Saturday, May 17, 2014

In re Hsu Chung-Wei case brief summary (Chinese Law)

In re Hsu Chung-Wei

Facts: Son killed in fight. Father accepted money settlement to avoid going through litigation. Pays off coroner to hide wounds on body. Brother reports that son was killed but then runs away b/c it’s a crime to go against his father. Cousin later reports too b/c he needed money. So magistrate checked into it and found out that son really was killed.
One-stop shopping – criminal, commercial, etc issues all being handled in one place.
All the actors are male.
Governor sent decision down – politics mixed w/ judicial system.
There’s a statute designed exactly for this – father privately settling homicide of his son – 80 blows of heavy bamboo!
Brother tried to game legal rules by accusation against magistrate filing a false report rather than implicating his father + brother’s friend (Ts’ao) gave him this legal advice.
Sentencing: (1) middleman trying to profit off stuff had to wear cangue (wooden block with holes for head and arms)…
Top of p.9 – “paramount goal of educating the people and enlightening them on the purpose of punishments” – greater good of social order.
Bottom of p.8 - b/c/o father-son r’ship, need to have “compassion” (i.e. li), so this trumps the law (fa). No punishment for voluntary surrender & when relative does it it’s considered as though he himself surrendered. Where family junior accuses senior, junior & punished & senior exempted (even if accusation is true). So brother did the right thing re: dead brother, but not towards father (“especially serious”). Therefore sentence swap – brother gets the 100 blows & 3 yrs penal servitude.
Ts’ao was a “habitual litigation tricksters who stir up trouble among ignorant country folk and practice intimidation and fraud” so got military banishment to “most distant malarial regions.”

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