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2.27.2016

An Interview about shuanggui

Julie Zaugg, a journalist with the French newspaper Les Echos, kindly contacted me asking if I could give an interview about shuanggui. 

It was a great pleasure to accept the interview, as I have not talked to the press in some time, due to various overlapping commitments. 

The full text of the interview can be found below, after a brief explanation of what 'shuanggui' is. The interview will be published in Les Echos Weekend.


'Shuanggui' is a Chinese colloquialism that has entered the English language, and it is used to refer to 'lianggui'. 'Lianggui' is a technical term in the law of the Chinese Communist Party. 

According to Li Yongzhong, the famous scholar of Party legislation who is also the top expert on 'lianggui', between the late 1980s and the early 1990s some officials began obstacling Party investigation of corruption cases, whenever investigations involved them or their clients. 

The Party's Commissions for Discipline Inspection had no other choice but creating (or reviving) an organizational measure and an investigative measure, known respectively as 'lianggui' and 'liangzhi'. As I have written elsewhere, 'lianggui' was based on the 1994 CCP Regulations on the Work of Case Investigation (中国共产党纪律检查机关案件检查工作条例), while 'liangzhi' was based on the Administrative Supervision Law (行政监察法). Therefore, 'lianggui' is coherent with the Constitution of the Chinese Communist Party, and 'liangzhi' is coherent with the Constitution of the People's Republic of China. 

Legal documents related to 'lianggui' are many. The most recent legal document is the Central Commission for Discipline Inspection Regulations on Using 'Lianggui' (中央纪委关于适用两规措施的规定). I have not seen this document, because it has not been published yet. 


An Interview with Julie Zaugg
27 February 2016


How does the chain of command of the Shuanggui system work? Who decides to make an arrest? Who carries it out?

The procedure to approve 'lianggui' is set by the Central Commission for Discipline Inspection Regulations on Using Lianggui, which were enacted in 2012. The procedure I have described in my earlier works has been superseded by these new regulations, and therefore is no longer in effect. 

I have not seen the Regulations on Using Lianggui but, based on public documents I have consulted, I believe that the procedure to approve 'lianggui' is very complex, that it involves mechanisms to check and restrain the arbitrary use of power, and that these mechanisms are coherent with rule of law guarantees as they exist in China. 

Arrest is an entirely different measure, based on the Criminal Procedure Law of the People's Republic of China. Arrest is approved by the People's Procuratorate, and enforced by public security organs. 'Lianggui' is formally and substantively distinct from arrest. 

Where is the person then taken to? What happens to the person?

The person is taken to a specific facility and, once there, he is interviewed by Party discipline officials. 


Does anyone have to be notified or can someone just "disappear" into that system?

Notification requirements exist. 'Lianggui' was not designed to make persons 'disappear' into the legal system. The fact a high ranking official, or an entrepreneur, may not make television appearances, or he may not be on social media if he is under 'lianggui' is entirely normal. This does not mean that the person has 'disappeared', it just means he cannot attend public events as he is involved in an investigation. 


Is torture common in the Shuanggui system?

Incidents have been reported by the Chinese press, in the past. The will to curb those incidents, to make them never happen again, and to use 'lianggui' cautiously and only if necessary, has provided a powerful impulse to reform 'lianggui'. 

When someone disappears and then reappears without being charged (like Fosun boss Guo), does that mean they were collaborating on a case or providing evidence on someone else?

'Lianggui' can have many purposes. One of them is allowing witnesses to provide evidence without undergoing retaliation. In this sense, 'lianggui' is a very effective witness protection measure. If the persons who are under investigations are not aware of your location, or the fact you are collaborating with investigators, it will be much, much more difficult for them to retaliate against you.

If a person is instead investigated, and at the end of 'lianggui' she does not receive Party discipline punishments, state discipline punishments, and is not charged, then it means the Discipline Inspection Commission did not find any evidence against this person. 

Is it common in such a case for the person to be exonerated from any charges in exchange for his collaboration (ie to make a deal)?

Discipline Inspection Commissions are the most professional, and severe, organs in China's legal system. I do not believe that making a deal with them is possible. I believe that, if you a person is exonerated from any charges, then it means no evidence against them was found. 








2.23.2016

Larry Catà Backer's Comments on "Justice: Socialist Core Values, Symbols, and Performance"

The relationship of justice to the social and legal order has long appeared to be both fixed and contingent--symbolic and performed. It's values are peculiar to itself--reflecting both societal and temporal context--and also common to all communities. The West has an ancient set of core values still powerful (at least when its elites are required to recall them) in the operational life of society and its governance instruments. Its object is justice, is symbol is law and its interpretation is performed by the governance community itself. Recall the summation of these Western core values in the very beginning of the Institutes of Justinian (Book I title I) "Justice is the set and constant purpose which gives to every man his due. . . . . The precepts of the law are these: to live honestly, to injure no one, and to give every man his due. . . . Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust."
All strong societies have a listing of some sort of "core values" that are natural in the sense that it must relate to biology (people are born, die and reproduce, etc.), peculiar to itself at any stage in its historical development, and common to all peoples attempting to constitute its own core values. Its object (the ideology that must be signified through the construction of its symbolic structures and objects); it is symbol (the signification of object) and it is performance in the sense that it must be observed and acted out both internally and in the everyday actions of people, institutions and relations bound by it. The Chinese now have their "Twelve Socialist Core Values", at least for as long as they will keep them; the People of Israel had their "Ten Commandments"; the Romans their "Twelve Tables"; etc. These are each at once the acknowledgement of the ideology that is meant to be activated through the infusing of signification in certain ritual objects--tablets, writings, pronouncements--and their contents which are also symbolic. The signification of these symbols become operative as ideology as a society performs its symbols--by applying its core values to the organization and structures of life within the community bound bu it. That performance involves both individual acts of interpretation (the process of values internalization and outward expression in behavior) and communal acts of interpretation (through its structures of law and coercion).

It is with this in mind that one might best start the consideration of the marvelous presentation by Flora Sapio. Sapio starts with an important baseline--the notion that the concept justice itself--as its own object--can be an amalgam of fractured meaning. She notes that Delia Lin (2016) has identified at least eight different terms that are used, in Chinese language, to refer to justice. They are: “yi (义), buyi (不义), zhengyi (正义), gongyi (公义), gong (公), gongzheng (公正), yuan (冤) and qu (屈).” And yet the reference to justice within the Socialist Core Values references only gongzheng (公正). And then, she notes, the concept of gongzheng (公正) is itself constrained by a distinct term--socialist.

Together, what has become of justice? Well in one sense--nothing. From the most basic level, justice remains constant, and peculiar--to give every person their due (using the language of the West for a Western audience that might still remember the power of these words in their own cultural context). And yet on another sense justice has been profoundly reconstructed in ways that suggest a re alignment of a hierarchy of values as between what is peculiar to China and common to the rest of the world, and also what was central to Chinese self conceptions in the past and toward the future. For what gives every person their due--the ideology of justice--is now fundamentally shaped by the value structures of "socialism" and its dynamic construction within China in the present and toward the future.

Sapio notes that justice itself, as so constructed, is itself only one of the core values that mark the values-ideology of China.
The Twelve Socialist Values are 'Core' Values because each one of them is a key component of the national spirit (民族精神 minzu jingshen) of Chinese society. Together, the Twelve Socialist Core Values constitute the national spirit as it exists at this point in history, and as it has always existed. In China, commentators have not gone further from this point, stating that the Twelve Socialist Core Values constitute a 'value system' (价值系统 jiazhi xitong), and that each one of them exists on a different plane (层面 cengmian). So while wealth-and-power, democracy, culture, and harmony are values that exist at the state level, justice is one of the four values that exist at the societal level. (Justice: Socialist Core Values, symbols, and performance, supra)

If justice itself is contextualized then does it suggest a radically different understanding of justice, radically different, that is, from what has emerged int he West? Justice appears not within a hierarchy vertically arranged, but among a set of values each of which may be functionally differentiated and each of which may be consigned to its own sphere. That raises the possibility that there may be spheres where each of these values may not reach. And yet that might not get at the concept at all if one emphasizes the unity of the core values and their inseparability. In which case socialist principles of collectivity would read these collective values as a unity. That is, Leninist principles of collective action, of joinder (one concededly long past the time for further theoretical refinement given the realities on the ground in China at this stage of its history) themselves may serve as the meta-modifier of the values and provide the techniques for their joint application. A more traditional reading might instead interpret this signifier of values--the twelve principles--as the partitioning of the values spheres among distinct territories (spheres) within which each might operate supreme.

Whichever the case, the question poses a further one--grounded in the basis for interpretation, and not by outsiders to China: should the touchstone of analysis of this subtle conception of justice be understood only in comparison to the West, or in dialogue with itself and its own internal logic? Our own ancestors in the West would have a straightforward answer--by seeking to understand it as it understands itself first, before seeking an understanding rooted in comparison. That is, after all, the fundamental logic of Western notions of justice, if one takes the Institutes as its starting point. Sapio notes the difficulties of comparison, even at the level of symbol, in an insightful discussion that used two mythical figures: Themis, the Greek Goddess of Justice, and the xiezhi (or xiezhai), a mythical animal of the Chinese tradition. And she uses comparison effectively as a means of sharpening the interior meaning of each of the subjects compared in the process of comparison.

Sapio notes the possibility of bridging the differences in the symbolism of the huabiao column (华表) and its strong signifier of justice in temporal and abstract space. This "brings us back to the myth of the xièzhì. Values that belong to a cultural tradition are literally embodied by those symbols most representative of that tradition. In the case of China, the symbol that best represents justice are not the huabiao columns on Tian'anmen Square but, the xièzhì." (Justice: Socialist Core Values, symbols, and performance, supra). It is to the connection between the symbolic (xièzhì) and the abstract (gongzheng) that provides a basis for developing the concept of justice within the context of the twelve core socialist values intertemporally in China. And it is only thrugh that analysis that the insights of comparison become useful.

Sapio notes the strong symbolic connection between xièzhì and Themis but in Chinese terms, but as judgement, the consequence of justice. 
Perhaps, not everybody knowns how the three drops of water radical on the left symbolize the waters close to which the xièzhì once lived. These waters were later imagined to be as even as the judgment of the xièzhì...or the scales of Justice. At the same time, if stirred, they could kill as implacably as the xièzhì's horn..or the sword of the Themis. The horn of the xièzhì, and its supernatural ability to drive off (qu) lies and insincerity are stylized in the right part of 法. As the Themis, the xièzhì does not see injustice through its own eyes – he perceives injustice. (Justice: Socialist Core Values, symbols, and performance, supra).

But it also brings us back also to the connection between xièzhì and law, " sometimes literally calling on to it, is in the shape of the character gao/告, as it is used in all those composites which, as 控告, 原告, 被告, 告状 relate to the making of accusations against a natural or legal person, or to the state of being accused." (Ibid). And that brings us back from the mythic to the transformation of the mythic within the emerging mythos of socialist justice: "In Chinese mythology, the power to call on to the xièzhì was a prerogative of Magistrate Gao Yao only. In China, today the law – the 法, a modern incarnation of the unicorn-goat, has gifted everyone with the same power." (Ibid). The object, justice, has now been signified as symbol, as value, as direction and as norm. It is only left now to shape the interpretive community.

And to that end the socialist part of the construction of justice becomes central--and here we come to another understudied concept also critical to socialist justice, and that is the nature of the leadership role of the vanguard party. That vanguard role changes the signification of the individual within the interpretive community within which justice is performed beyond the mythic. Everyone, Sapio correctly suggests, may now call on justice--but everyone is not every body. Justice, then, signifying its normative elements, is constrained now not by Magistrate Gao Yao, but by the signification of the vanguard and by the vanguard's own constraints in socialism. It is the vanguard that now calls on justice for everybody, constituting a form of interpretive community that is itself the signification of the people it leads. But only to the extent it itself acts justly--it does not control justice, it may just call on it. THAT is the fundamental insight of the relationship of Gao Yao to xièzhì and of the vanguard to socialist justice.

And it is to the consequences of that relationship that Sapio elaborates here insights. She considers injustice and Wu Ying, to identify xièzhì in socialist justice. The Wu Yng case was famous, and perhaps notorious for the scale of financial fraud, for the extent of the potential collusion of local officials, and for its use in the West as a point of discussion about China. And it is here that she quite insightfully brings us back to the comparative element, applied and misapplied by the West. Indeed, the heart of the analysis--the parallels of the mis-conceptions drawn from the comparisons of the symbolic, the relationship of Themis to xièzhì, now reveals itself fully in the much more immediate context of the West's approaches to an understanding--and to the use (for their own purposes both with respect to internal Western conversations about law and justice, and with respect to conversations about relations between the West and China)--of expressions of Chinese justice as both exotic and relevant. In the process, of course, the West tells us more about itself than the object of its study. And as to that object of study, they misperceive, precisely because they are perceiving themselves through the Chinese mirror which cannot but distort its own self image. Thus, Sapio notes, "Oblivious to the fate of Wu Ying, the Anglo-American and European media advanced positions compatible with PRC pronouncements on the death penalty, on financial reform, and on enhanced public supervision of and participation to decision making." (Justice: Socialist Core Values, symbols, and performance, supra).

Yet the Chinese would have had to see something quite different--something that spoke to justice unmoored from those with the obligation to lead to justice. The case suggests xièzhì out of control, and beyond the call of the leadership of the vanguard. Sapio distills these well as three possible constructs: spectators of justice, public opinion and the surrounding gaze. The first touched on the role of the community in the performance of justice in the Au Ying case. It was clear that the effort was powerful, was not managed, and could not be well fitted within the symbolic constructs of socialist justice. The second touched on the related notion of public opinion. If the first touched on a passive performance--watching--the second touches on its consequence, reacting to what is observed. And the role of public opinion produces signification of justice far afield from, but now with heavy influence on, the formal proceedings. There is an underlying Chinese issue here that also requires substantially greater elaboration--and emancipation of the mind. That concept--the mass line--though derided both within and outside China in some circles, has the potential for managing and disciplining, for producing synergy, within the signification and performative process of interpretation that is socialist justice. That would certainly free the Chinese from the not inevitable connection between public opinion and the "ideal liberal-democratic polity" that Sapio notes. It remains, though, substantially unexplored. Last, Sapio quite astutely connects the acts of watching and reacting as a collective event. But this presents an important contradiction, for this collective gaze is not that of the leadership collective of the vanguard, but rather that of those who were touched by the events. It is here that the problem of the connection between moral agency and the concept of 'surrounding gaze' (围观/weiguan ) acquires its socialist dimension.

Together, these suggest the disconnection between signification at the symbolic level--the conceptual elegance and sophistication of signifying socialist justice--and the level of interpretation, of bringing the symbolic to life. And that, perhaps, poses the greatest threat to the elegant construction of the twelve socialist principles and of justice within it. The problem is not Chinese per se. The problem is disciplinary, and performative. The problem is not with truth, bit with the facts of its elaboration. It is that move from the symbolic, the failures of which continue to dog the West, that China must now in turn choose to make. It is not enough to call on xièzhì, for xièzhì will only come to those worthy--a necessary step to move from conceptions of gongzheng (公正) to those of socialist justice in the Chinese context. And that, one assumes, is what Chinese authorities are seeking to work through within the conceptual framework of the twelve core principles.  

Justice: Socialist Core Values, Symbols, and Performance

Justice: Socialist Core Values, symbols, and performance


Presentation given at Lund University, Centre for East and South-East Asian Studies

24 February 2016

Abstract

Justice is a complex idea to analyse in any system. In the People's Republic of China, Justice (公正 gongzheng) is not only a concept in moral philosophy, or political philosophy strictu sensu. Even more importantly, it is one of General Secretary Xi Jinping’s Twelve Socialist Core Values, and a key component of the morality and customs of society. Therefore, while the idea of justice is embedded in the political-legal system, it can also be embodied in fields and activities that go beyond the narrower structures of politics and the law. In this sense, the value of justice – not unlike the other Twelve Socialist Core Values – traverses various fields of knowledge and activity. It cuts across culture and the arts, politics, legal theory, and the practice of law. It is expressed by and through all of these fields. The main questions pursued in this presentation do not concern what constitutes justice in relation to the Twelve Socialist Core Values. The presentation instead discusses how the value of justice is embodied in those symbols which are most representative of Chinese culture, and acted upon in high-profile criminal trials by political-legal organs, the public, and Chinese as well as Western media.


I
Justice, Myth, and the Law*



In language, justice is a word. In moral and political philosophy, justice is a concept. In law, it is a principle. Justice is a complex idea to analyse in any system of morality. It is complex – not because the idea of justice is inherently difficult to understand. 

Each one of us is familiar with the idea of justice. Each one of us has, at least once, expressed his or her idea of what justice is. We have done so using verbal language, saying that something was just, or that it was unjust. Some of us, those of us who could not speak out in the face of a perceived injustice, may have expressed their ideas using means other than verbal language. That a concept is complex it does not meant it is difficult to understand. It means that the concept, or rather the word that is used to convey that concept, can have several different meanings. The word can be confusing to us because each one of us can, and often does, understand the same word in a different way. 

In a recent work, Delia Lin (2016) has identified at least eight different terms that are used, in Chinese language, to refer to justice. They are: “yi (义), buyi (不义), zhengyi (正义), gongyi (公义), gong (公), gongzheng (公正), yuan (冤) and qu (屈).”

The possibility to refer to the same moral value by using at least eight different words can further complicate any discussion of justice. For ease of reference, I will refer to justice using the word 公正 gongzheng. 

Justice/Gongzheng is a moral value, and a very important one, as it forms part of General Secretary Xi Jinping's Twelve Socialist Core Values.1 The adjective 'socialist' qualifies these values as part of a specific system of thought, and worldview – Socialism – as socialism has been adapted to the Chinese context, and reinterpreted over time. The Twelve Socialist Values are 'Core' Values because each one of them is a key component of the national spirit (民族精神 minzu jingshen) of Chinese society. Together, the Twelve Socialist Core Values constitute the national spirit as it exists at this point in history, and as it has always existed. In China, commentators have not gone further from this point, stating that the Twelve Socialist Core Values constitute a 'value system' (价值系统 jiazhi xitong), and that each one of them exists on a different plane (层面 cengmian). So while wealth-and-power, democracy, culture, and harmony are values that exist at the state level, justice is one of the four values that exist at the societal level.2

Any attempt to understand the idea of justice detached from the context I have just sketched may easily lead discussants astray. A similar point was excellently illustrated by Dr. Jonas Grimheden more than ten years ago. In 2005, Dr. Grimheden wrote a doctoral thesis entitled “Themis vs. Xiezhi: Assessing Judicial Independence in the People's Republic of China.” In his thesis, he explained how the perception of justice in our value system is substantially different from the perception we have of justice in China. To convey this point, the solution he found was using two mythical figures: Themis, the Greek Goddess of Justice, and the xiezhi (or xiezhai), a mythical animal of the Chinese tradition:

“At first glance, Themis, the goddess of justice in ancient Greek mythology, seems to have little or nothing in common with the apparently beast-like symbol, Xiezhi that has represented justice in China since ancient times. Themis, human and graceful, carried the scales and sword as her insignia to balance right from wrong and to defend what is just. This image may appear to stand in stark contrast to Xiezhi − the gruesome beast that gores the guilty with his one horn. Though ancient, these symbols easily reflect the opposing perceptions of justice between the Western world and China today − Themis conjures balance and fairness, while China’s symbol appears brutish and unjust.” (258)
Jonas Grimheden's work did not delve deeper into the symbolism of the themis or the xiezhi either: his work related to judicial independence, a strictly juridical concept, and was not concerned with more abstract principles, or with symbols and their meanings. 
The question of what these two figures have in common deserves a short and simple discussion.






The Themis is a woman warrior. As such, she does not embody the conventional ideal of graceful femininity, but violence and the power to kill: she carries a double-edged sword. A sword is a weapon, and while weapons may be used to protect the innocent and avert danger, a sword can be used to threaten or inflict punishment. The punishment inflicted through a sword is a punishment that maims or kills. The Themis carries the scales used to weigh human actions, signalling how her judgement is rational. Punishment is inflicted only after right and wrong have been carefully weighed. At the same time, the Themis is often represented wearing a blindfold. The blindfold may be taken to mean that she does not make distinctions while administering justice. Anybody may be equally subject to her punishment, should they be found to be at fault. How is it possible to know who has committed an injustice, and weigh the reasons for and against them, if a blindfold is worn over one's eyes? This is the question raised by the Themis' blindfold. To this question, there can be only one possible answer. The Themis sees. She does not see through her eyes, but through her intuition. 

Some Western and Taiwanese authors have found the equivalent of the Themis in a type of ceremonial column known as huabiao.





A huabiao column is made of white marble carved with images of dragons and clouds, and it is erected at the gates of places of power. Huabiaos guard the sides of the spirit way of imperial tombs, or watch the entrance to the burial sites of marqueses, dukes and princes. More than aestethic, their value is iconic: the huabiao pillar is a heavily stylized representation of a dagger-axe. The placement of a dagger-axe at the gates of palaces of power – be it the power of the living emperor, or the one of his ancestors – is a potent visual reminder of the power to take life, or allow life to be lived. Symbols do not stay the same over time. Changes in their shape and meaning are contingent upon the cultural, political and historical context within which they are created, and used. The dagger-axe was originally a weapon planted in the ground, used both to mark the direction towards which armies marched and to signal military power. The huabiao symbolized the power of the sovereign. By the Han Dynasty (206 BC – 220 AD), the dagger-axe had become a wooden column first, and finally a marble pillar with two stylized wings (Ren 1996). Until then, people had attached their petitions, inscribed their opinions and grievances on two wooden boards that hung from the sides of the wooden huabiao column. This way, the huabiao became a means the king and his officials used to acknowledge and react to popular sentiment. Today, the huabiao – together with the Temple of Heaven or Tian'an Men Square, has become one of the global logos for China. While some, like the Taiwanese historian Li Ao, have equated the huabiao with the tears of China, others have used the huabiao to market commodities ranging from cigarettes to guided tours of Tian'an Men Square. The huabiao perhaps no longer mantains an undisputed, direct relation to ideas about justice. 

The search for a symbol that still bears a direct relation to the idea of gongzheng brings us back to the myth of the xièzhì. Values that belong to a cultural tradition are literally embodied by those symbols most representative of that tradition. In the case of China, the symbol that best represents justice are not the huabiao columns on Tian'anmen Square but, the xièzhì.




It is common knowledge how the xièzhì was a goat-like animal with a shiny black or blue coat, who lived near water courses. Many other animals had two horns but, the xièzhì had only one, long, spiraling horn protuding from its forehead. All mythical animals have their own, distinctive temperament, and the xièzhì was no exception to this rule. The xièzhì was loyal and dependable. But, being an animal, he possessed a wild and violent side as well. Similar to the Themis, the xièzhì had an instinctive ability to tell the righteous from the wrongdoers, the sincere from the obsequious, and to distinguish between truth and falsehood. So uncanny was his ability that, whenever Magistrate Gao Yao was in doubt about the innocence of a person, he would call on to the xièzhì. The xièzhì would then come to Gao Yao's help, solve his doubts by sensing the guilty, and goring them to death. Because of this reason, 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, legal officials would have the image of the xièzhì embroidered on their blue and golden robes, and on their hats. Statues of the xièzhì graced the entrance to magistrates' yamens, and the walls of the residence of imperial censors.


Today, judges no longer wear elaborate robes and hats but, the xièzhì is carved on their gavels, and statues of the xièzhì greet visitors to law courts. They occupy the same place as Themis does in the “West”. Does this mean that Chinese judges embody the xièzhì, or that Western judges invoke Themis? Beyond archaeological relics and other visual representations, the mythical figure of the xièzhì survives, today, in the written word.


The character law/法/fa is one of the two different guises under which the xièzhì presents itself to us, today. Perhaps, not everybody knowns how the three drops of water radical on the left symbolize the waters close to which the xièzhì once lived. These waters were later imagined to be as even as the judgment of the xièzhì...or the scales of Justice. At the same time, if stirred, they could kill as implacably as the xièzhì's horn..or the sword of the Themis. The horn of the xièzhì, and its supernatural ability to drive off (qu) lies and insincerity are stylized in the right part of 法. As the Themis, the xièzhì does not see injustice through its own eyes – he perceives injustice.


The other guise under which we can 'see', the xièzhì, sometimes literally calling on to it, is in the shape of the character gao/告, as it is used in all those composites which, as 控告, 原告, 被告, 告状 relate to the making of accusations against a natural or legal person, or to the state of being accused.


The lower part of the character represents a mouth, while the upper part is a stylized version of the judgment's horn of the xièzhì. If read symbolically, 告 literally stands for evoking the xièzhì and its infallible judgment. In Chinese mythology, the power to call on to the xièzhì was a prerogative of Magistrate Gao Yao only. In China, today the law – the 法, a modern incarnation of the unicorn-goat, has gifted everyone with the same power.


II


Injustice


There are many ways in which accusations may be made. Filing a lawsuit against a natural or legal person is only one of them. Many avenues can be used to express the idea that a person did not receive what they ought to have been given, what they were promised, or the treatment that was due to them. Besides the legal system, the internet is perhaps the most popular venue where everybody can perform the role of the xièzhì.


My use of the verb 'perform' is by no means allegorical. In voicing their views on a perceived injustice, speakers are effectively making a judgment that appeals to the higher power of morality, as morality is understood by them – human beings who live in a contingent world, rather than in the world of eternal ideas. They, the ones who live in the world as the world exists here and now, are performing the same role the xièzhì played in myth. While the xièzhì's horn could kill by goring, once they are spoken, words can sometimes lead to comparable consequences.


This dynamic does not belong to myth or to magical thinking (De Martino), but to the actual workings of the legal system, as these workings can be set in motion by all those who make accusations. The case that perhaps, best illustrates this dynamic is a case that saw a 26-years old woman first turned into the conduit of an angry vox populi, then into a proxy to express opinions on China's reform path, and finally into an object of academic analyses (Sapio 2016, forthcoming). The woman goes by name of Wu Ying.



III 


Wu Ying



In 2006, Wu Ying was a 26 year old Zhejiang woman. Having earned a professional diploma in cosmetology, she ran a beauty parlor, then a hair salon and a clothes and accessories shop in her home city of Dongyang. In April that year her life witnessed a major turn: Wu Ying deposited in her bank account RMB 50,000,000, which was used to established the Bense Trading Company Ltd and the Bense Holding Group Ltd. Wu Ying and her sister Wu Lingling were the majority shareholders of the group. Six months after the initial investment, the group had taken control of nine companies that included businesses as diverse as a car wash, a hotel and a logistics company.3


In the meantime, Wu Ying donated at least RMB 1,800,000 to local government institutions. Each of the known donations contributed in different ways to implementing local and/or central policies. In August 2006 two large donations were made. RMB 800,000 was donated to the Geshan Village Xizhai elementary school, which the school used to construct buildings that met Zhejiang province standards on 'model modern rural schools' (Zhongguo Dongyang 2006), and RMB 500,000 was donated to create a scholarship fund in Pan'an county (Pan'an Xinwenwang 2006). On 2 September 2006, the Group donated RMB 500,000 yuan to the Dongyang Glory Society (Renminwang 2006), a government organized non-governmental organization (GONGO) created 24 hours before Wu Ying made her donation (Zhonguo Dongyangshi 2006). The Dongyang Glory Society was the local chapter of the China Glory Society. Its offices were in the Dongyang City Administration Building (Zhonggong Dongyang Shiwei Tongzhanbu 2006), and its chair, Wu Meirong, was also chair of the Dongyang United Front Department. According to the Zhejiang Higher People's Court, from April 2005 six persons gave Wu Ying a total of RMB 14,000,000. From May 2005 to February 2007, Wu Ying received a further RMB 773,395,000 from 11 more persons. The press claimed she established two informal financial institutions, located in Zhejiang and Hubei, for futures trading and stock markets (Fazhi Zhoumo 2011). How Wu Ying became a highly successful financial trader in a little less than two years still remains a mystery.






IV 


Who is the xiezhi? 



The Anonymous Accuser


Wu Ying would have lived her life comfortably, had it not been for the anonymous accusations made against her on the internet. From 23 to 26 September 2006, a person writing under the nickname of “wmf50134” published five heavily sarcastic posts about Wu Ying and her wealth on the Sina bulletin board system. From September 2006 until today, the person no longer used that account.4 Nothing happened, on the internet at least, during the next 29 days. But on 27 October similar doubts about Wu Ying's wealth were expressed on the website Baidu Zhejiang.5 The Zhejiang press began reporting on Wu Ying on the very same day.



The Fourteen Men Without a Name


No sooner had media published it reports than 14 men, all Yiwu residents, kidnapped Wu Ying over a loan dispute, or so it was reported (Sina 2007). During the seven days she was held hostage, Wu Ying was taken to the cities of Hangzhou and Wenzhou and the provinces of Anhui and Jiangsu, where the men forced her to sign blank documents and hand over RMB 3,300,000, her jewels, the title documents to 14 flats, and 29 cars. After her release on 28 December, the blank documents signed by Wu Ying were used to mediate two loan disputes in her absentia, and the 14 men came to own the 14 flats she had purchased.





The Police


Wu Ying reported her kidnapping to the police, who held that there was no evidence to support her claims. On 7 February 2007, shortly after Chinese New Year, Wu Ying was detained on suspicion of illegally receiving public savings deposits (feifa xishou gongqun cunkuan 非法吸收共群存款),6 and was formally arrested after 37 days, on 16 March.7




The Court


Less than a week later, the central-level media leaked news about a list naming 137 Yiwu and Dongyang officials who all had allegedly given funds to Wu Ying (Zhongguogwang 2007). On 16 April 2009, the Jinhua Intermediate People's Court tried Wu Ying on charges of fraudulent fundraising (jizi zhapian 集资诈骗)8 with a maximum sentence of 15 years imprisonment, but the charges were later changed to the capital crime of financial fraud, punishable by death. On 18 December the court found her guilty of financial fraud and sentenced her to death with immediate execution. On December 30 she appealed her verdict to the Zhejiang Provincial Court, but on 18 January 2012 the provincial court upheld the conviction and the death penalty.



The Western and the Chinese press


The Western press reported the Wu Ying case as one of the proverbial female tycoon battling obstacles to financial market deregulation, weaving the narrative of the case around the theme of informal finance. While this was no doubt an important side to the case in China, arguments about the informal financial sector could not appease the Chinese public, whose rage continued to soar. For its part, Sina stoked the fire by stating that local officials had pressured the Jinhua court (Fazhi Zhoumo 2011) to use the death penalty in sentencing Wu Ying. Midst the all-too foreseeable denial by the Zhejiang Higher People’s Court that the Jinhua court was influenced by local officials urging capital punishment for Wu Ying (Zhongguo Guangbowang 2012), just one week before the second instance hearing, Wu Ying named her accomplices: the Jingmen People's Congress deputy chair, and the deputy director of the Jingmen branch of the People's Bank of China (Sina 2010). The Zhejiang HPC’s decision to uphold Wu Ying's death sentence opened the floodgates of the internet to a tsunami of insults, complaints, and accusations. On 21 May 2012 the Supreme People's Court refused to approve the death sentence and sent the case back to the Zhejiang HPC ordering a new trial. Wu Ying thus saw her sentence reduced to death with a two year reprieve, which is typically commuted to a life sentence. Oblivious to the fate of Wu Ying, the Anglo-American and European media advanced positions compatible with PRC pronouncements on the death penalty, on financial reform, and on enhanced public supervision of and participation to decision making.



The Public


By mid-December the public was engrossed by the media’s narration that gave important clues as to officials' involvement in the illegal fund-raising scheme. The public could at least hypothesize or speculate that Wu Ying could have been the figurehead for the Yiwu, Jingmen and Dongyang officials, that something had gone wrong with the investment scheme they ran together, and that Wu Ying had been scapegoated. For these reasons, the vox populi believed that the sentence imposed by the Jinhua court was unjust, and that Wu Ying was innocent, despite her involvement in a scheme totaling almost RMB 1 billion. In other words, the public held that Wu Ying's involvement in the scheme was not a crime. Such was the common feeling of all those who, in the days following the verdict's announcement, flooded the internet with angry postings, and supported the online campaign Wu Ying's father ran to try and save his daughter's life and reputation.


The first result after the uproar was the admission made by the deputy director of Yiwu's Commission for Discipline Inspection that at least 25 officials had been involved in the scheme and that some of them served in the public security and court systems. But, so the deputy director explained, these officials could not be investigated because fraudulent fundraising did not fall within the Party's jurisdiction (Zhongguo Xinwenwang 2010). Although intended to dispel suspicions about officials' interference in the case, a report by the China News Network (Zhongxinwang 中新网) instead poured more oil on the fire. And making matters even worse, the press once more leaked classified information about the involvement of two Yiwu officials, Ji Chengsong and Ying Junjun, in the scheme. This admission allowed the media to reframe the entire case as one of underground private lending (minjian jiedai 民间借贷), which China News Network did. The Jinhua presiding judge talked to the press to introduce a series of distinctions between underground lending and illegal fundraising, and calling for more regulation of the informal financial sector.



'Theoretical', 'heuristic' and 'epistemic' constructs



How could, then, the Wu Ying case be conceptualized? What theoretical, heuristic, or epistemic constructs, could be used to make sense of what happened, and place the events within a broader context, one conducive to a better understanding of justice in China? The possible constructs were three at least:


(1) Spectators of Justice


All those who were exposed to media accounts of criminal cases, included the Writer and her Readers, could be conceptualized as 'Spectators'. This choice would rest upon a careful consideration of the meaning of these terms. 'Spectator', which in English maintains its original Latin spelling, means not only 'to view' or 'to watch' but also 'to evaluate' and 'to judge'. Those who consume media reportage of a criminal trial, do more than just take in what has happened in court through trial footage aired on the evening news. They formulate judgements about the moral character of the parties involved in the case, they evaluate these parties, and articulate their own conception of whether or not justice has been brought to bear through the case. This moral dimension could be captured by 'Spectator'.


(2) The Public Opinion


All those who were exposed to media accounts of criminal cases, included the Writer and her Readers, could be conceptualized as 'public opinion'. The ultimate referent of 'public opinion' is the vision of an ideal liberal-democratic polity, which is absent from both the political order of the PRC and its ultimate goal, and from the Chinese equivalent term yulun (舆论) that is translated as ‘public opinion’. Yulun can, and indeed does, articulate moral judgments, but the most immediate connections that 'public opinion' evokes are to a 'public sphere' and to a 'civil society' understood as two components of a liberal-democratic political order. While some in China may have beliefs about the desirability of a liberal-democratic order, 'public opinion' is unable to account for the full spectrum of views about political morality that have been advanced in Chinese society. Also, this concept is foreign to the Twelve Core Socialist Values.


(3) The Surrounding Gaze


All those who were exposed to media accounts of criminal cases, included the Writer and her Readers, could be conceptualized as 'surrounding gaze'/围观/weiguan. The concept of weiguan, translated in English as 'surrounding gaze' (Teng 2013; Teng and Mosher 2012) is to anyone familiar with the semantics of the characters wei and guan, not simply devoid of any moral connotation. As it has been constructed, the concept of the collective gaze of a crowd that has gathered to watch an event can entail an element of moral agency. Or, it cannot. But, the nexus between moral agency and the concept of 'surrounding gaze' is un-interrogated. Moreover the watching gaze观/guan - at least as the character is sometimes used and commented upon in the Chinese classics - is a gaze that watches from an elevated place, such as a tower, a building or even a Taoist monastery (guan can also designate a monastery), rather than a gaze placed on the same level of what is observed.


Wu Ying 


To date, no one knows where Wu Ying is, what she does, or whether she had a chance to explain what justice means to her.




*Thanks to Nazarena Fazzari (Università Cattolica del Sacro Cuore, Milan), for our discussion of etymology.

1The other ones are wealth and power (fuqiang), democracy (minzhu), culture (wenming), harmony (hexie), freedom (ziyou), equality (pingdeng), rule of law (fazhi), patriotism (aiguo), dedication to one's work (jingye), integrity (chengxin) and friendship (youshan). See “Opinion of the General Office of the Central Committee of the Chinese Communist Party on promoting and putting into practice the socialist core value system”, issued on 23 December 2014; also “Opinion of the Communist Party Group at the Ministry of Education and of the Central Committee of the Communist Youth League on promoting the construction of a long term mechanism to promote and put into practice the socialist core value system in all schools at all levels”, issued on 17 October 2014.

2The other ones are freedom, equality, and rule of law.
3
Dongyang Development Zone Bense Car Wash (Dongyang Kaifaqu Bense Qiche Meirongdian 东阳开发区本色汽车美容店); Dongyang Development Zone Bulanqi Laundry (Dongyang Kaifaqu Bulanqi Xiyidian 东阳开发区本布兰奇洗衣店); Zhejiang Bense Advertising Ltd. (Zhejiang Bense Guanggao Youxian Gongsi 浙江本色广告有限公司); Dongyang Bense Cleaning Services Ltd. (Dongyang Bense Xiye Guanli Fuwu Youxian Gongsi 东阳本色洗业管理服务公司); Zhejiang Bense Hotel Ltd. (Zhejiang Bense Jiudian Guanli Youxian Gongsi 浙江本色管理有限公司); Zhejiang Bense Computer Network Ltd. (Zhejiang Bense Diannao Wangluo Youxian Gongsi 浙江本色电脑网络有限公司); Zhejiang Bense Decorating Materials Ltd. (Zhejiang Bense Zhuangshi Cailiao Youxian Gongsi 浙江本色装饰材料有限公司); Dongyang Bense Wedding Ceremony Services Ltd. (Dongyang Bense Hunqing Fuwu Youxian Gongsi 东阳本色婚庆服务有限公司); Bense Logistics Ltd. (Bense Wuliu Youxian Gongsi 本色物流有限公司).
5
The Dongyang Bense Group. Black horse! Black horse!” (Dongyang Bense jituan, heima! Heima!), 27 October 2006, post available at http://tieba.baidu.com/p/143167212?pn=1#

6
Art. 176, Criminal Law of the People's Republic of China (Zhonghua Renmin Gongheguo Xingfa 中华人民共和国刑法), promulgated on 1 July 1979 and effective from 1 October 1997.

7
First Instance Criminal Judgment no. 1 of 2009, Jinhua Intermediate Criminal Court of Zhejiang Province (Zhejiang sheng Jinhuashi zhongyuan xingshi panjueshu (2009) zhe jin xing we chusi di 1 hao 浙江省金华市中院刑事判决书 (2009)浙金刑二初字第1).


8
Art. 192, Criminal Law of the People's Republic of China (Zhonghua Renmin Gongheguo Xingfa 中华人民共和国刑法), promulgated on 1 July 1979 and effective from 1 October 1997. 

2.02.2016

Legge della R.P. C. sulle Organizzazioni Caritevoli - Commento - Parte I


[Note to the Reader: this is the first part of a series of posts where, as requested by Italian colleagues, I am translating in Italian the Comments on the Charity Law FLIA presented to the National People's Congress on January 31, 2016.]

[Questa è la prima di una serie di post dove, come richiesto da alcuni colleghi italiani, traduco il Commento sulla Charity Law, presentato da FLIA all'Assemblea Nazionale del Popolo il 31 gennaio 2016]


Foundation for Law and International Affairs
Commento sullla
Legge della R.P. C. sulle Organizzazioni Caritevoli (Seconda Bozza Legislativa)

PARTE PRIMA 







320B Vairo BLVD, State College, PA, 16803
Phone: (814) 7775228


Larry Catà Backer, Flora Sapio, Zhu Shaoming

La Foundation for Law and International Affairs ('FLIA') è lieta di rendere pubblico il commento sulla Legge della R.P.C. sulle Organizzazioni Caritatevoli (Seconda Bozza Legislativa), inviato all'Assemblea Nazionale del Popolo in data 31 gennaio 2016.

Le organizzazioni caritatevoli sono un'importante componente del settore no-profit e non governativo dell'economia, ed il nostro commento ha tenuto in considerazione questo più ampio obiettivo. Si tratta di un obiettivo meglio raggiungibile mediante una chiara definizione di cosa un'organizzazione caritatevole è, di cosa sono le attività caritatevoli, di chi ha il diritto di condurre tali attività, e di come esse vadano condotte.

Il settore no-profit dell'economia deve crescere in maniera coerente con due principali obblighi, quali essi attengono ai quadri ed ai funzionari di stato. In primo luogo, tanto i quadri quanto i funzionari di stato responsabili per l'attuazione della Legge sulle Organizzazioni Caritatevoli (la Legge) devono aderire alla linea del Partito Comunista Cinese. In secondo luogo, essi devono restare fedeli alle politiche di stato, in quanto esse incarnano gli obiettivi definiti dal Partito.

Il Paragrafo 9 del Preambolo alla Costituzione del Partito Comunista Cinese recita:

Il compito principale nella costruzione del socialismo è liberare e sviluppare le forze produttive, e raggiungere passo dopo passo la modernizzazione socialista, mediante l'attuazione delle riforme pertinenti agli aspetti ed ai nessi dei rapporti tra produzione e della sovrastruttura, che non sono conformi allo sviluppo delle forze produttive.

Il Paragrafo 9 indica che il Paese deve riformare i settori del sistema economico che non riescono a tenere il passo con lo “sviluppo delle forze produttive”. Il Paragrafo 9 inoltre statuisce che:

Il Partito deve rispettare il lavoro, la conoscenza, il talento creativo e garantire che lo sviluppo sia per il Popolo, da parte del Popolo, e consenta al Popolo di goderne i frutti.
Tale obiettivo va raggiunto mediante una strategia che consenta di compiere progressi simultanei nell'economia, nella cultura, nella società, in politica, e nell'ambiente “coerenti con il piano globale per la causa del Socialismo con Caratteristiche Cinesi.”

Alla luce di ciò, abbiamo rilevato come la Seconda Bozza di Legge abbia apportato vari miglioramenti. Il Legislatore ha adottato un approccio “proattivo”, accogliendo i suggerimenti mossi da quanti, sia in Cina che all'estero, hanno offerto i propri commenti all'Assemblea Nazionale del Popolo. L'ampliamento della definizione delle organizzazioni delle caritatevoli, il consentire ai cittadini di effettuare donazioni via internet, e l'aver introdotto un regime molto più stringente sulla trasparenza sono solo alcuni dei miglioramenti della Seconda Bozza di Legge.

Il presente Commento riepiloga gli emendamenti introdotti dalla Seconda Bozza, e li discute alla luce de: l'attuabilità del disposto di vari articoli della Seconda Bozza, la sua coerenza interna, la coerenza tra la Seconda Bozza ed il più ampioquadro normativo sul settore no-profit e non statale dell'economia, oltre che le politiche, leggi e regolamenti rilevanti.

Riteniamo che i nostri commenti saranno utili alla comunità dei giuristi, dei gius-Sinologi, dei policy maker, del personale attivo nel settore della cooperazione e sviluppo, come anche ai giornalisti ed ai sinologi. Restiamo a disposizione delle Autorità e di tutte le parti interessate, per condurre ulteriori scambi di idee, ed accogliere commenti e critiche.

I contenuti della presente Lettera e di ogni parte del Commento potrebbero esprimere opinioni e punti di vista che, salvo espressa dichiarazione contraria, non rappresentano le vedute di organizzazioni diverse da FLIA né direttamente né indirettamente.