Five Unspoken Rules of China’s Legal System

Five Unspoken Rules of China’s Legal System

By Gao Zitan & Wen
Hua
Epoch Times Staff
Created: Aug 8, 2011 Last Updated: Aug 9, 2011

 

A Chinese paramilitary policeman stands guard outside
Beijing’s No. 2 Intermediate Court. Chinese lawyers explain that China’s legal
system is controlled by the Communist Party, not rule of law. (Peter
Parksp/AFP/Getty Images)

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, thedefendant 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.”Read the original Chinese
article
.

chinareports@epochtimes.com

//

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