Five Unspoken Rules of China’s Legal System
Posted by Author on August 11, 2011
To the outside world, the Chinese regime purports to have a functioning legal system, buttressed by the rule of law, but to anyone who has tried to function within that system, the experience is much the opposite.
Canadian Lawyer Clive Ansley, a Mandarin-speaker and specialist in Chinese law, recounted in a previous article for The Epoch Times the tale of a Canadian judge who visited China. When the judge returned, he told 300 trial lawyers how the Chinese judicial system was “so far ahead of us” because the courthouse he visited was decked out in marble and plasma TV screens.
What the judge had failed to recognize, said Ansley, is that courtroom decisions are made by political authorities, not judges, and that despite the reams of new laws being written by the Chinese Communist Party (CCP), no law stands above the regime.
What Ansley’s comments bespeak are the set of unwritten laws that bolster China’s legal system. Below are five of these “laws” as identified by Chinese lawyers based on their personal experiences.
1. Outcomes Are Decided at Pre-Trial
Professor He Weifang at the Beijing University Law School published an article titled “For the Law, and For the Ideology in Our Heart” on his blog last April. In it, he explains how trials, particularly important ones, are mostly for show.
“The outcome of certain important cases has been decided pre-trial in collusion among heads of the court, the procuratorate [prosecutor and investigator], and public security. The final court trial is just for show.”
Zhou Binqing, a prominent Internet intellectual property attorney, told The Epoch Times, “When I first became a lawyer, I loved criminal cases because they were challenging. But after a few cases, I realized that Chinese lawyers are useless in criminal cases. Often times, when the lawyers are still debating, the verdict has already been determined. No matter how superb the lawyer is in court, the final outcome has been pre-determined.”
2. The Highest Bribe Wins
Attorney Xu Shurong, from Sichuan Construction Law Firm, told The Epoch Times that he has not taken on any new cases in a long time, because he found the legal system so corrupt as to be unworkable.
He described a case he took on for a company that went to Chengdu Court. He said that despite the strong evidence he provided to support his client, he failed to win his case. The reason he lost, he said, was that the defendant paid a pricey bribe to the court.
“In Chengdu, capital of Sichuan Province, the deciding factor to win a case is to pay the judge and relevant personnel a monetary amount equal to one third of the amount being sued for. This is the unspoken rule in the Chinese legal system. Whoever pays more, wins. In my case, the defendant gave the judge over 200,000 yuan [US$31,000].”
3. Lawyers Are the Underclass
Xu also explains how in China, lawyers are a poorly treated underclass.
“Chinese lawyers are actually among the lower class of the society, they have no basic salary or insurance. After they get payment from a case, they have to pay 6.8 percent sales tax, the law firm takes 30 percent overhead, and then they have to pay personal income tax on whatever is remaining. Finally they have to bear the costs of the case on their own, such as accommodation and telephone bills, and not much money is left in their hands.”
Xu also gave an example of how he was denied payment by a client, even after winning the case—which was about denial of payment. In the case, he represented a private company that did a hydraulic project for the local administration but were not paid what they were owed. “They went to court and won the case, but still couldn’t get the money. I took the case and helped them. But this company decided to withhold my payment, and only paid me half.”
Intellectual property lawyer Zhou Binqing also explains how the dysfunction of the system has given rise to a new niche. “Nowadays, many lawyers cannot find good cases—those lucrative cases are monopolized by lawyers with [the right] background. There is a new breed of lawyers now in China called ‘source lawyers.’ Instead of handling specific cases, they work around their public relationships to bring cases to lawyers who work for them. Those lawyers who handle the cases earn a salary from the source lawyers.”
4. Connections Win Cases, Not Strong Legal Counsel
Li Tiantian, a lawyer in Shanghai, received his license to practice in 1997. At the time, he said, he had a hard time starting out because he did not have any friends in public security, the procuratorate, or the court system.
One case he took on was for one of his college professors, who gave birth to twins. The babies died due to the hospital’s negligence. The first trial ordered the hospital to pay 100,000 yuan (US$15,537). The second trial ordered a payment of 30,000 yuan (US$4,661), because, he said, the lawyer for the hospital used to be the head judge of a court.
Li says he no longer wants to be a lawyer after repeated disappointments in the face of hoping for fairness.
“To be a lawyer in China, relationships are most important, not the law. I often hear veteran lawyers saying that the verdict will be favorable if the judge is bribed with expensive jewelry,” he said.
“I still remember a criminal case involving a village government stealing over 100 million yuan from a demolition and relocation fund. Three villagers hired three different lawyers. I was the only one who submitted a ‘not guilty’ defense. But the result was that my client was sentenced to two years in prison, the other two were sentenced to one year and half a year. This was because I defended my client ‘while standing up tall,’ but the other lawyers defended their clients ‘lying on the ground with their belly down.’”
5. Party Interests Are Paramount
A 30-year veteran rights attorney from Jiangsu province, Mr. Chen, says in recent years the law has increasingly taken a backseat to Communist Party interests.
“There is a mandate from the Superior Court that ‘the Party’s interest is most important, people’s interest is most important, law is most important.’ In reality, once the Party’s interest is considered the most important, this leaves no room for the law or the people’s interests,” says Chen.
The directives come all the way from the Justice Ministry. “When the Justice minister gives a speech, instead of saying lawyers should uphold justice and protect the law, he emphasizes that lawyers should consider the big picture and be obedient. When facing sensitive cases, group uprising cases, or Falun Gong cases, lawyers are demanded to report to their superiors and wait for their approval. In fact, lawyers are not allowed to take on cases as such.”
Chen describes a Falun Gong case he took on a few years ago. He said he was harassed for defending practitioners of the spiritual discipline who were charged with trumped up allegations. Falun Gong is banned by the Communist Party, which created an extrajudicial body to “eradicate” the practice, but there are no actual laws on the Chinese books against the practice.
“But the court sentenced one to 13 years in prison and the other three 6 years,” said Chen. “I was threatened many times and was told not to take any more Falun Gong cases.”
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This entry was posted on August 11, 2011 at 6:00 am and is filed under China, Human Rights, Law, News, Social, World. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.
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