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Parade of Horribles (China Law edition)
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Ten Worst PRC Laws, According to FP (Warning: wonky law post ahead. This is your last chance to bail out.)

Interesting list of what Foreign Policy considers to be the worst of the worst. I generally like FP a lot, and since I am a part-time foreign policy wonk, you gotta keep up with the literature. Love their blog as well, particularly the relatively new China updates.

However, I can't quite support this list. Cool idea, but I'm not sure what the criteria are here. Seems to be mostly a list of provisions that facilitate the current government structure. As long as that stays the same, we will have these legal provisions in one form or another. Why not simply write an article criticizing the Chinese government, then?

In any event, let's take a look:

1. Article 105 of the Criminal Law

What it says: Criminalizes “organizing, scheming or acting to subvert the political power of the state and overthrow the socialist system” and “incitement to subvert the political power of the state and overthrow the socialist system by spreading rumors, slander or other means.”

Not sure what the point here is. If this provision did not exist, then political protest would magically be OK? The language is, by itself, general and vague (as usual). It's the interpretation and usage that is important.

2.Hukou (Household Registration) System

What it says: Citizens are classified according to place of residence and socioeconomic status. Parents pass down their classification to their children, making hukou a form of social identity. Rural migrants are not allowed to relocate to cities unless they meet certain requirements, including a “stable job or source of income” and a “stable place of residence.”

The hukou system has been dying a slow death for years. This doesn't belong on the list.

3.Measures for Managing Internet Information Systems, Issued by State Council Order No. 292

What it says: Prohibits certain content from Web sites, online bulletin boards, and chat rooms, including content that could “harm the dignity and interests of the state” or “disturb social order.” It also holds Internet service providers (ISPs) responsible for the content of their sites.

Once again, this is an extremely broad provision that you could probably find in many countries. Even a complete political overhaul of the country might not result in much change of this provision. If change comes to this area, it will be in enforcement practices.

4. Law on the Supervision by Standing Committees of the People’s Congress at All Levels (2006), Article 3

What it says: It lays out the requirement of “upholding leadership of the Communist Party.”

I think this criticism goes way beyond a specific legal provision.

5.New Property Rights Law, 2007

What it says: At first, this law granted the right to property ownership by private persons.

The critics here are upset that property still ultimately belongs to the State. However, this law did not create that situation, and in fact it strengthened private property rights in this country. The law rightly belongs on the "Ten Best Laws" list, not the worst. You gotta have a little patience with legal reform and give credit for incremental change when it happens.

(Here's Dan's take on the article, and specifically on the Property Law bit. I agree with his comments 100%.)

6. Regulations on Religious Affairs (2005)

What it says: Allows religious organizations to possess property, publish literature, train and approve clergy, and collect donations, but requires them to register with the state. Article 3 sets forth that religion can’t be used to “disrupt public order” or “harm State or public interests.”

I need to confess my ignorance and, ultimately, my lack of interest in this subject. Must be my atheist tendencies. However, this is again a broad policy criticism and not really a good way of discussion legal reform.

7. Trade Union Law of the People’s Republic of China

What it says: “The All-China Federation of Trade Unions shall be established as the unified national organization.”

I always found it ironic when certain right-wing folks in the U.S. used this law to bash China (note that the FP folks are not right wing types), given the history of the Republican Party and trade unions. I'm by and large a supporter of trade unions, so I'll give the critics a thumbs up for this one. On the other hand, if you admit that keeping social order is a primary concern of the government here, it's hard to see how any relaxation on this front would work. There is nothing more disruptive than economic populism. As an American in the 21st Century, I speak of economic populism in the theoretical sense, of course. We haven't seen anything like that in the U.S. for a very long time.

8. State Security Law, Article 4

What it says: Lists specific acts that endanger state security, but are still vague enough to encourage arbitrary enforcement.

OK, once again, this is a thinly-veiled criticism of the type of government here in China, not just of this law itself.

9. Consumer Protection Law, Chapter II, Articles 7 and 8

What it says: Companies are expected to maintain safety standards currently established by other companies, and businesses can’t be punished for falling behind raised standards established by goods entering the market at a later time.

This is a bit tricky, although I'll give this one a thumbs up. Certainly you want a product safety regime that includes clear standards and consistent punishment. China has improved on the whole standardization process and still has a long way to go when it comes to consistent enforcement, particularly from a geographic standpoint. Sounds like the same criticism you hear about IP, doesn't it? That's because this is still in many respects a developing country, and while legal reform has proceeded quite well in some areas, enforcement is always going to lag behind. Again, the criticism here generally with regard to product safety would be better lodged against enforcement and not the law.

10. Emergency Response Law

What it says: Designed to ban the spread of false information during disasters, the law prohibits “units and individuals” from “fabricating or spreading false information regarding emergencies and government efforts to cope with emergencies.” It also mandates local governments and authorities to “provide coordinated, accurate and timely information on the emergency and its development.”

This is another "public order" issue. To repeat, unless you have a completely different government here, this sort of thing will continue, whether these laws specifically facilitate these acts or not, and changing the law would therefore have little effect. This criticism of the law is akin to blaming the . . . uh . . . (I was ready to wrap this up with a great analogy but blanked. Crap.)

My nomination for worst legal provision? Article 54 of the 2005 Company Law:

The supervisory board or the supervisors of the company having no supervisory board shall exercise the following functions and powers:
 
(1) to examine the financial affairs of the company;
 
(2) to supervise the acts of the directors and senior executives performing their functions, and to bring the proposal to dismiss those directors and senior executives violating the laws, administrative regulations, the articles of association of the company or the resolutions of the shareholders meetings;
 
(3) to demand directors and senior executives to make corrections if any of their acts is found to have damaged the interests of the company;
 
(4) to propose the convening of interim shareholders meetings, and to convene and preside over the shareholders meetings in case the board of directors fails to its function of convening and presiding over the shareholders meetings as provided by this Law;
 
(5) to bring proposal to the shareholders meetings;
 
(6) to bring a lawsuit against the directors or senior executives in accordance with the provisions of Article 152 of this Law; and
 
(7) to exercise other functions and powers as provided in the articles of association of the company.    

Ridiculous, isn't it, particularly when it is applied to a company with one shareholder. Sorry to bore you, but this really is a bad legal provision. It may not have the same kind of effect as compared to the others cited above, but it's a poor attempt at corporate governance that has been foisted upon privately-held companies (even those with one shareholder). Makes no sense and should be limited to appropriate enterprises or done away with.

My vote for #2 would probably be Article 55 of the Anti-Monopoly Law, but that's for another time.