart-warming as this is, it's the court's analysis that is the focus of more serious discussion. There was no hard evidence presented in the case, and no witnesses to testify that Peng collided with Xu. Consequently, the judges appealed to "common sense" and "reason" in their verdict.
Here's an excerpt from the judgment that displays the sort of "common sense" the judges used to determine that Peng Yu knocked Xu to the ground (paragraph breaks have been added):
1. Using daily life experience to analyze things, in addition to falling as a result of colliding with another person, the plaintiff could have tripped or slipped to the ground. However, during the trial neither party's account mentioned the plaintiff tripping or slipping, nor did the defendant provide any counter evidence that this could be the case. The evidence presented in this case strongly points to the plaintiff being pushed to the ground by an outside force. When someone is pushed to the ground, a typical first reaction is to determine where that force came from, to identify the person with whom the collision took place. If the person who struck them has fled, then the first reaction of the individual who has fallen is to call for assistance and urge others to help stop that person.
The present case took place in a relatively well-trafficked bus station, a public place, during mid-morning when visibility was relatively good. The incident was very brief, so the person who knocked the plaintiff to the ground could not easily have fled. According to the defendant's own admission, he was the first person off the bus. Using common sense, there is a very high possibility that he collided with the plaintiff.
If the defendant was acting heroically in performing a good deed, then a more realistic action would have been to catch the person who collided with the plaintiff, rather than merely having good intentions and helping her up. If the defendant was performing a good deed, then according to sociological reasoning, when the plaintiff's family arrived, he could have stated the facts clearly, had the plaintiff's family take her to the hospital, and then departed the scene. But the defendant did not make this choice; his actions are conspicuously at odds with reason.
...
4. The defendant gave the plaintiff 200 yuan on the day of the incident but never asked for it back. The plaintiff and defendant both acknowledge that the money was given, but they provide different accounts of its motivation. The plaintiff believes that it was a preliminary advance on compensation money; the defendant believes that it was a loan. According to the experience of daily life, the plaintiff and defendant, never having met before, would in general not rashly loan money. Even if, as the defendant claims, it was a loan, then when there was the chance that he would be seen as accepting responsibility for the accident, he ought to have asked a disinterested individual at the bus station to be a witness, or asked the plaintiff's family for an IOU (or statement) in writing after describing the situation. However, there is no record of the defendant doing so in the present case; moreover, with the plaintiff's family accompanying her to the hospital, the likelihood of him lending money to the plaintiff is rather small.
In addition, if one has injured someone in a collision, the most appropriate action is to offer preliminary compensation. The witness for the defense testified that the plaintiff and defendant went to the police station to handle the accident; from this fact we can deduce that the plaintiff believed that it was the defendant, and not another individual, who had knocked her to the ground. It would be even more unlikely for the defendant to lend money to the plaintiff under such circumstances. Summing up the above analysis, we can determine that the money was compensation, and not a loan.
In the Beijing Youth Daily, commentator Cai Fanghua dissects the judges' reasoning and what it holds for society:
From the judgment we can see that the chief justice at the Gulou District Court in Nanjing has made conspicuous use of the principle of free evaluation of evidence. However, it was not used very appropriately overall, and shows a tendency toward "super-free evaluation by inner conviction" and possible misuse of the power of discretion.
The terms "analyzing from common sense," "more realistic actions," and "at odds with reason" appear several times in the Gulou Court's decision. It is here where the judge makes use of his own experience of human life to perform logical deductions on the facts of the case, forming an "inner conviction." Unfortunately, the "common sense" and "reason" to which the chief judge refers is precisely the coldness and non-involvement that mainstream values have long opposed. According to the judge's "common sense," if Peng Yu could not catch the person who knocked down the old woman, he should not have come to assist her; rather, he should have left things as they were and gone off. According to the judge's "reason," Peng Yu should have departed after the old woman's family showed up; he should not have sent them to the hospital, much less lent them any money. It is precisely because Peng Yu exhibited such warm-hearted, "uncommon" values that the judge's "free evaluation" pegged him as the one who knocked the old woman down. How absurd this is! How chilling!
I say that the chief judge revealed a tendency toward "super-free evaluation of evidence through inner conviction" because the court manifestly violated the fundamental principle of civil trials, "He who makes the claim provides the evidence," and its selective use of the evidence is truly mystifying. The plaintiff did not provide strong, direct evidence; the only indirect evidence, a mobile-phone image of a police-station transcript, was taken by the old woman's son. Strangely, the original document "disappeared" at the police station, and the station head had claimed that the mobile phone picture was taken by him. But this questionable evidence apparently convinced the court. However, Mr. Chen, a citizen at the scene of the incident who saw the old woman with his own eyes "fall down for an unknown reason," and Peng Yu "go up to help" the old woman after she had fallen, was thought by the court to be insufficient proof that the old woman was not knocked down by Peng. By using one piece of evidence and ignoring the other, the judge revealed a disregard for common sense and a subjective, absurd evaluation of the value of the evidence.
In this case, the inappropriateness of the judge's inner conviction is clear to see. Hence, the authority of this verdict is greatly diminished. It has harmed the public's trust in the law and the sanctity of the law itself.
The revulsion of the people toward the decision in Peng Yu's case awakens us to an important issue: free evaluation by judges in civil cases is unavoidable. This presents an obvious dilemma for our judiciary. Judges are not highly educated, external influences on the court are complex, and there is insufficient oversight of civil trials. The presence of these factors mean that judges' power of discretion is in danger of becoming a black box, or of succumbing to judicial corruption.
Whether truth and justice will return in Peng Yu's appeal is a critical question for both the law and ethics. To quote an old saying: we must wait and see.
In the meantime, it's probably best to look both ways before getting off a bus.
This article is from Danwei.org
|
-
 Zhang Xubo, whose legs were severed in a Shanxi "black" brick kiln On Friday, June 29, the National People's Congress voted to pass the Labor Contract Law. Media coverage, including foreign coverage in The New York Times and The Washington Post, has hastened to situate the law's passage in the context of the recent "Shanxi black brick kiln incident," while Chinese law makers revealed that, during the Standing Committee deliberations, members demanded that the Labor Contract Law "handle" the Shanxi slave situation.
Speaking at an NPC press conference yesterday afternoon, legislator Li Yuan said that the Shanxi kiln case resulted from "dereliction of duty" by government agencies. As a consequence, language was appended to the Labor Contract Law making relevant government bodies and their staff liable if they harm workers or employing units (用人单位) by failing to carry out their duties or if the government bodies or their staff violate the law in the exercise of their powers.
Notwithstanding the media coverage connecting the Shanxi slaves with the Labor Contract Law, the new law has only the scantest relationship to Shanxi's illegal kilns. Passing a law in China takes years, and the Labor Contract Law has been under consideration since 2005. In addition, the key passages of the law — which include requirements for written labor contracts and payment of severance wages, as well as restrictions on fixed-term contracts — offer no solace to slave workers. When bosses kidnap children and force them to work without pay, while the local government looks away and squelches local press reports, a law requiring written contracts is beside the point. Moreover, as Li Yuan pointed out during the press conference, to the extent that the Labor Contract Law explicitly addresses the dereliction of duties that led to the scandal in Shanxi, it's redundant: laws prohibiting the dereliction of duty already exist.
What's significant about the passage of the Labor Contract Law is not that it addresses the Shanxi kiln problem, but that the NPC wanted to create the impression that it would. In other words, the NPC used the Labor Contract Law as an opportunity to appear responsive to public outrage and to pander to public opinion. For a legislative body that isn't popularly elected, it's behaving an awful lot like the U.S. Congress.
Still, whatever might be said about the NPC's sleight-of-hand theatrics, the press coverage was accommodating of the illusive connection between the Shanxi slaves and the Labor Contract Law. And for a foreign press that's free of government censorship, it's behaving an awful lot like Xinhua.
Links and Sources
|
|
|
|