Understanding the Authority upon China’s International Lawyers

7. September 2022
A think piece by Michael Liu
In Spring 2019, the People’s Republic’s government selected Dr. Xu Hong as the new top envoy to the Netherlands

More than one year ago, China’s former Ambassador to the Netherlands, Dr. Xu Hong (徐宏) passed away in Beijing at the age of 57. Xu was diagnosed with a malicious cancer a year before and returned to China for treatment shortly after. Xu is a well-known figure among China’s international lawyers. Given the rather late stage of the illness, his death came as less of a surprise than the diagnosis itself. Yet immediately, social media was flooded with memorial notes and tributes to him. The amount of regret for his departure went beyond the common respect for a senior authoritative figure. He was in a high and powerful position (位高权重), but what struck me most was his unusual sincerity.

While saddened by abruptly losing a well-respected figure, I am also intrigued by the question why he is held with such high esteem by China’s international lawyers. Why is he so much missed, and what makes him different? To answer these questions, I interviewed a dozen people in the circle of international law who knew him. Some of them were his colleagues, superiors and subordinates, or “comrades” in the bureaucratic system, some were opponents who didn’t share his views, some were ordinary friends, or just people who had observed him closely, some inside China and its information great firewall (防火墙) and some outside.

Who is Xu?

Xu is better known to China’s international lawyers as Director Xu or Xu Si (徐司) than Ambassador Xu. Prior to the post of Ambassador Extraordinary and Plenipotentiary to the Kingdom of the Netherlands, Xu served Director-General of the Department of Treaty and Law of the PRC’s Foreign Ministry (外交部条法司) from 2013 to 2019, which is the top authority on matters of international law in China[1].

For what we know, he is a career diplomat. The Foreign Ministry was his first job upon graduating from Wuhan University in 1985 and only employer in his short-lived life. Xu held several different positions, regularly rotating back to his base, the Department of Treaty and Law, each time on a higher rank. With some pride, he described it as a place with overcrowded and rustic offices, but many important figures in international law when he first joined: “When seeing these senior figurers, I am immensely in awe and felt I am in a sacred palace.” [2]

The State and its lawyers

For a long time, Chinese authorities have been ambivalent and anxious about lawyers’ role in state affairs. Legal professionals are perceived to be influenced by liberalism .[3] Occasionally, the state orchestrated campaigns against “hard core litigant lawyers”(死磕律师). Those who invoke international rules for their cause are also unwelcomed with situations sometimes escalating to a diplomatic crisis for the State.[4] 

While the “sticks” in the hands of Chinese authorities have been better studied, recent research also shed light on the “carrots” side of the mission to create a rank of state-adjacent lawyers. Stern and Liu (2019) found that the state uses different channels to celebrate “the good lawyer”, those who are willing to work closely with the authorities and urge critical colleagues to separate private beliefs from public behavior. Essentially, by curating an appealing state strand of legal professionalism rather than relying on coercion alone, lawyers can participate in politics without opposing the regime.[5] Answering Stern and Liu’s call to examine this further with “varieties of legal professionalism” and different segments of the Chinese bar, this essay looks into how among China’s international lawyers an authoritative figure is established.

To help understand the context, I will use Matthew Erie’s (2021) framing on the exchange between the Party-State and Chinese legal academia, “a relationship that lies at the heart of understanding why and how Chinese scholarship on international law assumes the forms it does”:

“Party-State and international law scholars mutually assist each other for their own benefit. The former obtains expert commentary which is aligned with its political and geostrategic aims. The latter earns access to data and government funding, a phenomenon which I will now turn to”.

For example, in a well observed event among Chinese international lawyers, Xi Jinping made a high-profile visit to the China University of Political Science and Law (CUPL) on its sixty-fifth anniversary in 2017. He met with senior legal academics from different universities and made a speech during which he exhorted the students to contribute to building “global rule of law” (世界法治). Reciprocally, Professor Huang Jin, President of CUPL, has proposed that international law be elevated to a “first-level academic discipline” (一级学科) in China, effectively calling for a greater standing of international law scholars in Chinese academia. Professor Huang is also an advocate of applying Xi Jinping Thought to international law. The message that emerged from this exchange is that the Party-State and international law scholars mutually assist each other for their own benefit: The former obtains expert commentary which is aligned with its political and geostrategic aims. The latter earns access to data and government funding.

My interviews confirm that Xu played an important role in both processes: the government’s encouragement for international law academics to strategically use research funding, study areas of international economic law and the law of the sea to best protect China’s interest, as well as enabling access to data for researchers. For instance, Xu’s Department of Treaty and Law has continuously recruited mid-level international law academics to join the rank with temporary affiliations. Institution-wise, the same Department also established a Consultative Committee on International Law during Xu’s tenure, consisting of mostly academic experts.[7]

These efforts pay off. When Chinese legal academics who specialize in the study of international law have rallied to Beijing’s cause when faced with adverse arbitral award in the South China Sea Arbitration Case. In Ku’s (2016) account,

State broadcaster China Central Television America recently reported that “300 Chinese legal experts” reached a “unanimous” opinion that “China should abstain from participating in the case, because the arbitration panel has no jurisdiction over the dispute [and] China has legitimate rights under international law to reject the arbitration.” State news agency Xinhua noted that the China Law Society, an organization which represents all academic lawyers in China, released a similarly unanimous and supportive statement of China’s legal position. Xinhua also recently touted an open letter endorsing China’s legal position signed by hundreds of young Chinese international law scholars studying overseas. And leading Chinese scholars have written essays defending the government’s position.[8]

A year later, the Chinese Journal of International Law, an Oxford University Press journal headed by Professor Yee, a member of Xu’s Consultative Committee on International Law, published an extraordinary 500 page “Critical Study” of the arbitral award by the Chinese Society of International Law (CSIL). The study was hailed as unbalanced,[9] and the Working Report of the Board of Chinese Society of International Law (2013-18) openly reported that it was carried out “under the supervision and leadership of the Foreign Ministry”.[10]

Ku finds that scholars within the Chinese legal establishment have indeed either expressed support for Beijing’s position or have kept silent. Reasons, he argues, are censorship, retribution, and nationalism. My interviews also show in addition to material encouragement and disencouragement, Xu’s personal charisma or mianzi (面子) might have contributed to the standing of Chinese legal establishment in this case.

Schachter described international lawyers as a professional community which, though dispersed throughout the world and engaged in diverse occupations, constitute a kind of invisible college dedicated to a common intellectual enterprise.[11] It seems while China is eager to bolster its standing in this “invisible college”, it is also raising its very own national not so invisible college. Xu is the central figure of these two parallel efforts.  

How did Xu win the respect of China’s international lawyers?

Many interviewees told me that the situation should be de-romanticized before this question can be answered, especially in the Chinese society which emphasizes relationships. There are a lot of pragmatic and realistic aspects behind Xu’s high esteem. All of the interviewees seemed to have their own understanding of this point. A professor with a great deal of practical experience succinctly summed up what he had observed:

First of all, I don’t know him well, but as far as I know, he has a very good reputation in the academic community, and it’s normal for people to think well of him; Second, he is the Director of the Department of Treaty and Law of MFA, and for Chinese international law scholars, he is the biggest owner and distributor of resources, and everyone must say good things about him; third, he is from Wuhan University, and the Chinese international law circle, in a sense, is the alumni circle of Wuhan University.

This was also indirectly confirmed by a former colleague. When I asked him to explain the extraordinarily high number of tributes on WeChat, this former colleague said that Xu was well-connected and had long-standing connections to many because he held this pivotal position for a long period of time. His sudden death shocked many.

But what seems natural to this former colleague may have another dimension. Among Chinese officials, being able to put down their “officialism” and communicate with ordinary people is unusual, especially against the background of the almost insurmountable barriers between those inside and those outside the official system 体制内外. Few pivotal officials are accessible. In contrast, as almost all interviewees stated, Xu was a very humane and good person, had no airs, and was always helping others. This reminds me of how retired Chinese president Jiang Zeming is being affectionally remembered in China. One young interviewee added that Xu drew a strict line between personal time and work time. This made people around him think that he was a humane person (“of flesh-and-blood” 有血有肉的人). Many mentioned that Xu cared about his subordinates and colleagues, respected young people and gave them chances to grow.

His willingness to help others despite his high position surprised people who came into contact with him for the first time. A recent graduate recalled that when she sought advice from him, “not only did he immediately reply to my message, he also immediately introduced me to his colleagues and asked them to follow up. I was dumbfounded at that time. I have never seen such a good person”. A professor who worked briefly with him and his colleagues said that “working with them gave you the feeling that they were there to serve, not to command.”

Another character that sets Xu apart from others is that he is portrayed differently than his diplomatic peers. As many Chinese diplomats as well as the MFA’s spokesperson adopted aggressive language and dogmatism and were therefore dubbed “wolf diplomats”, Xu remained comparably moderate. One interviewed researcher, who is known for his critical stance towards the Chinese government, observed that Xu “speaks with reason, unlike other ambassadors.” In his opinion, Xu’s handling of the South China Sea arbitration shows that although while he must stick to the official political line, he makes efforts to support his position with legal language. The same is true of the document issued later under his leadership regarding the Sino-British Communique concerning Hong Kong. Chinese and foreign observers note that they understand his position and respect his effort to represent it.

It is a sign of Xu’s professionalism that people with different positions appreciate him. But, with the exception of one former colleague, to those who have worked with him, the most memorable traits are is humane attitude and willingness to help others.

Epilogue: Xu in my own eye

Xu and I are members of the same community, but although working on the different front lines of international law, I only had one direct contact with Xu and caught a glimpse of his personality.

In the summer of 2019, I organized the ICC Chinese Moot Court Competition and took around 100 Chinese students and teachers to the Netherlands. Through a friend, I was able to arrange a visit to the Chinese Embassy for our group. It was nice to see the students cheerfully taking photos with Ambassador Xu. Although Chinese embassies often proclaim to be “the home to the overseas Chinese nationals”, those of us who needed to work with them from time to time certainly don’t feel that way. This time, not only did Xu come out himself, he also thoughtfully arranged for the young diplomats in the embassy to come out and meet with students.

On the same day, I spoke to Xu for the first time. Xu knew about the moot court competition before as parts of his team would participate as judges. I expressed my gratitude to him as the organizer of the competition. I will always remember his response. After a brief exchange on the particulars of the competition, he told me that he was concerned that recently the Philippines had been trying to use the court to stir up attention, and asked whether I had noticed. Initially, I did not understand what this had to do with our moot court or my engagement with the Court. Later, I realized that he used our informal channel, the non-governmental organization I represented, to convey his government’s “concern” on Philippines’ move. I then understood better the diplomatic term “concern” and how it works in a multilateral setting with different stakeholders involved. The impression I gathered is Xu might be a sophisticated diplomat who thinks about work all the time.

I am glad I got it half right and half wrong, and I deeply regret that was my only lesson from him in this invisible college.

Michael Liu is a lawyer and civil society activist from China. The NGO that he founded in 2012, “Chinese Initiative on International Law” (CIIL) has been actively engaged in rule of law training, refugee relief and gay rights advocacy in and out of China. The organization has also been granted a consultative status with the United Nations (ECOSOC). Previously, Michael was a victims’ counsel at the Extraordinary Chambers in the Courts of Cambodia (Khmer Rouge Tribunal) and worked at the International Criminal Court, the International Committee of Red Cross and a private law firm (Fangda Partners) under various capacities. His PhD project at Leiden University is about the rise of China as a norm shaping force in the global human rights discourse

[1] In addition to the Department of Treaty and Law, the Department of Boundary and Ocean Affairs (边海司) and the Department of International Organizations and Conferences (国际司) also deal with issues of international law.  

[2] Interview with Xu Hong at the 40th anniversary of international law institute of Wuhan University (武大国际法所四十周年所庆之“校友风云榜”,徐宏大使访谈录:漫漫外交路 拳拳珞珈情) https://mp.weixin.qq.com/s/aXs0OiuGUoIQ3aXoZyAFWg accessed 24 March 2022.

[3] See Eva Pils (2018) Human Rights in China: A Social Practice in the Shadows of Authoritarianism, Wiley; Di Wang and Sida Liu (2020) Performing Artivism: Feminists, Lawyers, and Online Legal Mobilization in China’, Law and Social Inquiry 45(3), pp. 678 – 705 678.

[4] Yaxue Cao (2014) The Life and Death of Cao Shunli (1961 — 2014), China Change, 18 March 2014, https://chinachange.org/2014/03/18/the-life-and-death-of-cao-shunli-1961-2014/, accessed 1 April 2022.

[5] Rachel E Stern and Lawrence J Liu (2020) The Good Lawyer: State-Led Professional Socialization in Contemporary China, Law and Social Inquiry 45(1), pp. 226 – 248.

[7] The Editors (2021) In Memoriam: XU Hong (1963-2021), Chinese Journal of International Law 20(1), 217.

[8] Julian G Ku (2016) China’s Legal Scholars Are Less Credible After South China Sea Ruling, Foreign Policy, 14 July 2016, https://foreignpolicy.com/2016/07/14/south-china-sea-lawyers-unclos-beijing-legal-tribunal/, accessed 24 March 2022.

[9] Douglas Guilfoyle (2018) A New Twist in the South China Sea Arbitration: The Chinese Society of International Law’s Critical Study, EJIL: Talk!, 25 May 2018, https://www.ejiltalk.org/a-new-twist-in-the-south-china-sea-arbitration-the-chinese-society-of-international-laws-critical-study/, accessed 24 March 2022.

[10] Work Report by CSIL(中国国际法学会理事会工作报告) on May 22, 2018 https://mp.weixin.qq.com/s/Xv8Kij_bDuqMETULvUfMqg

[11] Swethaa S Ballakrishnen and Sara Dezalay (eds.) (2020) Invisible Institutionalisms: Collective Reflections on the Shadows of Legal Globalisation, Hart Publishing, an imprint of Bloomsbury Publishing.

Cultural Issues in International Arbitration

8. August 2022
Shahla Ali and Chinwe Alli
Nick Youngson CC BY-SA 3.0

As the world economy continues to globalize, business transactions increasingly involve multiple countries and cultures. This development fostered an exchange of cultural thought, perceptions and beliefs, thus making individuals more aware of the areas where their culture converges with others and also areas where it differs. This phenomenon is present in all kinds of relationships and international arbitration is not an exception. In our article “Cultural Issues in International Arbitration”, we compare the cases of the Hong Kong Special Administrative Region and mainland China to address cultural differences in the conduct of international arbitration proceedings as well as some areas in international arbitration where there exists some form of convergence.

In the field of international arbitration, constant networking among major parties and players (this includes regulators, legal practitioners, disputants and arbitrators) from countries with diverse cultures and legal systems who are involved in the entire arbitration process has promoted the unification of legal procedures, thus leading to legal convergence. With the adoption of the 1985 UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), a suggested pattern for the conduct of arbitration proceedings is created. It was adopted (in full or in part) by lawmakers in 85 states out of 118, and incorporated into their domestic legislation on arbitration proceedings.

However, despite this level of legal convergence in international arbitration, there remain notable differences, largely relating to the cultures of the parties involved. The differences highlighted in this article between international arbitration conducted in Mainland China and Hong Kong Special Administrative Region (SAR) relate most strongly to the difference in legal traditions. Based on the principle of “one country two systems”, Hong Kong SAR operates a common law system modelled after the English common law, while Mainland China on the other hand mainly operates a civil law system. Differences include the presentation of witness testimony, as well as the involvement of arbitrators in the arbitral proceeding, among others.

With respect to the arbitrator’s involvement in the arbitral proceedings, we find that arbitrators in Mainland China tend to actively participate in the settlement of dispute, thus playing a dual role of mediator and arbitrator. This may be attributed to the Confucian culture of mediation that stresses social relations as well as the Chinese legal structure which recognizes and gives legal protection to such med-arb arbitral awards. On the contrary, arbitration conducted in Hong Kong SAR takes a more technical legal approach, stressing due process and neutrality, thus preserving the legal boundaries of arbitrators in arbitral proceedings.

We further find that arbitrators in Hong Kong SAR attach more importance to witness testimonies and cross-examination than their counterparts in mainland China who give priority to documentary evidence. This strong reliance on documentary evidence in arbitration has its roots in the legal culture of Mainland China, as Chinese courts attach significant importance to documentary evidence. In addition to the notion that relying on documentary evidence makes litigation faster, courts believe that testimonial evidence can be manipulated and has a likelihood of change when put to test. This litigation practice therefore influenced how evidence is obtained and evaluated in arbitration conducted in Mainland China.

We conclude by pointing out the significant role that culture plays in arbitral proceedings, especially in transnational arbitration which involves disputants, litigants, law makers and arbitration from two or more diverse jurisdictions. Hence, in order to have a smooth and effective arbitral process, it is necessary to further identify and study the areas of convergence and difference in various legal cultures across the globe.

Find a free version of the chapter here.

Shahla Ali is Professor of Law and Associate Dean at the University of Hong Kong Faculty of Law and Director of the LLM Program in Arbitration and Dispute Resolution. Her work centers on questions of governance, sustainable development and cross-border dispute resolution in the Asia Pacific region. She also serves as a bilingual arbitrator (English/Chinese) with CIETAC, HKIAC, KCAB and SIAC.

Chinwe Alli is the Project Manager for the global team of Jumia Group and also a mentee of the WIA program of the HKIAC. She is a Lawyer licensed to practice law as a Barrister and Solicitor in Nigeria and she holds a master’s degree in international law from Peking University. She is currently based in China and engages in global compliance, legal advisory, contract management, business development and international arbitration. 

The Quota Reform in Chinese Courts and Its Implications

13. July 2022
A new paper by Ying Sun and Hualing Fu
Haikou Intermediate People’s Court. Photo by Anna Frodesiak

From the year 2014 a new round of judicial reform was launched in Chinese courts all over the country. For Chinese judges, the most significant change is the “quota reform”(员额制改革). The quota reform aims to professionalize the ranks of adjudicators: by edging out a given percentage of judges, only the better qualified judges would be re-appointed. The background of the quota reform is the plan to reduce the level and the intensity of both political and bureaucratic control over judges in adjudication and to decentralize judicial power to the rank and file judges only, restoring individualized judging while enhancing judicial accountability.

A keen interest in the details of the quota reform drew the author (Ying Sun) to conducting interviews and observations in Guangdong province, Henan province and other places. She gained first-hand insights into how the quota reform is implemented and how the judges saw it.

Before the reform, the number of judges in Chinese courts were calculated in three groups:

  1. the overall size of the judiciary, including judges, but also political and managerial staff and supporting personnel;
  2. the number of judges, i.e. those with proper judicial qualification and, importantly, the percentage of judges in the overall established judicial size; and
  3. the number of so-called “frontline judges” (yixian faguan一线法官), i.e. judges who actually adjudicate cases as judges and their percentage among judges excluding judges holding management positions who are assigned to non-judicial posts.

In 2002, nationwide, there were approximately 210,000 judges and 150,000 of them were frontliners. [1] The number and percentage of the frontline judges had remained stable (211,990 judges in 2014) prior to the reforms. A remaining three types of judges did little or no judging. The first group involved judges in management positions, including presidents, vice presidents and chief judges in professional chambers and their deputies; the second, judges who had transferred from professional chambers to political and administrative departments within the courts; the third, judges whose sole responsibility was to execute judgments. The long term objective of quota reform was to limit judgeship to judges whose principal job was to judge.

The reform caused a significant shake-up in the overall profile of the judiciary, with a large number of former judges ceasing to be judges. The court at hand however was able to absorb and neutralize the reform impact throughout its implementation.

First, the quota reform’s ambition to separate judges from administrators forced judges holding political and administrative offices to make a choice. And their choices were clear: the majority of them decided to stay in the administrative departments, while predictably few were willing to give up their status and ranking, especially those holding key positions.

Second, the quota reform unintentionally gave rise to a renewed exodus of middle career judges who left for law firms or other private sector employment. The trend of able judges leaving the judiciary for other careers was well-known, and the quota reform was intended to reign in the problem. However, by reducing the size of the judiciary and creating uncertainty among judges, the reform triggered another miniature exodus – judges, fearful of being left out and worried about the future prospect in an uncertain environment, seized the opportunity to leave the judiciary.

Third, the quota reform posed a significant challenge to courts as they had to contend with a sizeable group of judges who participated in the quota selection but failed and as a result were demoted to the rank of judicial assistants. They did so by offering a transition period, or grace period, during which some of the disqualified judges were allowed, de facto, to adjudicate as judges.

The centre-piece of judge quota reform was to free frontline judges from bureaucratic control in judicial decision that they used to be subjected to, and to abolish the vetting system that required judges to submit their draft opinions to leaders for approval, all to facilitate and promote individualised judging. And indeed, gradually, judging started to shift away from a collective endeavour with decisions subject to multiple layers of vetting and approval. The quota system was successful in placing individualised judging and accountability at the centre of adjudication in the vast majority of cases and in shifting the focus of judicial decisions from a fixation on the social impact of a decision to emphasis on its internal legal quality within an increasingly self-referencing judicial universe. With the new focus on the court-centric and rules-based dimension of judging, as the reforms require, judges do increasingly look for legal guidance to craft a decision. On the other hand, while the rise of individualised judging has created space for judges to deliberate individual cases, it does not reduce judicial accountability. Rather, it created an opportunity for reconfiguration of the control system. Riding on the tide of standardisation, a higher court is filling the gap that the reforms created at the local level and exercising real leadership.

Notwithstanding the fanfare, self-contradictions and tensions, the reforms have been muddled through to create a more identifiable, distinct judiciary. It is now well established that judges are those who judge, excluding political and administrative officers from holding the title of judgeship. The quota reform reflects the contradictions of judicial reform in a party-state. As the quota reform story testifies, the judiciary within a political system can explore spaces for its professionalization project – judges can judge on their own most of the time and in most of the cases. In that process, the Party could be both a helping and a restraining hand, and the bureaucratic system in which the court is an integral part creates both positive and negative incentives for the reform.

Ying Sun and Hualing Fu’s paper was published with The China Quarterly, find it here.

Dr. Ying Sun is an associate professor at the School of Law, Sun Yat-sen University, China. She teaches constitutional law and comparative legislatures. Her research interests include election process, the Chinese people’s congress system, judicial reform and law-making politics in China.  Hualing Fu is the dean and the Warren Chan professor in human rights and responsibilities at the Faculty of Law of the University of Hong Kong. He specializes in public law and criminal law, with a focus on China, and cross-border legal relations in the Greater China region. His other research areas include the constitutional status of Hong Kong, in particular central–local relationships in the Hong Kong context and national security legislation.

[1] Xiao, Yang. 2002. “在全国法院队伍建设工作会议上的讲话” (Speech at the national conference on court personnel construction project), ChinaCourt.org, 8 July, https://www.chinacourt.org/article/detail/2002/07/id/7829.shtml. Accessed 16 September 2018.

The Enforcement of Mandatory Rules against Illegal Contracts

24. June 2022
A new paper by Bingwan Xiong and Mateja Durovic
Lottery Kiosk at Xuzhou Station. Under Chinese law, lotteries are considered gambling and thus illegal -with two major exceptions: the China Welfare Lottery and the China Sports Lottery.
Photo by MNXANL licensed under Creative Commons Attribution-Share Alike 4.0 International.

In the past, Chinese courts tended to directly invalidate illegal contracts, thus possibly tolerate opportunistic behaviour sometimes. Article 52(5) of the 1999 Contract Law provides that a contract is void if it violates a mandatory rule prescribed by law or administrative regulation. Empirical research shows that by April 2014, in 355 of 453 cases concerning Article 52(5) of the Contract Law, the contract was ruled void.[1]

This practice underwent a change with the compilation of the Civil Code, where Chinese scholars sought to establish better coordination between the nature of private law and its attached public or regulatory facet. Building on a 2009 judicial interpretation that introduced a classification of mandatory rules, Article 153 of the new Civil Code stipulates a doctrine of defining mandatory rules with different levels of restrictions, with the aim of relieving the state’s restraint on the transition of economy. In result, a violation of mandatory rules may now render the contract involved void ab initio, voidable or still valid, depending on the significance of illegality defined by the law.

This change of jurisprudence successfully reversed the courts’ strong stance on the invalidation of contracts, giving them much more discretion in deciding the nature of mandatory rules and the effect on contracts. The reform also aligns the treatment of illegal contracts with the general trend in other jurisdictions. Nevertheless, we argue that across jurisdictions, this doctrine is merely targeted at the connotation of mandatory rules and the theoretical effects on contracts. Scholars and judges fail to equally emphasise the enforcement of the law against the contractors after upholding the validity of their illegal contracts. In other words, they end the debate within the realm of private law and simply assume that thereafter competent regulatory agencies would duly resolve the harm of illegality.

In our paper, we look into the case of the regulation of the lottery tickets sales on credit. As per Article 18 of China’s Lottery Regulation, no lottery may sell lottery tickets on open account or credit. Such a deed may result in imposed suspension, confiscation plus fines, and punishment on the person in charge as per Article 39. Armed with the new jurisprudence that not all kinds of illegality shall render contracts void and null, Chinese civil courts tend to uphold the validity of lottery sales on credit. Though this saves the innocent party from the loss because of the invalidation of the contract, the problem is, without the following actions of administrative organs, justice stops at the decision in court and the mandatory rules are not equipped with administrative enforcement power.

We find that the major obstacle is information asymmetry between courts and regulatory agencies: not only would the contracting parties not expose the illegal deal in fear of punishment or losing their interest. Also, the courts fail to actively transmit such information to the responsible departments, despite the Supreme People’s Court of China formally encouraging local courts to issue judicial proposals to regulatory agencies.

Empirical studies show that judges seldom issue judicial proposals about their cases to regulatory agencies due to their heavy workload, worries of engaging in improper judicial interference and a lack of rewarding incentives. As it encourages contracts and prevents opportunistic behaviour, we suggest to uphold the current jurisprudence about illegality, and further propose to establish a better systematic interplay among courts and regulatory agencies. This might be achieved through institutional reforms and technological solutions that help forward information of illegal transactions so it can serve the ultimate objective of enforcing the law.

[1] Ye Mingyi 叶名怡 (2015) Empirical Research of Invalidation of Illegal Contracts in China (我国违法合同无效制度的实证研究), Science of Law (法律科学) 6, 120.

This paper by Bingwan Xiong & Mateja Durovic The Enforcement of Mandatory Rules against Illegal Contracts was published in the Asia Pacific Law Review.

Bingwan Xiong is Associate Professor at School of Law, Renmin University of China. He is also Senior Research Fellow at Renmin University Center for Civil and Commercial Law. He obtained his PhD degree from Renmin University and LLM degree Harvard University. Email: bxiong@ruc.edu.cn.

Mateja Durovic is a Reader in Contract and Commercial Law, having joined The Dickson Poon School of Law in July 2017. Prior to joining King’s, he was Assistant Professor (20152017) at the School of Law, City University of Hong Kong. He holds a PhD and LLM degrees from the European University Institute; LLM degree from the University of Cambridge; and an LLB degree from the University of Belgrade. Email: mateja.durovic@kcl.ac.uk

Transforming the Culture of Chinese Prosecutors through Guiding Cases

26. May 2022
A new paper by Colin Hawes
Inside a meeting room of the Supreme People’s Procuratorate: seat of Zhang Jun 张军, Prosecutor-General and former Minister of Justice. Photo by Charlie Qi

Much attention has been paid to the Guiding Cases issued by China’s Supreme People’s Court. The Supreme People’s Procuratorate, China’s top prosecutor, likewise issues guiding cases. In his recent paper, Colin Hawes finds that these cases in recent years indicate a significant turn in prosecution work in China, which is characterized by close cooperation between police, local governments and courts (see Grace Mou’s work).

My interest in guiding cases came through my previous research on the growing use of case precedents by Chinese judges, especially focusing on corporate law cases.1 With the huge increase in publication of Chinese court judgments on freely available online databases – over one hundred million judgments have now been published in the past ten years – it is possible to trace how the law is being applied at a very granular level, whether in individual Chinese regions/cities or specific levels of court, in all types of legal cases except those involving sensitive political interests (which remain unpublished).

China is a civil/continental law jurisdiction, so prior Chinese court judgments are officially not binding on subsequent cases; but in practice, I found that both judges and lawyers would refer to previous judgments, especially those from higher courts, to support their opinions and maintain consistency. However, while they do routinely refer to prior judgments during court hearings, judges are still not permitted to openly cite those precedents in their written judgments. The only exception is a very small number of “guiding cases” (指导性案例) that have been selected by the Supreme People’s Court (SPC) and given official approval to be cited and effectively binding on all courts in China, when dealing with similar legal issues.

The problem is, the selection process for these SPC Guiding Cases is so slow, and the legal issues that they deal with are mostly so narrow, that it is very rare for lawyers and judges to find a relevant guiding case to assist their legal arguments. As compared with over one hundred million published judgments online dealing with all manner of legal issues, at the time of writing there were less than two hundred guiding cases available.2 Not surprisingly, therefore, lawyers and judges continue to make use of the larger database of online judgments as an informal case precedent system.

Not only the SPC, also China’s public prosecutor, the Supreme People’s Procuratorate (SPP) had started publishing its own SPP Guiding Cases. Though also relatively few in number, these cases are likely to have a much greater impact on the administration of justice in China, both in criminal law cases and environmental protection cases.

The reasons are, firstly, that several of the SPP Guiding Cases focus on aspects of the death penalty, so if followed by all procurators as they are supposed to, they will literally have a life-or-death impact on criminal suspects.

Secondly, the SPP Guiding Cases make it clear that a key role of procurators is to uphold the public interest against abuse by powerful officials or corporate interests. Many of the SPP Guiding Cases deal with prosecution of government officials or state representatives working at agencies such as the environmental protection and food safety bureaus as well as urban control officers and police officers, The most common charges are corruption and criminal negligence. The eighth set of cases focuses entirely on People’s Procurators bringing civil public interest lawsuits and administrative lawsuits against environmental polluters and government officials who fail to prevent pollution. This pilot project has resulted in a huge increase in the number of successful environmental pollution lawsuits in China, now numbering in the tens of thousands.

Finally, several SPP Guiding Cases go beyond narrow and specific points of law to cover broad procedural issues that are generally applicable over a wide range of criminal cases. For example, one of the most significant issues is the exclusion of illegally obtained evidence, especially evidence obtained through torture or beating of suspects, which is clearly addressed in SPP Guiding Case 27. The rule in this case can be applied to any criminal prosecution. If it is followed consistently by local branches of the People’s Procuracy, it should reduce the number of wrongful convictions, and in the longer term, remove the incentive for police to mistreat criminal suspects in custody which, according to international human rights groups, commonly occurs.

To be sure, these SPP Guiding Cases are only one part of a broader reform effort in the sphere of criminal procedure and regulation of procurators. Others include a comprehensive revision of the Criminal Procedure Law in 2012, regulations issued by the SPP in relation to public interest lawsuits in 2016, and an amended Procurators Law in 2017. There is also some ambiguity about the legal status and weight of SPP Guiding Cases in relation to these more formal legal sources, an issue discussed further in the concluding sections of my article.

Even so, the SPP Guiding Cases clearly demonstrate to people’s procurators throughout China how the revised laws and regulations should be applied in practice. They provide local procurators with precedents endorsed at the highest levels of the SPP to support battles against criminal activity and environmental pollution at the local government levels. And perhaps most importantly, both the content of the Guiding Cases and the fact that they were issued at all reveals an unprecedented cultural change within the people’s procuracy itself from a body that was essentially an extension of the police or local power interests to one that sees itself as a professional and relatively independent institution with a focus on protecting individual rights and the public interest.

Having said this, criminal defence lawyers and civil society groups are still severely restricted and often persecuted in China. And due to the continued Communist Party interference in the Chinese legal system, demonstrated in more detail in the paper, it is too early to say whether the greater respect for basic legal rights revealed by these Guiding Cases is a step towards increased liberalization of the Chinese legal order and political system.

Find the paper, published with the New Criminal Law Review, here. Dr. Colin Hawes is an associate professor in the Faculty of Law, University of Technology Sydney, Australia. He has an LL.B. and a Ph.D. in Chinese studies from the University of British Columbia, Canada, and a B.A. Hons. from the University of Durham, UK. He also studied Chinese language at People’s University in Beijing and Wuhan University. He has published widely on Chinese corporations, law, and culture, including three books, the latest of which is The Chinese Corporate Ecosystem (Cambridge University Press, forthcoming July 2022). 

1 Colin Hawes, “How Chinese Judges Deal with Ambiguity in Corporate Law: Suggestions for Improving the Chinese Case Precedent System,” Australian Journal of Asian Law Vol 19 No 1 (August 2018): 1-22; and Colin Hawes, Alex K L Lau and Angus Young, “Lifting the Corporate Veil in China: Statutory Vagueness, Shareholder Ignorance, and Case Precedents in a Civil Law System,” Journal of Corporate Law Studies vol.15.2 (2015): 341-376. Both papers are available at https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=503318.

2 Currently there are 165 SPC Guiding Cases: see full Chinese texts at https://anli.court.gov.cn/static/web/index.html#/zdal.

3 SPP Chief Procurator Zhang Jun stated that 84,000 environmental public interest cases were brought by procurators in 2020 alone: Zhang Jun, “Zuigao Renmin Jianchayuan Gongzuo Baogao, 2020 Nian” [SPP Work Report 2020], National People’s Congress, 8 March 2021, section 2, http://www.gov.cn/xinwen/2021-03/15/content_5593016.htm.

Authoritarian Legality and Legal Instrumentalism in China

8. May 2022
A new paper by Shucheng Wang
Sailing Junk in Sai Wan Ho, Hong Kong

Can authoritarian regimes use the ‘law’ – as construed from a liberal-rational legal perspective – to solidify and legitimize their rule? Scholarship increasingly pays attention to the role of law in authoritarian regimes. As far as Chinese law is concerned, Mary Gallagher, Hualing Fu & Michael Dowdle, and Taisu Zhang & Tom Ginsburg have investigated the role of law for China’s Party-state, among others.

Against the backdrop of the rise of illiberal democracy, this short article titled “Authoritarian Legality and Legal Instrumentalism in China” engages with this scholarship by unpacking the dynamics of authoritarian legality. As the term indicates, authoritarian legality refers to legal norms advanced by authoritarian regimes, where an active adherence to law may nonetheless thrive without political or democratic reform. The article describes two pure types of authoritarian politics namely, normal politics, and exceptional politics. In normal politics, the law is relatively stable and predictable, particularly on issues relating to apolitical matters. In exceptional politics, however,  the law may be adjusted, redefined or even suspended in order to accord with specific socio-political goals.  

Using China as a case study, the article takes note of the effort that has been made in establishing a comprehensive system of positive law and in institutionalizing authoritarian legality through a politically controllable congress and court system. Yet, these efforts remain counterintuitive – since legality requires institutionalisation, predictability, and certainty – all of which are seemingly absent in an authoritarian regime. This is not to say that the ‘law’ still does not serve as a crucial instrument for distinguishing ‘lawful’ from ‘unlawful’ actions, but rather, that law is inextricable from politics. The inner logic of authoritarian legality is therefore revealed in the existence of political penetration – either explicit or implicit – into formal laws and informal practices. In essence, while authoritarian legality indicates the legalistic aspirations of illiberal regimes, the legality of the laws is often premised on illiberal fundamentals.

The article identifies three pure types of instantiations of legal instrumentalism, based on the variance of political ideologies: liberal, apolitical, and illiberal. The theory of legal instrumentalism posits that laws should not be seen as a manifestation of universally fixed norms, but rather as a tool for promoting the interests of society and the State. This theory has largely been delinked from the religious and historical roots of western jurisprudence. Legal instrumentalism, therefore, has become far more reflective of a non-Western context and may have found a widespread resonance beyond the differences between liberal and illiberal political ideologies.

The rest of the article argues that legal instrumentalism as instantiated in China’s illiberal context provides a stronger explanatory framework for the law’s function as a crucial instrument in developing the enterprise of legality grounded in illiberal principles than Marxist or Confucian legal theories. Overall, unlike the liberal instantiation of instrumentalism posited within liberal ideologies, the illiberal instantiation of instrumentalism in China shows a dimension of law as an instrument for facilitating China’s development and developing the enterprise of legality grounded on illiberal principles.

Shucheng Wang’s paper Authoritarian Legality and Legal Instrumentalism in China was published in the The Chinese Journal of Comparative Law, a free draft is available here).

Shucheng Wang is an Associate Professor at the School of Law, City University of Hong Kong and an affiliated researcher of the Law and Religion in the Asia Pacific Region program at The University of Queensland, Australia. He was a Fulbright Scholar (Emory University) and a Clarendon Scholar (Oxford University). He has authored four books, including most recently Law as an Instrument: Sources of Chinese Law for Authoritarian Legality (Cambridge University Press 2022 forthcoming), as well as over fifty articles.

China’s Treaty Policy and Practice in International Investment Law and Arbitration

20. April 2022
A review by Xu Qian of G. Matteo Vaccaro-Incisa’s new book
Photo by lyng883 is marked with CC BY 2.0.

China’s success in attracting foreign direct investment (FDI) in the past decades is unprecedented. It is currently the second largest FDI recipient in the world, which is a success partially due to China’s efforts to enter into international investment instruments, such as BITs and free trade agreements (FTAs). Since its first bilateral investment treaty (BIT) with Sweden in 1982, China has signed BITs with more than 130 countries. In addition, Chinese investment treaties have typically provided international forums for settling investment disputes such as the International Centre for the Settlement of Investment Disputes (ICSID). Being both a capital importing and a capital exporting nation, China is in a need to maintain a balance of such dual role through its international investment instruments, attracting inward FDI and, at the same time, protecting outward FDI.

In the early stage, China’s BITs mainly follow the template as established by western countries, yet with the rapid economic growth, China is more willing to set up its own discourse. The Belt and Road Initiative, and the separate negotiations with the EU and US regardless their ultimate fate reveal China’s proactive approach to participate in the global economic governance. China’s dual role regarding FDI and its investment strategies is efficiently transforming its role as a reliable rule-maker in the global economy. China has also reviewed its BIT policy and practices owning to the experience in dealing with the cases filed by foreign investors against China. Against this background, Dr. Vaccaro-Incisa’s book offers the most comprehensive and detailed account of China’s treaty policy and practice in international investment law and arbitration published to date. 

Through his comparative and analytical study, this book reviews the changing role of China in international investment. It provides a detailed analysis of the contents of all of China’s agreements from 1982 to 2015 by considering the role of investment treaties in China’s economic policy. This book also provides a summary of key literature in discussing China’ BITs and their characteristics, application and pitfalls. By interpreting the key provisions of the BITs and discussing the evolution and features of these investment treaties, this book successfully identifies trends in major areas of Chinese investment treaty making. It produces objective assessment of investment arbitration of China’s treaty practice. This book without doubt represents a significant accomplishment in clearly laying out the content and systemically examining China’s treaty making practices in a broader context. Overall, this book represents not only a valuable and necessary addition to the literature but also a point of departure that invites further research in China’s practice in this area.

G. Matteo Vaccaro-Incisa’s monograph China’s Treaty Policy and Practice in International Investment Law and Arbitration – A Comparative and Analytical Study is published with Brill.

Dr. Xu QIAN is Associate Professor & “Hundred Talents Program Fellow” at Zhejiang University (ZJU), School of Law and Affiliated Expert, Asia Pacific FDI Network (APFN). She is also an active member of Asia Society of International Law, and Academic Forum on Investor-state Dispute Settlement. She specialises in transnational law and researches in a diverse range of cutting-edge cross-border issues, including water and sanitation law, Alternative Dispute Resolution (ADR), International Economic Law and Public International Law. She may be contacted via email at: qianxuxu [at] zju.edu.cn.

De Facto Dual Nationality in Chinese Law and Practice

3. April 2022
A new paper by Jasper Habicht and Eva Lena Richter
One country, one nationality?
Photo by Zhimai Zhang (Unsplash Licence)

Multiple nationality is a highly controversial subject in international literature and its acceptance varies geographically. Hostility between nation-states has long been regarded as driving the endorsement of a single nationality policy, but as interstate conflicts have decreased, states’ support of multiple nationality has swelled.

While recent policies issued by the Chinese government advocate the return of overseas Chinese and the attraction of skilled foreign nationals to the country, the People’s Republic of China still rejects the recognition of dual nationality and sticks to arguments that root back to the time of the foundation of the People’s Republic. This seems to reflect a conceptualisation of sovereignty as embracing “national strength”, in combination with notions of racial nationalism, which does not allow for a permeable nationality law that ignores factors of ethnicity and descent. Furthermore, the concern for separatism, as well as the legitimacy of the Communist Party, especially with regard to the legal status of the Republic of China may well be fundamental reasons to maintain the status quo. The effective Nationality Law of 1980 does not explicitly prohibit dual nationality but states that dual nationality is “not recognised”.

Despite this fact, Chinese citizens may de facto hold another nationality due to several reasons of which some can be traced back to the implementation of certain Chinese laws and regulations. It is these legal inconsistencies or even conflicts that Jasper Habicht and Eva Lena Richter shed light on in their recent paper “De Facto Dual Nationality in Chinese Law and Practice”.

The authors do this by discussing three main scenarios where de facto dual nationality may occur: children who acquire Chinese and foreign nationality by birth, former Chinese citizens that do not cancel their household registrations upon naturalising elsewhere, and Chinese officials who naturalise but are denied the right to voluntary expatriation by the Chinese state and are treated as single nationals.

By examining these three scenarios, the authors show that legal and procedural inconsistencies of the Chinese state have created inconsistent implementation of nationality law that can lead to cases of de facto dual nationality. Public administration of nationality law and the Chinese household registration (hukou) system are often conflicting and represent another problem area. Finally, China’s diplomatic efforts of holding up single nationality as the sole legal rule contradict the maintenance of control over former citizens, especially officials, who naturalise elsewhere.

The authors point to the discrepancy of the Chinese state to hold up a policy of single nationality while, at the same time, aiming to attract foreign talent to China. The authors suggest that the possibility to apply for permanent residence and the rights attached to it should be enhanced to safeguard participation in social security and political life, especially for foreign children and skilled foreign nationals. Since enhanced cooperation and data sharing between authorities is a declared goal of recent administrative reforms, problems related to the enforcement of the single nationality rule will become ever more obvious.

The authors also argue that the parallel nature of hukou and nationality is problematic and should be addressed as a high priority to solve the continued appearance of de facto dual nationality and related problems. Last but not least, the Chinese state needs to end its practice of claiming authority over former citizens while holding on to a single nationality policy. Such practice not only violates international law, it also results in political uncertainty which may deter foreign individuals and enterprises from investing in China.

The paper De Facto Dual Nationality in Chinese Law and Practice has now been published in China: an International Journal (Volume 20, Number 1).

Jasper Habicht received his PhD in Regional Studies China from the University of Cologne. His main research interests are Chinese immigration legislation, Chinese nationality legislation and Chinese immigration politics. Get in touch with him via LinkedIn.

Eva Lena Richter is a PhD candidate at the Chair of Chinese Legal Culture, University of Cologne and a Research Associate at the University of Oxford “China, Law and Development” project. Her research focuses on skilled migration to China. Get in touch with her via LinkedIn.

The Construction of Guilt in China – Q&A with Grace Yu Mou

16. March 2022

Grace Yu Mou’s book The Construction of Guilt in China – An Empirical Account of Routine Chinese Injustice was published with Hart Publishing

The People’s Republic’s criminal justice system has come a long way since the Gang of Four were brought to trial in 1980, just one year after the Criminal Law was passed

To start off: What drove your interest in criminal justice in China?

My research interests in Chinese criminal justice came from my experience when I first observed a criminal trial as a teenager. The crime scene, as described at the beginning of my book, was strange to me: I was expecting some form of cross-examination, just like those commonly seen in television court dramas. The trial, however, had no drama and did not make much sense to me at the time. The prosecutor read out the case dossier in an aggressive manner. The defence lawyer, whose response was not addressing the issues raised by the prosecutor, sheepishly read her pre-prepared defence statement. The trial was by no means exciting – it was a boring presentation of the criminal case dossier. Sitting in the audience, I was at a loss to understand what they were talking about. The case dossier apparently was a critical instrument,  which was passed on from the prosecutor to the judge to decide the guilt or innocence of the defendant.  This encounter of criminal justice prompted me to think about the way in which criminal justice is conducted in China; but differing from the criminal justice literature which focuses on why witnesses are absent, the question that piqued my curiosity was – if case dossiers play such an important role, determining the outcome of the case, how are they created? Are they truly reliable? Have the criminal procedures provided sufficient safeguards to ensure that the convictions made on the basis of the dossier are really safe? These questions motivated me to think about criminal justice from a different perspective.

Your book is extraordinarily rich in empirical data on a field that is very hard for scholars, and non-Chinese scholars in particular, to observe. Can you also tell us a little bit about the data collection process?

I was lucky enough to access the field site at a time when criminal justice institutions (the procuratorate and the courts in particular) were still open to researchers. The data gathering process was a mixed experience. After staying at the prosecutor’s office for a period of time, it was relatively easy to strike-up a conversation with different people who came to the procuratorate on business. I had lots of conversations with police officers, defence lawyers and sometimes victims in the prosecutor’s offices. Those conversations were extremely informative in revealing various aspects of the criminal justice process. My understanding of how criminal cases were constructed, for example, was initially described to me by some police officers and prosecutors during an informal conversation. Surprisingly, I found it more difficult to set up formal interviews with defence lawyers. I approached a number of defence lawyers after I finished my observation in the prosecutor’s office in 2012. But quite a few defence lawyers declined the interview request (some of them declined in the last minute), expressing their concerns about the topic and how it could affect them in a deleterious way. 

The most frequently mentioned fact about the PRC’s criminal justice system is probably the extremely high rate of convictions – over 99.9%. What explanations have you found?

The exceptionally high conviction rates can serve as a useful indicator of the functions of the criminal justice institutions. With the high conviction rates, we can say with confidence that acquittal is not a commonly accepted result of court decisions. For this we must question the function of the courts and their truth-finding mechanism. A lot of questions will inevitably follow. Are judges allowed to acquit criminal cases? If not, why? What are the implications of an acquittal? Are the overwhelmingly majority of prosecution cases strong enough to convict? To answer these questions, we have to understand the pre-trial process, especially the role of the prosecutor and how the criminal cases are constructed. For example if the courts are divested of the power of acquittal (apart from exceptional cases), how are weak cases filtered out of the system? What role do the prosecutors play? How do they scrutinise the police evidence and evaluate the persuasiveness of the case? Since the courts rarely exercise the power of acquittal, the defence lawyers need to engage earlier in the process with the true decision-maker in order to make an effective impact. What are the relationships between the prosecutor and the defence lawyer like? Can the defence lawyer positively influence the prosecutorial decision-making? To answer all these questions, we need to comprehensively assess the pre-trial process and understand the practices on the ground. These areas are featured in Chapters three, four and five of my book, which depicts a depressing picture of the ways in which criminal justice operates on the ground.

Your book addresses the complex question of how the police makes out the facts of the case, the truth of what happened – or as they call it, create the ‘official version of truth’. How is diverging evidence treated and how is the police’s account treated in court? Has the practice of ‘aligning later evidence’ become common practice?

To begin with, introducing new evidence to challenge the police/prosecution case at trial is extremely difficult in China. It is well documented that defence lawyers who tried to contact the witnesses to verify the prosecution case in the past were arrested and prosecuted for perjury contrary to Article 306 of the Criminal Law. Defence lawyers may expose themselves to various professional hazards in the course of collecting evidence in favour of their clients. Due to such constraints, it is challenging to present an alternative version of the facts at trial. There are a very small number of cases in which defence lawyers have managed to creatively construct a defence case to contradict the prosecution case (without sacrificing their own safety) and have then secured an acquittal. But these cases are very rare. Of course, the courts may decide not to admit the defence evidence which contradicts the prosecution evidence and to reject the alternative version if they are not convinced with the story of the defence. 

Why do police officers try to align evidence? What incentives does the police have – and how do they work together with the prosecutor?

The reason why the police construct their case in such a way is because few witnesses come to the court to testify and the court relies on the case dossier to determine the guilt or innocence of the accused.  According to Article 200 of the Criminal Procedure Law, convictions should be based on a chain of evidence that points to the same guilty facts without reasonable doubt. Therefore, in order to formulate a persuasive narrative against the accused, the police have to ensure that different accounts from witnesses, the victims and the accused corroborate each other, or at the very least they do not contradict each other in order to prove the guilt of the suspect. It would be very difficult for judges to make a decision if the items of evidence contradict one another. This is also necessary as the evidence contained in case dossiers are a manifestation of the objective facts, which are treated as ‘objective’ in the sense that whoever reads the dossier will come to the same conclusion that the accused is guilty. This is also a protecting mechanism for judges, as the facts presented in the case dossier can be repeatedly reviewed, by their leaders and the higher court. To achieve this result, police and prosecutors have to make sure that the facts are well supported by the evidence.

What role does the guilty plea play in China? Since 2019, if a suspect admits the crime and accepts the penalty, the punishment may be reduced – 认罪认罚. Is this procedure a step towards improving the criminal justice system?

The guilty plea system has a profound impact on criminal justice in China. In a chapter that I recently completed on Leniency for Pleading Guilty and Acceptance of Punishment (LPGAP, 认罪认罚), I have argued that the guilty plea system under the principle of LPGAP has paved a route to miscarriages of justice en masse. This is very much due to the fact that the system has significantly empowered the prosecutor, who has taken on the roles of a policymaker, case manager, adjudicator and sentencer. Judges have retreated from the substantive decision-making process (including sentencing). The rights of the accused are further eroded and safeguards diminished. The guilty plea system is largely dominated by the procuratorate and has largely replaced the traditional criminal justice system.

To effectively defend their cases (especially to the effect that their clients receive a reduced sentence), defence lawyers need to learn how to adapt to the system without exposing themselves to great dangers. […] A successful defence in China requires much more courage, experience, commitment and sometimes even luck, compared to their peers in Western countries.

Given the high conviction rate, how powerful are defence lawyers? Which strategies do they adopt and what are their limits?

Defence lawyers have never been powerful in Chinese criminal justice. They are marginalised by the criminal justice system, which is dominated by the Iron Triangle – the police, the procuratorate and the courts. As mentioned in my answer to Q4, defence lawyers are subject to various obstacles, which include (and are not limited to) criminalisation pursuant to Article 306 of Criminal Law when they engage in the proactive construction of defence cases, difficulties in meeting their clients in detention centres and in accessing the case dossier in a timely manner. To effectively defend their cases (especially to the effect that their clients receive a reduced sentence), defence lawyers need to learn how to adapt to the system without exposing themselves to great dangers. In Chapter five of my book, I described that a defence lawyer did successfully challenge the prosecution case and secure an acquittal through creatively using Google’s satellite map and the weather report. A successful defence in China requires much more courage, experience, commitment and sometimes even luck, compared to their peers in Western countries.

What problems have officials in charge of improving the criminal justice system identified, which suggestions do they make and which ones do you think are promising?

The main problem of the way criminal justice operates in China is miscarriages of justice. Since 2014, a series of reforms have been carried out to re-shape criminal justice in China. For example, a quota system (员额制) was introduced in 2017 to classify the working staff within the procuratorate and the courts into three categories, namely quota prosecutors/judges, auxiliary prosecutors/judicial staff and administrative staff. Only a fixed, small number of quota prosecutors/ judges now count as professionally recognised judicial staff, who are expected to lead criminal prosecutions or adjudicate criminal cases. There was also a devolution within the procuratorate and the judiciary to de-bureaucratise the internal approval process. For example, in 2019, the departments within the procuratorate formerly in charge of various facets of criminal procedures, that is the Department of Public Prosecution and the Department of Investigative Supervision in particular, were merged (捕诉合一), with prosecutors being re-grouped into new cohorts and dedicated to handling specific types of cases from investigation to trial. Apart from a small categories of cases which are still required to be signed off by the Chief Prosecutor and/or discussed by the prosecutorial committee, the internal hierarchical reviews appear to be relaxed and prosecutors are accorded more autonomy in the vast majority of instances. More significantly, a lifelong accountability reform was introduced to tie judges’ and prosecutors’ reputation and career perspectives to the quality of the cases regardless of their employment status. Realising the crucial role that prosecutors play in the criminal process, the Procurators Law from 2019 has required prosecutors to be bound by the facts and law and adhere to an objective and just position (秉持客观公正的立场) in performing their functions. In my article on prosecutorial accountability, I have argued that the building of judicial and prosecutorial professionalism would be a welcome advance to improve the criminal justice system. However, as we have seen in practice, aside from restructuring the institutions, little has been done in practice to cultivate professional integrity, which lies at the heart of minimising miscarriages of justice. Hitherto no systematic review of criminal justice took place. Judging from the on-going criminal justice reform, eliminating institutional vulnerabilities has not been the chosen route in those reforms. With the mass implementation of the guilty plea system under the principle of LPGAP, wrongful convictions are likely to remain numerous but more difficult to detect.

In fact, almost all criminal justice reforms within the last decade are focused on preventing and minimising miscarriages of justice. However, no comprehensive official report has been produced to identify the systematic risks that are likely to lead to wrongful convictions.

Your illustration of day to day criminal justice in China offers rather bleak prospects. Do the problems you identify not undermine the judiciary’s legitimacy and more broadly, that of the government or Party?

Miscarriages of justice can certainly undermine the legitimacy of the judiciary and that of the rule of the Party. For example, the wrongful conviction of Zhang Yuhuan reported in August 2020 had long-lasting repercussions on public trust in the criminal justice system. The criminal justice institutions, including the courts, are fully aware of the damaging effect. In 2014, the Supreme People’s Court announced that miscarriages of justice had a damaging effect on public trust in the judicial system and said that to resolutely combat the problem, “systematic pitfalls must be tackled at the institutional level.” In fact, almost all criminal justice reforms within the last decade are focused on preventing and minimising miscarriages of justice. However, no comprehensive official report has been produced to identify the systematic risks that are likely to lead to wrongful convictions. The current reforms appear to be on an ad hoc basis and lack in creating an overarching principle or guidance. 

Based on your findings, what do you think the judicial reforms in the next years hold for the criminal justice system?

Although the judicial reforms may enhance the awareness of the problem of miscarriages of justice and curtail wrongful conviction to a certain degree, the effort can be easily offset against political agendas, according to which the criminal justice system should first and foremost be perceived as the ‘dagger’ (刀把子) in maintaining the social security of the Party-state regime. Alongside the judicial reforms, there has been a backlash that prioritises procedural economy at the expense of suspects’ rights as well as political pressures to reinforce the punitive nature of the public prosecution crime control in the last two years. For example, the trial centred reform initiated in 2018 which attempted to introduce cross-examination to the trial proceedings came to a halt recently. There are a lot of uncertainties as to how the system will evolve in the future. Although I hope that the reform gradually improves the system, it will be very difficult to implement in practice and may take much longer than most people expect.

Dr. Grace (Yu) Mou is a lecturer in criminal justice at SOAS University of London where she teaches criminal justice, Chinese law, and law and justice in contemporary China. Her new book, The Construction of Guilt in China: An Empirical Account of Routine Chinese Injustice, is based on extensive fieldwork in a local procuratorate. She previously discusses her book at the U.S.-Asia Law Institute, the recording is available here.

Regulation of Cryptoassets in Mainland China, Hong Kong, Macau & Taiwan

2. March 2022
A new paper by Aleksandr Alekseenko
This file is licensed under the Creative Commons Attribution 2.0 Generic license.

Investors increasingly diversify their investment portfolios by investing in cryptocurrencies. Cryptocurrencies however are not a safe haven for investors. Bitcoin is extremely volatile and can bring both exceptionally high profits and terrible losses, seemingly due to market manipulations. The question of how cryptoassets should be regulated is approached differently by jurisdictions. This paper compares the current regulatory frameworks for cryptoassets of Mainland China, Hong Kong, Macau and Taiwan.

China is among the world’s leaders in e-commerce and FinTech, but despite this fact the Peoples Bank of China (PBOC) banned cryptocurrencies and initial coin offering (ICO). From 2013-2021 the PBOC issued several notices which obliged financial institutions not to provide transactions of digital financial assets. The People’s Republic of China also proclaimed that Bitcoin and ICO’s are tools for illegal fundraising, money-laundering, and scamming, and that therefore all activities using them violate national laws and regulations. The worries are not unfounded: In one case tried before the Heilongjiang High Court, the defendant had exchanged illegal gains money from RMB into 1,200 Bitcoins and transferred them to Macau, there converted the Bitcoins into Hong Kong Dollar and consequently exchanged them for RMB to transfer the money back to mainland China.

In addition, PRC authorities have pointed out that cryptocurrency production requires a lot of electricity. At the same time, energy is needed by organizations that produce goods and suffer from a shortage of electricity. Therefore, the second reason for prohibition is energy efficiency and concern for the environment. In order to discourage citizens from investing in projects based on digital tokens, Mainland Chinese courts do not protect the rights of investors, indicating that investors themselves are violators who expect to receive illegal income.

Macau’s authorities closely cooperate with mainland China to prevent money laundering through digital financial assets and therefore prohibited transactions with Bitcoin and banned ICO. It reduces opportunities for illegal activities and protects investors from investing in projects that exist as a pyramid scheme. In comparison with Mainland China and Macau, Taiwan has a more liberal approach to cryptoassets regulation and restricts only financial institutions from dealing with Bitcoin. Other companies may sell and buy goods for Bitcoins.

In Hong Kong, cryptocurrency and tokens are only strictly regulated by the Hong Kong Securities and Exchange Commission (SEC) if they have the characteristics of securities, bonds or futures. The SEC doesn’t regulate Bitcoin because it is neither a means of payment nor any other regulated asset. Hong Kong’s authorities pay most attention to digital platforms, which provide opportunities for ICO’s and cryptofundraising. In this regard, the SEC has issued some standards that clarify the licensing procedure for cryptocurrency exchanges and organizations that manage digital financial assets.

Thus, although Hong Kong does not create a liberal haven for crypto business, an entire segment of Hong Kong’s digital assets market is in a regulatory “gray” area. As a result, both Taiwan and Hong Kong de facto serve as bridges from the market of digital financial assets to the PRC. Mainland investors may use them as a “crypto-hub”. For the case of Hong Kong, this situation fully fits the principle of “one country – two systems.”

Find Dr. Aleksandr Alekseenko’s paper, published with the China and WTO Review, here. Dr. Aleksandr Alekseenko is an Associate Professor in the Faculty of Law of the Saint-Petersburg State University, with a research focus on Commercial Law, Investment Law and Legal Regulation of digital Financial Assets. He received his LL.M from the Far Eastern Federal University (Vladivostok) and a PhD in laws from the Ural State Law University (Yekaterinburg). He studied Chinese language at the Linyi Normal University and is the principal investigator and participant of scientific project of Russian Foundation for Basic Research on the topic of e-commerce legal regulation and new technologies in the sphere of investments.