Court Avoids Free Speech Issue, RTL Case Lost on Technicality

Ren Jianyu (center), with his father (left) and Pu Zhiqiang, outside the Chongqing courthouse following the November verdict. Photo credit: China Youth Daily

If, as indications suggest, China is to undertake major reform of its reeducation through labor (RTL) system sometime this year, one factor that will have helped to catalyze this development is the opposition to RTL that has been building over the past year. Behind the negative publicity has been a series of cases involving individuals sent to RTL for critical or embarrassing online speech or seeking redress for the wrongdoing of local officials.

One of the most well-known of these cases involves Ren Jianyu, a 25-year-old from Chongqing whose plans to pursue a civil-service career were dashed when police detained him for using social media. His Internet activity included reposting a satirical image showing Wen Jiabao saying “Down with the Communist Party” after the Wenzhou train crash and items calling for political reform and an end to one-party rule. Initially charged with “inciting subversion,” Ren was sent to Chongqing’s Fuling RTL Center in September 2011 to serve a two-year term.

After former Chongqing party secretary Bo Xilai and his powerful police chief Wang Lijun were removed from office in early 2012, amid allegations of “severe disciplinary violations” including graft, people sent to RTL during their reign began to bring administrative lawsuits. Many did so with the help of prominent rights lawyer and free speech advocate Pu Zhiqiang. Pu’s very public advocacy has not only helped to bring attention to RTL abuses in Chongqing and elsewhere but to successfully overturn a number of RTL decisions.

With Pu as legal counsel, Ren Jianyu filed an administrative lawsuit against Chongqing’s RTL Management Committee in August 2012, and a trial was held in October of that year. The following month, the committee unexpectedly revoked its decision against Ren and set him free. A day later, the Chongqing No. 3 Intermediate People’s Court rejected Ren’s suit (in a verdict translated below) on the grounds that it was filed after a three-month statutory deadline.

The Chongqing No. 3 Intermediate People’s Court has overturned a number of RTL decisions in the past year. In those rulings, as in Ren’s, the court makes a point to note the need for public authority to exercise tolerance and to avoid the use of severe punishment against those who express criticism. In Ren’s case, however, the court sided with the defendant on strictly procedural grounds that hinge upon the question of whether Ren had sufficient ability to file a lawsuit while serving a custodial sentence.

The imposition of deadlines for filing administrative lawsuits is intended to prevent plaintiffs from arbitrarily delaying the exercise of their rights. But the Supreme People’s Court has recognized in a judicial interpretation that incarceration places impediments on an individual’s ability to exercise his or her litigation rights; therefore, it has determined that time spent under “restricted personal liberty” should not be counted in determining the deadline to file an administrative lawsuit.

Other plaintiffs—such as, Fang Hong, whose case was tried in the same court and heard by two of the same judges as Ren’s—have successfully overturned RTL decisions through suits filed after their release from custody and beyond the statutory deadline. Yet the judicial panel in Ren’s trial agreed with the defendant that, because Ren had met with his father and girlfriend on several occasions—the verdict includes a laundry list of dates—and requested that they file suit on his behalf, his incarceration did not impede his ability to exercise his litigation rights.

In hewing to this technical ruling, the court leaves a number of important issues unaddressed. For instance, how freely can a person sent to RTL exercise his or her rights when police and even fellow inmates reiterate the futility of appeal—especially under the reign of Wang Lijun? Ren was allowed only one 20-minute meeting with his father during the three months following the RTL decision against him, and during that meeting, the two were separated by glass and forced to speak by telephone. Ren did not have access to a lawyer, and Ren’s father, a construction worker with very little education, was not in an ideal position to serve as his son’s proxy. And, even if Ren overcame the pressure not to appeal earlier, what protections would there have been against the difficulties routinely faced by those trying to get lawsuits past the courts’ powerful “gatekeepers” who decide which suits to accept?

Since his release, Ren Jianyu has given countless interviews, had his photo featured on the cover of magazines, and appeared on national television. In many ways, his has become the face of opposition to RTL in China. Ren has vowed to continue appealing in court until the decision against him is overturned. Even though he was released ahead of schedule and the Chongqing RTL Management Committee revoked its earlier decision against him, Ren continues to seek justice through the courts because what he wants from the authorities is not simply their concession of wrongdoing but, more importantly, their affirmation of his rights and acknowledgement that they violated the law.

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Chongqing Municipality No. 3 Intermediate People’s Court Administrative Decision: click to expand

Chongqing Municipality No. 3 Intermediate People’s Court
Administrative Decision

(2012) CQ 3d Int. Admin First No. 14

Plaintiff Ren Jianyu, male, born April 15, 1987, citizen identification number [Omitted—Ed.], Han ethnicity, previously assigned as a university [educated] “village official” in the Pengshui County Yushan Town People’s Government of Chongqing Municipality, resides in [Omitted—Ed.], Jiangjin District, Chongqing Municipality.

Legal counsel is Pu Zhiqiang, lawyer with Beijing Huayi Law Firm, and Xu Liping, lawyer with Zhejiang Wulian Law Firm.

Defendant is the Reeducation through Labor Management Committee of the Chongqing Municipality People’s Government, located at 555 Huanglong Road, Yubei District, Chongqing Municipality.

Legal representative is Wang Aizu, [committee] director.

Legal counsel is Yan Gangtao, civil servant employed by the Reeducation through Labor Management Committee of the Chongqing Municipality People’s Government, and Jin Xueling, civil servant employed by the Reeducation through Labor Management Committee of the Chongqing Municipality People’s Government.

Plaintiff Ren Jianyu did not accept the RTL decision made against him by the Reeducation through Labor Management Committee of the Chongqing Municipality People’s Government (hereafter, “Chongqing RTL Committee”) and filed an administrative lawsuit with this court on August 15, 2012. After accepting the suit on August 21, 2012, this court formed a collegiate bench in accordance with the law and held an open hearing on October 10, 2012, to try the case. Plaintiff Ren Jianyu and his counsel, Pu Zhiqiang and Xu Liping, and defendant Chongqing RTL Committee and its counsel, Yao Gangtao and Jin Xueling, all appeared in court to participate in the proceedings. The trial in this case has now concluded.

Plaintiff Ren Jianyu claimed that the Chongqing RTL Committee’s CQ RTL Rev. (2011) No. 3954 RTL Decision issued on September 23, 2011, lacked a factual and legal basis and requested that the people’s court rule to revoke or nullify that RTL decision.

Defendant Chongqing RTL Committee contended that the CQ RTL Rev. (2011) No. 3954 RTL Decision RTL decision was lawful. After Ren Jianyu received the RTL decision, while in the RTL facility where his rights to correspondence, communication, and visitation were amply protected, he did not file his administrative lawsuit during the statutory time period and his suit [thus] exceeds the statutory filing deadline. It requested that the people’s court rule to dismiss Ren Jianyu’s suit.

In the course of the trial it was ascertained that: On September 23, 2011, the Chongqing RTL Committee issued CQ RTL Rev. (2011) No. 3954 RTL Decision, finding that Ren Jianyu, between April and August 2011, had used the computer in the Family Planning Office of the Pengshui County Yushan Town People’s Government many times to go on Qzone and Tencent microblog and, through following [i.e., to “follow” on social media like Facebook or Twitter—Ed.], browsing, copying, pasting, re-posting, posting, and other means published commentary about international and domestic affairs and negative speech and information [regarding] reform of the political system [totaling] more than 100 items that promoted Western political models and attacked our party and government. The facts of his incitement of subversion of state power are clear and the evidence is reliable and sufficient. The Chongqing RTL Committee, in accordance with relevant provisions including those in the State Council Decision on the Issue of RTL, Article 3 of the State Council Supplementary Regulations on RTL, and Article 10(1) of Trial Measures for RTL, which were [all] approved by the Standing Committee of the National People’s Congress, decided to send Ren Jianyu to two years of RTL. That RTL decision clearly states: “If this decision is not accepted, an administrative lawsuit may be filed with the Chongqing No. 1, 2, 3, 4, or 5 Intermediate People’s Courts within three months of receiving this decision or application for administrative reconsideration made with the Chongqing Municipality People’s Government.” On September 24 of that year, the Chongqing RTL Committee delivered that RTL decision to Ren Jianyu. On September 26 of that year, Ren Jianyu was sent to the Chongqing Fuling RTL and Drug Rehabilitation Center to serve his RTL.

While serving his RTL, Ren Jianyu met with his father, Ren Shiliu, and his girlfriend on October 6, 2011, and April 24, June 26, and August 21, 2012; he spoke with his grandmother and his girlfriend by telephone on November 11, November 26, and December 11, 2011, and January 10, January 21, February 19, March 18, April 14, July 14, August 6, August 11, August 13, and August 18, 2012; and he corresponded by letter with his friends, classmates, and girlfriend on December 4 and December 30, 2011, and January 10, January 12, January 30, February 4, February 17, March 4, March 6, March 12, and March 23, 2012. During his meetings with his father and girlfriend, Ren Jianyu asked them to file an administrative lawsuit or request administrative reconsideration on his behalf. On August 21, 2012, Ren Shiliu filed an administrative lawsuit with this court in the name of Ren Jianyu.

Ren Jianyu’s main argument in court for why his suit did not exceed the statutory filing deadline was that according to the provisions of Article 43 of the Supreme People’s Court’s Interpretation Regarding Several Issues Related to Implementation of the Administrative Litigation Law of the PRC, in administrative lawsuits filed by persons whose personal liberty has been restricted, the time in which their personal liberty was restricted shall not be counted toward the lawsuit [deadline] period.

With respect to the aforementioned facts, there is evidence on file such as the statements made in court by the plaintiff and defendant; the CQ RTL Rev. (2011) No. 3954 RTL Decision; delivery receipts; a Memorandum of Explanation issued by the Chongqing Municipality Fuling RTL and Drug Rehabilitation Center; the Visitor Registration Log for Persons in RTL, Registration Log for Family Telephone Calls, and Transcripts of Telephone Conversations by Persons in RTL [provided by] the Chongqing Municipality Fuling RTL and Drug Rehabilitation Center; transcripts of conversations with police officers from the Chongqing Municipality Public Security Bureau and procurators from the Chongqing Municipality People’s Procuratorate No. 3 Branch assigned to the procuratorate office within the Chongqing Municipality Fuling RTL and Drug Rehabilitation Center; and the transcript of the Pengshui County Public Security Bureau’s police questioning of Ren Jianyu.

While the case was being tried, the Chongqing RTL Committee revoked CQ RTL Rev. (2011) No. 3954 RTL Decision on November 19, 2012, on the grounds that the case had been handled inappropriately, and the compulsory measures restricting Ren Jianyu’s personal liberty were lifted. The Chongqing RTL Committee’s voluntary actions to correct its errors ought to be acknowledged. Any exercise of public power must be done in accordance with the law and done cautiously, especially when it involves serious punishments that restrict personal liberty. The principle of proportionality between ends and means ought to be respected, and public power ought to act with rationality and tolerance, even when faced with radical and inappropriate speech by citizens. Any administrative act that violates the law substantively or procedurally ought to be corrected.

This court finds that: A citizen’s right to file administrative lawsuits with the people’s court ought to be protected, but that right must be exercised in accordance with the law. According to Article 39 of the Administrative Litigation Law of the PRC: “Where citizens, legal persons, or other organizations directly file suit with a people's court, they shall do so within three months from the day when they became aware that a specific administrative act has been taken, except as otherwise provided for by law.” Article 43 of the Supreme People’s Court’s Interpretation Regarding Several Issues Related to Implementation of the Administrative Litigation Law of the PRC states: “Where restriction of personal liberty makes it impossible to file suit, the time of restricted personal liberty is not counted toward the deadline for filing suit.” In light of the legal facts ascertained in this case, although Ren Jianyu’s personal liberty was restricted during the period of RTL, his rights to visitation, correspondence, and telephone were protected, and during this period Ren instructed his father and girlfriend to file an administrative lawsuit or apply for administrative reconsideration on his behalf. This ought to confirm that Ren Jianyu was able to file suit during the time that his personal liberty was restricted; [therefore] his argument that the period of his restricted personal liberty should not be counted toward the deadline for filing suit cannot be substantiated. Plaintiff Ren Jianyu signed to acknowledge his receipt of Chongqing RTL Committee’s CQ RTL Rev. (2011) No. 3954 RTL Decision on September 24, 2011, and filed suit with this court on August 15, 2012, after the statutory filing deadline. Therefore, in accordance with Article 44.1(6) of the Supreme People’s Court’s Interpretation Regarding Several Issues Related to Implementation of the Administrative Litigation Law of the PRC, [this court] rules as follows:

Plaintiff Ren Jianyu’s suit is rejected.

The litigation fee of 50 yuan paid by plaintiff Ren Jianyu is to be refunded. If this decision is not accepted, an appeal may be filed with the Chongqing High People’s Court by submitting an appellate brief with this court within 10 days of the delivery of this decision, along with copies for each member of the opposite party.

Presiding Judge: Yang Yu
Judicial Officer: Shao Ruiyi
Deputy Judicial Officer: Tan Xiaoqi

[Seal: Chongqing No. 3 Intermediate People’s Court]
November 20, 2012

[Seal: There are no differences between this copy and the original]

Court Clerk: Zheng Qin

Chinese Source（原文）: 《重庆市第三中级人民法院 - 行政判决书》 Click on icon to expand

重庆市第三中级人民法院
行政裁定书

( 2012 ) 渝三中法行初字第00014号

原告任建宇，男，生于1987年4月15日，公民身份号码[编者略]，汉族，原系选派到重庆市彭水县郁山镇人民政府的大学生“村官”，住重庆市江津区[编者略]。

委托代理人浦志强，北京市华一律师事务所律师。

委托代理人徐利平，浙江五联律师事务所律师。

被告重庆市人民政府劳动教养管理委员会，住所地重庆市渝北区黄龙路555号。

法定代表人王爱祖，主任。

委托代理人姚岗涛，重庆市人民政府劳动教养管理委员会公务员。

委托代理人金学凌，重庆市人民政府劳动教养管理委员会公务员。

原告任建宇不服被告重庆市人民政府劳动教养管理委员会(以下简称重庆市劳教委)作出的劳动教养决定，于2012年8月15日向本院提起行政诉讼。本院于2012年8月21日受理后，依法组成合议庭，于2012年10 月10 日公开开庭审理了本案，原告任建宇及其委托代理人浦志强、徐利平，被告重庆市劳教委的委托代理人姚岗涛、金学凌出庭参加了诉讼。本案现已审理终结。

原告任建宇诉称：重庆市劳教委于2011年9月23日作出的渝劳教审（2011）字第3954号劳动教养决定，没有事实和法律依据，请求人民法院判决撤销该劳动教养决定或确认该劳动教养决定无效。

被告重庆市劳教委辩称：重庆市劳教委作出的渝劳教审（2011）字第3954号劳动教养决定合法。任建宇收到劳动教养决定书后，在劳动教养管理场所充分保障其通信、通讯、会见权利的情况下，未在法定期限内提起行政诉讼，其起诉已超过法定起诉期限。请求人民法院裁定驳回任建宇的起诉。

经审理查明：2011年9月23日，重庆市劳教委作出渝劳教审（2011）字第3954号劳动教养决定书，认定任建宇于2011年4月至8月期间，先后多次在彭水县郁山镇人民政府计生办公室内用计算机上网，在其QQ空间、腾讯微博上以关注、浏览、复制、粘贴、转帖、发贴等方式发表国际国内时事评论和政治体制改革方面的负面言论和信息100 多条，鼓吹西方政权模式，攻击我党、政府，其煽动颠覆国家政权的事实清楚，证据确实充分。重庆市劳教委根据全国人民代表大会常务委员会批准的《国务院关于劳动教养问题的决定》、《国务院关于劳动教养的补充规定》第三条和《劳动教养试行办法》第十条第（一）项及有关规定，决定对任建宇劳动教养二年。该劳动教养决定书中载明：“如不服本决定，可在接到本决定书之日起三个月内直接向重庆市第一、二、三、四、五中级人民法院提起行政诉讼或在接到本决定书之日起六十日内向重庆市人民政府申请行政复议。”同年9月24日，重庆市劳教委将该劳动教养决定书送达任建宇。同年9月26日，任建宇被送到重庆市涪陵劳动教养戒毒所执行劳动教养。

在执行劳动教养期间，任建宇先后于2011年10月6日、2012年4月24日、6月26日、8月21日会见其父任世六及其女友；于2011年11月11日、11月26日、12月11日、2012年1月10日、l月21日、2月19日、3月18日、4月14日、7月14日、8月6日、8月11日、8月13日、8月18日与其外婆、其女友通电话；于2011年12月4日、12月30日、2012年1月10日、1月12日、l月30日、2月4月、2月17日、3月4日、3月6日、3月12日、3月23日与其朋友、同学、女友通信。任建宇在会见其父亲任世六以及女友时，要求他们代为提起行政诉讼或申请行政复议。2012年8月21日，任世六以任建宇的名义向本院提起行政诉讼。

任建宇庭审中提出其起诉未超过法定起诉期限的主要理由是，根据《最高人民法院关于执行（中华人民共和国行政诉讼法）若干问题的解释》第四十三条之规定，被限制人身自由的人提起行政诉讼，其人身自由受到限制的时间不应计入起诉期间。

上述事实，有原、被告的当庭陈述，渝劳教审（2011）字第3954号《劳动教养决定书》，送达回证，重庆市涪陵劳动教养戒毒所出具的《情况说明》，重庆市涪陵劳动教养戒毒所《劳动教养人员会见登记表》，《亲情电话登记簿》、《劳动教养人员通话记录》，重庆市公安局民警与重庆市人民检察院第三分院派驻重庆市涪陵劳动教养戒毒所检察室检察官谈话的谈话记录，彭水县公安局民警询问任建宇的询问笔录等证据在案佐证。

在诉讼中，重庆市劳教委于2012年11月19日以处理不当为由撤销了渝劳教审(2011) 字第3954号《劳动教养决定书》，任建宇已解除限制人身自由的强制措施。对重庆市劳教委自行纠错行为，应予认可。任何公权力的行使都须依法、审慎，尤其是采取限制人身自由的严厉处分措施时，应遵循目的与手段相适应的原则，即使面对公民的过激不当言论，公权机关也应给予合理宽容。凡实体、程序存在违法的行政行为都应予以纠正。

本院认为：公民向人民法院提起行政诉讼的权利应当保护，但也要依法行使。根据《中华人民共和国行政诉讼法》第三十九条规定：“公民、法人或者其他组织直接向人民法院提起诉讼的，应当在知道作出具体行政行为之日起三个月内提出。法律、法规另有规定的除外。”《最高人民法院关于执行（中华人民共和国行政诉讼法）若干问题的解释》第四十三条规定：“因人身自由受到限制而不能提起诉讼的，被限制人身自由的时间不计算在起诉期间内。”从本案查明的法律事实看，任建宇在劳动教养期间虽然人身自由受到限制，但其会见、通信、通电话的权利得到保障，任建宇在此期间曾委托其父和女友代为提起诉讼或申请行政复议，应当确认任建宇在被限制人身自由期问能够提起诉讼，其主张人身自由受到限制的时间不应计入起诉期间的诉讼理由不成立；原告任建宇2011年9月24日签收重庆市劳教委作出的渝劳教审(2011)字第3954号劳动教养决定书后，于2012年8月15日向本院提起的诉讼，已超过法定起诉期限。据此，依照《最高人民法院关于执行(中华人民共和国行政诉讼法)若干问题的解释》第四十四条第一款第(六)项之规定，裁定如下：

驳回原告任建宇的起诉。

原告任建宇已预交的案件受理费50元，予以退还。如不服本裁定，可在裁定书送达之日起十日内，向本院递交上诉状，并按对方当事人的人数提出副本，上诉于重庆市高级人民法院。

审判长   杨 煜
审判员   邵瑞一
代理审判员   谭晓琪


[图章：重庆市第三中级人民法院]
二〇一二年十一月二十日

[印章：本件与原本核对无异]

书记员   郑 琴

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SPC Interpretation Silent on Meeting Death Penalty Defendants

SPC questions a defendant in a death penalty review case via video conferencing, Zhengzhou, Henan, December 2, 2009. Photo credit: Zynews.com

Last year’s revisions to China’s Criminal Procedure Law (CPL) took effect on January 1, 2013. In the weeks preceding that date, the Supreme People’s Court (SPC), Supreme People’s Procuratorate, and Ministry of Public Security each issued judicial interpretations or regulations detailing how they intend (at least on paper) to implement the law.

After the revised CPL was passed, Dui Hua analyzed provisions related to the death penalty and raised several questions regarding the process of death penalty review. Now that the SPC has issued its judicial interpretation, it is possible to revisit this topic and see whether those questions have been answered.

The section of the SPC interpretation devoted to death penalty review (translated below) is closely modeled on implementation regulations the SPC issued in February 2007, shortly after the supreme court regained authority to review all death sentences. In reviewing death sentences, the SPC is primarily interested in whether the lower court’s decision made a correct finding of fact based on sufficient evidence, whether the law has been applied appropriately and the death penalty is appropriate, and whether proper judicial procedure has been followed—or, more accurately, whether any procedural improprieties have potentially affected the fairness of the outcome.

The interpretation makes clear that the SPC will continue to handle the majority of death sentences it rejects by remanding cases for retrial and that, as in the 2007 regulations, the court may only impose its own sentences in limited, specific circumstances outlined in Articles 351–2. Also similar to the 2007 regulations, there is a degree of tolerance for relatively minor errors in the lower court’s finding of fact or citation of statute; however, the current interpretation describes these more generally as “flaws” (瑕疵) in contrast to the 2007 regulations’ more specific (but equally vague) use of the phrase “not completely correct or standard” (不完全准确、规范的).

The interpretation also covers the procedures whereby high people’s courts review sentences of death with reprieve. In instances where an intermediate court has made an error, the provincial high court is given more leeway to make changes to the lower court’s decision but is clearly prohibited from imposing heavier sentences, i.e., death with immediate execution.

One thing added to the CPL during its latest revision was a provision requiring the SPC to interview defendants as part of the death penalty review process. Left unclear, however, was whether SPC judges would be required to meet defendants in person, as opposed to being able to set up remote interviews or even assign provincial-court officials to act as proxies. An earlier draft version of the SPC interpretation contained a provision requiring that defendants be interviewed in person, except when “the facts are clear and the evidence is reliable and sufficient,” in which case interviews could be conducted through a video conference. Surprisingly, however, this provision was omitted from the final version of the interpretation, which instead states in Article 544 of its supplemental provisions that “based on the circumstances of the case, people’s courts may use video [conferencing] as a means to carry out the questioning of defendants.”

SPC questions a defendant in a death penalty review case via video conferencing, Nandan, Guangxi, July 20, 2011. Photo credit: Gxfzw.com.cn

The SPC’s reticence to set out generally applicable guidelines for death penalty review cases is notable, especially given that, last year, the interview requirement was nearly eliminated from the CPL entirely in favor of more discretionary language. After the CPL revisions passed last March, an SPC official told Legal Daily that the SPC generally uses remote video conferencing to question defendants in cases where the facts are clear, the evidence is reliable and sufficient, the collegiate benches and adjudication committees of the courts of first and second instance and the collegiate bench of the SPC all have consistent opinions regarding conviction and sentencing, the defendant and his or her defender have not raised objections based on the facts or evidence, and there are no circumstances requiring leniency. The official said that defendants are questioned in person when the facts and evidence in the case are “relatively complex.” In 2009, the SPC released a notice stating that, going forward, the main means for the SPC to question defendants would be video conferencing and that other methods would be supplemental, while in 2012, the SPC and Ministry of Public Security jointly released a notice requiring detention centers to build interrogation rooms for remote video interrogation. Advocates for video conferencing emphasize judicial efficiency and cost reduction; however, these benefits likely come at the cost of the defendants’ rights to due process and to be heard in a neutral environment.

Regarding input by defense lawyers, the interpretation adopts more explicit language. Lawyers will apparently have the opportunity to submit opinions to the court in person if desired, and judges will be obligated to arrange meetings for this purpose “on work premises” upon request. It is worth noting that the earlier draft of the interpretations specified that the meeting would also be required to be held “during business hours” but that this language was omitted from the final version. Moreover, the interpretation requires the court to produce transcripts of meetings with defense lawyers but says nothing about what should happen to those transcripts, in contrast with the earlier draft’s specific requirement that transcripts be placed in the case file.

Original Source:  最高人民法院 法释〔2012〕21号 发布日期：2012年12月20日 http://legal.people.com.cn/n/2012/1224/c42510-20000004.html Click on icon to expand

第十五章 死刑复核程序	Chapter 15: Death Penalty Review Procedure
第三百四十四条 报请最高人民法院核准死刑案件，应当按照下列情形分别处理：	Article 344: Reporting of death penalty cases to the SPC for review and approval shall be dealt with accordingly in respect to the following circumstances:
（一）中级人民法院判处死刑的第一审案件，被告人未上诉、人民检察院未抗诉的，在上诉、抗诉期满后十日内报请高级人民法院复核。高级人民法院同意判处死刑的，应当在作出裁定后十日内报请最高人民法院核准；不同意的，应当依照第二审程序提审或者发回重新审判；	(1) Where an intermediate people’s court has imposed a death sentence in a trial of first instance and neither the defendant appeals nor the people’s procuratorate protests, [the court] shall report the case to the high people’s court for review within 10 days after expiry of the appeal and protest period. Where the high people’s court agrees with the death sentence, it shall report the case for review and approval by the SPC within 10 days after issuing its ruling; where it does not agree [with the sentence], it shall either hear the case in accordance with the procedures for a second-instance trial or remand the case for retrial;
（二）中级人民法院判处死刑的第一审案件，被告人上诉或者人民检察院抗诉，高级人民法院裁定维持的，应当在作出裁定后十日内报请最高人民法院核准；	(2) Where an intermediate people’s court has imposed a death sentence in a trial of first instance and either the defendant appeals or the people’s procuratorate protests and the high people’s court rules to uphold [the death sentence], [the high people’s court] shall report the case for review and approval by the SPC within 10 days after issuing its ruling;
（三）高级人民法院判处死刑的第一审案件，被告人未上诉、人民检察院未抗诉的，应当在上诉、抗诉期满后十日内报请最高人民法院核准。	(3) When a high people’s court, has imposed a death sentence in a trial of first instance and neither the defendant appeals nor the people’s procuratorate protests, [the court] shall report the case for review and approval by the SPC within 10 days after expiry of the appeal and protest period.
高级人民法院复核死刑案件，应当讯问被告人。	When a high people’s court reviews a death penalty case, it shall question the defendant.
第三百四十五条 中级人民法院判处死刑缓期执行的第一审案件，被告人未上诉、人民检察院未抗诉的，应当报请高级人民法院核准。	Article 345: Where an intermediate people’s court imposes a sentence of death with reprieve in a trial of first instance and neither the defendant appeals nor the people’s procuratorate protests, [the court] shall report the case to the high people’s court for review and approval.
高级人民法院复核死刑缓期执行案件，应当讯问被告人。	When a high people’s court reviews a case of death with reprieve, it shall question the defendant.
第三百四十六条 报请复核的死刑、死刑缓期执行案件，应当一案一报。报送的材料包括报请复核的报告，第一、二审裁判文书，死刑案件综合报告各五份以及全部案卷、证据。死刑案件综合报告，第一、二审裁判文书和审理报告应当附送电子文本。	Article 346: Where reporting death penalty or death with reprieve cases, one case shall [be filed] per report. Documents to be sent in the request include five copies of each of the review request report, decisions in the trials of first and second instance, and the comprehensive report for death penalty cases, as well as the complete case file and evidence. Electronic copies of the comprehensive report for death penalty cases, decisions in the trials of first- and second instance, and the trial report shall be attached.
同案审理的案件应当报送全案案卷、证据。	Full case files and evidence shall be sent for all trials that are part of the same case.
曾经发回重新审判的案件，原第一、二审案卷应当一并报送。	Where a case has been previously remanded for retrial, the case files for the original trials of first and second instance shall be sent as part of the request.
第三百四十七条 报请复核的报告，应当写明案由、简要案情、审理过程和判决结果。	Article 347: The review request report shall clearly state in writing the cause of action, a summary of the case details, the trial history, and the results of the verdict.
死刑案件综合报告应当包括以下内容：	The comprehensive report for death penalty cases shall include the following content:
（一）被告人、被害人的基本情况。被告人有前科或者曾受过行政处罚的，应当写明；	(1) Basic details about the defendant and victim(s). Where the defendant has a prior criminal record or previously received administrative punishment, this shall be stated clearly in writing;
（二）案件的由来和审理经过。案件曾经发回重新审判的，应当写明发回重新审判的原因、时间、案号等；	(2) Origin of the case and its trial history. Where the case has previously been remanded for retrial, the reasons, time, and case number for the remand shall be stated clearly in writing;
（三）案件侦破情况。通过技术侦查措施抓获被告人、侦破案件，以及与自首、立功认定有关的情况，应当写明；	(3) Circumstances under which the case was solved. Relevant details of how the defendant was apprehended or the case was solved through the use of technical investigation measures and/or of the defendant’s voluntary surrender or performance of meritorious service shall be stated clearly in writing;
（四）第一审审理情况。包括控辩双方意见，第一审认定的犯罪事实，合议庭和审判委员会意见；	(4) Details of the trial of first instance. This includes the opinions of the prosecution and defense, the first-instance [court’s] finding of criminal fact, and the opinions of the collegiate bench and the adjudication committee;
（五）第二审审理或者高级人民法院复核情况。包括上诉理由、检察机关意见，第二审审理或者高级人民法院复核认定的事实，证据采信情况及理由，控辩双方意见及采纳情况；	(5) Details of the trial of second instance or review by the high people’s court. This includes the reasons for appeal, the prosecution’s opinions, the finding of fact made during the second-instance trial or review by the high people’s court, the acceptance status and rationale for the evidence, the arguments of the prosecution and defense and the court’s acceptance of them;
（六）需要说明的问题。包括共同犯罪案件中另案处理的同案犯的定罪量刑情况，案件有无重大社会影响，以及当事人的反应等情况；	(6) Any issues requiring explanation. This includes, among other things, details regarding conviction and sentencing of offenders involved jointly in the criminal case whose cases were handled separately, whether the case has a major impact on society, and the reactions of parties to the case.
（七）处理意见。写明合议庭和审判委员会的意见。	(7) Opinions on handling the case. The opinions of the collegiate bench and the adjudication committee shall be stated clearly in writing.
第三百四十八条 复核死刑、死刑缓期执行案件，应当全面审查以下内容：	Article 348: In reviewing cases involving sentences of death or death with reprieve, a complete investigation shall be made of the following:
（一）被告人的年龄，被告人有无刑事责任能力、是否系怀孕的妇女；	(1) The defendant’s age and whether the defendant possesses the capacity for criminal responsibility or is a pregnant woman;
（二）原判认定的事实是否清楚，证据是否确实、充分；	(2) Whether the original verdict’s finding of fact was clear and whether the evidence was reliable and sufficient;
（三）犯罪情节、后果及危害程度；	(3) The circumstances, consequences, and degree of harm of the crime;
（四）原判适用法律是否正确，是否必须判处死刑，是否必须立即执行；	(4) Whether the original verdict’s application of the law was correct, whether it is necessary to impose the death penalty, and whether it is necessary to execute the death penalty immediately;
（五）有无法定、酌定从重、从轻或者减轻处罚情节；	(5) Whether there are circumstances that call for mandatory or discretionary heavy, lenient, or mitigated punishment;
（六）诉讼程序是否合法；	(6) Whether the procedure was lawful;
（七）应当审查的其他情况。	(7) Other circumstances that ought to be reviewed.
第三百四十九条 高级人民法院复核死刑缓期执行案件，应当按照下列情形分别处理：	Article 349: In reviewing cases involving death with reprieve, a high people’s court shall deal with the case accordingly in respect to the following circumstances:
（一）原判认定事实和适用法律正确、量刑适当、诉讼程序合法的，应当裁定核准；	(1) Where the original verdict’s finding of fact and application of the law is correct, the punishment is appropriate, and the judicial procedure lawful, a ruling to approve [the sentence] shall be issued;
（二）原判认定的某一具体事实或者引用的法律条款等存在瑕疵，但判处被告人死刑缓期执行并无不当的，可以在纠正后作出核准的判决、裁定；	(2) Where there is a flaw in the original verdict, such as in the finding of a particular fact or in the citation of a legal provision, but it is not inappropriate to sentence the defendant to death with reprieve, the verdict or decision may be approved after correction is made;
（三）原判认定事实正确，但适用法律有错误，或者量刑过重的，应当改判；	(3) Where the original verdict’s finding of fact is correct but there are errors in applying the law or the sentence is too heavy, a new sentence shall be issued;
（四）原判事实不清、证据不足的，可以裁定不予核准，并撤销原判，发回重新审判，或者依法改判；	(4) Where the original verdict’s facts are unclear or its evidence insufficient, either a decision not to approve [the sentence of death with reprieve] may be issued, the original verdict vacated, and the case remanded for retrial, or a new sentence may be issued in accordance with the law;
（五）复核期间出现新的影响定罪量刑的事实、证据的，可以裁定不予核准，并撤销原判，发回重新审判，或者依照本解释第二百二十条规定审理后依法改判；	(5) Where, during the review period, new facts or evidence emerge that affect the conviction or penalty imposed, a decision not to approve [the sentence of death with reprieve] may be issued, the original verdict vacated, and the case remanded for retrial, or a new sentence may be issued pursuant to a trial in accordance with Article 220 of this interpretation;
（六）原审违反法定诉讼程序，可能影响公正审判的，应当裁定不予核准，并撤销原判，发回重新审判。	(6) Where the original trial violated statutory judicial procedure in a way that could potentially affect the fairness of the trial, a decision not to approve [the sentence of death with reprieve] shall be issued, the original verdict vacated, and the case remanded for retrial.
高级人民法院复核死刑缓期执行案件，不得加重被告人的刑罚。	In reviewing cases of death with reprieve, high people’s courts must not impose heavier penalties on defendants.
第三百五十条 最高人民法院复核死刑案件，应当按照下列情形分别处理：	Article 350: When reviewing death penalty cases, the SPC shall deal accordingly in respect to the following circumstances:
（一）原判认定事实和适用法律正确、量刑适当、诉讼程序合法的，应当裁定核准；	(1) Where the original verdict’s finding of fact and application of the law is correct, the punishment is appropriate, and the judicial procedure lawful, a ruling to approve [the sentence] shall be issued;
（二）原判认定的某一具体事实或者引用的法律条款等存在瑕疵，但判处被告人死刑并无不当的，可以在纠正后作出核准的判决、裁定；	(2) When there is a flaw in the original verdict, such as in the finding of a particular fact or in the citation of a legal provision, but it is not inappropriate to sentence the defendant to death, the verdict or decision may be approved after correction is made;
（三）原判事实不清、证据不足的，应当裁定不予核准，并撤销原判，发回重新审判；	(3) Where the original verdict’s facts are unclear or its evidence insufficient, a decision not to approve [the death penalty] shall be made, the original verdict vacated, and the case remanded for retrial;
（四）复核期间出现新的影响定罪量刑的事实、证据的，应当裁定不予核准，并撤销原判，发回重新审判；	(4) Where, during the review period, new facts or evidence emerge that affect the conviction or penalty imposed, a decision not to approve [the death penalty] shall be issued, the original verdict vacated, and the case remanded for retrial;
（五）原判认定事实正确，但依法不应当判处死刑的，应当裁定不予核准，并撤销原判，发回重新审判；	(5) Where the original verdict’s finding of fact is correct but, in accordance with the law, the death penalty shall not be imposed, a decision not to approve [the death penalty] shall be issued, the original verdict vacated, and the case remanded for retrial;
（六）原审违反法定诉讼程序，可能影响公正审判的，应当裁定不予核准，并撤销原判，发回重新审判。	(6) Where the original trial violated statutory judicial procedure in a way that could potentially affect the fairness of the trial, a decision not to approve [the death penalty] shall be issued, the original verdict vacated, and the case remanded for retrial.
第三百五十一条 对一人有两罪以上被判处死刑的数罪并罚案件，最高人民法院复核后，认为其中部分犯罪的死刑判决、裁定事实不清、证据不足的，应当对全案裁定不予核准，并撤销原判，发回重新审判；认为其中部分犯罪的死刑判决、裁定认定事实正确，但依法不应当判处死刑的，可以改判，并对其他应当判处死刑的犯罪作出核准死刑的判决。	Article 351: In cases in which a person has been sentenced to death after the sentences for two or more crimes have been combined, where the SPC finds after its review that the facts are unclear or the evidence is insufficient for the death penalty verdicts or decisions covering a portion of the crimes, it shall issue a ruling not to approve the [death sentence] in the entire case, the original verdict shall be vacated, and the case remanded for retrial; where it finds that the finding of fact is correct for the death penalty verdicts or decisions covering a portion of the crimes but, in accordance with the law, the death sentence shall not be applied, [the SPC] may change the verdict and issue a decision to approve the death penalty for the other crimes for which the death penalty ought to be applied.
第三百五十二条 对有两名以上被告人被判处死刑的案件，最高人民法院复核后，认为其中部分被告人的死刑判决、裁定事实不清、证据不足的，应当对全案裁定不予核准，并撤销原判，发回重新审判；认为其中部分被告人的死刑判决、裁定认定事实正确，但依法不应当判处死刑的，可以改判，并对其他应当判处死刑的被告人作出核准死刑的判决。	Article 352: In cases in which two or more defendants have been sentenced to death, where the SPC finds after its review that the facts are unclear or the evidence is insufficient for the death penalty verdicts or decisions covering a portion of those defendants, it shall issue a ruling not to approve any of the [death sentences] in the entire case, the original verdict shall be vacated, and the case remanded for retrial; where it finds that the finding of fact is correct for the death penalty verdicts or decisions covering a portion of those defendants but, in accordance with the law, they should not be sentenced to death, [the SPC] may change the verdict and issue a decision to approve the death penalty for the other defendants who ought to be given the death penalty.
第三百五十三条 最高人民法院裁定不予核准死刑的，根据案件情况，可以发回第二审人民法院或者第一审人民法院重新审判。	Article 353: Where the SPC decides not to approve a death sentence, it may, according to the circumstances of the case, remand the case to the second-instance people’s court or the first-instance people’s court for retrial.
第一审人民法院重新审判的，应当开庭审理。第二审人民法院重新审判的，可以直接改判；必须通过开庭查清事实、核实证据或者纠正原审程序违法的，应当开庭审理。	Where the first-instance court retries the case, it shall hold a trial hearing. Where the second-instance court retries the case, it may impose a new sentence directly; if it is necessary to hold a hearing to examine the facts, verify the evidence, or correct improper procedure used in the original trial, it shall hold a trial hearing.
第三百五十四条 高级人民法院依照复核程序审理后报请最高人民法院核准死刑，最高人民法院裁定不予核准，发回高级人民法院重新审判的，高级人民法院可以依照第二审程序提审或者发回重新审判。	Article 354: When a high people’s court has tried a case in accordance with the procedures for reviewing [a death sentence] and reported the case to the SPC for review and approval of the death sentence, where the SPC rules not to approve [the death penalty] and remands the case to the high people’s court for retrial, the high people’s court may either try the case itself in accordance with the procedures for second-instance trials or remand the case for retrial.
第三百五十五条 最高人民法院裁定不予核准死刑，发回重新审判的案件，原审人民法院应当另行组成合议庭审理，但本解释第三百五十条第四项、第五项规定的案件除外。	Article 355: Where the SPC rules not to approve the death penalty and remands the case for retrial, the people’s court that originally tried the case shall form a new collegiate bench to try the case, except in cases covered by Article 350.4‒5 of this interpretation.
第三百五十六条 死刑复核期间，辩护律师要求当面反映意见的，最高人民法院有关合议庭应当在办公场所听取其意见，并制作笔录；辩护律师提出书面意见的，应当附卷。	Article 356: During the death penalty review period, where a defense lawyer requests to make his or her opinions known in person, the relevant collegiate bench of the SPC shall hear his or her opinions in a workplace and make a transcript; where the defense lawyer submits opinions in writing, they shall be included in the case file.
第三百五十七条 死刑复核期间，最高人民检察院提出意见的，最高人民法院应当审查，并将采纳情况及理由反馈最高人民检察院。	Article 357: During the death penalty review period, the SPC shall review any proposals made by the Supreme People’s Procuratorate and provide the SPP with feedback regarding its acceptance of the proposals and the reasoning involved.
第三百五十八条 最高人民法院应当根据有关规定向最高人民检察院通报死刑案件复核结果。	Article 358: The SPC shall report the results of its review of death penalty cases to the Supreme People’s Procuratorate in accordance with the relevant provisions.

收起中文部分

Rule of Law: From Official Rhetoric to Public Participation

As a new Chinese leadership takes office at the beginning of 2013 there has been much discussion and speculation about what might be in store for reform of China’s legal system. One place to look for signs of things to come might be in official rhetoric, which has shown signs of moderating the rigid “stability maintenance” policies of recent years in favor of policies that relax some political control over the legal system and place more emphasis on rule of law development.

Hainan University Law School Professor Wang Lin. Photo credit: jcrb.com

In assessing the prospects for legal reform, law professor Wang Lin, who frequently comments on legal affairs for a number of Chinese newspapers, looks not only at official pronouncements but also at the role played by social pressure and public opinion in shaping the reform agenda. In an article published recently in The Beijing News, Wang notes that controversy surrounding the handling of individual cases has energized the public’s enthusiasm for participation in the process of legal reform. This controversy can sometimes be noisy and contentious, but, he argues, it is ultimately a positive force—especially in its tendency to focus on problematic aspects of the legal system. Rather than attempt to steer the public away from discussion of these shortcomings, Wang suggests (in a theme he has discussed in detail before) that the government and legislators would be better off formalizing channels for public participation in the drafting of legislation and planning of new legal institutions.

This does not necessarily shed any light on what future legal reforms might be, but it does point to the links between legal reform and political reform in China and raises the possibility that growing public expectations and demands rule of law might have implications that are broader than legislation and legal institutions themselves.

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Pace of “Rule of Law Construction” Can’t Keep Up With “Rule of Law Demand”
Wang Lin, The Beijing News
February 2, 2013

In terms of building rule of law in China, 2012 was a year to remember. That year was the 30th anniversary of the promulgation of the current constitution as well as the 100th anniversary of the promulgation of the Provisional Constitution of the Republic of China. Reviewing what has been more than a century of Chinese constitutionalism, reveals a time of many re-tunings and repeated twists and turns.

Perhaps because there are still many gaps between the current rule of law situation and society’s rule of law demands, the report [delivered by General Secretary Hu Jintao] at the 18th Party Congress placed particular emphasis on [the need to] “accelerate construction of a socialist country based on the rule of law” and “place greater emphasis on the important role the rule of law plays in the country's governance and in social management.” The phrase “accelerate construction” clearly reveals the urgency of rule of law to China.

As for how to “accelerate construction,” the report of the 18th Party Congress placed special stress on: “ensur[ing] that leading officials are guided by law in both thinking and action in their effort to deepen reform, promote development, solve problems, and maintain stability.” In order to draw a clear distinction with rule by man, the ruling party repeated its warning that “no organization or individual has the privilege of overstepping the constitution and laws, and no one in a position of power is allowed in any way to take one's own words as the law, place one's own authority above the law or abuse the law.”

Legislative Progress: Reform of the Criminal and Civil Procedure Laws, Enactment of a Mental Health Law...
Public Enthusiasm for Legislative Participation Continues to Surge

The best way for those in power and legislators to reduce contention and soothe public sentiment is to be more humble, respect democratic rights, and maintain positive interaction with public opinion. Compared to “guiding opinion,” paying attention to legislative bills themselves is the foundation and core.

Another important influence that the 18th Party Congress will have on China’s future can be seen in the new guiding policy for building rule of law: “Make laws in a scientific way, enforce them strictly, administer justice impartially, and ensure that everyone abides by the law.” According to Aristotle’s classic theory, the two basic key elements of rule of law are that there be widespread obedience to laws that have already been enacted and that the laws that everyone obeys be good laws. In order to have “good laws,” we must “make laws in a scientific way.” Given the present degree of social stratification and frequent conflict and somewhat obstructed channels for policy entrepreneurship and interest competition in the legislative process, debate over the enactment and revision of legislation has become unprecedentedly fierce.

The most important legislative events in 2012 were, by far, the revision of the two major procedural laws—the Criminal Procedure Law and the Civil Procedure Law. Although these were only revisions, when you consider it in terms of institutional evolution or look at the number [of provisions] revised, the significance of the revisions to the two major procedural laws far exceeds that of any other legislation last year. The revision of the Criminal Procedure Law covered nearly all aspects of the criminal process: from case-filing to investigation; then to prosecution, defense, adjudication, and implementation; plus a system [covering] evidence. Revision of the Civil Procedure Law covered seven major areas, ranging from the first inclusion of “public interest litigation” in the law and establishment of “small-claims litigation” to things like further definition of adjudication jurisdiction, enactment of property preservation measures, and optimization of a party’s right to request a retrial—none of these is insignificant.

Although revisions to the two major procedural laws were widely different in terms of specific content, there was a shared pursuit of safeguarding human rights. The revised Criminal Procedure Law included the phrase “respect and safeguard human rights” in its section on general principles, and human rights thinking was also expressed in the provisions of the Civil Procedure Law. Even though “respect and safeguard human rights” was already a constitutional principle and lower-order legislation is expected to abide by the constitution, this principle of “safeguarding human rights” would run the risk of being put aside and forgotten about if it were not given particular shape and detail in the legal system through the two major procedural laws, which act as “laws for the application of the constitution.”

Laws are revised to change with the times, and once a revised law takes effect it brings new impetus for social development. For example, the establishment of rules to exclude illegal evidence will directly bring about changes to methods of investigation. Legislation allowing public interest litigation will directly or indirectly promote the development of social organizations.

In 2012, public enthusiasm for participating in the legislative process continued to surge. In a related development, splits in public opinion during the legislative process remained as visible as ever. For example, during revision of the Criminal Procedure Law online public opinion was focused on Article 73, which was labeled the “secret arrest” [provision], and the focus of online opinion for the Mental Health Law was how to deal with “forced psychiatric treatment.” But in the field of official opinion, these worries about individual provisions were considered to be “making mountains out of molehills”; [officials] were more interested in looking at accomplishments and progress. The stark difference between these two fields of opinion is obvious. For the public, which places more emphasis on “participation,” discussion and criticism should, of course, focus on “problem provisions.” Passage of unproblematic provisions about which there is already consensus should be automatic—why even discuss it?

So, the best way for those in power and legislators to reduce contention and soothe public sentiment is to be more humble, respect democratic rights, and maintain positive interaction with public opinion. Compared to “guiding opinion,” paying attention to legislative bills themselves is the foundation and core.

Unsolved Problems: Adding “Crime of Child Abuse,” Abolishing “Crime of Prostitution with Underage Girls,” RTL System Reform...
Public Still Has Many Expectations for Systemic Change

For China in “the period of advancing rule of law construction,” the “Bo-Gu Kailai murder case” and the associated “Wang Lijun case” make clear to all that “all problems are, in the end, problems for the judicial system.”

In the legislative memory of 2012, the equally fierce debates over adding a “crime of child abuse,” abolishing the “crime of prostitution with underage girls,” and reform of re-education through labor (RTL) each remain problems unsolved. Behind each of these public debates is the shadow of individual cases.

In October 2012, after the “Wenling kindergarten teacher child abuse case,” the public security organ placed suspect Yan X under criminal detention for creating a serious disturbance. This caused a fierce debate within legal circles over crime and punishment for Yan. Of particular note is that, at least in the print media, no legal professionals ever expressed the customary concern that “the people of the nation want this person dead.” On the contrary, discussion and analysis of “statutorily prescribed punishment for a crime” occupied the mainstream. This individual case quickly transformed from a “legal discussion” into a “legislative discussion.” This shows that the media’s oversight over [the handling of] individual cases is increasingly rational and cautious.

Whether to retain or abolish the “crime of prostitution with underage girls” is a longstanding topic of discussion. In 2012, two “underage prostitution cases” (one in Yongkang, Zhejiang, and the other in Yongcheng, Henan) brought this debate to the fore once again, where it stayed through the end of the year. And in 2012 calls for abolition of the RTL system reached a new peak, with the flames fanned by influential individual cases like the “Tang Hui case” and “Ren Jianyu case.” Reform of RTL has already reached “a point of no return.”

In the age of social media, [the number of] cases that can be called “influential cases” increases by the day. In selections of the “Top Ten Influential Cases of the Year,” the “Bo-Gu Kailai and Zhang Xiaojun murder case” made the lists of Southern Weekly and other institutions. For China in “the period of advancing rule of law construction,” this case and the associated “Wang Lijun case” make clear to all that “all problems are, in the end, problems for the judicial system.”

More proof of how “individual cases have become public events” would be the “Wu Ying case.” After the Supreme People’s Court remanded this case for retrial, the Zhejiang Province High People’s Court issued a final decision on May 21, 2012, sentencing Wu Ying to death, suspended for two years, for the crime of fundraising fraud, and depriving her of her political rights for life and confiscating all of her personal assets. But the distinction between illegal fundraising and private lending still remains unclear. The greatest significance of Wu Ying’s case is the way it has sped up the pace of reform of private financing and led to the creation of a specific “Wenzhou Pilot Zone for Comprehensive Financial Reform.” There will probably be many more “Wu Yings” in the future, but no one hopes to see any more “Wu Ying cases.”

On October 5, 2011, 13 Chinese crew members were shot and killed by armed attackers while on a boat in the waters of the Mekong River. The “Mekong River Massacre” that took place outside of China’s borders ultimately became the “Mekong River Special Case” under China’s jurisdiction and Naw Kham and others were charged with crimes including intentional homicide, transporting narcotics, kidnapping, and hijacking a ship. On November 6, the Kunming Intermediate People’s Court sentenced Naw Kham and three other principal defendants to death. In this way, the “Mekong River Special Case” became “China’s first case of judicial sovereignty.”

Events in Focus: Shooting of Violent Criminal Zhou Kehua, Wang Lijun’s “Shift from Red to Black,” Li Yapeng Becomes a “Rule of Law Personality”...
Debate over Personalities and Incidents Promotes Progress toward Rule of Law

The judicial process should be authoritative, and it is unnecessary for rule of law to have role models. We should not be concerned if the field of public opinion becomes too contentious or too negative. Debate over personalities and incidents is a positive force for promoting progress toward rule of law.

In this age of deconstruction, authority is weakening and role models are faint and dim. What we remember is the violent criminal Zhou Kehua’s destiny with death, the “narrow escape from death” of the controversial young woman Wu Ying, and “Ph.D. Advisor” Wang Lijun’s shift from red to black. But we probably don’t remember the police officer who shot down Zhou Kehua, the judges who sent Wu Ying back for retrial, or the prosecutors who brought Wang Lijun to trial.

It is difficult to make a list of positive people [involved with] rule of law during the year. For the inclusion of [actor] Li Yapeng on the [list of] “CCTV Rule of Law Personalities of 2012” received a lot of criticism. This doesn’t mean that Li Yapeng’s private philanthropy activities don’t merit praise; what the public questions is what this person and his affairs have to do with “rule of law for the year.”

Returning to common sense, as far as public power is concerned, the goal of rule of law is to place limits on its exercise; as far as specific individuals are concerned, rule of law is aimed at “living proper lives, not harming others, and each receiving what they deserve.” The judicial process should be authoritative, and role models are unnecessary for rule of law. We should not be concerned if the field of public opinion becomes too contentious or too negative. Debate over personalities and incidents is a positive force for promoting progress toward rule of law.