Monday, October 31, 2011

South China Legal Blues: Enforcing of Law in China by Jordon Dotson

One quiet Thursday evening, three men from a second-tier, coastal South China city known for its Soprano like families, entered a luxury hotel. Bleary eyed and floating in a haze of rice liquor though they were, none of the three men seemed out of place in this particularly busy lobby. Practically straddling a bustling Hong Kong border crossing, this Chinese-owned, internationally operated hotel sees its fair share of tycoons and traders, miscreants and manufacturers on a daily basis. It is the seat of luxury, the kind of place that shines like a beacon for local businessmen caught in the heady mix of dinner, drinks, and deal-making.
According to the police statement, they were drunk.

None of the men were hotel guests – they more likely had their eye on the oak- and brass-coated lobby bar. Before settling at a table though, the three of them sauntered into the lobby bathroom to excise the effects of a fine dinner. One settled into the toilet stall, the other two wavered in front of the urinals before heading back out to the bar. For five minutes they talked and laughed in the lobby, unaware that two foreign guests were simultaneously recoiling at the sight of a limp hand lying beneath a toilet stall door.

Just like that, their friend was dead of a heart attack, collapsed on the cold tile, wedged against the door.
The foreign guests ran out to notify hotel staff that, perhaps, something wasn’t right in the bathroom. Security personnel hurried in to investigate. The stall door was locked tight, supporting the weight of the man’s body through his neck. Not sure if he’d simply fainted or passed out in a drunken haze, security was fearful of breaking in the door. The way the man’s body was positioned, a blow to the door surely would’ve injured his neck. Paramedics were called. Hotel managers notified. Engineers rushed in to remove the door frame, and less than fifteen minutes after he entered, the man’s body was lying lifeless before them.

Almost immediately after the stall door was removed, an ambulance rolled into the entryway. Medical staff cleared the scene, but there was little hope. The man’s heart had obviously stopped. Hotel administrators, wracked with urgency, offered their regulatory defibrillator. Maybe the man’s heart could be revived. The paramedics waved it away. They had their own defibrillator, they said, but it seemed they weren’t in a hurry to plug it in. Hotel managers waited as the paramedics tended to the body, hoping for CPR, hoping for some sign of life.

They inserted an IV drip into a limp arm.
Again hotel staff offered a defibrillator. Leave it to us, they were told. Finally they initiated CPR, leaning on the man’s motionless chest, but it was too late. They were unable to resuscitate him. Forty minutes after he entered the bathroom, the man was pronounced officially, legally, bureaucratically deceased.

The man’s two friends stood quietly on the perimeter, perhaps in shock, perhaps suddenly sobered by the gravity of the situation. Either way, they never objected, never offered assistance. The two foreigners, hotel security, the engineers and the man’s friends all scratched their heads and gave solemn statements to the police. The official conclusion: he died of a bum ticker, its decline accelerated from a life of smoking, overeating and drinking;  the hotel did everything possible to help him, it was in no way liable. It was an unfortunate accident, an extraordinary occurrence, a sad day.

Approximately one hour after his death, a crowd began mulling about the lobby. We’re family, they claimed, pushing ambulance personnel aside, shielding the man’s body. Tensions rose. Tempers flared. Through the night they all but fought with everyone who wasn’t family. Only after several rattling hours were police able to distract them so the body could be removed. The air was electric, the crowd growing, the voices rising like the typhoons that rage into the South China night.

By seven o’clock the following morning, more than thirty bodies filled the hotel lobby. Though short on luck, this man apparently had an abundance of family. Fists pounded the front desk, demanding compensation, demanding a cash payment to pacify all of that…grief. The hotel didn’t act quickly enough, they said. First aid should have come sooner, they railed. The door should have been knocked in, they screamed. Their brother was dead, they claimed, dead at the hands of a glistening, five-star monument to luxury, consumerism, hospitality…and large bank accounts.

Hotel management responded. They were sorry for this family’s loss, but would not, could not accept any liability until police prepared a formal report. A very solemn conversation would have to take place with the Chinese owner and the international  corporation whose name graced the door.

Meanwhile, another crowd was forming outside the hotel. Paying guests ambled around, wondering what all the fuss was, wondering why this odd crowd was pushing them away from the lobby lounge. Hotel staff stood on a chair and announced to the now seething crowd that the lounge was for paying customers, requesting that everyone please go outside where they could accommodate the sheer size of the herd. The family was agitated already. Now they grew hostile. Paying customers turned from the hotel as closed signs went up around the lounge, the bar, the second floor restaurant. The hotel had no choice. Every public room was occupied by a screaming, increasingly aggressive crowd.

Exasperated, the General Manager made repeated requests for police assistance, if only to explain that the hotel couldn’t pay the crowd off until an investigation was complete. Eventually the police came. They stood and watched. They smoked cigarettes (apparently unworried about public smoking bans). They raised their hands as if to say not our problem. They meandered around the perimeter of the crowd, refusing to clear the room, even as it exploded into a full scale riot. Screams rang out at hotel staff, demanding compensation, cash, now. Even the hotel manager, a brave Malaysian Chinese himself, had to run away as fingers twisted his clothes, fists flew at his face. All the while, the police watched. As too did the CCTV camera, during the most interesting day of its career.

Eventually the riot stopped. Hotel staff observed from a distance and security did their best, hoping that the police would do their job and everything would just go away. But it didn’t, it wouldn’t, not that day. Even as the rioters calmed, police refused to remove them from the hotel, refused to even ask for their names or ID cards, and an eerie calm descended over the entire hotel.

In the late afternoon, lawyers settled into the local sub-district police station. The foreign lawyer with sixteen years of international experience dressed smartly in a fitted suit and the lawyer appointed for the family, a genial young local fellow who didn’t seem able to afford socks. Across the table, the oldest, largest, and loudest members of the dead man’s family sat with their arms crossed. The lawyer had seen these types before in positions of local power in the factory villages that populate South China.  A police official declared, according to their report, that the hotel had no liability in the man’s death. Again the yelling. Again the pounding of tables. There were children to take care of, parents. Who would pay for their food, their schooling, their medicine?

Even as the foreign hotel lawyer reasserted the matter of liability, even as they detailed the lost revenue and negative publicity, there was no action other than the reading of reports. The lawyer tapped his fingers on the table, politely reminding police that foreign guests were already frightened. How could such lawlessness occur in this, oh-so-modernized of cities? How long before international media arrived with their wide angle lenses? How long before international guests arriving for the University Games would learn of this riot and, perhaps, change their minds about visiting?  He wouldn’t be able to keep the lid on this for very long.
Around the perimeter of the room, a handful of policeman glanced sideways at each other before slinking out the door. Not our problem.

For hours upon hours, the dead man’s family told the same story over and over again, that most tried and true of Chinese negotiation tactics. After awhile, even the mediator couldn’t stop herself from yawning. The foreign lawyer, seeing that the negotiations were going nowhere, and knowing that rioters were still in the hotel, offered a solution – a weekend respite with a follow up meeting on Monday afternoon, provided that the rioters agreed to leave. Even the appointed, sockless lawyer agreed – things would cool down, the hotel would have time to meet with the owner, he himself a native of the same coastal city as the victim. Despite the family’s dogged insistence on receiving more than two million Yuan in compensation (about $307,000 USD, which they did not receive), somehow, some way, almost exactly twenty-four hours after the man sat down on his most fated of toilet seats, the crowd leaked out of the lobby and agreed to return on Monday afternoon.

After discussions with Hotel Management, weekend or not, the owner refused to offer compensation. But he got it. He understood. These were his people, after all. The General Manager agreed to help with funeral expenses as an act of compassion. Ritual purification of the bathroom would be allowed – there were already enough ghosts and demons floating about. The Hotel Manager who’d barely escaped the crowd with his skin intact (his suit wasn’t so lucky), even lowered his head and offered free use of hotel facilities to the widow. All they had to do was leave the hotel, promise not to return. The foreign lawyer prepared to present this offer to the police conducting mediation on Monday.

Monday afternoon came in with a grinding halt. At 2PM, coincidentally just after the still-present police force left for lunch and a habitual nap, the dead man’s family poured back into the hotel lobby. Please leave. This area is for paying Customers only. Please. Please. They brought their own food and boxes of bottled water, the were prepared to use the two negotiation tactics that bring all foreigners to their knees – time and disregard for the law.

Again the screams rose. The word riot bounced around the room like a super ball. At some point, the police walked back through the lobby door, immediately turned around, and lit a round of cigarettes.

The General Manager picked up the phone and immediately called their lawyer. The family had breached their promise and, no, the hotel no longer wanted to help them. 150,000 RMB in costs and lost revenue. 10,000 a day in extra security costs. They could pay for their own funeral. Ghosts and demons be damned.
The foreign lawyer was prepared. He had already copied and translated the relevant parts of the Civil Law of the People’s Republic of China and was preparing a counteroffensive with reporters from International News media standing by in the event the meeting didn’t proceed as it clearly should.

He presented the following to the police mediator, the police lawyer, the sockless lawyer, and the family. It’s hard to argue with their own law.

General Principles of the Civil Law of the People’s Republic of China:
Chapter I, Article 5
The lawful civil rights and interests of citizens and legal persons shall be protected by law; no organization or individual may infringe upon them.


Chapter IV, Article 75
A citizen’s or legal persons property shall be protected by law and no organization or individual may appropriate, encroach upon, destroy or illegal seal up, distrain, freeze or confiscate it.


Chapter VI, Article 106
Citizens that who through their fault encroach upon the property or person of other people shall bear civil liability.


Article 109
If a person suffers damages from preventing or stopping encroachment on their property, the infringer shall bear responsibility for compensation.

Article 117
Anyone who encroaches on the property of another person shall return the property and failure to do so he shall reimburse the loss.  If the victim suffers other great loss, the infringer shall compensate for those losses as well.


Article 120
If a right of personal name, reputation or honor is infringed upon, he shall have the right to demand that the infringement be stopped, his reputation be rehabilitated, the ill effects be eliminated and an apology be made, he may also demand compensation for loss.


Article 130
If two or more persons jointly infringe upon another person’s rights and cause him damage, they shall bear joint liability.


Presenting the law in written Chinese, the foreign lawyer formally requested to police that all who were in violation of Civil Law be arrested and pay compensation to his client.

Hold on a minute…maybe we can resolve this.

The lawyer provided a list of costs, expenses and lost revenue.

Hmm…that’s difficult. The family isn’t going to buy this and we are going to have to enforce the law.
Tea was offered. Cigarettes were smoked (the matter of a public smoking ban was not discussed).
Not recognizing logic, rational or the rule of law, the family countered. They were sure they had the upper hand – the lobby was once again closed, filled with rioters. 350,000 RMB (about $53,000 USD), the piece of paper said. No riots. No more screams in the lobby. All for the tidy fee of 350,000 RMB. If not that, then only one act of retribution would suffice. They’d tear the hotel apart, and not even the police would make it out unharmed.

One police official spoke directly to the foreign lawyer’s legal assistant and translator – she was being unpatriotic, he said. She had a duty to convince the foreign lawyer to help police solve this matter. Calmly the assistant stated that it wasn’t the foreign lawyer’s decision to make – that decision belonged to his client the owner and hotel management. That’s how legal representation and advocacy works in the rest of the world.  If only the rioters hadn’t returned to the hotel, she said, the foreign lawyer would have presented an offer of aid to the family.

The police didn’t relent in their attempts at persuasion. After three hours and countless cups of tea and cigarettes, the foreign lawyer declared an end to negotiations. He could sense that, though the family would never grow tired (time, after all, was irrelevant to them), the police, the sockless lawyer and the mediator were indeed trying to convince them to leave, to accept some small act of gratitude from the hotel, or else they’d be arrested. If the police and government deemed the hotel responsible, so be it, the lawyer said. They’d follow the rule of law. If the family wanted to sue the hotel, so be it. They’d abide by the Court’s decision. They settled into their respective cars and sat silently until they walked through the doors of the hotel lobby. Upstairs, a congregation of police were eating dinner. Outside, a separate congregation stood behind a wall of riot shields. Not our problem, someone seemed to say.

The oldest member of the family ambled back into the hotel entryway with his hands clasped tightly behind his back. How could he save face? He had failed. It was time to go, he said. But even he could only stand aside as voices rose and limbs pushed against police shields. Finally, something in the evening clicked. Perhaps boredom, perhaps the family simply grew tired of being so angry, so loud. Either way, the lobby emptied as if a drain had been pulled, and a quiet group of policeman sat down to smoke cigarettes.
Stalemate.

All is back to normal in the hotel lobby. Management agreed to pay the family 50,000 RMB as a humanitarian gift (20,000 of which, the police promised, would be returned as an award for being a model member of the business community). Even now though, no one is quite certain whether or not the crowd will return, and its screams and threats hang over the lobby like a fog. Desk clerks and waitresses eye the door with suspicion, biting their lips, hoping for a quiet night. Even the ghosts in the bathroom sit quietly, wishing it would all just go away.

In the end, the hotel was generous. They had no legal or moral obligations. And as the envelope of money changed hands, as a written agreement not to return to the hotel was signed, fingerprinted and chopped by police, the only sound in the room was a hushed thank you from the family…to the police. They sauntered out of the room, averting their eyes from the foreign lawyer, holding tight to their envelope of cash.

Jordon Dotson is a Commercial Adviser for IPG Legal's Shenzhen, China Office. 
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SeanHayes@ipglegal.com

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