leaf

1. With Evidence in Hand, the World is Mine#

1. Starting with the Correct Way to Help the Elderly

On November 20, 2006, it was the tenth anniversary of the implementation of the "Law on the Protection of the Rights and Interests of the Elderly." On a sunny morning, a young man got off bus No. 83 in Jianye District, Nanjing, and collided with an elderly woman, leading them both to court. The case was first judged on September 3, 2007, and settled through mediation on October 8, 2007. However, as the judicial process concluded, it also marked the beginning of what the public perceived as an era of "moral decline among the elderly," as this case fundamentally changed society's moral evaluation of the "elderly" group.

At the same time, this case directly raised a public question: when seeing an elderly person fall to the ground, can or should one help?

Should one help the elderly? This is a moral issue.

The "Law on the Protection of the Rights and Interests of the Elderly" does not impose a mandatory obligation on the public; it uses the terms "advocate" and "encourage"—to advocate and encourage serving the elderly, and helping the elderly is certainly one form of service.

However, how to help the elderly is a legal issue.

First, it must be said that helping the elderly does not entail the enormous legal risks that people often imagine. The basic principle of civil litigation is that the party seeking compensation bears the responsibility to provide evidence to prove their damages. If they cannot provide evidence, they will naturally not receive support. This is called the burden of proof. Of course, if the person helping truly caused the injury, they should admit it early and quickly reconcile with the elderly person, because civil litigation has another fundamental principle: good faith. One must be honest.

— How to answer the vast majority of questions in the world in one sentence?

"None of your business" or "None of my business."

— How to answer the vast majority of legal questions in one sentence?

"Insufficient evidence."

Unlike news reports that only quote one party or both parties' statements, cases in judicial litigation, whether criminal, civil, or administrative, require comprehensive and objective evidence to restore the facts during the trial process: facts are confirmed by evidence, and responsibilities are divided based on facts. Therefore, those with evidence win the case. If the facts of the case do not require evidence, judicial litigation may turn into a shouting match:

Elderly Woman: "I was hit by that young man; I want him to compensate me."

Young Man: "I didn't hit you."

Elderly Woman: "You did hit me!"

Young Man: "I didn't hit you."

Elderly Woman: "You're being unreasonable! How annoying!"

Young Man: "You're the one being unreasonable!"

When it comes to evidence, one of the most troublesome issues for judges is: who is responsible for providing evidence, i.e., who bears the burden of proof. The other two issues are whether the evidence can be accepted and what the evidence can prove.

The dispute over the burden of proof holds a crucial position in judicial litigation, especially in civil cases. If it is not clear who bears the burden of proof, the trial of the case may lead to such arguments:

Elderly Woman: "You say you didn't hit me? Prove it to me!"

Young Man: "It's clearly your responsibility to prove that I hit you!"

Elderly Woman: "That's not true! Look at how injured I am; if you say you didn't hit me, of course, you have to prove it yourself!"

Young Man: "I'm not proving anything! You haven't proven that I hit you, so why should I prove that I didn't?"

Elderly Woman: "You're being unreasonable! How annoying!"

Young Man: "You're the one being unreasonable!"

2. The Burden of Proof in the 1980s Belonged to the Court

Just as what belongs to God is God's, what belongs to Caesar is Caesar's.

Winning or losing belongs to the parties, while the burden of proof belongs to the court. This is a true reflection of the courts and judges in the 1980s, who managed everything, including the air.

Although the "Civil Procedure Law (Trial Implementation)" of 1982 stipulated that parties have the responsibility to provide evidence, it also stated: "People's courts should collect and investigate evidence comprehensively and objectively according to legal procedures," which effectively placed the burden of proof on the courts. This led to the mainstream belief and practice at that time: it was okay if the parties did not provide evidence; the judge would help them.

So if this case had occurred in the 1980s, the trial might have gone like this:

Elderly Woman: "I was hit by him; Judge, you must help me!"

Young Man: "I didn't hit you."

Judge: "Calm down, ma'am. You say you were hit; do you have any evidence?"

Elderly Woman: "What evidence do I need? Being hit is evidence, isn't it? If you, as a judge, don't help the people, you might as well go home and sell sweet potatoes!"

Judge: "Judges are not officials... Forget it, this is the 1980s, and I do have a bit of power as a judge. Alright, I'll help you investigate!"

A few months later...

Outcome One:

Judge: "I've found out that several people said the young man hit the elderly woman. Young man, do you have anything to say?"

Young Man: "Can I complain that you're biased?"

Judge: "Huh? I'm just fulfilling my legal duties!"

Young Man: "Then I have no objections."

Outcome Two:

Judge: "I've found out that several people said the elderly woman fell by herself. Elderly woman, do you have anything to say?"

Elderly Woman: "I don't care; I was hit by him. You judges are corrupt; there's no justice in this world."

Judge: "Where are the court police?"

Outcome Three:

Judge: "I'm sorry, I couldn't find any witnesses; I couldn't clarify the situation."

Young Man: "So do I win?"

Judge: "Have you heard of mediation?"

Young Man: "I..."

3. The Burden of Proof in the 1990s—Still Belonged to the Court

The "Civil Procedure Law" that was "formalized" in 1991 finally cut off the "trial" tail and limited the burden of proof for the people's courts. Then, in the 1992 "Opinions of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China," it was stipulated that the people's courts collect evidence that they "believe should be collected," which exempted the courts from the obligation to "necessarily" collect evidence. Thus, the general principle of "who asserts bears the burden of proof" emerged, but this principled provision did not effectively resolve the issue of which party should bear the burden of proof first. In this situation, the dispute between the elderly woman and the young man remained unresolved: who should bear the burden of proof for the elderly woman's claim of injury versus the young man's claim of not hitting anyone?

Elderly Woman: "Long time no see, Judge! I was hit by that young man again; will you help me?"

Young Man: "I didn't hit you."

Judge: "Calm down, ma'am. You say you were hit; do you have any evidence?"

Elderly Woman: "What evidence do I need? Being hit is evidence, isn't it? If you, as a judge, don't help the people, you might as well go home and sell sweet potatoes!"

Judge: "Shut up! I tell you, the 1991 Civil Procedure Law does not stipulate that the court has the obligation to help you investigate."

Elderly Woman: "Don't bully me just because I haven't read much. I just flipped through the law before coming here. If the judge thinks it's necessary, you can investigate too; just help me investigate!"

Judge: "Alright, I'm scared of you. I'll help you investigate."

Young Man: "I'll just silently watch you without saying anything."

Outcome One:

Judge: "Young man, look, several witnesses said you hit her."

Elderly Woman: "Thank you, Judge!"

Outcome Two:

Judge: "Police officer, please deliver this losing judgment to the elderly woman; I won't see her again..."

Outcome Three:

Judge: "Don't mention the evidence collection anymore, young man... let's talk about mediation."

4. The Burden of Proof in the New Century—Should Return to the Elderly Woman

Time flies; ten years have passed, and the Supreme People's Court found that some courts and judges were still clinging to the burden of proof, unwilling to let go, which made them unhappy.

Supreme Court: "Judges, you need to change your mindset; you are neutral. As mediators, how can you help one party collect evidence during the case process? Evidence should be provided by the parties themselves."

Judge: "The Civil Procedure Law doesn't specify how to handle cases where parties do not fulfill their burden of proof. I think evidence is necessary for clarifying facts, and if they are too lazy to provide it, I still have to run errands for them?"

Supreme Court: "We need to change our mindset and use 'party autonomy' to handle cases. The parties should resolve their own issues."

The Supreme People's Court produced a document called "Several Provisions on Evidence in Civil Litigation" and slammed it on the table: "Come, come, I have a law for you to follow. Parties have the obligation to provide evidence; those who fail to provide evidence bear the consequences."

Part 1

Judge: "Elderly lady, you say he hit you; you need to provide evidence."

Young Man: "No need for her to provide evidence; I hit her, I'm sorry."

Judge: "…Young man, although your 'admission' can exempt the elderly woman from the burden of proof, we are currently in a practice of offense and defense, so please do not disrupt."

Young Man: "Oh! I didn't hit her!"

Judge: "Young man, your retraction of the 'admission' is too late, unless the other party agrees or you can prove that you were coerced or there was a significant misunderstanding when you admitted."

Elderly Woman: "I agree to his retraction of the 'admission'; just consider that he never admitted to hitting anyone."

Judge: "Thank you very much."

Part 2

Judge: "Elderly lady, did you see that? If you can't provide evidence, I won't care about you; bear the consequences!"

Elderly Woman: "Why should I? Why do I have to prove that he hit me? Isn't it his responsibility to prove that he didn't hit?"

Judge: "Your request is based on 'certain facts being established,' so you need to provide evidence first."

Elderly Woman: "Oh, if you won't help me find evidence, at least teach me what evidence I need."

Judge: "You see, the sentence structure we learn is: 'who,' 'does,' 'what.' Just follow these three elements to construct... to provide evidence."

Elderly Woman: "I'm constructing it."

Young Man: "Judge, does this count as bias?"

Judge: "I'm promoting legal knowledge, do you understand?"

Young Man: "Oh..."

Part 3

(A few months later)

Outcome One:

Elderly Woman: "I want to prove that 'the young man injured me.' The hospital medical record proves 'the injury'; I found a witness to confirm 'the young man hit me,' and the police materials show that the young man also admitted it!"

Judge: "You're amazing. You win."

Outcome Two:

Elderly Woman: "I only have the medical record..."

Judge: (pauses for a moment) "Young man, what do you think..."

Young Man: "No mediation; uncle, we won't mediate."

Part 4

The elderly woman successfully completed the burden of proof task at an ordinary difficulty level, while the young man expressed strong objections to the judge's bias.

Young Man: "Judge, why don't you teach me how to provide evidence?"

Judge: "No problem. If you didn't hit her, generally, you don't need to provide evidence. However, people have joys and sorrows, and the moon has its phases; it's not wrong to pay attention to preserving evidence while walking."

Elderly Woman: "Judge, I was hit by him!"

Judge: "Do you have any evidence?"

Young Man: "No need for her to provide evidence; I was prepared. Before helping her, I recorded the entire incident on my phone, and I also kept the phone numbers of passersby to help me testify. When the police arrived, I didn't admit to hitting her, and the police also reviewed the surveillance video, which showed that I wasn't the one who hit her. Also, I won't mediate, thank you."

Judge: "Elderly lady, this time I can't help you."

Part 5

Judge: "How about you raise the difficulty a bit more?"

Elderly Woman: "Okay! I will sue and provide evidence. Oh! I was hit by him while crossing the road, but there were no witnesses or surveillance at the scene. Judge, what should I do?"

Young Man: "I didn't hit you; you fell by yourself."

Judge: "Regardless of whether you hit her, this is a traffic accident. Young man, you also bear some responsibility for scaring the elderly lady while driving. Elderly lady, you should first get an assessment."

Young Man: "Objection! What if she bribed the assessor?"

Judge: "Oh, don't worry about that; the assessment agency will be decided by both of you. If you can't agree, we'll draw lots."

Young Man: "Oh, that's better."

Judge: "The assessment conclusion is out; there are collision marks on the car, and the height matches the injury location of the elderly lady; the characteristics of the elderly lady's right knee joint and ligament injuries are also severe, so the conclusion is that this injury was not solely caused by a fall. Do you have anything to say?"

Elderly Woman: "No objections."

Young Man: "I request the assessor to appear in court."

Assessor: "No matter what questions you ask me, I can answer them one by one!"

Young Man: "Alright..."

Judge: "The elderly lady wins!"

Part 6

Judge: "Do you want to increase the difficulty again?"

Young Man: (gritting his teeth) "Yes! I don't believe I can do a good deed and still lose this time! I have evidence; I am proud!"

Judge: "Young man, you must also pay attention to your posture while doing good deeds. The Ministry of Health has a 'Technical Guide for Interventions in Elderly Falls'; have you read it? If your posture is incorrect, causing fractures and secondary injuries to internal organs, you will have to bear compensation for the aggravated injuries."

Young Man: "Oh..."

Part 7

Judge: "This is the highest difficulty; let me explain..."

Elderly Woman: "I won't listen!"

Young Man: "I won't listen!"

Judge: "Regardless of you... you have only proven the core fact of 'collision,' but you haven't determined who is more at fault in this 'collision.' Proving this is relatively difficult, so both parties have the obligation to provide evidence. If you can't provide evidence, I will punish both of you equally!"

Young Man: "You're being vague again!"

Judge: "If you can't prove specific faults, you will also have to bear some punitive responsibility. This is the fairness principle stipulated in Article 4 of the General Principles of Civil Law, and I can exercise discretion based on the basic facts of the case and comprehensive evidence. After all, it was because of the collision that injuries occurred; if I dismiss all claims, it would also be unfair to the injured party."

Everyone: "Alright..."

5. Why Can't We Find Cases of the Elderly Woman Losing?

I was also surprised at how difficult it was to find a case where an elderly woman lost, so I specifically asked a judge who has been handling civil cases for a long time. The answer I received was: generally, the evidence in such tort cases is sufficient to confirm the existence of tortious facts, but it is difficult to divide specific responsibilities, so usually, based on the principle of fairness, both parties bear some responsibility; a few cases may infer the existence of tortious facts but have relatively weak evidence, and those cases are usually mediated; as for those who purely want to frame good people, they generally choose to cause trouble to force the other party to compromise and would not dare to file a lawsuit in court. Even if someone occasionally wants to try, they are directly dismissed by the filing court judges.

I suddenly understood.

In 2015, a media report covered a judgment from a court in Guangdong, which I found to be very instructive.

An elderly woman, Su, gave a few bananas to a girl named Xiaoqin, who then passed one of the bananas to her friend, Tingting. Unfortunately, when Tingting ate the banana, she accidentally inhaled it into her trachea, leading to suffocation and death. Tingting's family sued Su and Xiaoqin in court, seeking compensation of 738,000 yuan. The first-instance court ruled to dismiss the lawsuit, and the second-instance court upheld the first-instance judgment. The court explained in the reasoning section of the judgment: the law should encourage civil subjects to actively engage in social interactions, and sharing food among minors without obvious safety hazards cannot be deemed as fault.

This judgment effectively promoted and advocated the good moral ethos of mutual assistance and friendliness, which is commendable. In handling similar cases, one should not be vague; based on clarifying the facts of the case, one should boldly promote a positive moral view. Through the reasoning of the judgment, it should clearly convey what our society supports, opposes, praises, and condemns, not only to let the public know right from wrong but also to understand good from evil and distinguish beauty from ugliness.

2. Mediation is a Double-Edged Sword; Hurt Others First, Hurt Yourself#

Legal saying: There are a hundred laws, but a hundred and one problems.

Judge says: Let's mediate.

1. Mediation has been on a "wrong path" since ancient times

The biggest characteristic of China's traditional litigation legal culture is "no litigation." Confucius said: "Listening to lawsuits, I am still human; I must ensure there are no lawsuits!" It is precisely under this Confucian thought of "harmony is precious" that one of the most commendable achievements in the development of our legal system is the undefeated and invincible "Eastern experience"—the mediation system.

The "Han Feizi" from the Warring States period records: land boundaries are easily mixed up, leading to frequent disputes among farmers. Emperor Shun worked alongside the farmers for a year to understand the situation and then clearly delineated their boundaries; fishermen fought over advantageous positions to catch fish, so Emperor Shun fished alongside them for a year and ultimately persuaded them with kindness to let the elderly choose their spots first; when potters produced poor-quality pottery, Emperor Shun worked with them for a year, teaching them that honesty is essential in business. This is probably the initial germination of the mediation system. The saying "a good official finds it hard to resolve family matters" is enough to illustrate how deeply rooted the mediation system was in ancient China.

In 1954, at the beginning of the founding of the country, the National People's Congress and the State Council had only issued more than twenty written laws and regulations, but among them was a legal document called the "Interim Provisions on the Organization of People's Mediation Committees," which took the lead in establishing the mediation system.

However, at this time, this mediation system was still of a folk nature. The quality of mediation largely depended on personal connections—generally, both parties to a dispute would "privately settle" based on the mediator's (community elites, family elders, etc.) face, and it was inevitable that the mediator would be biased, leaving the interests of both parties unprotected. Moreover, the biggest problem with this folk mediation was that the mediation agreements lacked legal effect.

During this era, a prominent figure in the mediation field was a judge named Ma Xiwu. His method of "investigating with one hand and mediating with the other" was officially established as the "principle of focusing on mediation" in the 1981 "Civil Procedure Law (Trial Implementation)." Then, in the 1991 "Civil Procedure Law," the principles of legal and voluntary mediation were clarified. Thus, China's mediation system initially formed two factions: litigation mediation hosted by the court with legal effect and non-litigation mediation hosted by external forces without legal effect.

Gradually, cases with insufficient evidence could be mediated, potential conflicts could be mediated, and even petitioners could be mediated. Thus, at the national court mediation work experience exchange meeting in July 2009, it was proposed to "make mediation the primary method of case resolution," followed by the formal document "Several Opinions on Further Leveraging the Positive Role of Litigation Mediation in Building a Socialist Harmonious Society," which established the work principle of "mediation first" and included mediation rates as a work assessment target.

Today, our mediation system has developed various forms:

Various mediation forms, surely one suits you

① People's mediation, administrative mediation, industry mediation, and association mediation are all "intermediaries" in a "familiar society" who use their experience, qualifications, and face to mediate, focusing on human feelings. They are flexible in application, but the agreements signed during these mediations need to be specially applied for judicial confirmation to have legal effect, so as not to fear the other party's dishonesty.

② Filing mediation, of course, means mediating without filing a case; entrusted mediation means specifically inviting community aunties, village cadres, neighborhood police, industry seniors, or association leaders to mediate for you again. Of course, since the court is involved in hosting at this time, the mediation agreements have legal effect.

③ Pre-litigation joint mediation is a large-scale, organized mediation where several related units are specially invited to form a team to mediate, unlike the previous spontaneous and temporary mediations.

④ Formal mediation means that mediation occurs while the case is being tried.

⑤ Execution reconciliation occurs after previous mediation or direct judgment when the other party refuses to comply. During the process of applying for the court's compulsory execution, reconciliation can still continue with the other party, exchanging partial concessions for monetary compensation.

⑥ Criminal reconciliation is probably the easiest and most straightforward among all mediations. Generally, suspects in criminal cases will actively seek reconciliation with the victim to seek a lighter sentence.

2. Why is mediation necessary?

To be fair, in the matter of safeguarding rights, the rights defenders sometimes choose mediation based on the actual situation, which can still align with their maximum interests.

For example, if given two options: one has a 50% chance of obtaining 100 yuan or nothing, and the other has a 100% chance of obtaining 70 yuan, which option would you choose? I believe that both options will have their supporters, with the first option being litigation and the second option being mediation.

Litigation carries risks, while mediation can avoid them.

In civil disputes, harmony is precious.

In neighborly and family disputes, both parties are likely to see each other regularly, and even after a lawsuit, they still need to interact in daily life. Therefore, many people believe that it is unnecessary to resort to litigation, as it harms both parties and severs relationships. Even when conflicts escalate to irreconcilable levels, the final choice of litigation is often because both sides refuse to compromise for the sake of "saving face," and litigation is merely a moment of extreme anger.

In civil disputes, both parties can easily develop new conflicts during the lengthy litigation process. For example, I once saw a divorce case that dragged on for three years without resolution, where both spouses found ways to annoy each other, such as alternately hiring thugs to cause trouble at each other's workplaces, taking turns secretly photographing each other with their lovers, and transferring assets back and forth... By the end, the lawsuit had become a way for them to vent their frustrations, and the judgment result became unimportant to them.

Avoiding litigation costs

Litigation is essentially about evaluating right and wrong and dividing responsibilities under legal rules. Both parties are willing to gamble and accept the outcome. However, since there are rules, there are also loopholes. Just finding reasons to delay time in litigation can involve many tricks, such as casually raising jurisdictional objections and requesting a change of court for the case.

If one chooses to safeguard their rights through litigation, regardless of costs such as litigation fees, lost work time, and attorney fees, the time cost alone is significant. After all, a lawsuit can take anywhere from a few months to several years, and sometimes rights defenders simply cannot afford that time.

Avoiding insufficient burden of proof

The burden of proof is the primary issue that every rights defender needs to address in litigation. However, in reality, due to various reasons, rights defenders often cannot fully fulfill their burden of proof, but they do not have no evidence; or the time and effort spent to fulfill the burden of proof far exceed the benefits of winning.

One day, an elderly woman was hit by a young man but lacked direct evidence. There were no surveillance cameras at the scene, and the police did not secure materials favorable to the elderly woman. She could only find one witness to help confirm that it was the young man who hit her. The elderly woman was unwilling to accept this and filed a lawsuit against the young man in court, but this evidence was difficult to meet the standard for winning, and a direct loss would contradict the value of justice. The judge, based on life experience and case handling experience, might be willing to believe that the elderly woman was telling the truth, but he could not write in the judgment, "Because I believe the elderly woman is telling the truth, I rule in her favor." In this situation, using the mediation tool to persuade both parties is the best choice.

3. Is it necessary to choose mediation? How to choose mediation?

Determine interest orientation

The essence of mediation is to compromise by giving up part of one's interests to the other party, no longer fighting. Therefore, the first question to clarify is whether what one truly needs is "saving face" or "economic benefits."

Disputes between people often involve more than just money; sometimes, it may be more about saving face. If it is about saving face, then mediation should be firmly rejected. For the sake of winning or losing in "saving face," one is willing to incur significant litigation costs, especially in criminal cases, where the victim's agreement to reconcile has a considerable impact on the criminal outcome—if the victim firmly refuses to reconcile, the perpetrator often receives a heavier punishment. For example, the cases of Yao Jiaxin and Lin Senhao are typical examples: because the victims firmly refused to reconcile with the murderers' families, the murderers ultimately received the death penalty, while at the same time, the victims could no longer obtain compensation from those sentenced to death (as those executed rarely have personal assets available for compensation).

However, if it is for "economic benefits," then choosing mediation poses no pressure; issues that can be resolved with money are not problems. However, when considering mediation, one needs to carefully consider who will mediate and when to mediate to maximize their interests.

If choosing mediation, the most important thing is to first assess one's litigation interests and expenditures, as well as the probability of winning. One can first consult experienced lawyers, compare similar judgment results, and estimate the likelihood of winning or compensation results. Then, one should estimate the costs required for safeguarding rights through litigation (such as filing fees, transportation costs for attending court, time and effort spent collecting evidence, and the risk of losing due to insufficient evidence), as well as whether the other party has the actual economic ability to fulfill compensation after the judgment.

Particularly, one should pay attention to assessing the risk of "whether the other party can fulfill," as in common personal injury or death cases, the tortious facts are usually relatively clear, and the judgment results have clear legal provisions (mainly for medical, nursing, transportation, nutrition, lost work, and disability compensation, as well as death compensation). Such cases often involve the perpetrator bearing criminal responsibility. If the perpetrator does not have the economic ability to compensate, their family members will often compensate on their behalf to reduce the perpetrator's criminal responsibility. Therefore, mediation in such cases is relatively easy to achieve actual compensation. However, if one goes through litigation and judgment, it becomes challenging to enforce the payment.

Specific case circumstances suitable for mediation

Based on specific case situations, different types of mediation should be chosen. Disputes that are particularly suitable for mediation generally include:

Conflicts between parties (such as relatives, friends, neighbors) due to certain reasons that create bonds of fate, especially when it is essential to maintain harmonious relationships, or when local customs differ from legal provisions, such as traditional civil disputes involving marriage, family, inheritance, homestead, and neighborly relations, can choose people's mediation, with community committees, village committees, township officials, or respected elders mediating, presenting facts and reasoning: since these are familiar and trusted individuals, everyone is less likely to have strong resistance; the reasoning presented during mediation is also closer to local daily life habits, making it easier to reach a consensus.

For disputes involving relatively small amounts or particularly cumbersome evidence collection, where litigation costs and benefits are clearly mismatched, such as small contract disputes, debt disputes, or partnership agreement disputes, mediation can be conducted during the filing and trial process, with the court hosting and issuing legally effective mediation documents to ensure that the other party cannot backtrack.

For disputes involving criminal offenses, mediation can be hosted by the police during the criminal investigation process, as the perpetrator is more likely to compromise under the pressure of potential criminal punishment.

For disputes involving administrative management, such as product quality or group disputes, mediation can be conducted under the auspices of administrative functional departments (such as the Industry and Commerce Bureau, Quality Supervision Bureau).

In labor disputes or traffic accident disputes, victims often cannot afford the time costs incurred in litigation, with some even waiting for medical expenses to "save their lives." Therefore, mediation hosted by individuals who understand the actual situation and have some control in the industry or association tends to yield better results.

4. Traps to Avoid During Mediation

Do not think that mediation is just about both parties signing a mutually agreeable agreement—often, mediation also carries various risks and traps.

Voluntariness is the most basic principle and the most fundamental right.

Often, mediators may particularly hope for both parties to mediate for their own interests, such as avoiding the risk of wrongful cases, not wanting to handle complex cases, or being biased, etc. This gives mediation a semi-coercive nature. If the mediator intimidates or threatens the parties using their own authority, this is not true mediation. It is essential to allow the parties to choose whether to mediate based on their free will.

Ensure the legal effect of the mediation agreement.

The mediation agreements signed during people's mediation, industry mediation, and administrative mediation do not have direct legal effect and may even be revoked later by the other party on grounds of significant imbalance or violation of the principle of voluntariness. Therefore, after making a mediation agreement, if it is not fulfilled on the spot, or to prevent it from being revoked later, it is best to seek judicial confirmation to give the mediation agreement legal effect.

"Significant imbalance" is the trap that is most likely to occur during mediation, and both the perpetrator and the victim may suffer.

There is a real case: A caused a quarrel at B's house and, out of anger, broke an antique porcelain vase belonging to B. After B reported the case, the police filed a case against A for intentional destruction of property and assessed the vase's value at 100,000 yuan. However, B insisted that the vase should be worth 1 million yuan. During the trial of this case in court, A and B reached a settlement and A compensated B 1 million yuan, and the court exempted A from criminal punishment.

At this point, everyone was still happy, but what happened next left B in a terrible situation. After the criminal judgment took effect, A took the original settlement agreement to court, requesting to revoke the agreement on the grounds of significant imbalance. After the court (yes, the same court) reviewed it, it found that a loss of 10,000 yuan required compensation of 1 million yuan, which was indeed a significant imbalance. Therefore, the court ruled to revoke the agreement and ordered B to return the 1 million yuan to A.

Thus, during mediation, it is best to provide a mediation document or apply for judicial confirmation as a legal safeguard for the mediation agreement.

Anticipate future harmful consequences.

Especially in cases of tort involving bodily harm, the injured party should be able to foresee potential future losses resulting from their bodily harm, such as facial scars affecting future job prospects, or the removal of a spleen or fractured skull impacting future health, etc.

There is also a case: A worker was injured in a fight with a colleague at work, suffering a minor retinal detachment. The factory owner and his colleague each compensated the worker a total of 20,000 yuan, and the worker signed a mediation agreement at that time. However, a year later, the worker's vision deteriorated severely, so he went back to ask the owner for additional treatment costs, but by then, he could no longer find the colleague who hit him and had to pester the owner for another 10,000 yuan, and they signed another agreement. Two years later, the worker's eyesight was nearly gone, but this time he not only couldn't find the colleague but also discovered that the factory had disappeared.

In traffic accident cases, one must also consider the potential criminal responsibility if the injured party dies due to ineffective treatment. For example, there was a traffic accident case involving a car and a motorcycle. Both parties should have equal responsibility, but the car party, considering they had insurance and could fully compensate the other party's losses, softened and admitted full responsibility. As a result, more than half a month later, the motorcycle victim died due to ineffective treatment, and the car driver was criminally charged with traffic accident offenses. Although the car driver later applied for a re-evaluation of the responsibilities to avoid criminal liability, this is also a risk that should be avoided during mediation.

Rights protection plans when faced with malicious mediation.

In cases involving multiple torts or multiple injuries, some parties may bypass one or more parties and privately settle between two parties.

For example, if three perpetrators jointly caused 90,000 yuan in losses to the victim, the victim discovers that one of the perpetrators, A, is particularly wealthy. Thus, they privately agree with the other two perpetrators, B and C, that as long as B and C each compensate the victim 15,000 yuan, they will no longer seek the judgment money from them even if a judgment is made later. As a result, B and C together paid the victim 30,000 yuan. After the judgment, the victim applied for compulsory enforcement against A for 90,000 yuan, which effectively saved B and C 15,000 yuan each, while the victim received an additional 30,000 yuan. The only one who was truly left in the dark and suffered losses was A.

At this point, it is important to know that there is also a thing called a third party's lawsuit to change or revoke the mediation agreement. That is, if a third party discovers that another party's mediation agreement (even if it has legal effect) harms their legitimate interests, they can file a lawsuit to revoke the original mediation agreement within six months.

Mediation should also not forget to preserve evidence.

During the mediation process, one should not let their guard down. After all, mediation is just a means to achieve a goal, but it does not necessarily guarantee that the goal will be achieved. Therefore, one should try to avoid the loss of evidence during mediation or the occurrence of situations where evidence becomes difficult to obtain later.

Take the example of a young man hitting an elderly woman, which is a sudden conflict in life. When the police arrive to handle it, they usually ask both parties if they are willing to mediate. Once both parties agree to mediate, they often neglect to preserve the scene's original state or fail to collect evidence from witnesses present, and they no longer retrieve surveillance footage. Many non-police surveillance recordings have a short retention period and may be overwritten after a few weeks. If the delay caused by "mediation" leads to the loss of this evidence, and an agreement is ultimately not reached, it would be a situation where one would want to cry but have no tears.

Additionally, during the mediation process, one should also take the opportunity to understand the other party's financial situation, whether they have the actual ability to fulfill compensation or assets available for enforcement, so that even if mediation fails, one can apply for the seizure, detention, or freezing of the other party's assets in litigation to safeguard their rights after the lawsuit.

Agreement terms can only bind both parties.

When signing a mediation agreement, it is important to note that the agreement terms can only bind the signing parties and are invalid for non-signatories. For example, terms like "if payment is not made within the deadline, the court will seize Party A's property" cannot be directly enforced. Such mediation content should also be avoided.

In summary, although mediation is a way to compromise by giving up part of one's interests to reach an agreement with the other party, it is not the "muddying the waters" that people usually think. Whether it is the mediator or the parties accepting mediation, all need to master and use various mediation techniques to seek a balance between "giving" and "gaining" to maximize interests.

Love Yourself, Stay Away from Domestic Violence#

1. The Origin of Anti-Domestic Violence Legislation

As early as 1979, the United Nations passed the "Convention on the Elimination of All Forms of Discrimination Against Women"; China is also one of the signatory countries. However, it wasn't until after the 1995 World Conference on Women that China truly recognized this as an issue (a delay of 16 years), and quickly stated: we must resolutely stop domestic violence!

Thus, in the 1995 "Regulations on Administrative Penalties for Public Security," it mentioned, "Abusing family members, if the abused party requests handling, and it is not sufficient for criminal punishment, shall be subject to detention for less than fifteen days, a fine of less than 200 yuan, or a warning." This statement caused a cheer in the public, especially among women suffering from domestic violence and the newly emerging feminists, but then... there was nothing more. Because this document was merely to align with the slogan proposed at the Fourth World Conference on Women held in Huairou, Beijing, in 1995.

In summary, the entire process of anti-domestic violence legislation can be simply summarized as follows:

1995—Proposing the slogan

United Nations: Come, come, we are holding the World Conference on Women! Protect women, prohibit domestic violence!

State Council: We resolutely stop domestic violence!

The public applauds.

1996—Local legislation begins

Changsha government: I want to take practical action through local legislation to support anti-domestic violence! I will take the lead in formulating documents, "Several Provisions on Preventing and Stopping Domestic Violence," look how supportive I am of the central government!

Various places: ... (silently watching without speaking)

Changsha (anxious): Why don't you give me some applause in support?

2000

Hunan Provincial People's Congress: Well... after so many years, I will also issue a document to help!

Guangdong's public security, procuratorial, judicial, and administrative departments: We will also issue documents together!

Changsha: Thank you.

2001—Amendment of the Marriage Law

State Council: In 2001, it's a new century; we resolutely stop domestic violence!

The public: Can we have something practical?

National People's Congress: Alright, let's add some content to the Marriage Law; look, I have written domestic violence as a legal reason for divorce into the Marriage Law.

The public: Finally, I have a legal weapon to protect myself!

Community auntie (I am a mediation expert): You should reconcile.

The public: ... I have already written my divorce complaint; are you telling me this?

2005—Amendment of the Law on the Protection of Women's Rights and Interests

The public: It’s 2005; after ten years, is there any sincerity in protecting us? At least give us a sign.

All-China Women's Federation: Uh... look, I have written anti-domestic violence into this year's key work for women.

National People's Congress: Don't worry, I will write "prohibit domestic violence" into the Law on the Protection of Women's Rights and Interests, okay?

The public: Can you provide some practical solutions to the problem?

Supreme Court (pulling out the "Guidelines for the Trial of Marriage Cases Involving Domestic Violence"): Here is the practical content.

Women: Thank you.

2011—Every year there are talks about legislation

State Council: In 2011, another decade has passed; we resolutely stop domestic violence!

NPC representatives: Hurry up and legislate.

NPC Legislative Affairs Committee: Alright, we are preparing.

2015—Just as we say to respond to violence with violence, legislation is enacted

Supreme Court and the Ministry of Justice: After 20 years, the dark door has reopened; don’t wait for the anti-domestic violence law; just fight back against domestic violence. We will give you lighter sentences then.

The public: You should have said that earlier!

National People's Congress: Responding to violence with violence is not the right way; the anti-domestic violence law is here!

Rights Protection Methods Against Domestic Violence#

In the past, many families still retained the feudal ideology of "male superiority and female inferiority," advocating the historical tradition of "male violence against women and parental punishment of children." Some even believed that the head of the family, who held economic power, naturally had supreme control over family members. Correspondingly, the judicial concept also remained at the level of "a good official finds it hard to resolve family matters." Many judicial personnel believed that domestic violence was a private matter, and the family's "internal affairs" should not be interfered with. Moreover, domestic violence is not merely a public security issue; it also involves emotional factors. Judicial personnel often thought it was better to avoid trouble, so even if they shouted at the top of their lungs, no one would come to help them.

However, since this century, with the gradual development of the legal system and the increasing inclusion of anti-domestic violence content in legal texts, victims of domestic violence have slowly developed different coping methods based on the severity of the violence they have suffered:

1. Minor violence seeks assistance—community and police come to mediate

Although the execution power of village committees and neighborhood committees may often not be genuinely effective, the revised Marriage Law in 2001 recognized the combat power of village and neighborhood committees in eliminating domestic violence, stipulating that victims can seek help from village committees, neighborhood committees, and public security organs. For emotional and psychological violence in domestic violence, village cadres or neighborhood committee aunties can often bring about a certain healing effect through persuasion and education in the early stages. For physical abuse, police warnings through administrative penalties are more effective—often, preemptive warnings are more effective than post-punishment.

Among all rights protection methods, this is the only skill that can be used at will during the implementation of domestic violence. Although the effect is generally average, it is convenient to use and almost always available.

2. Unpracticed new skill—personal protection orders

Although the "Anti-Domestic Violence Law," which officially came into effect on March 1, 2016, stipulated personal safety protection orders, the Supreme People's Court had already established "personal safety protection rulings" in the "Guidelines for the Trial of Marriage Cases Involving Domestic Violence" back in 2008, and had piloted it in several local courts.

In any case, this provided victims who were still hesitating between staying or leaving a better choice. Economic independence, considering the growth of children, worrying about societal evaluations, waiting for divorce judgments, fearing retaliation for filing abuse charges, and even continuing entanglements after divorce... Many reasons prevent the abuser and victim from completely severing ties. This adverse situation cannot be eliminated solely by the daily persuasion of community committees and police, so applying to the court for a personal safety protection order to prevent further acts of violence has become a glimmer of hope during the buffering period. However, how effective this new skill is remains uncertain, as past pilot programs have not provided clear answers, and there are still no specific measures.

3. A clean break—divorce

Completely severing ties with the abuser may be the best choice. However, in the past, divorce lawsuits were generally not permitted upon the first filing; one had to wait six months to file for divorce again, giving the abuser the opportunity to continue the abuse.

Since the amendment of the Marriage Law in 2001, which listed domestic violence as a legal reason for divorce, divorce lawsuits can finally be resolved in one go, becoming the best way for many victims to escape the suffering of domestic violence. Each year, about one-third of divorce cases are due to domestic violence. However, in divorce lawsuits, the recognition of domestic violence is still limited to physical harm to a certain degree (usually above minor injuries), while psychological harm has yet to form evidence in litigation.

4. Legal action—abuse charges

Abuse charges are self-reported cases, dealing with chronic, long-term torment that causes physical harm; intentional injury and intentional homicide, on the other hand, cause direct harm in a single instance.

Some scholars have proposed creating a specific "domestic violence crime," but the behaviors causing physical harm in domestic violence overlap with the punishment content of abuse charges. How to establish standards for the psychological harm caused by domestic violence has been a matter of ongoing debate. Some even proposed harsh standards that include general unfriendly behaviors in marital disputes, such as "ignoring each other, emotional indifference, almost no daily communication, no sexual life, and no household chores," under the scope of "domestic violence crimes," sparking a new round of debates.

As a self-reported case, the biggest problem with abuse charges is that it requires the victim to provide evidence, which has led to this method being impractical in the past—if the victim had the ability to preserve evidence and provide proof, they would not have suffered from severe domestic violence involving crimes.

In the 2015 "Criminal Law Amendment (Nine)," this dilemma was improved: in cases of abuse, if the victim lacks the ability to sue, it can also be treated as a public prosecution case by judicial organs. This change also repaired the weakness of victims lacking investigative and evidentiary capabilities.

5. The most desperate resistance—responding to violence with violence

Previously, there were no effective measures to address severe domestic violence, and victims lacked sufficient litigation capacity. Many victims ultimately either erupted in silence or died in silence, both of which are undesirable outcomes. However, if only these two choices exist, perhaps more people would still choose the former.

In this adverse situation, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice issued the "Opinions on Lawfully Handling Domestic Violence Criminal Cases," directly proposing that those who intentionally kill or injure abusers in a state of rage or fear after long-term domestic violence can receive lenient punishment.

3. How to Preserve Evidence

If the goal is merely to prove the fact of "domestic violence" to win in divorce litigation, it is usually possible to find some evidence to achieve the divorce objective. However, how can the victim be satisfied if the abuser faces no punishment, especially since the "Criminal Law Amendment (Nine)" has included abuse charges as crimes that can be prosecuted by the state? The biggest problem with abuse charges is that the abusive behavior is long-term and continuous, and it is challenging for state organs to investigate and collect evidence for every instance of abuse in a timely manner. Therefore, victims should pay attention to preserving evidence during daily domestic violence, which will greatly assist future litigation, whether this evidence is used in civil divorce or criminal cases.

1. Be conscious of preserving evidence

Just as all litigation is based on evidence, the most important content for victims of domestic violence seeking legal means to safeguard their rights is also preserving evidence. Therefore, the key is to have the awareness to retain evidence.

I once encountered a very strange case. A defendant in a criminal case involving harboring drug users had his wife hire a lawyer to review and copy the case materials after the trial. This was originally a normal behavior for a defense attorney, but a few days later, the lawyer canceled the appointment. It is common for clients to hire and then withdraw their lawyers in case representation, so I directly ruled on this criminal case. A few months later, we received a lawsuit from the criminal's wife, who filed for abuse charges against him, and her representative was the lawyer she had previously hired. Later, I learned that this criminal had long been abusing his wife after using drugs. Unable to bear it, the wife reported her husband for drug use. During the trial of the criminal case, when the wife attended the hearing, she happened to hear several witnesses mention that they had heard the criminal bragging about how he abused his wife while using drugs. The wife then sought a lawyer to copy the relevant witness statements as evidence of the abuse she suffered, and ultimately, this evidence became crucial in determining the abuse.

This wife's awareness of evidence was the strongest I have ever encountered among parties involved.

2. Violence involving physical force is the easiest to preserve evidence

For those suffering from domestic violence, the key is to pay attention to preserving relevant evidence in daily life. Evidence of physical or indirect violence is the easiest to preserve, such as scars on the body, hospital visit records, etc., which are easy to obtain and retain. If photos of the scars can be taken and preserved alongside the medical records, that would be even better. Additionally, in daily life, if violence leads to damage to furniture, utensils, or clothing, preserving or photographing those items can also serve as useful evidence.

3. Neighbors are also great allies

Domestic violence is traditionally considered "family matters" or "privacy," leading victims to worry about family shame and fear being known by neighbors or colleagues. However, in reality, neighbors are often the most likely to understand the family situation, and their testimony is also crucial evidence in domestic violence cases. Therefore, when domestic violence occurs, it is advisable to call for help loudly, argue, or entrust minor children to neighbors for care, or complain to neighbors about the situation, intentionally or unintentionally letting them know what is happening in one's family.

4. Records of relevant mediation by public security organs, social groups, and organizations are the most credible

Seeking protection from village committees, neighborhood committees, women's federations, and public security organs during domestic violence not only serves to stop domestic violence in a timely manner but also leaves written records every time protection is sought. These written records, especially police records, are crucial evidence in identifying domestic violence. These records usually document each specific incident, the situation at the scene, the emotions of both parties, and other present individuals, and since they are records from a relatively neutral third party, their credibility is higher. If the records are relatively simple, one can also note the names of the responding officers or mediators when seeking help, so that these individuals can be called as witnesses to verify what they observed during the mediation process. Especially in cases of intense conflict, one can call the police and request that the responding officers take photos and investigate the scene to document the situation, as such objective materials often faithfully reflect the circumstances at the scene.

5. Psychological trauma needs assessment

Due to physical or non-physical domestic violence, if mental trauma occurs, it is challenging to identify in litigation due to the lack of clear evaluation standards. Therefore, if one feels psychologically traumatized, seeking psychological counseling first is advisable. Records from psychological counseling can serve as evidence of experiencing domestic violence and as a reference for assessing the degree of psychological trauma suffered by the party. In cases of domestic violence involving minors, experts can also be hired to assess the minor's mental state to clarify the negative impact of domestic violence on their mental health.

6. Request a written apology during mediation

In the early stages of domestic violence, when the conflict between the parties is not deep, it is often possible to reconcile under the mediation of community committees or police, and the abuser may only offer a verbal apology. However, at this point, it is possible to request the other party to write a letter of apology or guarantee and keep it, as this could be the last straw to defeat the other party at a critical moment.

7. Prevent being bitten back

There was a domestic violence case where the female party long-term attacked the male party through verbal abuse, ridicule, and insults. Eventually, the male party, unable to bear it any longer, hit the female party. The female party then reported to the police, claiming she was a victim of domestic violence, and subsequently filed for divorce, seeking additional compensation based on the claim of domestic violence. The male party had not accumulated evidence in advance and could not substantiate his defense, so the presiding judge initially believed the male party had committed domestic violence. However, for the purpose of mediation, the judge met with the male party before the judgment and sensed something was amiss. Therefore, the judge inquired with the neighbors and security personnel in the community to understand the true situation, ultimately rejecting the female party's request.

Sometimes, what we perceive as the "abuser" may actually just be a victim responding to violence. However, the truth of the matter is hidden in layers of fog, and evidence is the only treasure to dispel the fog. Only by being vigilant in preserving evidence in daily life and being more aware of evidence collection can one truly safeguard their interests under the legal system.

What to Use to Protect Privacy Rights#

Once upon a time, the internet was still a new thing. On July 5, 1993, The New Yorker published a cartoon featuring a dog sitting in front of a computer, saying to another dog on the floor, "On the internet, no one knows you're a dog." Since then, this phrase has become a natural advertisement for the anonymity and concealment of the internet. But now? People not only know whether the person behind the computer screen is a dog or a human, but they even know that person's name, age, date of birth, home address, email, phone number, bank account, education, occupation, marital status, and even how many times they have booked a hotel.

So, every time the police arrive during holidays, they advise everyone to post less on Weibo, as it can easily leak information and invite thieves.

1. The First Case of Human Flesh Search#

Speaking of personal privacy, one cannot fail to mention human flesh search. Since the "Microsoft Chen Ziyao Incident" in 2001 opened the door to a new world for netizens, it has been unstoppable. Some well-known online communities have begun to enthusiastically engage in the practice of "human flesh search," with incidents like "Copper Beard Gate," "High Heels Cat Abuse," "Qian Jun Assault," "Rogue Foreign Teacher," "Illex Assistant," "Very Yellow and Violent," "South China Tiger," and "Jin Jing Being Beaten" showcasing various styles and levels of creativity. Some view it as moral judgment, while others see it as online violence.

Indeed, human flesh search not only satisfies participants' sense of morality and justice but also the anonymity and concealment of the internet serve as the best helpers for citizens exercising their freedom of speech. Just think about it: being a ghostly keyboard warrior online, reporting corrupt officials, exposing low-quality individuals, and upholding mainstream moral values—what a delightful thing! Violations of group morals should be publicly shamed.

However, as netizens played around, they went too far in 2008, leading to a major news event.

In 2007, a woman named Jiang committed suicide by jumping off a building due to her husband Wang's infidelity. Before her death, she posted photos of her husband and the third party on a death blog, which were later exposed online by the deceased's sister, who revealed the deceased's diary and the details of her death. Upon seeing this, netizens thought it was a great topic for human flesh search, and during the process, they inadvertently dug up the personal information of the deceased's husband and the third party, who shared the same name as a famous singer. Netizens flocked to the scene, with some even going to the husband's home and workplace to spray slogans, causing the individual's normal work and life to completely collapse. The husband, whose personal information was exposed, could not bear the harassment from netizens and ultimately sued the instigator in court.

In 2008, this incident was tried as the "First Human Flesh Search Case" by the Chaoyang District People's Court in Beijing, which unprecedentedly organized 54 senior judges to hold a joint meeting to discuss the case. Ultimately, the court found that the defendant Zhang and the posting website both constituted violations of the right to reputation and privacy.

The facts of this case are not difficult to confirm, but what is challenging is determining the legal basis involved—what laws do we use to protect citizens' privacy?

Privacy Rights: Why Not Give Me a Seat?

The term privacy was mentioned in judicial documents as early as the 1950s and 1960s, and the earliest formal law to mention it was the "Civil Procedure Law (Trial Implementation)" of 1982. Subsequently, the term was used in dozens of laws, including the "Criminal Procedure Law," "Law on the Protection of Minors," "Mental Health Law," "Practicing Physician Law," and "Lawyers Law." However, at the time of this case's trial, no law explicitly defined "what privacy is."

Why? Because... it was forgotten during legislation...

Looking through the "General Principles of Civil Law" promulgated in 1986, which involves "personality" rights, only the rights to life and health, name, title, portrait, reputation, and honor are mentioned, and the entire "General Principles of Civil Law" does not mention the term "privacy."

Although a law was enacted in 1993 that first explicitly defined "privacy rights," it was called the "Basic Law of the Macao Special Administrative Region," which protects "the right of Macao residents to personal reputation, private life, and family life."

The second law that defined "privacy rights" came 12 years later, in the 2005 amended "Law on the Protection of Women's Rights and Interests," which stipulated that "women's rights to reputation, honor, privacy, and portrait are protected by law." Unfortunately, this provision only applies to women and does not have general applicability. At least in the case mentioned above, although the plaintiff shares a name with a female celebrity, he is undoubtedly male and cannot invoke this law.

Reputation Rights: How About You Sit on My Lap?

This legislative gap left a significant loophole, and the Supreme People's Court carefully searched through the "General Principles of Civil Law" and found something that could be related to privacy in Article 101, which protects reputation rights.

In 1988, the Supreme People's Court, in its "Opinions on Several Issues Concerning the Implementation of the General Principles of Civil Law (Trial)," added a provision in Article 140 through a "roundabout approach," stating that "promoting others' privacy in written or oral forms" also constitutes a violation of citizens' reputation rights. This effectively expanded the scope of reputation rights to include the disclosure of relatively private secrets (for example, uploading intimate photos online). From this point on, privacy rights became part of reputation rights.

After a few more years, the Supreme People's Court further detailed regulations in its "Answers to Several Issues Concerning the Trial of Reputation Rights Cases," stating that if the disclosure of others' privacy leads to damage to reputation rights, it should be handled as a violation of others' reputation rights.

However, this patching by the Supreme Court led to another problem. "Disclosing privacy leading to damage to reputation rights" is one way to handle it, but what about cases where privacy is disclosed without harming reputation? For example, if someone's home address, ID number, or bank account is disclosed, it does not affect their reputation at all; will it not be addressed? The Supreme Court remained silent on this issue.

Privacy Rights: You Can Only Move Me If You Touch Me; It's Better for Me to Stand Aside.

Using reputation rights to protect privacy rights, although there are legal provisions, there are still loopholes. This was the case until 2001 when the Supreme Court felt that it was necessary to patch the loophole and issued the "Interpretation on Several Issues Concerning the Responsibility for Compensation for Mental Damage Caused by Civil Infringement." Although this document still does not explicitly mention "privacy rights," it at least stipulates that "violating social public interests and social morals by infringing on others' privacy or other personality interests, the victim can file a lawsuit for compensation for mental damage, and the people's court should accept it." With this document, everyone breathed a sigh of relief: finally, we don't have to worry about whether reputation rights have been harmed.

After nearly ten years of ups and downs, privacy rights were finally widely used to protect citizens in 2010. That year, the "Tort Liability Law" was implemented, which directly stipulated that civil rights include privacy rights. This truly brought "privacy rights" under legal protection.

Other than Civil Law, There is No Choice#

1. What Counts as Privacy?

After the "Tort Liability Law" clearly stated the protection of privacy rights, the civil protection of this right finally took shape, but it still did not clearly define "what privacy is" or "what privacy rights are." In the judgment of the above-mentioned case from Chaoyang District, it was clearly stated that the definitions of privacy and privacy rights exist, but it has not gained consensus in the academic community. For example, in the above case, extramarital affairs are considered absolutely private information and are thus privacy, but whether personal information such as names, photos, and home addresses that are publicly available within a certain scope can be protected under "privacy rights" remains disputed.

The boundary between privacy and non-privacy is very vague.

"Privacy" is related to the identity of the individual. For example, if netizens expose the "expensive cigarettes" smoked by corrupt official Zhou Jiugeng, which cost 1,500 yuan per pack, it is public supervision of the official's integrity. However, if they expose an ordinary citizen smoking 1,500 yuan cigarettes, it is personal privacy. Personal information such as birthdays, family members, addresses, and portraits of public figures like celebrities is considered public information, while the same information about ordinary citizens can be regarded as personal privacy.

2. Online Privacy Infringement is Not Just About Human Flesh Searches

Every action people take on the information network is quietly recorded in a little black book—shopping records, search records, blog posts, friend additions, etc., can all be found in this little black book. Some search websites can analyze users' online usage records to determine their preferences and push advertisements they think are suitable for them. In short, when you use the internet, the internet keeps your records.

In the internet age, people leave behind too much information that can be retrieved later. Moreover, even without the internet, people leave personal information and even copies of ID cards when dealing with real estate agents, applying for credit cards, banks, telecommunications, and medical services.

In 2009, CCTV's 3.15 Gala exposed communication companies in Shandong's Jinan, Rizhao, and Dezhou that sent spam messages and illegal information to users and sold user information—this involved the leakage of detailed personal information of 20 million people, including names, ID numbers, gender, birth dates, phone numbers, and registered emails.

Once this information is leaked, the consequences are far from simply being scolded by netizens. For example, an employee of a public security traffic command center in a certain city in Fujian Province stole information about car and motorcycle owners from the national vehicle information management system through the public security network and sold it. The buyers then used this information to impersonate staff from the vehicle management office or the national tax bureau to contact the owners, defrauding them of over 15 million yuan under the pretext of subsidies for cars and motorcycles or tax refunds.

To this day, such infringement behaviors have formed an industrial chain, with some people specifically responsible for purchasing this information from communication companies, banks, real estate agents, and even internal public security organs. Others specialize in buying citizens' information, compiling it, and reselling it at a markup. Once this information is leaked, the consequences are not just minor nuisances from real estate agents, credit card applications, or private loans; the ensuing crimes become more diverse: telecom fraud can be divided into divisions of labor, with each person handling dozens or hundreds of pieces of information to make phone calls to defraud money; those making fake IDs can directly use others' information to create fake IDs and impersonate others; even customer accounts and passwords from JD.com are sold, allowing buyers to log into customer accounts and steal funds for consumption; more professionally, this information can be used to set up "private investigation companies" or debt collection companies, extorting money using hotel information... In short, in the face of the internet, we have no secrets.

There is a saying: when registering on websites, it is good to develop a habit of using different names. For example, when registering on Sina, use "Zhang Sina"; on Yahoo, use "Zhang Yahoo"; on Baidu, write "Zhang Baidu"; and on Google, change it to "Zhang Google." One day, if you receive a call asking, "Is this Zhang Jian?" you will know that the Construction Bank has sold your personal information...

3. The Scope of Administrative Penalties is Too Narrow

Regardless, privacy has at least gained some civil rights protection, but the punitive measures against infringers are limited to a few cases stipulated in the "Public Security Administration Punishment Law" enacted in 2005, which allows for penalties for infringing others' privacy in limited circumstances: for peeping, photographing, eavesdropping, or spreading others' privacy, one can be detained or fined.

However, after the human flesh search case in 2008, some scholars proposed that the maximum administrative penalty for such behaviors is only ten days of detention, and if the privacy content is true, one cannot invoke the criminal law's related defamation and insult charges for punishment. Therefore, a specific "human flesh search crime" should be established. Subsequently, some NPC representatives indeed proposed related motions, but they were thoroughly criticized.

The greatest advantage of the internet lies in its anonymity, and thus the biggest obstacle to safeguarding rights in cases of online infringement is identifying the true identity of the infringer. This raises another question: should we require real-name registration on the internet?

This question leads to a series of issues: does requiring real-name registration make it easier to leak the identity information of internet users? Does real-name registration infringe on citizens' privacy? Additionally, in cases of online privacy infringement, should citizens' rights to freedom of speech, anti-corruption reporting, and public opinion supervision be restricted? When the motivation is to protect others' interests or public interests, should there be exemptions? How to determine punitive measures, and should criminal law be invoked for punishment?

These academic questions have not reached a consensus, making the biggest obstacle to protecting privacy through criminal law.

Using Criminal Law to Protect Personal Privacy#

Around 2010, the Ministry of Industry and Information Technology organized some internet companies to draft a "Guidelines for Personal Information Protection" draft to solicit public opinion. This personal information protection guideline was drafted in collaboration with companies like Tencent, Baidu, Sina, Qihoo, and others.

Just one company, Tencent, holds an overwhelming amount of our information: personal identity, QQ number, WeChat number, phone number, email, and various email contents, bank account numbers, shopping habits, internet habits, activity times, videos, photos, login locations, work units, and relationships with relatives and friends, as well as work and study resumes...

However, these events have also allowed legislators to grasp the core of the problem well: in cases of online infringement, the key issue is that the identity information of individuals is leaked. Therefore, can we first protect the personal information of the infringed party?

1. Online defamation and insult can seek help from the police

Traditional torts are mostly one-on-one or two-on-two forms, with limited and clear targets. However, online infringement often occurs in a many-to-one situation, leading to online infringement being humorously referred to as "cloud infringement." The most common forms of online infringement ordinary people encounter are online defamation and insult, and the most challenging aspect of safeguarding rights is determining the actual identity of the infringer.

However, defamation and insult charges are self-reported cases, meaning victims must rely on their personal efforts to investigate, which adds difficulty to safeguarding rights: if one cannot identify who the infringer is, they cannot file a lawsuit. In the past, the path to safeguarding rights for victims was often blocked by this obstacle, and some even hired so-called private detectives to investigate the infringer's real identity, often falling victim to fraud.

In the 2015 "Criminal Law Amendment (Nine)," this dilemma was finally resolved: victims can apply to the court to have this technical problem solved by the police.

2. Focus on protecting personal information

As mentioned above, the hidden harm of online infringement lies in the leakage of personal information. Because of this, the "Criminal Law Amendment (Seven)" in 2009 first proposed "protecting citizens' personal information" to combat the source of information leakage—state organs or individuals in sectors like finance, telecommunications, transportation, education, and healthcare who can easily obtain citizens' information through their work convenience and sell it for profit. This crime is called "selling or illegally providing citizens' personal information," and after its implementation, there was a crackdown, with cases of individuals being sentenced for selling six pieces of personal information.

However, there are countermeasures to every policy. These individuals obtain citizens' personal information and explicitly state they will not sell it but instead "do good deeds" by posting it online. In this case, this crime cannot be established. Furthermore, citizens' personal information is often sold through several intermediaries, and those in the middle are not the ones with confidentiality obligations and are not the targets of this crime, making it difficult to punish them under criminal law.

Thus, in the 2015 "Criminal Law Amendment (Nine)," the scope of punishment was expanded to include "selling or providing citizens' personal information to others," effectively closing the loopholes in "Criminal Law Amendment (Seven)."

The protection of citizens' privacy still has a long way to go, but at least in protecting citizens' personal information, our criminal law has made a good start.

Rights Protection Methods—A Guide to Justifiable Defense#

1. Abundant Ideals

In the minds of many ordinary people, the most useful aspect of the law is "rights protection." However, the law has a fatal weakness: it can only take effect after the damage has occurred. For this reason, both private law in civil matters and public law in criminal matters grant citizens the right to justifiable defense. However, justifiable defense is a technical skill, and it is not so simple to operate. Nevertheless, even if one cannot learn the ability of justifiable defense, at least one can learn to have a heart for justifiable defense.

2. Basic Theory

To perfectly achieve justifiable defense, one must first understand that justifiable defense includes two elements: "justifiable" and "defense."

Justifiable

First, it must be determined that the harmful behavior directed at you is "unjustifiable." Therefore, law enforcement actions such as police checks, identity checks, and arrests of fugitives cannot be resisted under the guise of justifiable defense.

Second, it must be determined that the interests you are protecting are "justifiable." Imagine this: when the enemy comes to rob you unarmed, you pull out a knife to defend yourself. The enemy sees this and realizes the disparity in lethality, feeling threatened by your life, so they also pull out a weapon and kill you in the name of "justifiable defense." Can you accept that? Moreover, with so many "black-on-black" incidents happening, if unjust gains are allowed to justify defense, society would descend into chaos.

Third, the harmful behavior must be "ongoing." That is, an unjust invasion is currently harming a just interest; only in this urgent state does the defensive behavior possess legitimacy and does not become a new act of harm. To borrow a line from a certain movie, "what is happening is happening; being early by a minute or late by a minute does not count as happening."

Defense

In simple terms, one must have a heart for defense and clearly recognize that one is "defending," not "attacking." Although in practice, many situations involve attacking to defend, it is still essential to recognize that "defense" is the essence of "attack." The attack is meant to stop the opponent's aggression, not to harm them. I believe that the rules of justifiable defense reflect the philosophical thought of "non-aggression" in Mohism.

3. Common Misunderstandings and Misinterpretations

Red names are strange, regardless of age or mental state.

Whether the aggressor is a person or an animal, an adult or a child under 14 years old, or mentally ill, as long as they are committing an unlawful invasion, one can implement defense against them. Although there is ongoing debate in the theoretical community about whether to implement justifiable defense against acts of aggression by those without criminal responsibility (animals, children under 14, or mentally ill individuals), this debate does not affect the defender's lack of responsibility.

Everyone helps each other.

Many people mistakenly believe that only the victim can implement justifiable defense; however, this is not the case. The core of justifiable defense is only to stop the aggressor. Therefore, regardless of who the target of the aggressor's attack is, others nearby can also defend. This is the essence of "I help everyone, and everyone helps me."

Justifiable defense is not a trump card.

Some may ask: If I can both fight and dodge, must I prioritize dodging first and only fight back when I can't dodge?

Of course not. Even if there are other means or conditions to avoid unlawful aggression, citizens still have the right to implement justifiable defense. This is also the positive energy that the law encourages citizens to fight against illegal and criminal behavior. Justifiable defense is not a trump card; it does not need to be saved for the last moment.

4. Prohibition of Abuse

Provocation for defense

Some students may think flexibly and wonder if they can provoke or ridicule the aggressor first to lure them into attacking, thus justifying a counterattack in the name of justifiable defense.

This idea is good, but unfortunately, legal scholars have anticipated this move. In this case, the purpose of the defense is to kill, which is an illegal intent rather than a justifiable protection of oneself. Therefore, this is still a premeditated act of harm and does not constitute justifiable defense.

Hypothetical defense

Where there is killing, there is also accidental killing. Similarly, where there is defense, there is also mistaken defense.

For example, if a passerby A is walking alone on an empty street at night, and suddenly someone jumps out from the bushes, A is startled and accidentally kills the person—only to find out later that the deceased was merely squatting in the bushes.

This situation is a typical case of hypothetical defense: mistakenly believing the other party is committing an unlawful invasion when they are not. Since the defender did not have the intent to harm the other party, this situation does not constitute intentional crime but can only be classified as negligent homicide or an accidental event based on whether the defender had any negligence in failing to exercise due diligence.

5. Choosing the Right Tools

Sharp tools are not recommended.

An ordinary person who is untrained and wants to implement defense has a higher chance of successfully counterattacking with equipment than without it, so it is essential to prepare equipment. However, the choice of equipment is crucial. Generally, for an untrained ordinary person, it is advisable to prioritize blunt tools because sharp tools have the following disadvantages:

A. It is difficult to control lethality and achieve the goal of incapacitating the opponent without causing death. If a sharp cutting tool is too sharp, it can cause severe disabilities from severing limbs; if it is not sharp enough, its lethality is low. Stabbing tools are even harder to use, as the human body is full of vital points, and a casual stab can easily hit an artery and cause massive bleeding. In short, the biggest problem with sharp tools is their excessive lethality, which can easily cause serious injuries, disabilities, or even death, leading to criminal liability for excessive defense. As an ordinary person, it is better not to choose tools that are difficult to operate. As the old saying goes, "The blade has no eyes."

B. Difficult to use, and they may be taken away by the opponent, leading to counterattacks.