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Showing posts from 2015

Foundation for Law and International Affairs Comments on the Charity Law of the PRC (Draft)

This post introduces a set of comments on the Charity Law of the PRC (Draft) I have prepared together with the Foundation for Law and International Affairs
The comments can be accessed here:
General Comment on the Charity Law of the PRC (Draft) - Larry Catà Backer and FLIA - DownloadTechnical Comment on the Charity Law of the PRC (Draft) - Jedrzej Górski, Zhu Shaoming, Flora Sapio - Download

As those who have been following the vicissitudes of China's civil society sector will know, a Draft Charity Law was submitted to the National People's Congress at the end of October, and released for public comment.
During the time I spent in Hong Kong, I was fortunate enough to have had an opportunity to more closely observe the chances as well as the hurdles Chinese civil society organizations face every day. 
Earlier, I have stated how the decision to establish Party groups in Chinese and foreign civil society organizations is a much needed move to once and for all set straight the relati…

A long overdue reply to Jean Christopher Mittelstaedt's criticism

This post is written in response to Jean Christopher Mittelstaedt's criticism of the paper I presented at the 2015 European China Law Studies Association Conference (here). Jean Christopher Mittelstaedt works with Stéphanie Balme at SciencesPo, in Paris. The criticism I received from him is, this far, the best and most sophisticated criticism I have ever received. I am not posting the response he sent me. Those who are interested in the question of how we should approach Chinese law may want to get in touch to explore possible ways to start a broader public conversation on this and similar points. 

Here is, however, a summary of what Christopher wrote. Among others, my paper holds that principles in Western law are equivalent to "原则" in Chinese law, and therefore "Seeking Truth from Facts" functions as a legal principle. 

Christopher's criticism takes aim at the question of what a "principle" and what a "原则" are, according to the paper. T…

The Xiezhi in Chinese Mythology

Everybody knows how thexièzhì was a goat-like animal with a shiny black coat, who lived near water courses. Lambs and goats, bulls and cows have two horns but, the xièzhì had only one, long, spiraling horn protruding from its forehead.
All mythical animals have their unique temperament. The xièzhì was loyal and dependable. But, being a wild animal, it also had an instinctive ability to tell the righteous from the wrongdoers, and the sincere from the obsequious. So fierce was its nature, and so uncanny its ability to distinguish between truth and falsehood, that whenever Minister Gao Yao was in doubt about the innocence of a person, he would call on to the xièzhì. The xièzhì would gallop through the hills and the rivers, and storm through the court gates. Once there, he would gore the guilty to death. Therefore, Gao Yao held the xièzhì in the highest esteem and respect, considering him an auspicious animal.
Historical records tell us that from the highest antiquity until the modern era, …

Chinese Communist Party Standards on Integrity and Self-Restraint - comment.

--> The Chinese Communist Party Standards on Integrity and Self Restraint (the Standards - here, in Chinese) were adopted by the CCP Central Committee on October 12, together with the CCP Regulations on Disciplinary Punishments (here, in Chinese). This post offers a short and very simple commentary on the Standards. 

Together with the Regulations on Disciplinary Punishment, the Standards are one of the most important pieces of Party legislation. The Regulations on Disciplinary Punishment define certain conducts as violations of Party discipline and specify the punishment associated with each one of them. The Standards, as they were enacted in 1997 (here - Chinese) and amended in February 2010 (here - in Chinese), aimed at "regulating the honest performance of official duties" (规范廉政从政行为). 
As I have explained elsewhere, the Standards did more than specify a set of principles of conducts Party cadres should have followed: they proscribed a broad range of behaviors. Most of…

Thoughts on NGOs and the Opinion on Party Building in Social Organizations

On September 28 the CCP General Office issued the Opinion on the Work of Strengthening Party Building in Social Organizations (for trial implementation) [here, in Chinese]. The Opinion mandates the establishment of Party leading groups in all social organizations, a broad term which includes foreign-funded NGOs. 
I am not translating or summarizing the Opinion. A partial translation is already available on China Law Translate, and I invite all those interested to contribute to it. Summaries of the Opinion will be published very soon by the finest scholars in the field of Chinese civil society. Coming, as it does, in the immediate aftermath of the debate over the Foreign NGOs Management Law (a debate about which I have written  elsewhere) the Opinion might be seen as the latest move in a sustained attempt to suffocate the foreign-funded non-profit sector in China. 
A similar interpretation would be consistent with the premises of an interpretive scheme postulating that any legislative or…

"Seeking truth from facts", ideological formulas and Party/state law in China

I have just returned from the 10th Annual Conference of the European China Law Studies Association. This year, the conference theme was 'New Perspectives on the Development of Law in China'. 
At the conference, I presented a paper entitled "Seeking truth from facts in Party discipline 'legislation'" The paper can be downloaded from Google Drive, or from SSRNThe abstract follows below.  I would welcome comments and suggestions from my readers. 
"Seeking truth from facts in Party discipline legislation"
The separation between concepts and contexts in Western studies of Chinese law, the detachment of legal and ideological concepts from the variables that determine their meaning has shaped a tacit consensus whereby ideological formulations as “Seeking truth from facts” are void of any meaning, mere declarations of intent, or make ceremonial references to an ideology which is monolithic and unchanging. Else, these formulations have been regarded as concepts…

A short note on Larry Catà Backer's theory of the Chinese constitutional order

A short note on Larry Catà Backer's theory of the Chinese constitutional order
Rex regnat et non gubernat
In his articles "The Party as a Polity" and "Party, People, Government and State", Penn State's Larry Catà Backer  – a distinguished constitutionalist – challenges the consensus of Western studies of Chinese constitutionalism by asking the seemingly innocent question of whether Marxist-Leninist systems in which the state apparatus is placed under the authority of a communist party are constitutionally legitimate. 
He answers the question in the affirmative, by constructing a theory where the “whole of the Chinese constitutional order”  is a dual apparatus composed by the Statute of the Chinese Communist Party (CCP) and the State Constitution. While the Statute of the CCP bestows political power on the Chinese Communist Party, the State Constitution elects the government as the site of administrative power. Situating the CCP at the very core of China's …