UNIVERSITY OF COLOGNE

Lucas Brang

Research Assistant, Institute of East Asian Studies, University of Cologne

Abstract

Current accounts of China’s rise in international law seem to alternate between two sharply contradicting views: one of China as an apologetical objector to the post-Cold-War international legal order, constantly condemned for its allegedly negative human rights record, its supposedly ‘conservative’ and ‘formalistic’ stance on matters of international law-making and dispute resolution; or, more recently, for its expansive policy along its maritime borders – and one of an essentially peace-loving developing state and natural leader of the Third World. Both views, I claim, are one-sided if not analyzed in historical perspective. This thesis argues that one can only understand the current stance and professional identity of Chinese international lawyers if the two conflicting traditions of international law scholarship in post-Mao China and their inherent tension are accounted for: an affirmative, post-colonial internationalism on the one hand; and an inward-looking form of Chinese exceptionalism on the other. However, the origins of this chasm must not be sought after, as is the case in recent research, in a deep-historical fashion which claims a continuity of Chinese attitudes toward international law since the 19th century. Rather, it is the result of a fundamental shift of the international legal order itself since the watershed year of 1989. This change, as characterized by a turn from the centrality of state sovereignty to the criticism thereof, constituted a sharp break with the post-colonial legal order of the late Cold War era. An era, that is, which was formative for the current Chinese discipline of  international law both institutionally, personally, and conceptually – and an era which calls for a comprehensive re-appraisal as the constitutive phase of the Chinese discipline. A critical, non-Eurocentric account of China’s international law scholarship surely needs to appreciate the progressive and internationalist elements inherent in this ‘post-colonial legacy’. Insofar as China grows out of its acquired role as a developing Third World state, however, it becomes increasingly questionable if it still exhibits such internationalist sentiments. One must therefore further ask how far this post-colonial identity of Chinese international lawyers can serve as a ‘legal conscience’ to a rising China.

Tao Yajun

yajuntao[at]qq.com

Abstract

The guiding cases system was first brought up in the Second-Five Year Reform Programme for the People’s Court of 2005. It is aiming to “unify the legal applicable standards, to guide the work of lower courts, to enrich and develop legal theory”. Guiding cases are selected and edited by the Supreme People’s Court (SPC). They process a standard form, including title, keywords, main points of adjudication, related legal rules, basic facts of the case, results of adjudication and reasons for adjudication. According to the Notice of the Supreme People’s Court on Issuing the Provisions on Case Guidance of 2010, the lower courts shall consult the guiding cases when they decide the similar cases. Before the guiding cases system, the SPC has already used “typical cases” to emphasize its opinions on certain type of cases. Since 1985, the SPC has published cases on the Supreme People’s Court Gazette in order to introduce judicial work and legal system to the public. However, the SPC does not intend to vest binding effect de facto or de jure in typical cases. Although the SPC indicates that the guiding cases shall be consulted, the guiding cases have so far not come to the expectation of unifying the application of law. Due to a lack of supporting measures to carry out provisions of guiding cases system, many judges in lower courts do not use guiding cases to reach a verdict. The procedure of the adoption of guiding cases is different from the Anglo-american case law. The SPC establishes an office in charge of the guiding cases selection. The lower courts can also submit the recommendations of cases. Moreover, deputies of National People’s Congress (NPC), members of Chinese People's Political Consultative Conference (CPPCC), experts, lawyers and others concerning the judicial issues can recommend cases to the original courts. All the selected guiding cases should be already legally effective judgement. In order to have a profound influence of the judicial practice, there should be a number of guiding cases covering various fields of law. Nevertheless, the reform of guiding cases still faces many resistances from different aspects. Unlike judicial interpretations, the SPC can directly release guiding cases without seeking for opinions of NPC, which can be considered as a threat to the legislator power. The dissertation thesis focuses on the development of the guiding cases system, its legal status in the Chinese legal system, the procedure for adopting guiding cases, the resistance to the guiding cases system reform, the implications for the politics of the SPC in relation to other state organs as well as the effects of guiding cases on the development of various fields of law.

Eva Lena Richter 

eva.l.richter[at]web.de

Abstract 

Beginning with China’s accession to the WTO in 2001, the numbers of foreigners coming to China have risen. The scattered and rudimentary legal framework that dated back to the 1980s was increasingly seen as the major obstacle for controllable foreign immigration. The legal revision process started in 2012 with the adoption of a new Exit-Entry Law. Building on it, the Chinese government has revised many processes and regulations concerning foreigners’ stay and work conditions, starting with the new Exit-Entry Law and arriving at a categorisation approach towards foreign workers in 2016. One can expect further additions to the framework in the near future, most prominently a guiding catalogue for labour market demand concerning foreign migrants. The categorisation of foreign work migrants introduced in 2016 stresses attracting “highly skilled foreigners” while it aims to control “regular foreigners” and restricts entry and work of “low skilled foreigners“. As the legal framework evolves and the implementation proceeds, the complexity of the legal framework for foreigners wishing to or working in China increases since presently there are several different laws that govern foreign workers in China.

This dissertation project has the objective to present the current legal framework for skilled migration to China and its implementation, including different skilled migrant groups as well as general and specific regulations for them. By this, the dissertation project provides a concise overview of the legal regulations and laws concerning skilled migrants and shows how the implementation is progressing. Furthermore, it attempts to critically analyse the major profiteers as well as the losers of the new framework.

Publications

Habicht, Jasper; Richter Eva L.: De Facto Dual Nationality in Chinese Law and Practice, in: China: An International Journal 2022, 20(1), 24–45.

Richter, Eva L.:Economic Development through Migration: Facilitating Skilled Migration to China through the Belt and Road Initiative, in: The Chinese Journal of Comparative Law 2020,  8 (2), 331-350.

Richter, Eva L.:Die Revision des Werbegesetzes der VR China., in: Zeitschrift für Chinesisches Recht 2016, 23(2), 104-116.

Jasper Habicht

Research Associate (-2018), Institute of East Asian Studies, University of Cologne

mail[at]jasperhabicht.de

Abstract

Due to China’s rapid economic development, the country turned out to be a preferred destination for people from countries of the so-called ‘Global South’. This inflow of surplus low-skilled workers surging into the bigger cities is seen with big concern, especially since many of these migrants do not possess proper documents. In parallel to the revision of the Exit–Entry Administration Law that established a rigorous immigration examination and administration system, the police executed several actions against foreigners residing and working illegally in China, so-called “sanfei” campaigns, in different major cities across the country. The book “The Role of Campaigns in Law Enforcement: The Example of Sanfei Campaigns in Chinese Immigration Law”, published by Nomos in 2020, examines the role of campaigns in the context of China's immigration law, which has been reformed in 2012. It examines why the revision of the Exit and Entry Administration Law was accompanied by increased campaigning against illegal immigration and illegal employment of foreigners. To this end, this book examines both the internal structure of the campaigns and the embedding of the current immigration law in the context of Chinese administrative law.

https://www.nomos-shop.de/titel/the-role-of-campaigns-in-law-enforcement-id-87172/

Research for this project also resulted in a journal article on exit restrictions of foreign nationals in China:

Jasper Habicht, Eva-Lena Richter: De Facto Nationality in Chinese Law and Practice, in: China: An International Journal 2022, 20(1), 24–45. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4043945

Jasper Habicht, Die aktuelle Einreisesperre in die Volksrepublik China aufgrund der Covid-19-Epidemie und daraus erwachsende Probleme im Kontext von Beschäftigungsverhältnissen (The Current Ban on Entry into the People’s Republic of China Due to the Covid-19 Epidemic and Resulting Problems in the Context of Employment), in: German Journal of Chinese Law (ZChinR), 27(1), 2020, 18–27. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3671821

Jasper Habicht: Exit restrictions in the context of Chinese civil litigation, in: Asia Pacific Law Review, Vol. 27 (2019), Issue 1, pp. 83–101. https://www.tandfonline.com/doi/abs/10.1080/10192557.2019.1651486