If you can afford something, donations may be made by following the links in this page. [Thanks to China Law Blog for the tip.]

Your prayers for the living and the dead are also a valuable contribution.

TODAY'S POST

This op-ed piece in the New York Times -- printed just days after the almost unfathomable suffering in Sichuan -- is more than just shocking. It is like a dagger in the spine.

Ostensibly a discussion of technological advances throughout Chinese history, which China has failed to employ for the benefit of its people, the author, Simon Winchester, turns to the real point of his essay in the penultimate paragraph:

China, in its headlong attempts to modernize, has often demonstrated a dismayingly cavalier attitude toward the well-being of its people: skyscrapers are built with little attention to safety standards and are invariably far from earthquake-resistant; huge dams — not least the monstrosity that has so ruined the Three Gorges of the Yangtze — are erected in a slapdash fashion; subways, like the system burrowing through the waterlogged alluvium beneath Shanghai, are built with incautious haste; freeway tunnels are bored through earthquake fault zones.

While all that is asserted in this paragraph may be true, it is a deliberate low blow coming at a time of extraordinary weakness. Does anyone deserve such haughty academic criticism when their sons and daughters, mothers and fathers, friends and lovers, are smote with undeserved disaster? Where is your heart, man? For what purpose, this op-ed? To influence policy?

[Listen to Melissa Block of National Public Radio report on-site from Sichuan here.]

The editorial staff of the New York Times needs a significant dressing down for its cruelty. If you agree, send an e-mail to Clark Hoyt, the public editor: public (at) nytimes.com

UPDATE (May 16, 2008)

Gordon Chang himself joins the fray. Shameful.

But look at it! An aggressive, unsympathetic posture -- arms crossed! Not representative of the inspirational Reverend leader, but of a Communist war-hero. What a horror!

A powerful federal arts commission is urging that the sculpture of Martin Luther King Jr. proposed for a memorial on the Tidal Basin be reworked because it is too "confrontational" and reminiscent of political art in totalitarian states.

This commission should be taken away from the sculptor and awarded to someone who understands, in the American context, the value and meaning of the movement for equal rights and Martin Luther King's place in it.

A woman on the bus is quoted as having said, "“车门刚刚打开，突然就闻到一股怪味，然后车厢当中一个座位烧起来了。”" [ Editor's translation: The door of the bus had just opened and suddenly I smelled a strange odor, and then a seat in the center of the bus burst into flame.]

Spontaneous combustion of a passenger or something more sinister? A trial run?

Dear Counsel,

I have previously sent you an email that was not acknowledged hence the need for me to forward this correspondence to you again; your urgent confirmation will be highly appreciated. If you are not in position to represent us at the moment kindly advise us immediately.

I am (Name), President/CEO of (Name) Co. Ltd., Hong Kong. We got your contacts from the United States Chamber of Commerce Directory through the Hong Kong Trade Development Council. (We) specializes in manufacturing fasteners, industrial parts, machine components, hardware kits and other general assemblies for virtual any finished goods delivered in retail-ready packaging to our customers.

The management of (Name) Co. Ltd., HK, requires your Debt Collection and Legal Services representation for our Customers in the United States. We are of the opinion that the ability to consolidate payments from customers in United States will reduce the high rate of outstanding payments and the penultimate reduction in the net book value of bad and doubtful debts as indicated in our current trading position. After a careful research, we have been able to establish that delinquents or past due accounts are settled when reputable and aggressive firm or professional(s) represents an organization in collection of debts or possible litigation that may arise thereof. In addition, it is our ultimate goal to employ your services for the eventual formation of our subsidiary office in your geographical business riding because over a long period of time, we have observed that the economy, environment and policies issues in your state (among the rest) are highly stable and conducive to business.

We understand that a proper Client Retainer Relationship will provide the necessary actualization and authorization and we are most inclined to commence talks as soon as possible. We are seeking for collection approach that is one of negotiation not confrontation as we wish to continue the cordial business relationship with our customers and we will expect these customers to be treated with due care; and properly attended to without losing them to our competitors. But, we shall NOT hesitate to be firm under certain constraints.

We are open to negotiation as per your working terms as regards benefits and commission.

On behalf of (Name) Co. Ltd., please accept my sincerest appreciation for your willingness to render your services to us as I look forward to your prompt response. Do not hesitate to contact us if you have any questions or concerns as we are very open to suggestions and advice towards this relation. Indicate your response to us by email (URL) or by fax (telephone number with an 852 prefix) stating Ref. No.: BMTC/ATT/US/08/03A.

Note the suspect indicia:

• Right off the bat, the writer offers a retainer!
• China is hot -- and now they're coming to me! (As I've written many times, try to avoid being sucked in by the purported sexiness of anything Chinese without applying first a skeptical attitude which constantly questions until satisfied.)
• The e-mail is fairly well-written, but with the errors one might expect from a Hong Kong Chinese with a good deal of education. That said, it reads as boilerplate written for a mass audience.
• The domain name of the e-mail leads to a fully developed and persuasive website of a company with ostensibly Hong Kong and Shanghai contact information. But the website whois information displays a Toronto administrator with a misleading e-mail address.
• The e-mail does not refer to me by name at all.
• The claim is made that the writer came across my name in the directory – a Chamber of Commerce directory -- in which I am not listed
• The personal e-mail of the “President” of this company is info@[domainname].com.
• The writer claimed that he had contacted me once before by e-mail, which he had not.

A barrister in Canada comments:

This sounds like a variation on a familiar scam that targets attorneys. From what I have heard, it goes something like this:
1. Attorney goes to do collection. The alleged debtor caves in and agrees to pay a settlement amount to attorney in trust.
2. Attorney receives a certified cheque to deposit into trust in satisfaction of debt.
3. Attorney then is to disburse settlement amount to client from trust funds. Attorney wires settlement amount to client.
4. Turns out the certified cheque is a forgery. Client disappears with money. Debtor also disappears. Attorney has to repay monies back into trust out of attorney’s own pocket.

This article, “Fraud Scam Alert," published in LawPro magazine, provides some background. [Editor's note: Kudos to the barrister...] The purported China affiliation may make this scam more appealing. In fact, since I do both “litigation and collection” work for Chinese businesses in the United States, and did not know early yesterday morning that other attorneys had received the same e-mail, I initially thought the request might be legitimate. But be advised -- do your due diligence first. If it smells bad, it stinks.

The grapevine through which I'd heard the rumor informed me that a former Chinese national Ph.D. candidate -- whom I once may have met at one of those awfully unproductive "you teach me Chinese, I teach you English" get-togethers -- had left the program to start a Chinese restaurant in the nearby town of Danby, where his contacts with the school allowed him a certain amount of access to confidential information performed on behalf of the Defense Department. I forget how much time he did. Of course, spying is not limited to Chinese -- it's just that my eyes are open to happenings in the Chinese community, rather than any other.

Some of the industrial spying stories are simply fascinating. Like the Ohio company, a leader in its field of metals processing, inviting a potential Taiwanese distributor into the factory. He was caught wearing shoes with magnetized soles to pick up metal filings on the floor of the factory, which would have later undergone metallurgical analysis. How such subterfuge was caught is anyone's guess. The Ohio company must have been on its toes. (Get the pun?) Of course, 10 years later, they've made significant investments in R&D sites in various cities in China, thereby heightening exposure to theft of secrets. One wonders the extent to which they 've been able to keep the door of the safe closed and locked.

I, for one, never knew that the assignment of a foreign national to a military research project in a university may require an export license. In today's recommended link, technology espionage meets university researchers meets the Defense Department meets export control laws. A fascinating web of intrigue for the lawyer to unravel.

Does a shortage of containers used to export product from the US imply a notable change in the balance of trade, as this article posits? or, is it simply that, as the article states:

Many shipping lines, including Maersk, have shifted container capacity away from the U.S., just when U.S. producers need them most.

The firm practices exclusively in the areas of customs and international trade law. Ms. Schwartz was joined in this article by colleagues Elon Pollack, Jason Li and Brian Murphy.]

China signaled its willingness to enter into an MOU [Memorandum of Understanding] on C-TPAT validations in late 2007, following Customs Commissioner Ralph Basham's meeting with his Chinese counterpart, Mu Xinsheng. [Editor's note: “A C-TPAT validation is a process through which the U.S. Customs and Border Protection (CBP) C-TPAT program meets with company representatives and visits selected domestic and foreign sites to verify supply chain security measures contained in the C-TPAT participant’s security profile are accurate and are being followed.”]

However, it does not appear that a final agreement has yet been reached. Negotiations are, ostensibly, ongoing, so an announcement later in the year may be forthcoming. Since 2003, however, there has been a cooperative agreement between the United States and China in place with respect to the Container Security Initiative (CSI). As implemented, the program affords CBP [US Customs and Border Protection] limited access to participating ports upon information that certain containers are high risk.

When these identifications are made, CBP may request that General Administration of PRC Customs (GACC) liaisons conduct electronic inspections of U.S. bound cargo. (CBP officials, however, are not allowed to perform law enforcement functions, including such inspections, directly.) The CSI program has been operational in the ports of Shanghai and Shenzhen since 2005. See this page.

Initially (for obvious reasons, given China's sensibilities), Chinese officials bristled at requests to permit factory inspections under the auspices of C-TPAT. Partially in response to this reluctance (and partially due to CBP personnel constraints), U.S. Customs developed a pilot program to outsource factory validations in China to private, third party companies that are properly vetted. There is nothing controversial about this program; many companies openly engage in similar in-house practices to secure their supply chains, anyway.

But while this solution may circumvent Chinese concerns about national sovereignty/extraterritoriality, the program remains underutilized; only eleven importers have registered under the pilot program. If China does enter into an agreement on CBP validations with the United States, C-TPAT inspections could potentially become as routine as, say, U.S. Department of Commerce visits made in the course of anti-dumping investigations.

Nonetheless, unless C-TPAT participation becomes mandatory, Chinese suppliers generally have little incentive to comply with C-TPAT requirements -- especially in view of the large number of intermediaries, such as trading companies, involved in China trade. In cases involving large U.S. buyers registered for C-TPAT, such entities have the bargaining power to force its suppliers to allow onsite inspections, but cost allocation (of validation fees, security upgrades, etc.) remains problematic. Anecdotally, the firm has at least one client that has confronted this realization as a result of its experience with C-TPAT.

In short, the prospects for greater C-TPAT acceptance in China are less than rosy. This projection notwithstanding, it is not the case that only those few ocean containers subject to C-TPAT requirements will be under increased scrutiny from U.S. Customs. In January of this year, CBP announced its proposed rule on the Advance Data Elements Project (a.k.a. "10 + 2" Security Filing), in which U.S. importers must supply ten additional data fields through electronic manifest, including, for example, the "container stuffing location." See this page. Under the proposed rule, failure to provide complete and accurate information may result in "no load" instructions.

Given the fluid and -- from the importer's perspective -- nebulous sequence of export processing functions in China, such an onus could pose a considerable challenge to parties on both ends of the transaction.

Why not make your own with non-toxic dye? Fun and educational for both you and the children.

Part One on consumer debt may be found here.]

美國聯邦討債法規與個人的權利 (Part 2): 商業討債

柯亦清（Richard Kuslan, Esq.）

追帳是商人最頭痛的事情。貨物已到客戶手上或服務項目已經成功結束了，但客戶無緣無故不付錢。因為我國早就拋棄了「cashsociety」 (以現金為主要付錢方式的社會)且依靠信用來刺激購物，想要擴展的公司不能不讓客戶掛帳。因此﹐賣方必須設好信用查詢制度，向每個信用申請者舉行盡職調查 (due diligence)。

儘管作了信用調查，有時還會有些問題出現。現在讓我們到某家公司老闆辦公室聽聽會議結果：
老闆﹕「壞帳怎麼這麼多﹖用什麼方法無所謂，只要把錢儘快追到手。趕快想辦法! 」

(作生意該符合道德與法律兩種標準。無法符合道德的時候，還是必得遵守法律。有些方法又非道德又非法律，所以老闆最好別叫職員「用什麼方法都行」。更何況老闆本人是負責人!)

助手﹕「沒問題! 我會為公司盡力。」因為他從來沒追過帳，發現自己也無所是從。再加上他對討債之事極反感，也害怕被拒絕，於是開始研究情況。

公司生意包括零售與批發渠道，所以客戶範圍較繁雜。有州內外和國際客戶，有個人消費者，有小店面的零售商，也有規模校大的廠商。對討債來講，各有各的困難。以下是兩個壞帳案子。

公司討消費債

公司讓住在州內的消費者以分期付款方式購貨。付了第一筆以後剩下未付金額達到1500元。令助手驚駭的是，三個月後公司才注意到，第一筆付了以後，一毛錢也沒收到。助手當天與客戶聯繫時，客戶把電話掛斷了，讓助手火大，連續撥五、六通電話，最後聽到電話錄音。

助手大怒說﹕「If I don't get my money, I'll have the police arrest you and put you in jail!」 (你馬上付清，否則我叫警察把你逮捕，送去監獄!) 可惜，助手不曉得客戶是生重病不能工作也沒有收入的老年人。客戶通知了律師（客戶的親戚）有關電話內容。律師認為可能成立訴訟因由就開始研究有關法律。

美國法律體系主要包括聯邦法 (federal law)、州法 (state law)與地方法 (local law)。聯邦法在全國有效，州法與地方法在該州或該地方有效。這就是說，紐約的法庭會引用紐約法來裁判案子，而不會引用其他州的法規。美國公正討債法 (簡稱FDCPA)管制追討消費債的職業商與律師的聯邦法。此限制意味著公司自己職員追討公司被欠的債牽連不到FDCA。所以上述助手直接對公司的客戶追討未付應款與FDCPA無關。但這不是說消費者沒有任何法律上的保障。

由於助手的說話行為粗暴，很可能違反討債以外的州法而成立侵權或刑事訴訟因由。追債必須要保持不達目的決不罷休的態度，但為了避免法律上的問題，要對欠債人講話有分寸，表現出一定的禮貌。

助手討債方法沒成功後，就找到討債公司 (collection agency)辦案子。一般來講，美國職業討債公司收不到錢不收費。討債公司領取與委託公司雙方事先同意所收回債額的百分比為費用，其範圍為一成至五成。實際費用取決於案子的情況，如債的總金額、欠債人的地點、多久以前的債務等條件。通過討債過程還是收回不到壞帳，事情就變得嚴重了。為了進一步進行討債，最好讓律師依法律來解決。

公司討商業債

助手發現欠債的客戶不限於消費者而已。原先位於州內批發商與公司交易原則是每次購貨先付清現金才拿貨。當批發商訂單增大時，批發商要求付款方式為先付一部份現金，餘額等貨物運出60天後付清。因為從前批發商一直作生意可靠，老闆沒那麼擔心。他也認為ceditcheck(信用查詢)不值得花費，就決定不經過查詢就同意了﹐收了總金額的一部份就把貨送出去了。Big mistake! (犯了很大的錯誤!)過了90天，剩下金額的一部份還沒收回。該公司該有信用查詢制度。不經過查詢，風險太大。

討債商沒收到錢就轉交給律師解決。討商業債與消費債的重要區別之一就是所能引用的法律與討債措施不同。討商業債主要牽連到州法，尤其是商法，如合約法等，而且商業債與FDCPA無關。若討消費債，以上所述的消費者享受的特別保護，商業債並沒有。商業欠債人在外州的話，收錢的過程平常需要較長時間而可能導致較高的費用。無論是州內州外，民事訴訟的目的是一樣﹕說服法官下法令 (judgment)強制對方付錢。因為一般訴訟會迅速消耗資本，雙方能夠通過商量得到和解而迴避法院為最有經濟效果。但為了和解而省錢，欠債人可能要讓步並且接受總債額的一部分。在協商方面較有技巧的律師就顯得重要起來。

若得不到和解的話，要好好考慮下一步策略。為了取得法令必須先上法院提出申訴 ( lawsuit)。對方敗訴後才有最終裁定，但還有機會上訴 (appeal)。在某些情況下，上訴駁回了還可以上訴到州最高法院或聯邦法院。有了裁定，法院就會發佈法令。對方不照樣履行，就可以引用州法所認許的強制措施，如留置權 (lien)、扣押(attachment)、資產拍賣(sale of assets)，甚至強制對方公司申請破產等方法。

在上述故事裡，律師剛開始與對方協商。他是否能夠得到理想的結果，就視多種難以控制的因素而定，包括能引用的法律、案子的具體情況、對方的反映與資產、公司老闆的態度、律師自己的商量技術等等。有經驗的律師知道所謂理想的解決就是客戶能夠接受的成果。

© 2008 Law Office of Richard Kuslan LLC

Over the many years of reading both academic and popular works on China business, law and government, I've come to find that very few are both scholarly and readable. That is to say, that the non-academic books are generally thin and anecdotal in nature, while the academic books are often riddled with the thornbush of jargon, footnote and profundity. I do not mean to say that either fails to please its intended target market of readers, but I have always believed that something was missing -- depth and delight admixed. Hence, this weblog, which I hope has at least plugged the gap in some small way.

Neither is suitable reading for the beginner, but after 25 years of a China that has at least materialistically engaged with the world, many foreigners have more than a passing knowledge of China. I heartily recommend both these volumes for the business executive or government official who has some experience in China and is looking for knowledge of value. Each essay is but a few pages in length and yet manages to plumb well past the shallow depths that brevity usually indicates. Although written by scholars, they are, as the publications marketing people would say, quite accessible.

Click here to download:

Regulating Enterprise the Regulatory Impact on Doing Business in China

Is China Trapped in Transition?

Phil also tells me that a similar publication on dispute resolution in China is forthcoming. Despite all we know about CIETAC and its shortcomings, what we in the West call “alternative dispute resolution” has traditionally represented for Chinese the preferred method of resolving an impasse, far more than the fearful specter of legal process. I will update readers when that publication is available for download.

The second part of the article, which I will post in a few days, is written for the business reader who has uncollected debts and is unaware of the legal methods by which he may pursue them.]

《法律之窗》
美國聯邦討債法規與個人的權利
柯亦清(Richard Kuslan， Esq.)

（這一篇文章分成兩個部分。這一部分的題目從一般消費者的角度來討論美國討債法規制定的個人權力。 下一部份就以討債的反面：從商業界的角度來討論合法與公正的討債措施。）

早上6點半第一個電話進來， 把你吵醒了。怎麼回事？是誰? 這麼早可能是國外或緊急電話，你朦朦朧朧地把話筒拿起來。

「喂？」

“When are you going to pay off the money you owe me？ For that new car you bought and didn’t pay off?” （你借了錢買來的那部新車錢沒付，什麼時候付清？）

欠什麼錢？什麼新車？在十幾年前買的二手車早就付清了。對方打錯電話了吧！說了句“Wrong number”後，你就把電話掛斷了。

不到一分鐘，電話又響了。

“Don’t ever hang up on me again! I want my money and I want it now.” （不要再掛斷！我要你立即還錢給我。）

對方粗暴加凶悍，讓你感到害怕。你幾乎扔了電話過去，馬上掛了。 但不管你掛了多少次，電話一直進來，總共來了十幾通，讓你怕接電話，怕平白無故遭陌生人痛罵。到底是誰敢對你這麼粗暴無禮呢？

上班時你希望生活可以恢復正常。不幸的是，一進去辦公室老板大怒咆哮：「怎麼可以讓討債公司的律師打電話到我們這裡跟你算賬？」 律師怎麼會打電話到辦公室找你呢？感覺十分冤枉丟臉，但不知道該怎麼辦。

說實在的，類似這場小戲在美國經常發生。為了促使國家經濟不斷成長，美國金融機構放寬了個人信用。現在几乎誰也能夠申請得到信用卡，甚至在某些情況下破產過的人亦可。以信用來購貨的消費者確實比以現金買方便得多。只不過以信用就有債，而債不能不還。不還債的結果就是被討債。

理所當然，有了easy credit (放寬申請者合格參數的信用)，也會有少數消費者領了信用後不還債。對商業界而言，討債業所供應的服務非常重要。隨着信用業的繁榮，討債業也發展到不可思議的程度。讓消費者感到吃驚的是，討債公司所接到的未付賬單或應收帳款經常有錯誤。而且，少數討債公司採用非法或不公正的手段，損壞整個行業的聲譽。

美國聯邦法規與州法規定消費信用者有些保障。討債人的語言行為必須受嚴格的限制，而討債中違規者在某些情況下會導致懲罰，甚至包括消費者的賠償和律師費。

公正討債行為規範(Fair Debt Collection Practices Act簡稱FDCPA)是美國聯邦法律。幾乎每個州都有類似法規，但為了簡便起見，我們以聯邦法來討論，聯邦法行諸全國有效。

首先把專用詞(欠債人、債權人、討債人)解釋如下: 欠債人借了錢要還給債權人； 討債人幫債權人從欠債人收債回來。

FDCPA禁止某些討債行業常用的手段，並且指定對欠債人的公正處置和措施。不過，需要注意的是FDCPA只限於消費債，包括各類個人貸款，例如信用卡、房子、車子、醫療費用等債。FDCPA適用於第三人討債則不適用於債權人本人直接向欠債人討債。譬如說，你為了買家電跟商店貸款，卻不還錢，商店職員直接向你要錢與FDCPA無關。反而債權人本人通過討債的第三人，如討債公司或律師向你要錢，這第三人必須遵守FDCPA.

讀者應該有所警惕，若你欠錢，FDCPA不會讓你逃避。自己招致的債仍然不能不還掉。
FDCPA究竟幫助誰呢?

討債人允許以電話，傳真和信件聯繫，不過聯繫時間必須對欠債人方便。以電話通知的話，應該從早上8點鐘到晚上9點鐘。在深夜或清晨打電話聯繫違反FDCPA的規則。所以，在我們故事裡早上6點半打來的討債者違規了。

討債人也允許與別人聯繫來查詢欠錢者住處，電話與工作地點，不過不可以告訴別人與欠債之事有關。在上述故事裡，討債人打到工作場所查詢基本資料不成問題，但明顯地告訴老板你欠債，就違規了。故事裡的老板也說是律師打來的。因為FDCPA禁止假裝律師或信貸評級機構的身份，討債人也同樣違規了。

按照FDCPA規定，討債人不允許有以下行為：

●為了恐嚇，連續來電
●暴力威脅
●使用猥褻或粗暴言語
●宣稱對方不還錢將會被逮捕
●追取錯帳，或曲解非為實際欠債人的債

按照上述的限制，在上述故事裡討債人在電話中的口氣與說話內容明顯違規了。不過美國法律體系相當重視書面的記錄，口頭的對話則留不下證据。

那麼可不可以錄音呢? 電話錄音不一定合法。目前38個州規定，需要對話的雙方都同意才可錄音，對方不同意的話，只能保留自己書面的記錄。記錄越仔細越能夠組成有說服力的證據，每次有來電，千萬別忘記的事項包括：CallerID (顯示來電號碼)，日期與時間、對方姓名、對方的口氣、 說話內容與你的反應。每次有來電但不接電話時，記下所顯示的CallerID，日期與時間。

可以指定討債人停止所有以電話的通知，要求對方以書面的方式聯繫。關鍵的事，儘管此消息該在電話中傳訊，但以上所謂「指定」需要補充以書面的方式為最有效。收到信件後，討債人所允許的聯繫機會就變少了。郵寄也該有證據， Certified, return-receipt requested的郵件就可以得到對方收到信件而簽名的收據.

頭一次與欠債人聯繫後五天，討債人該照法律規定，寄信件列下欠款金額、債權人姓名與提交反證的過程。如果欠債人收到信後30天以內用書面方式表示未欠款，討債人只可以提供債務的證據，例如信用卡收據等。能夠呈現自己的證據來證明債已付清，為最恰當又有說服力的方法。

以上最基本的解釋似乎隱匿了FDCPA的複雜性。討債人自己也不一定了解，再加上債務資料經常錯誤百出，討錯債的可能性相當高。討債違規後一年，被討債人有權利提出訴訟，如果符合FDCPA條件的話，訴訟成功可以收回損失，附加以1000為最高的裁決金額，法庭費用和律師費.

總之，下次討債人來找你，別提心吊膽，每個平民都有法規上的權利。

© 2008 Law Office of Richard Kuslan LLC

"It's not outsourcing," insists Robert Ruyak, managing partner and CEO of Howrey, describing his firm's new office in India. Of course, it's not lawyering, either, since an American firm practicing in India would violate Indian law. Instead, it's a new attempt by an American law firm to cut costs by creating an office in India that will handle document management in litigation, IP and arbitration matters pending around the world.

I find it hard to comment on this. Is any necessary?