Part XXII—Zhiwei Tong (童之伟) Series: The theory of legal rights is at the heart of Chinese legal applications

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

 

 

 (Pix (c) Larry Catá Backer 2012)

Part XXII—Zhiwei Tong (童之伟) Series: The theory of legal rights is at the heart of Chinese legal applications

http://libertyzw.fyfz.cn/art/878552.htm
December 19, 2010


Artists often say that only with the ethnic can there be an understanding of the world. In fact, this may be the case not only for artistic works, but for legal works as well.

The research activities of the theory of legal rights as the heart in Chinese legal circles have been carried out for nearly twenty years now and we can now summarize and comment on its work. This is just to introduce a small aspect of the Chinese legal circles, though we will only be able to get a profile view of the Chinese legal circles.

Part XXI—Zhiwei Tong (童之伟) Series: Responding with my view to the Xinmin Weekly reporter’s questions on the Crackdown 严打

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

  (Pix (c) Larry Catá Backer 2012)

Part XXI—Zhiwei Tong (童之伟) Series:  Responding with my view to the Xinmin Weekly reporter’s questions on the Crackdown
http://libertyzw.fyfz.cn/art/854729.htm
December 16, 2010

[Translator’s note: Strike-Hard (严打 Yanda), also known as Crackdown, is a series of nationwide operations that intend to crackdown on criminals with much heavier punishment than normal. Capital Punishment is widely used during such operations, often for misdemeanors such as thefts, even sexual “misbehavior” could become a felony punishable by the death penalty. Strike-Hard Operation took place in China four times: 1983, 1996, 2001 and 2010.]          

On December 12, 2010, Chen Bing, a Xinmin Weekly reporter, interviewed me on the crackdown and related problems.  Below is the interview:

Part XX—Zhiwei Tong (童之伟) Series: A valuable step in advancing the protection of constitutional rights

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

 

       (Pix (c) Larry Catá Backer 2012)

Part XX—Zhiwei Tong (童之伟) Series: A valuable step in advancing the protection of constitutional rights

(originally published on Fazhi Daily, March 2003 Published on Tong’s Blog: October 03 2010)
http://libertyzw.fyfz.cn/art/743221.htm

According to the report from the website Chinanews, the major of Beijing, Guo Jinlong has signed on May 06 2010 the “Order of the People’s Municipal Government of Beijing”(Number 220), abolishing the outdated “Regulations on Student Enrollment Status Registration of Middle and Elementary Schools” which had been in effect for more than a decade. Relevant department of the Municipality of Beijing, later confirmed that after the abolition of the old Regulation, children coming along with their parents who work in the city of Beijing, now may also enjoy the same treatment of unexamined enrollment in nearby schools within their neighborhood of residence as children and teenagers of Beijing. Starting now, the city government will ensure a place to study for every migrant child in the capital, to let them enjoy the same treatment of compulsory education as children living within the same city. Under the new rules, the children of non-local persons will be able to register for school enrollment card and apply for admission with the card, as long as they have an actual place of residence in Beijing , temporary permission of stay and not in “black status” (unregistered---translator). The city authorities also confirmed that the Board of Education of various districts or counties of Beijing will, in the development of their enrollment program, assign an enrollment area for every school within the compulsory education system, to make sure that students can attend the nearest school.

Part XIX—Zhiwei Tong (童之伟) Series: Ban on begging with the law

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

 

       (Pix (c) Larry Catá Backer 2012)

Part XIX—Zhiwei Tong (童之伟) Series:  Ban on begging with the law
http://libertyzw.fyfz.cn/art/779663.htm
October 26, 2010

I have paid attention to the discussion on the ban on begging for some time now. I recently read the Dalian municipal government’s development of regulations that would create the “the first city ban on begging,” prohibiting in many public places the coverage of begging. I could not help but want to talk about my points of view.

Part XVIII—Zhiwei Tong (童之伟) Series: Government’s restriction on fundamental rights of citizens must have legal basis

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

      (Pix (c) Larry Catá Backer 2012)

Part XVIII—Zhiwei Tong (童之伟) Series: Government’s restriction on fundamental rights of citizens must have legal basis

http://libertyzw.fyfz.cn/art/833562.htm

Publication Date: Dec/02/2010

Government’s restriction on fundamental rights of citizens must have legal basis, otherwise such restriction would be illegal.

The “ban of motorcycles,” “ban of electrical scooters,” “restriction on motorcycles “and "restriction on electrical scooters” by local governments can severely violate the fundamental rights of citizens. As a matter of fact, since the 1980s, actions by some local governments to implement the “ban of motorcycles" or “ban of electrical scooters“ often set off waves of protests, the wave of protests on November 15 in Chenzhou City, Hunan province, perhaps, is the most recent one, the parties should learn from this incident. 

(Pix (c) Larry Catá Backer 2012)

Part XVII—Zhiwei Tong (童之伟) Series: Interview; As long as there is determination, then we can curb the violent demolition and relocation

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

     (Pix (c) Larry Catá Backer 2012)

Part XVII—Zhiwei Tong (童之伟) Series:  As long as there is determination, then we can curb the violent demolition and relocation
http://libertyzw.fyfz.cn/art/806865.htm
November 14, 2010

Translator's Note: Chāiqiān (拆迁) has been translated as demolition and relocation.  The connotations itself are actually more complex and involve issues similar to the use of eminent domain in the United States.  In China, chaiqian has been used as a tool of rapid development.  Entire buildings, blocks, neighborhoods and areas are being bought up, the buildings demolished and new buildings built.  The inhabitants are paid a compensation fee (sometimes substantial) to relocate somewhere else.  Oftentimes, the inhabitants are provided with new housing to replace the old housing that was going to be demolished.  The process, unfortunately, is not always peaceful and is also quite frequently corrupt.

Background: In recent years, the scale of urban and rural housing demolition and relocation has increased from one home at a time to whole blocks and whole villages.  This process is filled with too much violence and blood and tears.  Just on New Year’s Day 2010 alone, violent demolition and relocation of homes have led to a long list of cases of suicide, self-immolation and murder cases.  The violent demolition and relocation takes on a variety of forms, the most common being the use of hard violence in blood and fire, such as the Jiangxi Yihuang forced suicide, besiegement and corpse snatching; there are also various forms of soft violence, including the rigid order given by the leading officials of Fangshan District in Beijing: “If you cannot finish the task, then don’t bother coming back to work!”  Can we really not curb the violent demolition and relocation of homes?  Host Wu Xiaofeng of Legal Daily, View One on One invited Professor Tong to comment.

Part XVI—Zhiwei Tong (童之伟) Series: Perspective Study from Criminal Procedure Code to Modify the Constitution (Part III) The protection of personal freedom should focus on restricting the power of investigation

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

    (Pix (c) Larry Catá Backer 2012)

Part XVI—Zhiwei Tong (童之伟) Series:  Perspective Study from Criminal Procedure Code to Modify the Constitution (Part III)
The protection of personal freedom should focus on restricting the power of investigation
http://libertyzw.fyfz.cn/art/1042571.htm
October 31, 2011

“According to the Constitution to formulate the law,” is not just some lying cliché.  Ultimately, the amendment of China’s Criminal Procedure Code is a question whether it is able to carry out and implement the relevant provisions of the Constitution.  When amending the code, one should consider the constitutional guarantees of personal freedom, private property rights and provisions for other fundamental rights, the state respect for and safeguarding of human right provisions, provisions for building a country governed by the rule of law, and provisions to ensure that when handling criminal cases, the courts, the procuratorates and the public security departments “divide responsibilities, coordinate, mutually constrain and ensure the accurate and effective implementation of the law.”  The facts indicate the disadvantages of the Criminal Procedure Code system with the power of investigation being too large and subject to too few constraints.  Therefore, the basic direction of the amendment of the Criminal Procedure Code should be to strengthen the constraints on the power of investigation.  China’s power of investigation rests primarily in the public security department and, to a lesser extent, in the procuratorial organs and the national security departments.

 (Pix (c) Larry Catá Backer 2012)

Part XV—Zhiwei Tong (童之伟) Series: The Petitioning System and the Constitution of China

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

    (Pix (c) Larry Catá Backer 2012)

Part XV—Zhiwei Tong (童之伟) Series: The Petitioning System[1] and the Constitution of China (Part I)

For Part II see Part XXIV—Zhiwei Tong (童之伟) Series: Petitioning System and the Constitution of China (Part II)

For Part III see Part XXV—Zhiwei Tong (童之伟) Series: Petitioning System and the Constitution of China (Part III)

 *  *  *  * *  * 

The Petitioning System refers to the set of stylized arrangement made by the public institutions in response to citizens’ petitions. It has a particular importance in our country’s social life today. However, just like some scholars have pointed out: “the academic research on the Petitioning System is not commensurable to its particular importance.”[2] Although recent data shows that, till 2009, the total number of petitions has decreases in the past 5 years,[3] in the context of building a country ruled by law, critical questions awaiting general consensus across the society in our country rise. These questions include: how to properly look at the past and current petitioning activities and related governmental responses; how to handle the relationship between the petitioning system and the core political system with the spirits of the Constitution and principles of the rule of law; how to solve or ease the problems caused by petitioning; how to reform the entire mechanism with which the authorities respond to petitioning. In order to answer these questions well, we have to find petitioning a reasonable position within the framework of the Constitution of China with respect to the core political system. This article tries to investigate and discuss these problems based on the existing result of academic studies. The article will use the concept of “core political system” and “auxiliary system”, a division developed through the differentiation of political/legal system within constitutional framework of our country.

Part XIV—Zhiwei Tong (童之伟) Series: Perspective Study from Criminal Procedure Code to Modify Constitution (Part II) The protection of personal freedom should be the top priority of Criminal Procedure Code

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

    (Pix (c) Larry Catá Backer 2012)

Part XIV—Zhiwei Tong (童之伟) Series:  Perspective Study from Criminal Procedure Code to Modify Constitution (Part II)

The protection of personal freedom should be the top priority of Criminal Procedure Code
http://libertyzw.fyfz.cn/art/1041859.htm
September 28, 2011

In this paper, so-called personal freedoms (个人自由; 人身自由) or the inviolability of the person (人身不可侵犯權) in a narrow sense, refers to the individual’s autonomy, or transfers the body of rights and freedoms.

In the past, some agencies and personnel have said that the right to life is the primary human right; however there is no constitutional basis for this political discourse. In the eyes of the Constitution, personal freedom is the primary human right, because personal freedom is what citizens enjoy. Historically, when the Criminal Procedure Code came into being, the main reason for its creation was to protect the primary human right of personal freedom.

Part XIII—Zhiwei Tong (童之伟) Series: Pay attention to the political achievements of local officials that result from illegal governance behavior

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

    (Pix (c) Larry Catá Backer 2012)

Part XIII—Zhiwei Tong (童之伟) Series:  Pay attention to the political achievements of local officials that result from illegal governance behavior
http://libertyzw.xxlnm.fyfz.cn/art/962697.htm
April 10, 2011

In the last month, I have read an article written by Vice President Xi Jinping’s entitled “The Key is to Implement,” published in “Seeking Truth,” and studied President Hu Jintao’s discourse on the need to promote the comprehensive enhancement administration according to the law, the need to promote the consciousness and initiative of the socialist rule of law, and the need to accelerate the building of a socialist country governed by rule of law. I very much agree with Vice President Xi in criticizing some local officials for unscrupulously embarking upon personal vanity projects, and particularly support the judgment of President Hu that we need to accelerate the building of a socialist country governed by rule of law. Let me give some thoughts on China’s current situation.

In a capitalist system where multiple parties rotate rule and the powers are separated under a system of checks and balances, politicians are most concerned about how many votes they can receive during an election. They will do anything in order to gain votes. Of course, there is a bottom line of what kind of behavior they can exhibit. That line is to avoid doing something illegal to cause them to lose eligibility as a candidate and to avoid committing a violation of public morality that would result in voter abandonment. Under the People’s Congress system, local politicians are most concerned about their administrative performance. For many years, there have been quite a few individuals who would do anything to ensure a good track record. That such exhibited behavior is in line with political life, by itself is understandable.

Part XII—Zhiwei Tong (童之伟) Series: The modification of the police department’s position within the Criminal Procedure Code

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

   (Pix (c) Larry Catá Backer 2012)

Part XII—Zhiwei Tong (童之伟) Series:  The modification of the police department’s position within the Criminal Procedure Code

http://libertyzw.fyfz.cn/art/1041364.htm
September 1, 2011

On August 26, 2011, in order to introduce amendments to the Criminal Procedure Code, Sina News published a paper entitled: The Standing Committee proposed that the Criminal Procedure Code specify the protection of human rights. This report involves several constitutional issues, such as the legislative intent of the Criminal Procedure Code, whether it is appropriate to use the “people” in the phrase “protecting the people,” how the respect and protection of human rights are implemented in the constitutional provisions of the Criminal Procedure Code, whether public security organs belong in the jurisdiction of the judiciary, and so on. I personally had not planned on studying these issues, but having read this story, I could not resist the opportunity to express my views on the question of constitutionality of the public security organs, and I also wanted to take advantage of the opportunity to participate in the discourse on amending the Criminal Procedure Code.

Part XI—Zhiwei Tong (童之伟) Series: Public authorities should be models of conduct in accordance with the law

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

   (Pix (c) Larry Catá Backer 2012)

Part XI—Zhiwei Tong (童之伟) Series:  Public authorities should be models of conduct in accordance with the law
http://libertyzw.fyfz.cn/art/1042965.htm
Published on this website 2011-11-15

(This article was first published on First Economics and Finance Daily on 15th Nov 2011; there were some adjustments then , the following text is the full version)

In the spring of 2011, the fourth session of the eleventh National People's Congress declared that the Chinese socialist legal system has been established. Although the legal academia is not without objection to this conclusion, it is an undeniable reality that the laws in our country have already been comparatively systemized. This is a commendable development.

However, even if it has been more than six months after the end of the fourth session of the eleventh National People’s Congress, the situation of the implementation of law is not quite an optimistic one. The most worrying aspect is the conduct of the public authority institutions that act on their own, neglect laws, enforce laws without strength, ignore illegal behavior, to the extent that even the cases of law violation by the same executors of the law are being increasingly seen, giving birth to striking legal cases dealt with unlawful manners which could have been easily solved with the current Constitution or laws, making difficult for the legal professionals and scholars to understand or explain.

Part X—Zhiwei Tong (童之伟) Series: Unauthorized violation of the law to extend civil service working hours

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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.

  (Pix (c) Larry Catá Backer 2012)

Part X—Zhiwei Tong (童之伟) Series: Unauthorized violation of the law to extend civil service working hours

http://libertyzw.fyfz.cn/art/888624.htm
January 12, 2011

East China University of Political Science and Law Professor TONG Zhiwei directly expressed his disagreement to the decree issued by the Taiyuan Municipal Party Committee. According to Professor Tong, the measures taken are wrong and are a clear violation of Chinese law regulating the work and rest schedules of workers. The act also reflects upon the lack of legal awareness amongst the staff of some government agencies.

TONG Zhiwei has stated that the right to rest is a fundamental constitutional right of citizens. No work unit or individual can arbitrarily deprive this right. The Chinese Constitution provides that citizens have the right to rest. The Labor Law is also clear on the subject. State Council Decree No. 174 that was promulgated in 1994 stipulates that: “the worker’s daily working time cannot exceed eight hours and the average weekly working time cannot exceed forty hours”; “state organs and institutions must implement a unified code of working hours with Saturday and Sunday as the rest days for the week”; “no work unit or individual may without authorization extend the working hours of employees.” State organs implementing five day, forty hour work weeks is a mandatory provision of the administrative regulations. Therefore, the Taiyuan Municipal Party Committee’s decree is in violation of the relevant laws and regulations.

TONG Zhiwei continues by stating that if overtime behavior is normalized, it will be inevitable that. For particularly busy or urgent matters and other special periods, occasional overtime is not a bad idea, but it is also necessary to ensure that overtime is paid for to protect the basic rights and interests of workers. Requiring civil servants for whatever reason requires that a law is not violated as a precondition. Any act of government must have a legal basis. This is the most basic principle.

TONG Zhiwei points out that the decree by the Taiyuan Municipal Party Committee also reflects poorly upon the awareness and understanding of civil servants of the law. Incidences of “not knowing the law” or “knowing the law and yet still violating” have become more and more widespread. To build a socialist country governed by the rule of law, party and government organs cannot be “absent,” especially civil servants, and should take the lead in strengthening the acquisition and understanding of legal knowledge, compliance with relevant laws and regulations, so as to drive the whole society to form a good atmosphere of knowing and abiding by the law.

(Pix (c) Larry Catá Backer)