January 2-8
China
2020 was a “norm-breaking” year for the National People’s Congress (NPC), according to the NPC Observer, which summarized the year in review here. Another blog, the Beijing-based China Justice Observer, released a review of recognition and enforcement of foreign arbitral awards by Chinese courts in 2019.
China’s first Civil Code took effect on January 1, 2021. The National People’s Congress has released an official English translation of the Code. The Supreme People’s Court “demoted” Guiding Cases No. 9 and No. 20, which became irrelevant after the Code’s passage. Immediately after the New Year holiday, several Chinese district courts applied provisions of the Code when rendering judgments (in Chinese).
A district court in Beijing ruled against a plaintiff in a case involving the “voluntary assumption of risk rule” in a badminton game. The plaintiff claimed that the defendant failed to exercise due care when returning the shuttlecock during a game. The Chaoyang District People's Court dismissed all the plaintiff's claims per Article 1176 of the Civil Code, which addresses the voluntary assumption of risk in recreational and sports activities.
The first case applying the Civil Code to annul a marriage based on the failure of one partner to inform the other of his HIV-positive condition was adjudicated by a district court in Shanghai. Article 1053 of the Code provides that “where one of the parities suffers from a serious illness, he or she shall truthfully inform the other party before marriage registration. In the case of failure to do so, the other party may make a request to the people's court for annulment of marriage.” Under the pre-Civil Code Marriage Law, which was in force at the time of marriage, one partner’s HIV-positive status was not grounds for nullification. However, the Shanghai court noted that the marriage was ongoing, and said it applied the Civil Code rule per Article 2 of the Supreme People’s Court interpretation of the Civil Code concerning its retroactive effect (in Chinese)
The first case involving harm caused by an object thrown from within a building was decided by a court in Guangzhou. This case involved a 69-year old female plaintiff who was injured when a child threw a bottle of water from the 35th floor of a building. The court ruled in favor of the plaintiff, applying Article 1254 of the Civil Code, which provides: “Where any object thrown out of a building or falling down from a building causes any harm to another person, the tortfeasor shall assume tort liability according to the law.” (in Chinese)
The first environmental pollution case in which punitive damages were imposed under the Civil Code was decided by a court in Jiangxi Province. The case was filed by the county-level prosecutor’s office as a public interest case. The defendant company was held liable for its employee’s act of discharging of sodium sulfate effluent into a well and mountain soils. It was ordered to pay RMB 171,406 ($26,459) in punitive damages per Article 1232 of the Civil Code, which provides: “Where a tortfeasor violates legal provisions and intentionally causes environmental pollution or ecological damage, resulting in serious consequences, the victim shall have the right to claim corresponding punitive compensation.”
The first case involving passengers killed in an auto accident after accepting a free ride was heard by a Nanjing district court. The judge retroactively applied Article 1217 of the Civil Code to lower the amount of damages and the parties reached a settlement accordingly. The driver of the car had offered a free ride to two colleagues, and all three were killed in an accident. Relatives of one of the passengers brought a suit against the driver’s family, demanding RMB 1.1 million in damages. The court applied the “free ride rule” in Article 1217 of the Civil Code to find mitigated liability of the defendant, and applied the rule retroactively according to Article 18 of Supreme People’s Court’s interpretation of the Civil Code.
On the first working day after the Civil Code took effect, a district court in Xuzhou decided three cases applying provisions of the Code. The first involved whether the nephew of a person killed in a car accident has standing to bring a claim against the deceased driver and insurance company. The court applied Article 1128 of the Code to confirm the plaintiff’s standing. The second case involved Article 1079 of the Code which provides: “Where spouses have been living separate and apart for a year after the people's court has ruled that a divorce is not granted, a divorce shall be granted if either spouse files a divorce action again." In the third case involving standard terms printed on the back of a consignment note, the court applied Article 496 of the Code and found the standard terms invalid if the “party furnishing the standard terms fails to carry out its obligation to remind or explain, resulting in the other party failing to note or understand the terms in which it has a material interest.”
The Supreme People’s Court held a press conference to mark the 25th anniversary of the enactment of the PRC State Compensation Law and released 25 influential state compensation cases. The court selected 25 high-profile state compensation cases that are considered milestones in the area of human rights protection and regulation of state power, including nine wrongful conviction cases, three wrongful arrest cases, three wrongful seizure cases, one wrongful release of seizure case, two wrongful recovery of property cases, one wrongful police detention case, two uses of deadly force, one torture case, two cases involving death in a correctional facility, and two involving wrongful execution of a court judgment. Cases deemed “influential” are not binding and can be seen as having less effect than designed “guiding cases,” but courts often refer to them in practice.
The former chairman of Huarong Asset Management, Lai Xiaomin, was sentenced to death for bribery, corruption, and bigamy. The sentence was an exception to the recent trend in China of rarely applying the death penalty to economic crimes. Lai was convicted of accepting $277 million in bribes over the course of a decade, an astonishingly high number in Chinese history. Lai is among the highest-profile figures to be convicted since President Xi Jinping began a campaign against corruption. The sentence is believed to have sent a message of Xi’s determination to continue the anti-corruption campaign. The Chinese Banking and Insurance Regulatory Commission firmly supported Lai’s conviction and sentence and emphasized the deterrence effect of the verdict.
NBA legend Michael Jordan finally won his intellectual property case against a Chinese company, Qiaodan Sports, which misappropriated his Chinese name and wrongly implied that Jordan was somehow connected to the company. After a retrial, the Supreme People’s Court overturned the decision of a lower court to rule in favor of Jordan and order Qiaodan Sports to cancel the Qiaodan trademark. The court did not order the respondent to disgorge profits from its unauthorized use or stop using the Jumpman-like logo.
The 11th Amendment to PRC Criminal Law, with provisions addressing food and drug safety, financial crimes, crimes involving throwing objects from heights, and protection of intellectual property, was passed by the National People’s Congress Standing Committee on December 26, 2020, and takes effect on March 1, 2021. Check here for analyses by legal scholars on the significance and impact of the amendments. (in Chinese)
The Chinese Communist Party passed the revised Regulation on Protection of the Rights of Party Members, which took effect on December 25, 2020. The new regulation amplifies provisions in a 2004 party regulation regarding the rights, obligations, and responsibilities of party members and party organizations. A line-by-line comparison of the 2020 and 2004 regulation can be found here. (in Chinese)
A one-year license suspension imposed on well-known defense lawyer Zhou Ze after he posted video online showing police torture of his client has sparked outrage among the legal community in China and abroad. (in Chinese) The Chaoyang Justice Bureau which handed down the sanction cited Article 9 of the Lawyers Law and Article 38 of the Ministry of Justice “Measures on the Administration of Lawyers’ Practice” in holding that Zhou acted improperly by disclosing or distributing important information related to a case. Professor He Haibo of Tsinghua University Law School attended Zhou’s hearing and subsequently wrote a letter to the bureau rebutting its analysis and defending Zhou.
In a sexual assault case that emerged at the height of China’s #MeToo movement, a court ruled that former journalists He Qian and Zou Sicong defamed a third prominent journalist, Deng Fei, when they accused him online of sexual assault. One of the defendants, Zou, posted the first-instance judgment online and expressed frustration with the court’s application of the burden of proof (in Chinese). The lawsuit stemmed from an article written by He that Zou published online in 2018, in which He alleged that Deng lured her to a hotel room in 2009 to discuss story ideas, then removed her clothes and tried to kiss and grope her. Deng brought a civil defamation suit against his accusers. In its judgment, the court ruled that the evidence provided by Zou and He was “not enough to allow someone to firmly believe without any hesitation that what was described truly happened.”
Hong Kong
On the eve of his retirement, Hong Kong Court of Final Appeal Chief Justice Geoffrey Ma defended judicial independence and cautioned against empty calls for reform “simply on the basis of a result one doesn’t like.” Chinese government and state-owned media recently have accused Hong Kong’s judiciary of misinterpreting the Basic Law when granting bail to Apple Daily founder Jimmy Lai and other pro-democracy activists. Justice Ma has spent more than 20 years on the bench and served as chief justice since 2010. At Ma’s farewell sitting, Justice Secretary Teresa Cheng expressed gratitude for his contribution to the judiciary and Hong Kong’s legal community.
Fifty-three pro-democracy politicians were arrested in Hong Kong on suspicion of subverting the state in the highest number of arrests to date under Hong Kong’s 2020 National Security Law. Among those were arrested were Gwyneth Ho, Jimmy Sham, “Long Hair” Leung Kwok-hung, Kwok Ka-ki, Prince Wong, Tiffany Yuen, Ventus Lau, and American human rights lawyer John Clancey. Those arrested ranged in age from 23 to 64. Hong Kong Secretary for Security John Lee justified the mass arrest by alleging that an unofficial primary held last summer for Legislative Council seats was a scheme to paralyse the Hong Kong government. The European Union, U.S. government and U.N. Human Rights Office all called for the detainees’ release and said they were merely exercising fundamental freedoms. Most of the detainees were released on bail but bail was rescinded for former Democratic Party Chairman Wu Chi-wai, who failed to surrender his BN(O) passport. Check here for a Reuters timeline of the national security law’s impact in Hong Kong.
Just ahead of the New Year holiday, 12 Hong Kong protesters were convicted and sentenced in Shenzhen for border-crossing offenses. The group was arrested at sea by Shenzhen police in August 2020 as they tried to flee to Taiwan by speedboat. Ten adults in the group were given sentences ranging from seven months to three years, while two minors were sent back to Hong Kong. Two mainland defense lawyers who were appointed by families of the 12 but denied access to their clients were recently notified that their licenses would be revoked. Although the notices did not mention the Hong Kong 12, the lawyers believe this case is the reason for their punishment. The 12 HK Youth Concern Group condemned the sanctions (in Chinese).
Japan
Japan’s ruling and opposition parties dropped plans to legislate on lawmakers’ group dining amid the pandemic. The parliamentary affairs heads had agreed to draft rules but momentum fizzled out after they encountered a barrage of criticism on the internet, with some saying, “Do lawmakers need rules in order to refrain from group dining?” In mid-December, Prime Minister Suga apologized for participating in two year-end dinner parties despite the government's warnings to the public to refrain from dining in large groups to prevent spreading the coronavirus.
Japan’s police force informally decided to adopt a new system among nationwide police agencies that will facilitate video sharing by persons who make mobile phone calls to the emergency number 110. Police say that being able to receive video from crime or accident scenes in real time will help them provide an appropriate first response.
A record-high 948 persons changed their registered gender in 2019. Since 2004, persons diagnosed by at least two doctors as having gender identity disorder can apply to change their registration. Other conditions include: being age 20 or older, unmarried, without underage children, and having undergone sex-change surgery. The number of persons registering a gender change was 868 in 2018 and the total through 2019 is 9,625.
Koreas
South Korea’s Supreme Court chief justice in a New Year address to reporters urged the nation’s judiciary to maintain independence and pledged to respond “resolutely and firmly against unjust outside attacks” threatening the independence of the judiciary. The judiciary has recently come under intense public criticism for several high-profile rulings that are either unpopular with the public or have a political aspect.
A South Korean court has ordered Japan to pay $91,800 to each of 12 victims of wartime sexual slavery in its first civil lawsuit against Japan involving World War II “comfort women.” A decision in a second, similar case involving 11 plaintiffs is scheduled for release in the coming week. Japan has disputed the court’s sovereignty and said it will not accept the decision. In 2015, then-President Park Geun-hye sealed a diplomatic settlement with Japan by which Japan apologized to the survivors and provided 1 billion yen ($9.71 million) to a fund to help the victims, to “finally and irreversibly” resolve the issue. Upon taking office in 2017, President Moon Jae-in said that the 2015 agreement was flawed and called for additional steps from Japan.
North Korea has opened the first full congress of its ruling party in five years, with leader Kim Jong Un admitting his previous economic development plans have failed. See AP’s explainer to learn what to expect from this meeting.
South Korea’s top court ruled that taking photos of body parts covered by tight clothing without consent may constitute a sexual offense. In a ruling overturning lower court’s decision and remanding the case for retrial, the Supreme Court ruled that secretly filming other people's body parts can constitute a sexual offense. It is considered the first court decision to expanded the scope of sexual freedom from a “right to not engage in sexual activity without consent” to a “right to not be sexually objectified against one's will.”
A detention center in South Korea faces a lawsuit by four inmates who were infected with Covid-19 in custody. The detention center has emerged as one of the biggest COVID-19 hot spots in Korea, having reported more than 1,100 infections and two deaths since the first case was confirmed there on November 27, 2020. Prison authorities also came under fire when they allegedly cremated the body of an inmate who died without notifying his next of kin. President Moon Jae-in has been urged to take responsibility for the mass infections. The main opposition party has said that the president’s apparent indifference to the situation is incomprehensible given his background as a human rights lawyer.
Taiwan
Publications released by the Chinese Communist Party (CCP) and People’s Liberation Army may face stricter censorship before entering the Taiwan market as the Taiwan Ministry of Culture considers amending an existing but not strongly enforced law. Article 37 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area provides that publications from mainland may enter Taiwan upon approval of competent authorities. Culture Minister Lee Yung-te rejected criticism that more censorship would violate freedom of thought, saying that CCP publications are propaganda materials. Publications by private individuals or associations will not be affected. In the past few years, Taiwan has been on the receiving end of a massive propaganda and disinformation campaign from the mainland, putting stress on the government’s free speech principles.
Taiwan’s Legislative Yuan amended the Civil Code to lower the age of majority from 20 to 18 years old, effective on Jan. 1, 2023. The amendment also adjusted the minimum age for marriage to 18 for both men and women in line with various international conventions on eliminating discrimination against women and protection of children. A criminal law scholar, Chao Hsuey-wen, urged legislators to seize the momentum and consider lowering the age of criminal responsibility, currently set at age 14.
Twenty current and former employees of two elementary schools were reprimanded for failing to report the alleged sexual misconduct of a coworker for more than two decades. A Ministry of Education regulation on prevention of on-campus sexual assault obliges relevant school employees to report such assaults within 24 hours. Court records show that 31 students have been identified as alleged victims of Chang Po-sheng since 2000. Chang’s actions came to light in 2019 and in October 2020 the Tainan District Court sentenced Chang to four years and 10 months in prison for behavior that included kissing female students and touching their private parts.
The government is being urged to reevaluate its COVID-19 “electronic fence,” a cellphone-based tracing system used to prevent people from violating quarantine. The system monitors phone signals to alert police and local officials if those in home quarantine move away from their home or turn off their phones. Cheng Wen-tsan, the mayor of Taoyuan City, recently called for regulation to limit the collection, access, and use of tracing data and emphasized that such data shall be destroyed after the pandemic (in Chinese).
Vietnam
Vietnam’s revised Labour Code took effect on January 1, 2021 and was praised for improving the rights protection of workers and employers by the International Labour Organisation (ILO). The law expands protections for 55 million workers without employment contracts, strengthens protections against workplace gender discrimination and sexual harassment, increases the retirement age, relaxes the requirement for salary registration, affords workers more autonomy in forming unions, and streamlines labor dispute resolution. ILO’s chief of the Freedom of Association Branch urged Vietnam to also adopt collective bargaining, put in place anti-retaliation mechanisms, and ensure compliance.
Three Vietnamese pro-democracy journalists were sentenced to more than a decade in prison for criticizing the government as a part of crackdown on dissent by the ruling communist party. The Ministry of Public Security said at the one-day trial that the journalists were “making, storing, spreading information, materials, items for the purpose of opposing the state.” They are among approximately 170 prisoners of conscience currently held in Vietnam, according to Amnesty International.
A summary of Vietnam’s “top 10” laws and decrees of 2020 can be found here.