For 2012, this site introduces the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.
-->Ban on begging with the lawhttp://libertyzw.fyfz.cn/art/779663.htm
October 26, 2010
Begging is an ancient social phenomena and it is undoubtedly difficult to eliminate for virtually any of today’s societies. Even within the wealthy and powerful, such as within New York City, there are no public spaces that don’t have beggars panhandling. However, the beggars there are polite and do not adversely affect the rights and freedoms of others. Similarly, in these countries, people usually only hear discussion of how to best address homelessness and other social issues and cannot hear someone accuse beggars of having an adverse impact upon a city’s appearance and the talk of having it be prohibited.
China is a developing country and it is normal for some people to live a life as a beggar. Therefore, regardless of the context, to forbid begging in our country seems to be an overly extravagant pursuit. To solve this kind of problem, people should not be too vain and should not judge people according to their socioeconomic status. Chinese law is not exclusive and dedicated to the upper strata of society, but is also the law for beggars. China’s law should not only reflect the will and interests of the upper strata of society and should also reflect the will and interests of beggars and others in the bottom of society. I can in no way imagine how the area that would have a ban on begging would exclude any person that looks like a beggar from entering and would not allow individuals to stretch out their hands to beg. Regardless of the situation, these rules would constitute a restriction on citizens’ personal freedom. Law does not allow for the inhibition of freedom and such rules and regulations set by the local government lack sufficient legal basis. And in accordance with the legislation law, no administrative organ has the authority to set these kinds of rules and regulations.
Of course, the behavior of some of the individuals begging has been quite vile and should be prohibited and I do not have any objection. These vile actions including blocking and chasing after pedestrians and passenger cars, pulling clothes and grabbing legs, chasing and badgering incessantly, taking forcefully and ferociously demanding, manipulate and use children for profit, lying and committing fraud to gain sympathy, and obtaining through deception, etc. is difficult to classify as begging. These kinds of behaviors by beggars are acts of infringement upon the rights and freedoms of others, and should be punished as a matter of course.
However, the law is meant to regulate people’s behavior; normative legal documents should be used to ban begging within a geographic scope and should not be used to ban the act of begging itself, but should be targeted against a specific number of begging practices, such as blocking and chasing after pedestrians and passenger cars, pulling clothes and grabbing legs, chasing and badgering incessantly, taking forcefully and ferociously demanding, manipulate and use children for profit, lying and committing fraud to gain sympathy, and obtaining through deception and other acts of begging that impedes or violates the rights and freedoms of others. In this regard, existing rules and regulations are enough.
For a long time, people have focused their attention on the standardization of begging behavior on the establishment of areas where begging is banned. This routine not only has no legal basis, but cannot really solve the social issues and can only lead to trouble elsewhere.
I think that decision-makers should change their line of reasoning and endeavor to standardize the begging behavior of beggars by using legitimate and civilized ways to eliminate from begging certain undesirable social phenomenon, form a certain level of societal tolerance for begging and ensure that it does not interfere with the rights and freedoms of others.