China Aviation Law
19Jul/11Off

General Aviation Sections of the Civil Aviation Law of the PRC – 中国的通用航空法律

I am starting something new with this blog. I will start to review many of the laws that govern aviation the PRC. Today, I start with my most requested section of aviation law.

The civil aviation law was enacted by the People's Congress on October 30, 1995. It is the basic legal framework for civil aviation activities, aviation administrative regulations, and civil aviation rules. The Civil Aviation Law can be downloaded in its entirety from http://www.caac.gov.cn/b1/B4/200807/P020080731309034994872.pdf

The General Aviation Sections of the Civil Aviation Law are sections 145 - 150. The section of the law is rather short, but it gives some broad definitions about general aviation and its application in China. It is basically a policy statement for what China wants general aviation to be. For more specific guidance, we will need to dive into the administrative regulations, but for this post I want to highlight some of themes you can pull from this law. First, that the definitions limit general aviation to what a US pilot would consider commercial aviation with small aircraft and second, that the law requires third party liability insurance.

This is general aviation in China for now.

Definitions

China has a very narrow definition of general aviation and this definition does not include joyrides.

"General aviation" means civil aviation operations other than public air transport with civil aircraft, including aerial work in the fields of industry, agriculture, forestry, fishery and building industry, and flight operations in the fields of medical and health work, emergency and disaster relief, meteorological service, ocean monitoring, scientific experiment, education and training, culture and sports.

Notice that this list does not include recreation. Instead, flights that are classified as general aviation are limited to specific purposes. This is an interesting contrast to the regulations in the US which do not specifically define general aviation, but rather define the limitations to general aviation like commercial carriage and interstate air commerce.

This limiting definition is one of the reasons that we have not seen much development general aviation outside of flight training and charter aviation. As it stands, there is no flying for flying sake in China. Indeed, if you look at the list of required documents to be carried during a flight, it requires that you have a passenger manifest with destination information.

Article 90:

Civil aircraft on flight duty should carry the following documents:
(1) Certificate of nationality registration of the aircraft.
(2) Certificate of airworthiness of the aircraft.
(3) Relevant licenses of flight crew members.
(4) Aerolog of the aircraft.
(5) License of the radio equipment on the aircraft.
(6) Name list of the passengers on the aircraft with their places of departure and destination.
(7) Warehouse receipts and detailed declaration forms of the cargoes on the aircraft.
(8) Other documents relevant to flight duty.
CAA or local civil aviation control offices with CAA authorization can forbid the taking off of aircraft which fail to carry the documents listed above.

Flight Safety and Liability Insurance

The next provisions (146-148) of the regulation are straight forward enough they require registration, licensed pilots, and flight safety certification.

Chinese General Aviation is also flight training - Remember don't extend your downwind past no-engine glide range.

Finally, provisions 149 - 150 provide interesting language.

Article 149 In organizing and carrying out aerial work, effective measures shall be taken to ensure flight safety, protect environment and ecological balance and prevent damage to be caused to environment, residents, crops or livestock.
Article 150 Those engaged in general aviation operations shall be covered by insurance against liability for third parties on the surface.

While many US GA insurance policies cover damage to the aircraft and some liability for damage to property on the ground, the FARs do not require that a GA owner have insurance. Nevertheless, the Chinese law requires that GA pilots obtain coverage for liability to third parties on the ground. This is another hurdle to the development of recreational general aviation because of the costs associated with liability insurance. I know plenty of US pilots that choose to fly with limited or no insurance because it is too expensive to maintain. I can only imagine the costs that would come from adding liability insurance to cover damage to third parties on the ground.

Full Text of the Law in Chinese and English after the Break:
22Mar/11Off

The Chinese Reaction to the Sendai Earthquake

Japan Quake Tsunami

 

On March 11, 2011, a record-breaking earthquake struck Japan. While damage from the earthquake itself was relatively minor, the north coast of the country was devastated a tsunami that was triggered by the earthquake. Initial estimates peg the damage from the earthquake to be in the thousands of lives and the billions of dollars.

Immediately after the quake, the international community responded by flying relief workers and aid into the country. While most of the international response has been positive, some have used the tragedy to dredge up previous wrongs committed by the Japanese government. Americans on social media sites, like Facebook and Twitter, have expressed comments that the earthquake was karmic payback for Pearl Harbor. However, the most complex, vocal and negative reactions to the quake have come from the Chinese community.

Immediately after the earthquake, the Chinese web-boards lit up with commentary on the disaster. Predictably, there were two themes of commentary on the quake. One group of commentators expressed sympathy for the victims of the earthquake. Another group expressed a negative and celebratory tone about the Japanese earthquake with comments like, “[w]armly welcome the Japanese earthquake.”

Chinese government censors have worked overtime to present the earthquake in the best light to the people. First, when the negative comments were picked up by western blogs in China, these blogs immediately hit with DDOS attacks from within the country. Second, certain positive comments that contrast the resilience and quick response of the Japanese government have been censored. As one comment, which was quickly removed wrote, “[t]he casualties from an 8.9 event in China would be hundreds of times higher than in Japan." Chinese government censors have had a similar schizophrenic response in the wake other recent nation and international tragedies – media coverage of the Chilean miners’ success was downplayed and the Chinese media very quickly buried news of the Yichuan air crash.

 
Finally, the Chinese government has been slow to offer aid to Japan. During the Wen Jiabao’s annual news conference, 4 days after the quake, he did not comment on the Japanese disaster until 2 ½ hours into his presentation. The Chinese have pledged $167,000 in aid and sent a 15 member search and rescue team to Japan. This number has been overshadowed by a $3.3 million pledge by the Taiwanese government and it less than the donations of surrounding countries like Vietnam, Thailand, Philippines, Indonesia, Korea and Mongolia.

Source: http://en.wikipedia.org/wiki/Humanitarian_response_to_the_2011_T%C5%8Dhoku_earthquake_and_tsunami

 
Given the sorted history between the two countries, it is not surprising to see this response from the populace. Those who grew up in China have poignant memories of stories about the Japanese occupation, which are reinforced by annual visits by Japanese Prime Minister to the Yasukuni Shrine war shrine. Additionally, the Japan is in no hurry to accept help from its former enemy as one commentator and Japanese lawyer put it, “we welcome the assistance of the United States but not China.”

Source: http://shanghaiscrap.com/?p=6468

Source: http://www.foreignpolicy.com/articles/2011/03/11/schadenfreude_and_sympathy_in_shanghai

Source:http://www.chinalawblog.com/2011/03/chinas_reaction_to_japans_earthquake.html

30Jan/11Off

China evacuates oppressed Egyptian Chinese – 国航派包机赴开罗执行紧急撤侨任务

There are over 500 Chinese stuck in the Cairo airport. In response, the Chinese Government has sent an Air China A320 to rescue some of them.

The A320 which holds 265 people is staffed by a crew of  6 pilots, 10 stewardesses,  and a compliment of security and maintenance crews.

This begs the question: Is it really a rescue mission if you are evacuated to a country where the populace has fewer rights?

Regardless, it is an unprecedented move by the Chinese government. Air China does not fly to Cairo. They have had to arrange new airspace agreements and fly into an unknown airport all in a short period of time.

Source: http://mil.news.sina.com.cn/s/2011-01-31/1029630874.html

Full Text in Chinese after the break.

13Sep/10Off

Land Use Right in China and Long-Term Ground Leases – 中国的土地使用权与外国的长期土地租约

Chinese Eviction Notice

Land Use Right in China and Long-Term Ground Leases

While granted land use rights (LUR) in China are analogous to long-term ground leases (LGL) used in the United States, the United Kingdom and Hong Kong, they ultimately have fundamental differences. Unlike LGL, LUR are restricted in use, term, transferability and origin.

There are a few similarities between LUR and LGL. Both separate the ownership of the land from the ownership of the buildings constructed on the land. In the case of LUR, the government retains ownership of the land, while the party has term-limited ownership of the improvements on the land. Gregory M. Stein, Mortgage Law in China: Comparing Theory and Practice, 72 Mo. L. Rev. 1315, 1352 (2007). In the case of LGL, the lessor retains ownership of the land, while the party has term- limited leasehold ownership of the ground and improvements. 31 C.J.S. Estates § 197 (2010). In both cases, the use is limited to a specific period of time. With LUR, the term is determined by the use of the property - between 30 and 70 years. Dale A. Whitman, Chinese Mortgage Law: An American Perspective, 15 Colum. J. Asian L. 35, 38 (2001). The term of LGL is determined by the contracting parties and are generally between 50 and 99 years in length. Peter A. Sarasek, Commercial Real Estate Lending: Mortgages and Beyond, in 543 PLI Course Handbook, Commercial Real Estate Financing 2006: What Borrowers & Lenders Need to Know Now 177, 186 (2007).

Aside from the above similarities, LUR and LGL have some fundamental differences. In general, LUR are significantly restricted by the Chinese government. LGL can be acquired from one of many kinds of lessors - be it a private party, corporation, charitable organization or government entity. Pamela L. Westhoff, Ground Lease Financing: A Framework for Ground Lessor Considerations, in 535 PLI Course Handbook, Commercial Real Estate Financing 2007: What Borrowers & Lenders Need to Know Now 279, 283 (2007). In contrast, LUR may only be granted by the Chinese government. Whitman at 38. LUR are limited to certain kinds of use and development. Id. LUR must be developed within a fixed amount of time or risk forfeiture. Stein at 1352. Finally, under Chinese law, LUR are not considered leases, and not subject to landlord-tenant law. Whitman at 38.

The holder of a land use right has limited rights of transferability. The holder may not register the right until it has been paid in full. Stein at 1322. The right cannot be held for speculation and may not be transferred until it has been developed. Patrick A. Randolf Jr., The New Chinese Property Law, Probate and Property, Oct. 21, 2007, at 16. Finally, “in some parts of China, the purchaser apparently may not use borrowed funds for the acquisition of a land use right.” Stein at 1323. However, it should be noted that after the land has been developed, the holder gains ownership rights that are similar to LGL. The right can be transferred, leased, and mortgaged without state approval, and if the right is revoked, the holder is entitled to compensation. Whitman at 38.

Finally, LUR and LGL differ in their financing and use. LGL are often a financing vehicle for land developers. Stein at 1352. They provide the lessee or developer with a way to avoid up-front land acquisition costs. Id. In contrast, the holder of LUR must pay the entire fee in advance of development. Id. “The developer must incur the capital expense of acquiring the land use right in its entirety at the beginning of the construction process.” Id.

This has created an uncertain market for credit securities based on LUR. One author has suggested that LUR may see a steep decline in value as they approach the end of their term. Whitman at 39. This is very similar to LGL which also see steep declines in value as they approach their termination date. Id. However, as many of the LUR have yet to approach that point, the legal community remains speculative as to the government's future response. Id. In the meantime, the Chinese government has created some rules to govern the leasing, mortgaging and sale of LUR. Patrick Randolph, Ownership with Chinese Characteristics: Private Property Rights and Land Reform in the PRC, Cong.-Exec. Comm. on China Issues Roundtable, Feb. 3, 2003, http://www.cecc.gov/pages/roundtables/020303/randolph.php (last visited Aug. 15, 2010). These rules strictly control how much may be lended against the value of the land and restrict leases to no more than 20 years. Id.

While LUR and LGL share some similarities, LUR are considerably more restricted by the Chinese government than LGL are restricted by their respective countries. Unlike LGL, LUR are restricted in use, term, transferability and origin. While LGL can defer land acquisition costs for developers, LUR present a heavy initial financial investment for developers in China. Finally, while there are some similarities, LUR are not leases, not subject to landlord-tenant laws, and ultimately, very different from LGL.

8Sep/10Off

Shanghai Jewish Refugee Museum 上海犹太难民纪念馆

SAMSUNG DIGITAL CAMERA

While I was researching the property law of the treaty ports, I learned much about the unique political situation of the international settlement in Shanghai.

The international settlement essentially has an extra-territorial, independent government. The city was a harbor for culture, literature, and the arts. When the Qing dynasty, and later the Nationalist government, cracked down on liberal writers, they fled to Shanghai to publish their political criticisms. During the various rebellions of the 19th century, the settlement remained neutral. When the Japanese invaded northern China, the city remain isolated from the effects of the first Japanese war and creation of the Manchuguo.

Shanghai Concession Area - century old buildings, tourists, pollution -

After the Nazi party was elected in 1933, many German Jews fled to Britain, Canada, and the US, but eventually, those countries limited their visa allowance and shut their doors. Shanghai was the only city in the world that allowed free entry without a visa and it soon attracted thousands of Jewish refugees from across Europe. Even after the Japanese invaded Shanghai in 1937, Jews continued to flee to China.

As WWII raged on the the Nazi's pressured the Japanese to hand over the Jewish refugees. Folklore (Wikipedia) has it that the after receiving this message a Japanese governor was curious: "Why do the Germans hate you so much?" "Without hesitation and knowing the fate of his community hung on his answer, Reb Kalish told the translator (in Yiddish): "Zugim weil mir senen orientalim — Tell him [the Germans hate us] because we are Orientals." The governor, whose face had been stern throughout the confrontation, broke into a slight smile. In spite of the military alliance, he did not accede to the German demand and the Shanghai Jews were never handed over."  http://en.wikipedia.org/wiki/Shanghai_Ghetto

Instead, the Japanese Government moved the refugees into the Hongkou Ghetto known as the "Restricted Sector for Stateless Refugees." This area housed the refugees for the remainder of the war. The area was immediately overcrowded with over 20,000 refugees crammed into a square mile area. They faced problems of starvation and poor sanitation. However, aid soon arrived from international humanitarian organizations the ghetto flourished as a center for Jewish culture and society.

Today, a portion of the Ghetto area has been restored as a museum of the refugees.

What amazed me about my visit to the museum is the dichotomy that is existed between the past and the present situation of the Jews in China. Like so many other museums in China, there is a gap in the history from 1949 to the 1990s. The reality is that just as the Jews fled Nazi Europe during WWII, the Jews fled Shanghai immediately after the war as the Chinese civil war expanded. Almost the entire community vanished within the space of a couple of years.

Altar in the rebuild synagogue

Today, Judaism is not an officially recognized religion in China, which means that followers may only have a limited presence in China. The construction of houses of worship and the holding of meetings are limited. This is situation that is shared with many other faiths including many protestant denominations including - Mormons, Baha'i, and Christian Orthodox. (The officially recognized religions of China are Buddhism, Islam, Protestantism, Taoism, and Catholicism.) While there are some Jews in China, their population is sparse. I asked my guide if she (a Chinese) could join a Jewish church, and she said that she probably could not.