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Professor Larry Catá Backer organized a superb symposium on Constitutional Review in the People’s Republic of China for the Suffolk University Law Review. The topic is clearly an important one not just in China, but throughout the world, which witnessed a flowering of constitutionalism in the latter part of the twentieth century. Although constitutionalism in the United States remains curiously and stubbornly different from the norm around the globe, the ideas born in the forge of the American Revolution have clearly played a role in shaping constitutionalism around the world.
The title of the symposium—“Constitutional Review in China”—provides the key to understanding the participants’ contributions. Although constitutional judicial review has become the norm throughout the world’s democracies, the spread of judicial review has been accompanied by institutional variation. The idea of Marbury v. Madison, but not the form it took in the United States, has become the norm—for good or ill—throughout the world’s democracies. The articles and the title of this symposium make it abundantly clear that whatever form constitutionalism might take in China, it will look different from the form it has taken in the United States and in other polities around the globe. . .
According to legend, it was Odysseus of Ithaca who devised the plan to end the ten-year Trojan War by presenting to the Trojans a gift in the form of a giant wooden horse. The Greeks left the horse at the gates of Troy and apparently sailed away in an act of surrender. The Trojans accepted the gift and brought the horse through the gates and into the city. Unbeknownst to the Trojans, a Greek strike force was hidden in the horse. Late that evening, as the Trojans slept, the concealed Greeks slipped out of the horse and opened the gates to the returning Greek army, who torched Troy and ended the devastating war. The lesson, of course, is to be wary of seemingly generous gifts left at your doorstep because, like the Trojan Horse, those gifts may contain the seeds of the recipient’s destruction.
The lesson of the Trojan Horse is nowhere more apparent than in the American Recovery and Reinvestment Act of 2009 (the ARRA or the Act), the federal government’s $789 billion economic stimulus plan; an apparent “gift” that could have Trojan Horse-like ramifications for its recipients. The reason for this is the ARRA’s whistle-blower protection provision. The provision is designed to prevent state and local governments, as well as their contractors (collectively referred to as “covered employers”), from retaliating against employees who disclose gross mismanagement related to stimulus funds; misuse of stimulus funds; substantial and specific dangers to the public related to the implementation of stimulus funds; abuse of authority related to the implementation of stimulus funds; or use of stimulus funds to violate a law, rule or regulation. The ARRA’s whistle-blower protection places a very low burden of proof on the employee-plaintiff, a high burden of rebuttal on the employer-defendant, and does not impose a statute of limitations on the claims of employees. Perhaps most critically, the provision does not require that an employee internally report any perceived wrongdoing. Simply put, given the already alarming trends concerning retaliation claims, the ARRA threatens state and local governments with a flood of bad press and potential litigation relating to the use of ARRA funds. ARRA litigation also creates a paradox because state and local governments will be forced to use already scarce resources to defend litigation engendered by an act designed to assist those governments in the height of financial distress. . .
The 1997 “check-the-box” Regulations replaced the 1960 Kintner corporate resemblance tests, substituting simplicity and certainty for complexity and uncertainty regarding the federal tax classification of unincorporated business entities. The check-the-box Regulations have attracted some criticism. One broad modern critique argues that the regulations fail in several important respects to reach their full promise. While this Article is also critical of the check-the-box Regulations, the approach is different and indeed is based on an issue barely mentioned in the broader modern critique: “it does seem appropriate not to subject the latter type of entity [ordinary trust] to a regime designed to tax businesses.” Because of this conclusion, the issue was not further explored and the critics failed to seriously consider the reasonable alternatives and consequences of other approaches. While the broad modern critique is well reasoned in other aspects, this Article directly investigates whether an Achilles’ heel of check-the-box Regulations was its failure to address the ancient but vitally important distinction between business trusts and ordinary trusts. . .
The Communist Party of China (CPC or the Party) is the absolute power center in Chinese politics. Deng Xiaoping made the Four Cardinal Principles paramount in Chinese politics: upholding the socialist path; the people’s democratic dictatorship; the leadership of the CPC; and the Marxism-Leninism-Mao Zedong Thought. Thus the Party stands aloof, assumes general oversight and coordinates all sides of the executive agencies, the National People’s Congress (NPC), the Chinese People’s Political Consultative Conference (CPPCC), and other mass organizations. If the latter is the flesh, and the armed forces the bones, of the Chinese political body, the Party is undoubtedly its brain, main nerves and tendons. The Party leads and controls all other political (and not only political) organizations and institutions in the People’s Republic of China (PRC), allowing observers to use the once perhaps more fashionable term, “Party-State,” to capture China’s political reality.
The Party has relinquished ideology as the sole or main source of legitimacy, and for almost three decades has been enjoying support through the “performance oriented” means of what appears to be a “benevolent one party rule.” The Chinese political system could thus also be seen as one of “good governance with Chinese characteristics.” The regime delivers steady economic performance and is consistent in terms of “consumer-satisfaction”; the people, in return, refrain from getting too angry about its peculiarities. . .
On July 24, 2001, the Supreme People’s Court of China (SPC or the Supreme Court) promulgated a new judicial interpretation. This interpretation, commonly referred to as the “Reply to Qi Yuling’s Case” took effect on August 13, 2001. On December 18, 2008, however, the Supreme Court annulled twenty-seven judicial interpretations at once, including the Reply to Qi Yuling’s Case. The reason given for the annulment of the Reply was that it was “no longer applicable.” From its birth to its demise, the Reply survived seven years, four months, and five days in China’s legal system.
Although it was never actually applied to a single case after Qi Yuling’s Case, there were disputes regarding the Reply in the Chinese legal circle, which attracted almost all of the foreign scholars studying Chinese law. From the very beginning, I have been one of the major participants in this long-lasting discussion and the last resolution fully adopted my point of view. For many years, I insisted that the Reply to Qi Yuling’s Case was unnecessary and suspiciously unconstitutional.
I will address the following questions, which I believe may be difficult for foreign scholars to understand, and which may even be misunderstood by many Chinese legal professionals. First, what is the Reply to Qi Yuling’s Case? Second, what is the problem in China’s legal practice revealed by the disputes around the Reply? And third, what does the Reply mean and what does its annulment indicate?