Supreme Court – Things You Don't Know about China

Love Comes with a Price Tag, and a Return Policy Too: Controversy over New Marriage Law Interpretations

Jin Zhao — Fri, 19 Aug 2011 17:05:49 +0000

“Marriage Law Interpretations, the Third Edition,” (Interpretations) recently issued by the Supreme Court and effective since August 13, 2011, is perhaps the most controversial Marriage Law interpretations in China. According to the Interpretations:

In case of paternity testing, refusal of testing establishes the other party’s position;
Yields and accretions of premarital personal property is not considered common property;
The property purchased by the parents of one party in the marriage for this party is considered personal property of this party;
Immovable property purchased by one party before marriage belongs to the registered owner;
In case of contested divorce, the articles concerning property settlement in the premarital agreement are void.

Essentially, the Interpretations focuses on two aspects that have been increasingly contested in divorce cases in China: property settlement and the weight of extramarital affairs in divorce cases. That’s not surprising to anybody who has been following what’s going on in China. The soaring housing prices, rampant extramarital affairs of married men, and the still huge gap between genders in terms of social and economic status have been the problems behind many divorce battles. The Interpretations is a new measure in the Supreme Court’s attempt to deal with these issues. If marriage has come with a price tag in China since the country embraced the market economy, now it has a return policy as well.

With little doubt, Chinese public’s reaction to the Interpretations has been passionate. In a widely circulated post, the author “Zhang Lei CYU” interprets the Interpretations and predicts its potential consequences:

As soon as the new Marriage Law was issued, countless families lost their equilibrium; what this one stone has stirred up is more than a thousand waves;

From now on, the husband approximates the landlord;

Those women who hope to become rich by marrying someone will only end up in tragedy;

Tonight will be a night of men’s relief and women’s sleeplessness;

Guys, hurry up and make money, making sure to buy a house before getting married, and then you’ll have a unmovable house and a stream of wives;

Girls, work hard and make money to buy a house on your own, for from now on, men are just floating clouds;

The developers are laughing, and countless parents have to consider buying houses for their daughters just in case; the housing prices will never come down now;

The lovers who are planning to get married are faced with unprecedented challenge; countless couples will split because of disagreement on whether the bride’s name should be written in the deed;

More women will be cautious to get married, and those who are married will be cautious to get a divorce;

Many women can be penniless overnight;

China has returned back to a patriarchal society

Before tonight, many people (especially men) were afraid of divorce because of property settlement concerns, and for this reason love was not pure; after tonight, many people (especially women) will be afraid of divorce for the fear of getting nothing, and for this reason love is not pure; yet from a different perspective, for women, love can become purer: this time, you don’t need to suspect that I marry you for your house, do you?

The parents of the groom now can buy houses happily;

The marriage license has since become a piece of waste paper, no longer having any attached value;

Women all have to become strong career women, and more and more men will go about buying groceries, looking after kids, and knitting;

If the groom paid the down payment before getting married, and the deed has only the bride’s name on it, after the wedding the wife can refuse to pay for the mortgage, and the couple won’t have a life but “cooperation” together.

The author then concludes that:

This Interpretations seems to be reasonable, timely and fair, but it doesn’t take into consideration several realities of marriages in China: First, in China, it’s most likely that the husband will be the one who pay for housing; two, men are more likely to have extramarital affairs; three, which is the most important point, family is not only a house.

Tonight, love is face with unprecedented challenge;

I don’t know how to believe in love.

Many netizens who have commented on this post also lament the lost of innocence in this “crazy times.” However, few realized that marriage has never been so innocent anyway. The question needs to be asked is, whether the Interpretations or the public’s interpretations of Interpretations resolve or begin to resolve the deeply rooted problems that have contributed to Chinese youth’s anxiety surrounding marriage, namely, the inequality between genders, the inequality in distribution of wealth, and the lack of a consistent value system in today’s China. Indeed, an overlooked consequence of the Interpretations is a more heated gender war among Chinese youth.

Speaking from a female position, another widely circulated post is far more sarcastic and combative. In this post, the anonymous author gives women advice in the post-new-Interpretations era:

Keep your own salary. Don’t help pay the mortgage. Wait until you have enough money, buy a house and say that your parents have given it to you as a gift. Then rent it out and pay the mortgage.

Every money, the two of you put the same amount of money into a fund for living expenses.

When you want to have a child, check and see how much money it costs to use a surrogate mother, and request the husband to pay for the same amount of money. If he doesn’t have that money, ask him to write an IOU and notarize it.

Each time when you two have sex, check how much a prostitute charges, and because you’re cleaner than a prostitute, charge [your husband] twice as much. If your husband doesn’t have money, ask him to write an IOU and notarize it.

About your child’s family name, if the child is named after you, it’s free of charge. If the child is named after your husband, as in the case of surrogate mother, he has to pay. If he doesn’t have that money, ask him to write an IOU and notarize it.

Housework is equally divided between you two. If your husband use the excuse that his career is more important to try to get away from doing housework, check how much it cost to hire a domestic worker, and keep the book. Then ask your husband for money. If he doesn’t have money, ask him to write an IOU and notarize it.

If your parents are sick, find an hourly helper, or take care of them yourself. If his parents are sick, send an hourly helper and keep the book. You don’t even need to show up.

In terms of your child’s education, the time for helping with the child’s homework should be divided and schedule for each of you. If your husband can’t do it, he has to pay for it at a standard tutor’s rate. If he doesn’t have money, ask him to write an IOU.

You’d better rent a place. Don’t live in your husband’s house. Otherwise you have to be careful not to step on his toes all the time.

On holidays, you two go visit your own respective parents.

Your body belongs to you, and you can decide what to do with it. If another man gives you money, things, houses and cars, let him have you. It’s worth it. Your husband has no right to protest.

Girls, when you’re young, try every means to make money. Making money is all that matters. Only when you have enough money and buy a house, can you be assured that you won’t become homeless when you’re old and lose your looks.

This world is this cruel. If you want to survive, you don’t have other choice.

Sadly, while seemingly taking the women’s side, this author clearly equates women’s value to sex, reproduction, and domestic service in relation to men. Yet more sadly, what is lacking in the public discourse surrounding this issue is precisely a feminist voice that interrogates the power structure in place that’s based on gender differences and advocates for women’s rights, their protection and the elevation of their socioeconomic status in society in general, including and beyond the family.

As to love, I believe that it’s defined by people in particular cultural contexts. Sadly, in today’s China, where materialism and consumerism have become imperatives imposed on people, perhaps it is accurate to define love in economic terms, like what netizen 月林飞霜 writes: “If your love is true, put your girl’s name on your deed! This is the only way to test true love!”

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Death Penalty: “He Deserved It!”

Jin Zhao — Tue, 07 Jun 2011 23:53:19 +0000

Yao Jiaxin, a junior at Xi’an Conservatory of Music, who was sentenced to death for intentional homicide, was executed today. On the night of October 22, 2010, while driving in his own sedan, Yao hit and injured Zhang Miao, a 26-year old mother who was riding an electric bike. As he saw that Zhang was trying to get his plate number, Yao panicked and stabbed Zhang repeatedly to death with a knife. Yao was convicted and sentenced to death earlier this year. The Supreme Court approved his death penalty today, and he was executed afterwards.

Yao Jiaxin’s has been a high-profile case for many reasons. First of all, as a college student, he had his own car. When the media reported his case, many thought that his parents were powerful officials, which didn’t turn out to be the case. He was seen as a second Li Qiming, the son of Baoding City’s Police Deputy Chief Li Gang. Last October, Li Qiming killed a college student in an accident and claimed that his dad was Li Gang so nobody could touch him. Li Qiming’s case invoked waves of criticism from Chinese public, who are fed up with government officials’ abuse of power. Exposed by the media not long after Li’s case, Yao’s case fueled this anger in the public and took it to another level, especially when his victim was a powerless woman from a village who worked as a helper at a small restaurant. The public opinion, sadly, was predominated by the request for death penalty.

Another reason this case has attracted so much public attention has to do with the violent nature of the crime and the criminal’s identity as a young and promising college student. Yao was said to be a quiet young man, a gentle young pianist. Yet, in order to avoid responsibilities, he chose to kill an innocent injured woman with such violence. The public was shocked by his selfishness and lack of morality. The public has directed the blame on mostly the declining morality in Chinese society in general in Chinese’s crazy for material wealth. Others also blamed Yao’s parents and schools for not doing a good job and raised a “demon” in him. Yet others pointed out the unjust laws under which injuring someone in a car accident costs the responsible driver more than killing someone. Thus there’s a saying in China that “killing is better than injuring.”

As the public’s cry for Yao’s execution was getting louder every day, some Chinese, mostly intellects and law scholars, called for lenience and proposed to use death penalty cautiously if not banning it all together in China. However, the voice of this group of people seemed to be quite weak in the overwhelming discourse on the opposite side. Some angry netizens even accused those who opposed death penalty of being “wumao” (“fifty cents”) or the minions of those in power.

Yao’s execution today triggered another surge of online discourse. On weibo.com, Sina’s weibo (microblogging) site, Yao Jiaxin’s father, Yao Qingwei, has been posting weibos since Yao was convicted. Today, in one of his weibos he writes:

药家鑫之父药庆卫：Yao Jiaxin was executed today. We were waiting at home [for the notice] to bring back his body, but who knows that the Court didn’t let us view his body, but only asked us to wait for his ashes. I said for my child that he wouldn’t donate organs, because Professor Kong (Kong Qingdong, professor from Peking University – author’s notes) said that “Yao Jiaxin looked like a murderer,” and I was worried that Yao Jiaxin’s organs would do harm to others. I only wish that Yao Jiaxin’s death will wash away all of his sin, leaving nothing to harm this world.

Many netizens have responded to Yao Qingwei’s weibo. The sarcastic bitterness in this weibo and Yao Qingwei’s personal tragedy of losing a son won him sympathy from many netizens.

Microblogger 周伟良 writes:

In the end, both family were hurt. Yao papa, please accept my condolence.

Another, 斯凯迪歪, writes:

Yao Jiaxin was a criminal, but Yao Qingwei is only a father. Just as @贺卫方 said, we can sentence a person to death penalty by law, but can’t we refrain from celebrating the execution of one of us with a public fiesta? In the same sense, we can feel that our demand was met, but can’t we stop shouting out our opinions on the weibo of a father who just lost his son?

Others criticized the authority for their insensitivity to Yao’s family. For instance, 梁嘉璟_Ken writes:

Why not show some respect to the family of the deceased?! Even the family of the executed!

蔡文狄vendy writes:

This is helpless. Chinese laws are this inhumane. The belief in “an eye for an eye” has been deeply rooted in China. Live well, and be a model for China’s more humane laws in the future.

Some netizens, unsurprisingly, suspect that there’s some sort of conspiracy on the part of the authority to harvest Yao’s organs for sale.

Microblogger 天涯赵瑜 writes:

Is it true as what they say that they wouldn’t let the family to get close (to the body), and take the opportunity to sale the organs of the executed criminal? What are the facts? If this is real, then it’s really unfair. Yao Jiaxin was executed, and has been punished for his crime, but not releasing the body to his parents is just too much.

There are also netizens who condemn death penalty as an inhumane, such as 蔡一哲, who writes:

Killing to stop killing. Bloody law! No human rights!

象考拉一样地生活着 writes:

Also Yao Jiaxin committed a crime, what happened has happened. Taking another perspective, I think: 1. Chinese law is not humane enough. 2. Public discourse sometimes can destroy people. 3. I see many netizens’ indifference, but although his parents were at fault, with so much pain after they lost their son, they deserve some condolence from others. Isn’t it that hard?

The microblogging above is right. Many netizens still believe that Yao’s father deserved the pain of losing a son because it’s his fault to have raised such a “beast.”

A timeline of Yao Jiaxin’s case

October 20, 2010 – Yao Jiaxin drove a sedan and hit Zhang Miao, who was riding on a electric bike moving in the same direction. Injured, Zhang tried to record Yao’s plate number. Panicked, Yao stabbed Zhang repeatedly to death with a knife and fled the scene afterwards. Later that night, Yao hit another two pedestrians, and was caught by passersby when he tried to run.

October 22, 2010 – Yao was arrested for the second hit-and-run accident, but he did not confess the first accident and the killing of Zhang.

October 23, 2010 – Accompanied by his parents, Yao turned himself in for killing Zhang. He was detained by the Xi’an police that night.

November 25, 2010 – Approved by the Xi’an prosecutorial authority, Yao was officially arrested for intentional homicide.

January 11, 2011 – Yao was charged with intentional homicide by Xi’an Prosecutor’s Office.

March 23, 2011 – Yao was tried in Xi’an Intermediate People’s Court for intentional homicide. He expressed remorse, and his attorney defended him by claiming his action as “passion killing” instead of intentional homicide.

April 22, 2011 – Xi’an Intermediate People’s Court ruled Yao guilty of intentional homicide. Yao was sentenced to death penalty, deprived of political rights for life, and responsible for a compensation of 45498.5 yuan to the victim’s family.

May 20, 2011 – Shannxi Province Superior People’s Court dismissed Yao’s appeal and sustained the original ruling. Yao’s sentence of death penalty was submitted to the Supreme Court for approval.

June 7, 2011 – The Supreme Court approved Yao’s death penalty. Yao was executed.

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Drunk Driving as Criminal Offense, or Not.

Jin Zhao — Thu, 12 May 2011 01:13:29 +0000

Lately I noticed that lots of discussions in Chinese media on laws and regulations are related to driving. Two of the recent heated debates in this category are about the organ donor registration for drivers and the recent inclusion of drunk driving as a criminal offense in the Criminal Law. To average Chinese families, owning cars and driving are only a recent family affair, yet it has become many Chinese’s new favorite. Now China has perhaps the fastest growing population on wheels in the world. Car sale in China surpassed the U.S. in 2009 (The Guardian), and 13.8 million passenger cars were sold in China in 2010 (Reuters). As more Chinese are behind the wheal, any new law or regulation related to driving is under closer scrutiny of more Chinese and likely to stir up heated debates.

The recent criminalization of drunk driving, and the Deputy Chief Justice of China, Mr. Zhang Jun’s comments on the interpretation of the Law have triggered such heated debates. Under the 8th Amendment to the Criminal Law passed by the Standing Committee of the People’s Congress on February 25, 2011, drunk driving is a criminal offense, and the driver is subject to imprisonment and a fine. Since the Amendment became effective on May 1, many drunk driving arrests have been reported across China, including a high-profile case involving, Gao Xiaosong, one of China’s best-known song-writers and producers.

At a national conference on criminal law held on May 10, Chief Justice Zhang Jun commented on the 8th Amendment that where criminal cases are involved, the courts at all levels must be “cautious” and “not to interpret the 8th Amendment literally.” He emphasized that the judgment should be in line with the amended Law on Road Traffic Safety (Xihua). In other words, Zhang interpreted that to determine drunk driving as a criminal offense, the court needs to consider each incident of offense. Following Zhang’s interpretation, the judgement should be based on the severity of the consequence of the driver’s action, which is determined by whether the action has caused an accident and, if yes, the severity of the accident.

Zhang’s comments and his interpretation of the 8th Amendment to the Criminal Law immediately stirred up debates both in the legal circles and in the public. For instance, an article on opinion.hexun.com presented two opposing views from two attorneys. Liu Changsong, attorney, argued that “any interpretation of the law on the substance rather than wording is not interpreting the law, but creating it.” Liu pointed out that the making of this Law was based on extensive research and public deliberation. In response to the severity argument, Liu argued that the severity of the consequences of the driver’s action should be based on the blood alcohol concentration, rather than whether the driver has caused accidents or the severity of the accidents.

Liu’s view is supported by law professor Wang Mingliang at Fudan University in Shanghai. Wang pointed out that dangerous driving is an offense by action that does not require its causing severe accidents to be punished as a criminal offense. Wang held that drunk driving does not equal traffic offenses whose judgment is determined by the severity of the accident.

On the other hand, Sun Ruizhu, attorney, argued that it is unreasonable to treat all drunk driving cases equally. “When a man drives after having a bottle of beer,” he said, “he hasn’t caused others loss of property or lives, nor has he hurt others’ will, but he is judged as a criminal and prosecuted by the Criminal Law, and this is not reasonable according to common sense.” He also argued that there is a tendency of severe punishment in the Chinese legal system, and “this reliance on severe punishment is a sign of short-sightedness in managing the country.”

These two views represent the division in the legal circles on new issues such as this one. In a way, they reflect the tension between the traditional tendency to contextualize legal cases in China, which heavily depends on the judge’s opinions, and the “Western” judicial tradition that is strictly based on the written law.

In public media, many netizens are critical of Zhang’s comments and attitude. For Chinese public, Zhang’s comments are no more than excuses for those in power, that is, government officials, rich business people, and celebrities, to get away with their irresponsible acts. In deed, several high profile drunk driving cases in the past few years involved these privileged citizens. As a blogger 肚大乃容 wrote, Zhang’s comments are to first help the powerful and the rich drunk drivers get away with their crimes, and second, to confuse the local low enforment and turn “rule of law” to “rule of man.” He jokingly complained that “some say that China’s laws are the best laws in the world, but the ones who practice law–the judges–have the least power to execute law” because they have to follow the Deputy Chief Justice’s order. Exasperated, this blogger concluded his post with the following passage:

One is one, and two is two; in front of the clear stipulation of the law, as the leader of the highest judicial entity of the country, why did [Zhang] have to conjure up a different interpretation? As a driver, as a Chinese citizen, I very much hope that this Deputy Chief Justice can work a bit harder, and give us some examples of what types of drunk driving are not considered criminal offenses and are not punishable, so that we can firmly abide by the law in our daily lives!

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