European Chinese Law Research Hub

China’s “Campaigns + Law” Formula

25. June 2020

A new book by Jasper Habicht

In the People’s Republic, campaigns are an established means for achieving political and legal aims. Since the beginning of the economic reforms, the country has developed rapidly economically, giving rise to both the constant development of the legal system and China’s attractiveness for workers from abroad. In response, two somewhat divergent strategies for handling immigration surged side by side, namely, campaigns and legislation.

In 2004, a fundamental revision of Chinese immigration law began. The old law could no longer meet the requirements resulting from the economic development that not only pushed the production of a detailed framework of administrative law, but also transformed China into a country of immigration. At the same time, reports about campaigns against illegal immigration and illegal employment of foreigners emerged in the media. In the context of these campaigns that targeted illegal entry, illegal stay and illegal employment of foreign nationals (so-called “sanfei” 三非 campaigns), the public was invited to report any suspicious activities related to illegal immigration to the police. Shortly before the revised law was promulgated, a large campaign against illegal immigration was deployed in Beijing.

The revision of immigration law and the deployment of campaigns against illegal immigration obviously took place during the same period, which suggests a relation between both. This raises the question: Why was it necessary to deploy campaigns when the law was already being revised? Apparently, the revision of the law would not suffice to strengthen control over immigration issues.

Jasper Habicht investigated the topic in detail in the course of his PhD project and found: law and campaigns are interrelated and dependent on one another.

His analysis of the internal structure of the campaigns and the embedding of the current immigration law in the context of Chinese administrative law showed that one the one hand, it was necessary to revise the law. On the other hand, its thorough implementation at the local level required the compliance of local police authorities. Because China is a centralistic state, control of the central level over local officials is often limited, especially in the police sector. Campaigns are an established means not only to communicate to the public that the central government has succeeded in strengthening control over a certain issue, but also to exert pressure on local police officials to comply with central-level norms.

The above-mentioned whistle-blower scheme, in the course of which the public reports illegal activities to the police, urges local police to act, resulting in higher compliance. The campaigns therefore not only tackle the issue of illegal immigration directly, but also by attacking regulatory failure or non-compliance of local police officials. On the other hand, the Chinese government understands that campaigns need to be legitimised by legal norms. Purely political campaigns would be harmful to the emerging economy.

In summary, it is precisely the combination of law and campaigns that is an effective means of governance in the context of immigration law.

Find Habicht’s careful examination of the role of campaigns in the context of China’s immigration law in his book “The Role of Campaigns in Law Enforcement: The Example of Sanfei Campaigns in Chinese Immigration Law” (e-book) recently published with Nomos. The print version can be purchased here.

Taking Consumer Rights Protection Online

11. June 2020

The Chinese leadership has responded to the growing load of online-shopping related disputes by setting up a special type of court: The Internet Courts (互联网法院) not only specialize in issues brought about through the internet, but also conduct the entire proceedings online.

Since 2017, the Internet Courts in Hangzhou, Guangzhou and Beijing enable litigants to file a claim, attend the hearing, and receive the judgment all without needing to go to a court (check out the pioneer among them, the Hangzhou Internet Court, here). These digital courtrooms may be frequented for certain administrative and civil cases, such as lawsuits regarding sales contracts, including product liability matters, services and loans.

In his recent analysis, Max Planck Institute’s Benjamin Knut Pißler finds the Internet Courts to be a useful new tool in the hands of consumers to secure their rights. This new type of court, which ist likely to be replicated in several other cities in China in the near future, constitute the latest innovation in a rather young field of law in China with surging importance: costumer rights protection. As an addition to the legal mechanisms developed in the past decades, namely the individual actions, representative actions and public interest litigation, the Internet Courts appear to make lawsuits more accessible for the general public, “File a law suit in only 5 minutes”, as the Hangzhou Court advertises on its website.

However, in his analysis recently published in the German Journal of Chinese Law (article in German), Pißler also identifies fundamental problems. “There are some indications that defendants can avoid the proceedings relatively easily,” he points out, as it is unclear what the consequences are if the defendant does not act upon receiving the electronically transmitted notification that he or she has been sued. The relevant regulations laid down by the Supreme People’s Court leave several questions unanswered, and it remains to be seen whether for example a legal duty to regularly check emails and text messages will arise due to the fact that the Internet Courts rely on such communication channels instead of traditional mail.

Further, it is found that the courts are the result of a decision of the Communist Party and a judicial interpretation of the Supreme People’s Court and thus not created in line with the official procedures for founding courts, including a relevant motion on the part of the Standing Committee of the National People’s Congress.

Apart from their regular judicial adjudication work however, the Internet Courts also provide a field for experimentation with new technologies in court proceedings. As innovative institutions outside of the judicial bureaucracy of traditional courts, the Internet Courts could become the arena where the application of artificial intelligence in court decisions, which is vigorously researched in China, may find a testing zone, Pißler indicates.

Read Benjamin Knut Pißler’s Paper here (in German).

Carl Schmitt, Chinese Neo-Conservatism, and the Dark Sides of Constitutional Borrowing

25. May 2020

Cover of the Chinese edition of “Political Theology”, *Shanghai Renmin Chubanshe,* 2015. The text at the bottom introduces Schmitt as “the most controversial political thinker of the twentieth century” and “Europe’s last public lawyer”. “No matter whether one is a political thinker on the left, the right, or in between”, the text claims in an ominous tone, “it will be equally difficult to avoid his thoroughly paradoxical and dangerous intellectual spectre”.

If, at the time of Carl Schmitt’s death in 1985, one had predicted that the former Nazi jurist would soon become a major source of inspiration for twenty-first-century Chinese neo-conservatives’ theorisation of China’s party-state…well, then most people would have dismissed this prediction out of hand as a plainly ludicrous thought. Yet, strangely and disconcertingly, this is precisely the role that was assigned to the erstwhile “crown jurist” of the Reich in the past two decades. That Schmitt’s thought now serves as a conceptual (and, for some, quasi-metaphysical) guidance in the interpretation of China’s constitutional order is no longer a secret, as attested by a growing body of research.

Lucas Brang’s new paper (free draft here) taps into this ongoing debate about Schmitt’s unexpected reemergence to global intellectual prominence. Shifting between conceptual analysis and constitutional theory, Brang traces Schmitt’s influence on Chinese liberal, left-leaning, and neo-conservative legal theorists. Rather than postulating a straightforward bearing on Chinese theoretical debates, however, his article finds that, after an initial controversy, Schmittian conceptual binaries gradually sunk into the deeper layers of the Sinophone legal discourse. Likewise, Schmitt’s oeuvre, rather than being adopted in its entirety, serves as a conceptual toolbox that lends itself to different normative projects.

Focusing in particular on Schmitt’s impact of the school of “political constitutionalism”, Brang shows how different authors employ different “strategies of reception” to make sense of Schmitt’s anti-liberal “challenge” and use of his terminological arsenal. For instance, Chen Duanhong draws on Schmitt’s constitutional theory for a “decisionist” and “existentialist” reading of the preamble of the Chinese constitution, thus providing a theoretically sophisticated apology for party-leadership as China’s “fundamental law” and core constitutional value. Jiang Shigong, on the other hand, seems to adopt Schmittian notion of “thinking in concrete orders” in his sociological account of China’s “unwritten constitution”. Gao Quanxi, finally, in a throwback to Ernst-Wolfgang Böckenförde’s post-war inquiry into the political preconditions of a liberal polity, attempts what Brang describes as a “conceptual inversion” of the Schmittian paradigm of the exception.

On the whole, the paper suggests that the history of Chinese political constitutionalism and the Chinese reception of Carl Schmitt is essentially one of an intellectual co-evolution – which serves as a stark reminder of the often-unexpected paths of contemporary legal globalisation.

You can find the paper published in the latest issue of the Cambridge University Press Journal Global Constitutionalism here. A free draft PDF ist online here.

China’s Constitution in action

19. May 2020

A paper by Daniel Sprick

“What is the Constitution?” A billboard advertising “National Constitution Day” to local residents in Yangqiao village, Zhejiang Province

Calls for and attempts to rendering the Chinese Constitution meaningful in judicial adjudication have officially stopped in 2008, when the decision by the Supreme People’s Court based on the Constitutional Right to Education of Qi Yuling was withdrawn years after it had been made (find the somewhat odd story about a student who has stolen another’s identity to enter college and the ensuing case here). The move has made it clear that the authorities do not wish that the Chinese Constitution serve as a legal basis for judgments. However, judges continue to invoke the Constitution, if less as a direct legal basis, but more so in the reasoning part of their decisions. As judgments by courts from all over China were gradually being entered into an open-access database, Daniel Sprick seized the opportunity asked: If it is not permitted as legal basis, in what ways does the Constitution still play an authoritative role in adjudication?

The quest for today’s functions of the Constitution in the daily adjudication work of local judges appears even more significant when considering the growth of a net of legislation that offers judges alternative legal sources to choose from. A law laying down the Right to Education for example was not yet existent when the controversial Qi Yuling case was first decided on.

For this study, Sprick looked at case groups invoking the Constitution that concerned disputes over citizen’s duty to support elderly parents, land administration or the right to work. Cases, where the Constitution is being referred to due to a lack of lex specialis particularly emerge from disputes over land administration. However, in most cases Sprick found in the database, invoking the Constitution would indeed technically not have been necessary- other laws are the decisive base. Nevertheless, judges are “seeking a higher authority in order to frame a more compelling argument and exhibit an understanding of the constitution as a programmatic document that links the CCP’s policies with the state law.”

Apart from functioning as a link of law and CPC policy, he further finds the Constitution as useful tool for judges working on tort law cases. More precisely, the right to work is being referred to when interpreting relevant statutes, stressing the rights of seniors who were working even though they had reached the retiring age: “the use of the constitution demonstrates that the courts are here filling a legislative gap for the purpose of social justice.” Given the propaganda campaigns calling the general public for the “implementation” and “ardent study” of the Constitution in the aftermath of its amendment in 2018, Sprick’s research appears as relevant as ever.

Find the PDF here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3333958

Daniel Sprick is a Research Associate at the Chair of Chinese Legal Culture at the University of Cologne, where he teaches a variety of courses on Chinese legal history and Chinese economic and commercial law. He was awarded the Hanenburg-Yntema Prize for the best European thesis on Chinese law in 2008. He received his PhD from the East Asian Institute at UoC on the limits of self-defense in Chinese criminal law. His research has focused on Chinese criminal law, competition law, law and society, legal theory and judicial reforms in China.

Fighting a Pandemic with Blacklists and Algorithms

2. May 2020

There is a complex strategy behind the fierce measures the People’s Republic’s leaders applied to curb the spread of COVID-19, argues Felix Wemheuer, Professor for China Studies at Cologne University (in German). A lockdown is easily enforceable in gated communities, which make up the most part of cityscapes in China: If a citizen’s QR-Code does not show green, but yellow or even red, access is denied to parks, restaurants, public transit, residential areas and one’s workplace. Companies work hand in hand with the local administration, the Chinese army and the Communist Party, the latter of which already celebrates the victory over the pandemic as its own achievement.

The army also plays a key role: It constructed a hospital in Wuhan within ten days and provides crucial expertise in the area of virology gained from experience in fighting diseases abroad as well as their work on biological warfare. Further, blacklisting has in many localities become an additional punishment for concealing one’s health history, disregarding compulsory quarantine or trading medical supplies illegally.

While Chinese diplomats aggressively spread a success story to the world, Wemheuer says it is too early to make a final judgment about the effectiveness of the People’s Republic’s measures. “[…] in this global epidemic, the schematic comparison of authoritarian and democratic systems can do little to explain why countries are affected to varying degrees by the epidemic”, Wemheuer explains in an interview with DW (in German). “Freedom of information by itself is no guarantee that measures against an epidemic will be taken quickly, as the cases of the USA and the winter sports industry in Tyrol have demonstrated. The pursuit of profit can also be a reason for cover-up.”

China – An Immigration Country?

17. April 2020

Recent Covid19-related restrictions on entering the People’s Republic aside, foreign immigration in China has been on the rise and is becoming more diverse. Besides high-skilled foreigners from developed countries, the number of foreign students, many from lesser developed countries low-skilled laborers and marriage migration increases. Pieke, Ahl, Barabantseva, Pelican, Speelman, Wang and Xiang have analysed how the increasingly diverse foreign immigration is shaping Chinese society.

Along with the rising numbers, the legal framework has undergone fundamental reformation. In a forthcoming chapter now available on SSRN, Björn Ahl and Pilar-Paz Czoske have observed on the one hand that streamlined application procedures that are available online and clarified competences have increased efficiency whereas the classification scheme of different categories of foreign nationals has enhanced transparency. On the other hand, recent reforms have been more symbolic than functional and the protection of rights of migrants has not been significantly improved by recent reforms. With regard to international law, China has not ratified the Convention on the Protection of the Rights of Migrant Workers and does not model the protection of labour rights of foreign nationals on the equal treatment principle as it is embodied in the Convention. However, China voted for the Global Compact for Migration after being actively involved in its drafting process and further committing itself in this context to improve national migration legislation.

The chapter on the Reform of Chinese Migration Law and the Protection of Migrants’ Rights for ‘East Asian Migration Governance in Comparative Perspective: Norm Diffusion, Politics of Identity, Citizenship’ is available here.

Call for Papers

8. April 2020

The Polish Research Centre for Law and Economy of China and the University of Warsaw School of Law and Economy of China are happy to join the fine tradition and exciting opportunity to host the Annual Conference of the European China Law Studies Association (ECLS). The conference will take place in Warsaw (Poland) from 18 to 20 September 2020.

We warmly welcome your contributions of work on issues relating to Chinese law in various formats. Please find this year’s Call for Papers and other information here (PDF).

The last day to submit abstracts and proposals is April 30.

Find out more about the European China Law Studies Association here.

We are looking forward to seeing you in Warsaw!

Rule Setters for Belt and Road? China’s New International Commercial Courts

20. March 2020

In June 2018, China opened two International Commercial Courts (CICC) in Shenzhen and Xi’an, which were widely received by the international public in terms of challenging the dominance of so far mainly western-led institutions for the resolution of commercial disputes. These courts were heralded by Chinese judicial officials as innovative hubs for flexible dispute resolution that would provide crucial services needed for the further development of the BRI. Even though the unique structure of these courts as one-forum-stops for commercial dispute resolution may be considered a deviceful tool for resolving BRI disputes, their role as agents in China’s quest for a heightened influence in shaping the international economic legal order may globally be of even more significance. The Supreme People’s Court as responsible agency for the CICCs issued a normative document late in December 2019 outlining the purpose of these courts as inter alia tools for promoting China’s rising position in the international legal discourse. The CICC’s adjudicative work should therefore be measured not only from the perspective of effective and fair dispute resolution for BRI conflicts but also as part of China’s agenda in using the BRI’s entangled legalities across different jurisdictions to shape legal developments outside China.

Daniel Sprick and Nora Sausmikat have investigated the courts and their impact in terms of their influence on the global order and presented their study to the EU Parliament. You can find it here.

Labour Rights Protection of Foreign Employees in China

17. February 2020

Björn Ahl, Pilar-Paz Czoske and Cui Xu looked at the level of labour rights protection of foreign nationals in China. Their study discovered considerable differences of levels of protection provided by Chinese courts to foreign nationals in labour disputes. In general, courts in Beijing and Guangzhou extended significantly better legal protection to foreign employees than courts in Shanghai. Both groups, foreign employees with and without a valid work permit, do not receive the same level of labour rights protection as Chinese nationals. The legislative framework that governs employment relations between local employers and foreign employees is still based on the assumption that foreign employees do not need comprehensive statutory protections of labour rights. International law that aims at protecting migrant workers acknowledges the equal treatment of nationals and non-nationals with regard of the protection against unjustified dismissal as a minimum standard. The Chinese legislator should consider bringing the current legislation in conformity with international standards.

The study is available on https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3507529.