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Calls for ending capital punishment in China

BEIJING (Caixin Online) — Several miscarriages of justice have made the news in China in recent decades. These included cases of wrongful imprisonment and even execution.

In 1995, Nie Shubin, 20, was executed for raping and murdering a woman. Ten years later, another man confessed to the crime.

Three years later, She Xianglin, 47, was sentenced to 15 years in jail for murdering his wife. After spending 11 years in prison, he was declared innocent and released because his wife was found living in a neighboring province.

Zhao Zuohai, 58, was convicted in 2002 of murdering a man and given the death penalty. Ten years later, the “victim” turned up and Zhao was freed.
In the wake of these high-profile cases, the public and scholars have held an increasing number of discussions over abolishing the death penalty. Recently, Zhao Bingzhi, a professor of criminal law at Beijing Normal University, said China should gradually limit use of the death penalty before abolishing it.

Zhao is the director of the university’s College of Criminal Law Science and serves as “distinguished counselor” to the Supreme People’s Court.

During a recent debate at the French Embassy in Beijing, Zhao argued that China should strictly limit use of the death penalty and gradually reduce the number of times capital punishment is used. He suggested abolishing the death penalty before 2049, for the 100th anniversary of the founding of the People’s Republic of China.

Zhao said that when China embarked on a tough anti-crime campaign in 1982, the National People’s Congress Standing Committee approved use of the death penalty for 24 criminal offences and economic crimes. In addition, the procedure for reviewing death penalty cases was delegated to high courts in the provinces, autonomous regions and municipalities.

In 2007, to prevent unjustified and wrongful executions and to control the total number of death penalty cases in the country, the power of review was returned to the Supreme People’s Court.

Four years later, the country revised its Criminal Law to remove 13 crimes from the list of those punishable by death. Non-violent offenses such as financial and tax fraud; smuggling relics, precious metals and rare animals; and looting cultural ruins were stricken from the list.

However, China still holds the world record for the most capital offenses — 55. Also, China considers the number of executions a state secret and has never publicized it.

Some people argue that keeping capital punishment will help to curb corruption. However, He Jiahong, a professor at Renmin University, disagrees.

He says that while current anti-corruption laws rely on severe punishment, effective investigation is a better approach. The professor points out that even though punishment for corruption in China is very harsh, graft is still very common. The best way to curb corruption is democracy and the rule of law, he says.

Professor Qin Hui of Tsinghua University says when the system shows progress, it will guide and change public opinion. He said judicial reform involving abolition of the death penalty will transform public opinion.

China’s Grass-Root Courts to Handle Patent Dispute Cases

Apr. 16 – China’s Supreme People’s Court released the “Decision on Revising Several Provisions Concerning the Application of Law in Hearing Patent Dispute Cases (hereinafter referred to as the ‘Decision’)” on April 14, which states that the Supreme People’s Court may, depending on actual circumstances, designate grass-roots people’s courts to exercise jurisdiction over first-instance trials of patent dispute cases. The Decision came to effect on April 15, 2013.
For grass-roots people’s courts which have the capability to handle patent disputes, the Decision has provided a legal basis for them to exercise jurisdiction over such cases.
Previously, China enforced a relatively centralized management in hearing patent dispute cases. The “Several Provisions on the Application of Law in Hearing Patent Disputes” clearly stipulates that the first-instance trial of a patent dispute case should be handled by the intermediate people’s courts at the place where the people’s government of the province directly under the central government is located, or by an intermediate people’s court designated by the Supreme People’s Court.
Restricting the jurisdiction of patent lawsuits to the intermediate and higher people’s courts had played a vital role in standardizing judicial rulings and nurturing specialized judges in the early days of civil patent rulings, when the number of such cases was small, and judicial expertise and experience hearing these cases was limited, according to a statement released by the Supreme People’s Court on its website. However, with the soaring number of patent disputes in recent years, there have been growing calls to expand the number of grass-roots courts holding jurisdiction over intellectual property cases.
In response, the Supreme People’s Court has approved three pilot courts in the country to hear patent dispute cases on utility models and external design since 2009, which are:

  • Haidian District Court in Beijing
  • Yiwu Municipal People’s Court in Zhejiang Province
  • Kunshan Municipal People’s Court in Jiangsu Province

All the three courts have played a leading role in the judicial protection of intellectual property rights.
The Decision came as part of the Chinese government’s efforts to tackle rising intellectual property disputes in the country. In the “Promotion Plan for the Implementation of 2013 National Intellectual Property Strategy” released by China’s State Intellectual Property Office last month, it clearly states that the the number of grass-roots people’s courts which have jurisdiction over general intellectual property cases will be increased, and more intermediate people’s courts will be assigned to handle first-instance intellectual property cases.
In 2012, courts at all levels in the country heard and closed nearly 237,800 civil litigation cases regarding intellectual property rights, up over 37 percent year-on-year.

China not soft on corporate crime

Canadian securities regulators and law enforcement authorities grappling with a series of “challenges” posed by offshore companies listed on Canadian markets — mostly from China — may find some solace in that country’s zero-tolerance policy on commercial corruption.

On Nov. 9, Wu Jianwen, 42, the former president of the state-owned Shanghai Pharmaceutical Group was sentenced to death by a Shanghai court, with a two-year reprieve, for taking about $1.8-million in bribes and embezzling another $5-million over a 10-year period.

In September, a court in eastern China’s Shandong Province handed down a sentence of capital punishment against Wang Huayuan, who was convicted of taking bribes, abuse of power and for failing to explain the source of his personal assets.

And in July, two former senior Chinese government officials were executed following their convictions on corruption charges, marking the highest punishment meted out in recent years as the ruling Communist Party tackles public-resentment toward rampant graft in the world’s second-largest economy.

The two officials, former vice mayors of the prosperous eastern cities of Hangzhou and Suzhou, had been accused of taking millions of dollars in bribes in awarding contracts in the cities’ booming real estate markets.

Although most death sentences in China are commuted to life in prison with good behaviour, these punishments provide an interesting contrast to Canada’s treatment of white-collar crime.

To wit, Garth Drabinsky is appealing a five-year prison sentence — which will actually work out to less than 14 months in jail — for orchestrating an accounting fraud that cost investors of Livent Inc. about $500 million.

Most of the punishment meted out by Chinese courts involve government officials and those employed in state-owned entities.

However, according to an international survey on corruption, it still has an uphill climb. On a scale from 10 (highly clean) to zero (highly corrupt), China ranked 78 out of 178 countries examined in the Transparency International Corruption Perception Index last year. The global survey ranks countries by their perceived levels of corruption, as determined by expert assessment and opinion surveys.

Canada ranked sixth best among all countries in the survey, led by Denmark, New Zealand, Singapore, Finland and Sweden. The United Kingdom ranked 20th and the United States was 22nd.

The worst perceived corruption offenders in the survey were Somalia, which ranked last, Myanmar, Afghanistan and Iraq.

It’s against this backdrop that the Ontario Securities Commission is conducting a targeted review of emerging-market companies listed in Canada, focusing on 24 issuers from different industries and geographic areas.

The OSC’s goal is to develop new policy to handle some of the problems raised by clashing business practices, co-operation among regulators and how to enforce Canadian securities laws and regulations internationally.

In recent months, Canada’s top securities watchdog halted trading in high-profile cases involving offshore companies, including Sino-Forest Corp., which has timber operations in mainland China, and was the largest forestry company listed on the Toronto Stock Exchange at the time a cease trade order was issued in August. The company is also the subject of investigation by the RCMP.

On Tuesday, an independent committee of Sino-Forest’s board of directors issued a 111-page interim report refuting the fraud allegations leveled against the company by research firm Muddy Waters LLP. However, the panel of independent directors acknowledged they were unable to verify title ownership to no more than 18% of the company’s stated assets.

In the case of Zungui Haixi Corp., a Hong Kong-based sportswear company, the stock remains halted on the TSX Venture Exchange because no one from the firm showed up at a hearing before the OSC to oppose the cease trade order.

The trading ban, which was issued in September after Ernst & Young LLP suspended an audit of Zungui, was extended until a hearing Nov. 23 into allegations from OSC staff against Zungui’s chief executive Yanda Cai and chairman Fengyi Cai for failing to co-operate with the company’s audit and special committees and the securities watchdog.

Draft law stresses government role in environmental protection

Officials will be subject to administrative punishment if they fabricate environmental statistics or refuse to release information that should be made public, according to a draft amendment of the Environmental Protection Law.

The draft law, which was presented for discussion by deputies of the National People's Congress Standing Committee on Monday, stressed the government's role in environmental protection, as China faces increasing environmental incidents and protests.

It is the first major revision of the law since it was introduced in 1989.

Wang Guangtao, director of the NPC Environment Protection and Resources Conservation Committee, said the main purpose of the amendment is to reinforce the responsibility of governments and enterprises.

For example, under the proposed draft, environmental protection is also a compulsory target for the performance evaluation of local officials.

Such requirements are currently only imposed on officials when they fail to meet family planning targets, or if the number of kids who have dropped out of school within their precincts has exceeded the allowed number.

In addition, on a regular basis governments are required to release information about a number of issues, including the quality of the local environment and the use of pollution fees.

The draft law is a reflection of growing public awareness and increasing participation in environmental protection, experts said.
Two environmental disputes with nationwide repercussions occurred in July.

Residents in Shifang, Sichuan province, took to the streets to boycott the construction of a copper alloy factory, which they feared would pollute the water and air. The government eventually scrapped the multi-billion-yuan project.

Shifang's protest was followed by a similar incident in Qidong, Jiangsu province, where the government was forced to permanently cease all work at a foreign-invested waste pipeline project. The government made the decision one day after thousands of residents rallied at an intersection, where the city government is located, to protest the planned water pipeline.

Experts said the amendment would bring the law up to date and help address imminent environmental conflicts.

The draft expanded the stipulation regarding government responsibility, which includes only one general clause, into a complete chapter with detailed explanation on the government's obligations.

Cao Mingde, an environmental law professor at China University of Political Science and Law, said the number of duty dereliction cases is increasing, and one important reason is that there is a lack of legal bounds on government officials.

Environmental protection authorities are also required to deliver reports to local people's congresses to review their work. Specific reports will be handed in if environmental incidents take place.

As for enterprises, the draft requires them to cooperate with local environmental protection officers to carry out on-site investigations, such as providing accurate statistics as well as the operation and maintenance of cleaning equipment.

Cao said the proposed obligation on companies is meant to plug existing loopholes in the law enforcement of environmental protection officers.

Cao said enterprises often dodge government inspections by claiming that they could expose business secrets, and some discharge pollution during the night and on weekends.

"A detailed definition of rights and obligations of the governments and companies can improve law enforcement," he said.

Cao also argued that it is unrealistic to wholly rely on the government to crack down upon polluters, noting the importance of public involvement.

"For instance, environmental protection in rural areas requires more social resources than in urban places, since there are no environment offices under county-level governments," he said.

Edward Lehman 雷曼法学博士
Managing Director 董事长

LEHMAN, LEE & XU China Lawyers

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