Sunday, July 11, 2010

Is China's Legal System Unfriendly Towards Foreigners?

The world was shocked last week at the news of a Beijing court sentencing a U.S. geologist to an eight-year jail sentence on charges of spying and collecting state secrets. Xue Feng, a Chinese-born U.S. citizen, had been working in China for IHS Energy, an American consultancy. Feng who was arrested in November 2007, had been tortured with lit cigarettes during his 30-months detention leading to his recent trial behind closed doors. Jon Huntsman, the U.S. Ambassador to China attended the sentencing hearing by the Intermediate People's Court, and afterwards issued a statement calling for Feng's release and return to the United States. Beijing has defended the sentencing saying the case was handled strictly based on law and Feng's legal rights were guaranteed. In March 2010, the Chinese-born Australian national Stern Hu was sentenced to a ten-year jail sentence on charges of bribery and trade secret violations. Both Feng and Hu were sentenced under "trade secret" laws, which secrets the Chinese courts will not clearly define.

In classical Chinese, the word for law is "fa" which means "fair" or "just." The classical Chinese legal system was based on the Confucian philosophy of promoting social control through enstilling virtues and moral standards. Later, under the imperial governments, the Chinese legal system changed and the laws focussed on citizens serving the state. In 1911, the nation underwent a revolution and formed the Republic of China, which adopted legal codes largely influenced by the West. After the communist victory in 1949, the People's Republic of China (PRC) was establised and the Chinese legal system turned towards socialism; the laws and constituion were larged based on those of the Soviet Union.

PRC's current Constitution (Zhonghua Renmin Gongheguo Xianfa) was enacted in 1982, which generally provides for a government by the working class under the leadership of the Communist Party. The preamble to this Constitution provides:

"Both the victory in China’s New-Democratic Revolution and the successes in its socialist cause have been achieved by the Chinese people of all nationalities, under the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong Thought, by upholding truth, correcting errors and surmounting numerous difficulties and hardships. The basic task of the nation in the years to come is to concentrate its effort on socialist modernization ..."

PRC's executive branch is comprised of the State Council, the President and the Vice President. PRC's legislative branch is comprised of the National People's Congress. PRC's judicial branch consists of the Basic People's Court, the Intermediate People's Court, the Higher People's Court, and the Supreme People's Court. A litigant is generally allowed on appeal of the judgment, and the appellate court conducts a trial de novo on factual and legal matters. In response to growing demand, in 1992 the PRC issued provisional regulations allowing foreign law firms to establish offices in China; several foreign law firms including the U.S.-based Baker & McKenzie have since opened affiliated offices in China.

The materials for this blog were gathered from various sources including articles by The Associated Press, United Press International, lawinfochina.com, A Brief Introduction to the Legal System of China, CIA World Fact Book on China, and Wikiepedia. For more inforation, run a search on Google.

Robin Mashal is a Los Angeles business attorney, and a partner at the law firm of Hong & Mashal LLP. Mr. Mashal has been admitted to the State Bar of California and the Bar of the United States Supreme Court. He can be reached by phone at (310) 286-2000.