Xu Ting Case

1. Distinctions Between Chinese and American Legal SystemsQingdao Agricultural UniversityXiuli Lie-mail: lxllyac@126.comJune 25, 2008

2. Question 1: You want to withdraw $100 from your ATM, but the machine gives you $1,000, and only deducts $1 from your bank account. What will do towards that pile of money? • Leave it there, because it is not my money. • Keep it, because the ATM voluntarily gives it to me; why refuse it? • Get it, but then return it to the bank, because it is not my money. • Get it, return it to the bank, and then inform the bank that something is wrong with the ATM. • Withdraw again and again , and if $1,000 keeps coming out, keep it all. • Question 2: If you keep the money, is it a criminal act of larceny? Answer yes or no!

3. Xu Ting Case Background and fact: In Apr.21,2006, Xu Ting, a 19-year-old young guy, went to withdraw money from one of the ATMs which belongs to Guangzhou Commercial Bank. He wanted to draw RMB 100, for he clearly knew that he had only RMB 190 on his bank account at that time. But, unexpectedly, he found that RMB 1,000 came out of the ATM. That this happened made him surprised but overjoyed, because only RMB 1 was deducted from the balance on his debit account. So he went to other ATMs to draw several times, until he got a total of RMB 54,000. He went back to his dormitory and told the whole story to his roommate, Guo Anshan. They went to still other ATMs to draw money. Eventually, Xu Ting got RMB 175,000 by drawing 17 times, while Guo Anshan got RMB 18,000. After that, they left and lived secretly in different cities, using the money they got from the ATMs to do business.

4. Nov.7, 2006 Guo Anshan made a confession to the police station and was sentenced to imprisonment for one year. • May, 2007 Xu Ting was caught by the police at a railway station, and was found penniless after his business failed. • December, 2007 Xu Ting was sentenced to life imprisonment and deprived of his political rights.

5. Reason According to Article 264 of Criminal Law of the People’s Republic of China (1997), any individual found guilty of larceny, if the amount is extraordinarily large, is subject to: A. a fine of money; B. life imprisonment; C. death penalty; C. a fine and life imprisonment; D. a fine and death penalty

6. Arguments • Did Xu Ting’s behavior constitute a criminal act of larceny?(Or just a civil matter, like unjust enrichment, or a void contract) • Even if it is a larceny, is it reasonable to sentence him to life imprisonment? (And what about a government official who took RMB 1,560,000 as a bribe, and received only 10 years?) • How to interpret the meaning of extraordinarily large? • What is the bank’s responsibility? Did the bank’s error facilitate Xu Ting’s act?

7. According to judicial interpretation by the Supreme Court of P. R. China in 1998: • Relatively large: from RMB 500 to 2,000; • Large:from RMB 5,000 to 20,000; • Extraordinarily large: from RMB 30,000 to 100,000.

8. January, 2008 The Higher People’s Court in Guangdong Province set aside the judgment and remanded to the original people’s court (trial court) for retrial. Reasons A. The facts were not clearly ascertained; B. The evidence was insufficient.

9. March 21, 2008 The new judgment against Xu Ting A. Sentenced to 5 years imprisonment; B. Fined RMB 20,000; C. Ordered to return the RMB 173,826. April 9, 2008 Xu Ting made an appeal to the Higher People’s Court in Guangdong Province. May 22, 2008 The Higher People’s Court in Guangdong Province made the final decision to uphold the opinion of the trial court. Ruling (But not a precedent) A. The behavior of his withdrawing money from ATM after the first time constituted acriminal act of larceny; B. According to Article 63 of Criminal Law, the court can sentence the criminal below the legal standard, if the case has unusual circumstances, subject to the permission of the Supreme Court.

10. If the Xu Ting case were brought to an American court, the decision might differ tremendously. Why?

11. Comparative Legal Systems Civil Law Systems (Roman Law, Code Law, Continental Law) In a civil law system, the only official source of law is a statutory code. Courts are required to interpret the code and apply the rules to individual cases, but courts may not depart from the code and develop their own laws. In theory, the legal code will set forth all the principles needed for the legal system. Common Law Systems The common law doctrine of stare decisis obligates judges to follow precedential decisions in their jurisdictions, but courts may modify or even overturn precedents when they deem it necessary. If there is no case law to guide a court, the court may create a new rule of law.

12. Distinctions Between the Two Legal Systems • Trial procedures: Grand jury and small jury • Primary sources of law: Codes • Function of the judges • Jurisprudential philosophy: Natural law school and Positivist school • Court systems: Single court system • Approaches to justice: Inquisitorial and Adversarial • Cultural traditions

13. A Tale of Two Companies • Company A: • Business scope: Buy and sell certain commodities, including steel. • Company B: • Business scope: Buy and sell agricultural commodities, which excludes steel.

14. Chinese Court System Central Government Supreme People’s Court Provinces (26+5+2) Higher People’s Court Cities Intermediate People’s Court Districts ( Counties) The Basic People’s Court towns towns towns villages villages villages villages

15. Article 64, Civil Procedure Law of P. R. China It is the duty of a party to an action to provide evidence in support of his allegations. If, for objective reasons, a party is unable to collect the evidence alone or if the People’s Court considers the evidence necessary for the trial of the case, the People’s Court shall investigate and collect it. Article 116, Civil Procedure Law of P. R. China The judicial officers must carefully examine and verify the case materials and carry out the investigation and collection of necessary evidence.

16. Comparing Characteristics of the World’s Two Major Legal Systems

17. Exercises（1） • 1. What are the main sources of International Business Law, British and American Law, and the Continental Law? • 2. What kind of cases can be brought before the federal court in the United States? • 3. What are the main differences between the two legal systems? • 4. The state needed a portion of Beck’s land to construct a highway. If the state decides to take the land for the public welfare over Beck’s objection, may Beck have his case be heard by a court?

18. Exercises（2） • 5. Friday failed to take seriously a lawsuit filed against him by Ranger. He completely ignored the papers describing the case and the request made by Ranger’s attorney directing him to appear in court and answer the allegations made by Ranger. Because of Friday’s course of action, Ranger’s attorney entered the proper papers in court allowing the case to proceed on evidence presented by Ranger alone. Friday claims that this procedure to defend himself in court. Is Friday correct?

19. Exercises（3） • 6. Describe the relationship between International Business Law and that of Civil Law and Economic Law. • 7. Describe the difference between Common Law and Equity Law. • 8. The Securities and Exchange Commission was established under federal law to regulate the sale of stocks and bonds to the public. The rules and regulations of this government agency are examples of what type of law?

20. Exercises（4） • 9. Dunn, a resident of Florida, was in an automobile accident caused by Greeley, a resident of Alabama. Dunn’s van was damaged to the extent of $ 3,500. May Dunn sue Greeley in the federal district court for Alabama? Why or why not?

21. Thank You