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Avoiding Chinese Jails. I'm Talkin' To You.

By Dan Harris and Steve Dickinson

In her post, Hot Water in China? Don?t Get Burned: Part I, Aimee Barnes highlights how important it is for foreigners to follow the law in China. All of the laws. All of the time. No matter how much you may disagree with them, no matter how silly you may find them, and no matter how different they may be from those to which you are accustomed. Most importantly, you must strive to follow the law no matter how much you may see those around you disobeying them, particularly if those you see are not foreigners. Ms. Barnes puts forth the following list of what to avoid if you "want to steer clear of a legal snafu and avoid hanging out with the Public Security Bureau or other inmates at a local jail" ....even if they?re not a big deal in your own country": 1. Driving without a Chinese drivers license 2. Leaving ?home? without your residency permit and passport 3. Living or cohabitating illegally 4. Letting your visa expire, visa overstay 5. Participating in ?under the table? deals in any way, shape or form 6. Carrying or doing drugs, even if it?s just a plant that you picked off the side of the road 7. Attempting to bring back large quantities of counterfeit goods to your home country 8. Mouthing off or being generally uncooperative with a Public Security Bureau officer 9. Taking pictures of military exercises, crime scenes or police activities 10. Bribing a police officer or official to ?let you off the hook? 11. Use of GPS devices 12. Real-time blogging of protests or other police activities 13. Openly criticizing China?s government, politics and/or leadership 14. Conducting or operating a business without ALL of the necessary permits 15. Working ?under the table? Trust me, I have dealt with or heard of criminal law type problems arising from most of the above. In fact, I was in the midst of writing a "just say no" post on kickbacks when I came across Aimee's post. Last week, a client and I very quickly decided that it would not be worth it for him or his company to pay a 10% kickback to someone at the state owned entity that was about to sign a five year contract with my client. It did not take much analysis on our part for us to determine that the potential Foreign Corrupt Practices Act (FCPA) repercussions from this deal dwarfed whatever money his company might make. We decided he had no choice but to go back to his contact and make crystal clear (in writing) that the only way to go forward with this deal would be on such and such terms. I would add the following to Aimee's list: 16. Importing something into China that is not supposed to be imported into China. This includes things for your business that might be perfectly legal elsewhere or even perfectly legal to use within China; 17. Doing business with a country with which you are not supposed to be doing business; 18. Selling something in China that foreigners are not supposed to be selling in China; 19. Conducting a business in China that foreigners are not supposed to be conducting in China; 19. Illegally raising funds in China; 20. Engaging in financial fraud in China. China's definition of this can be fairly broad; 21. Engaging in environmental crimes Now I know that many of the above twenty-one items are oftentimes handled with a slap on the wrist (sometimes even less than that) or deportation, but the problem is that the authorities do have tremendous discretion to turn what we might think of as a civil matter into a criminal one. My advice (once again) is as follows (yes, I know this is really basic, but please bear with me). 1. Know the law and follow it, not what someone tells you they heard someone else get away with. There are murderers who never get caught, but that does not make it legal nor does it mean you will get away with it. Want to know the law? The best way is to read the webpage of your embassy or consulate or chamber of commerce and to talk to people at your embassy or consulate. Or hire a lawyer who deals in this arena every day. 2. Keep a copy of your visa and your passport with you at all times. Make sure everything is current. 3. Be civil. Be respectful. Keep your cool. Tell the truth. If you get caught in a lie you are done. Done. Do not make jokes and especially do not make jokes about China. Do not act arrogantly. Act respectfully (I am intentionally being repetitive). Make the job of the authorities easier, not more difficult. Just remember, the people in front of you are just doing their jobs and no matter what you do, your actions that day will not advance democracy or human rights or any other ideal one iota further in China. 4. If nothing seems to be working, ask if you can call your embassy, your consulate, your lawyer, your Chinese joint venture partner, or anyone else you think might be able to help you. Immigration/law enforcement people in every country of which I am aware have amazing flexibility. They are human beings. Give them a reason to cut you a break. This does NOT mean paying a bribe, which has the very real potential of getting you in worse trouble than being deported. 5. If you think you might have China visa or other legal issues down the road, deal with them now. Start your application, find the right lawyer, talk to your embassy or consulate. Whatever. Just do not wait. If you ever get caught or ever get accused of committing a crime in China, my advice is to not make light of it in any way. This means you do not complain about the law, this means you do not talk about how what you did is legal somewhere else and this means you seek to hire a top-flight Chinese criminal lawyer as quickly as possible. There are definitely such lawyers, but our experience is that they virtually never speak English. This means that if you are not completely fluent in Chinese, you also need to retain someone who truly is bilingual. What would you add to the list? For more on the criminal side of living and doing business in China, check out the following: -- "Amazing Lawyers and The Criminal Side of China Business" -- "Criminal Law and Business in China -- A Strong Caution" -- "Foreign Partners In China Crime Do The Time" -- "Bad China Products. Hey It's A Criminal Thing" --"Bad China Products. Hey, It's A Criminal Thing, Part II" One Adam 12 .....

Full post as published by China Law Blog on April 28, 2009 (boomark / email).