One Bicycle

This week we learned from our criminal professor that "breakfast is war!" He was referring to the lines at the Jiān Bĭng (煎饼)stands, which tend to swell at the bus stops right around 7 AM. To quote "Beijing Made Easy," Jian Bing are pan-friend pancakes, made somewhat like crepes.

The mix is cooked in front of you and covered in egg. The pancake is stuffed with a light, crunchy batter-like filling, and any variety of things like sausage or spring onions, covered with generous helpings of various sauces, and handed over to you, steaming, to eat on the spot. Jiān Bĭng vendors usually push round a cart which holds their oven and all the ingredients and set up outside schools, offices, bars or just on busy street corners.

You can see one made here if you're outside of China. (YouTube is blocked, at present) They only cost about 35 cents U.S., and one of our American classmates eats one for almost every meal. I think I've even seen his hands shaking right before lunch.

We also found out quite a lot about Chinese law and (chauvanistic) customs. There are so many customs to be mindful of that a bookstore near our house has two 4' wide, 8' high bookshelves dedicated to Chinese etiquette, all of them in Chinese. Thankfully, one of our professors went on an English-language tangent about banquet seating in China, which involves a very specific social hierarchy that I've diagrammed below.



Apparently, feudalism is alive and well at Chinese banquets. The host sits at the "head" of the table, the seat facing the door of the restaurant. His secretary or wife sits directly opposite him, so that she can get up and pay the bill at the end of the meal. (Despite Mao's speeches on gender equality, most prominent businessmen and officials are men) To the right of the host sits the most important guest, so that the host will be able to serve that person easily. To the host's left sits the second-ranked guest, so that the right-handed host can awkwardly dish him food with his left hand, thereby reminding #2 of his second-rate status. The hierarchy continues on the other side of the table, with the secretary/wife serving #3 with her right hand, and "snubbing" #4 with her left. As more people are added, the hierarchy continues around the table to that guests fill in the left-hand and right-hand sides of the table by rank order. In other words, businessmen and attorneys finding themselves five seats away from their hosts at a Chinese banquet table in Beijing should think about looking for another business partner.

Customs of a different sort play a role in the judiciary. We learned in criminal law this week that the western Chinese provinces have a tradition of marital kidnapping, where a soon-to-be groom breaks into his girlfriend's house, kidnaps her, and then holds her for "ransom" (a.k.a. engagement gift) from his would-be in-laws. The judiciary in China accounts for these customs, in that the courts will reflect upon local customs in limiting kidnapping convictions. They're not contravening the concept of "legality," however, so in their minds it seems appropriate.

Legality is a loaded term in Chinese criminal law that wouldn't even cross the mind of most American attorneys as an issue to worry about. This is because, for hundreds of years, western lawyers have learned to parse statutory and common law definitions of offenses to reach legal conclusions, assuming that the legal definition defines the limits of the offense. As any person who passed the bar exam can tell you, if a client broke into a 17th century London bakery in the middle of the day to steal some flour, a court could not convict them of burglary. (Common law burglary requires breaking and entering a dwelling at night) As such, it wouldn't even cross the mind of a Colorado criminal defense attorney that their client could be prosecuted under a statute by analogy.

In pre-millenial Communist China, however, procurators (read: prosecutors) and courts took an expansive view of statutory offenses. Even though embezzlement required the appropriation of funds from the state, for example, a defendant could still be convicted for misusing funds from private parties, because procurators could reason the required elements of the crime by analogy. The Pre-Communist Tang Code, on the other hand, not only required legality, but also required that a magistrate be beaten 30 times just for failing to cite the statutory basis for their conclusions. There was only one king in China, and he did not sit on the bench.

In 1997, however, legality returned to the Chinese criminal code. Article three now states that "where an act is not expressly defined in the laws as a criminal act, it shall not be determined and punished as a criminal act." Because of article three, however, criminal punishments from different bodies of law must be appended to the ever-increasing criminal law. As such, an attorney needing to determine the punishment for insider trading does not refer to the bill that constitutes the Securities Law of the PRC, but instead digs through the 400 some-odd articles of the Criminal Code to see if the relevant law was pasted into the statute by the promulgating "organ." (We actually did this and discovered that "conterfeiting" a patent is criminal in China.) Where it gets really bizarre, however, is in the administrative arena.

As alluded to above, if a person in China does not commit a crime defined by the criminal code, they cannot be criminally punished. So, as our professor is fond of saying, "you must steal two bicycles to commit theft in Beijing." Why? Theft under the criminal code requires appropriation of property worth more than 1,000 RMB. (About $133 USD) Because most bicycles cost about 200 RMB ($35 USD), bicycle theft runs rampant, and is only punished administratively, if at all.

This wouldn't seem like such a big deal if imprisonment of up to four years did not qualify as criminal punishment in China, and if the accused had due process rights. Instead, ministries can punish violations of their own regulations with imprisonment of up to four years, using regulations that they themselves issue, without a hearing, and without any allowance for legal representation. So if a criminal steals four bicycles and gets caught, he can end up in the clink by administrative fiat. Granted, a person can challenge an administrative punishment later in what is called "ordinary court," but it's generally too little, too late.

In other news, this weekend we spent some time with some international lawyers practicing in Beijing, who told us that several partners of a local firm were recently arrested on charges of corruption. We learned that of the deals that one monolithic U.S.-based law firm is working on, 95% of them are now outbound, meaning that Chinese companies are sending their money overseas. This is due in part to China's foreign exchange reserves, which are losing value every day by virtue because of the depreciating US dollar. The Chinese government is also attempting to cool the economy by preventing banks from investing in lucrative local real estate projects. Left with huge piles of cash and few high-growth projects in the local market, the Big Four Chinese banks are sending their capital to Africa, Latin America, the "'Stans," and even the United States. So while U.S. companies are trying to "figure out" China, China is now trying to figure out how to invest in U.S. targets.

It'll be interesting to watch what happens in this arena when the new Anti-Monopoly Law comes on line, assuming that the Chinese government actually moves to dry up the wealth transfer. One attorney we spoke with thinks that the AML will be used to privatize more State-Owned Enterprises, and another thinks it will be used as a foreign policy weapon in the event that the U.S. or EU attempt to hold up transactions involving Chinese parties. Small wonder, then, that the AML contains a provision about reviewing transactions for "national security" concerns. Either way, however, interested attorneys are paying close attention to the speeches, saying "we read every line very closely, trying to figure out what the hell Hu Jintao is trying to say."

On a totally related note, if you find yourself wanting to learn more about China, put "Tianxia wu Zei (A World Without Thieves)" on your Netflix list. It's famous in China, mostly due to its none-too-subtle digs at the Party. We watched it in language class on Thursday, and it was pretty good.