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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 83 in Jianye District, Nanjing, and collided with an elderly woman, leading to a court case between them. The first trial verdict was delivered on September 3, 2007, and the case was settled through mediation on October 8, 2007. However, as the judicial process concluded, it marked the beginning of what the public perceived as an era of "moral decline among the elderly," as the case fundamentally altered 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 terms like "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 should be noted that helping the elderly does not carry the enormous legal risks that people imagine. The basic principle of civil litigation is that the party seeking compensation is responsible for providing evidence to prove their loss; if they cannot provide evidence, they will naturally not receive support. This is called the burden of proof. Of course, if the helper is indeed the one who caused the injury, they should admit it early and seek to settle with the elderly person quickly, because there is another basic principle in civil litigation: 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's or both parties' statements, cases in judicial proceedings, 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, whoever has the evidence wins the case. If the facts of the case do not require evidence, judicial proceedings may turn into arguments:

Elderly woman: "He hit me with his car; 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 proceedings, especially in civil cases. If it is not clear who bears the burden of proof, the trial may lead to such arguments:

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

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

Elderly woman: "That's not true; look at my injuries! If you say you didn't hit me, of course, you have to prove it!"

Young man: "I won't prove 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 involved, while the burden of proof belongs to the court. This is a true reflection of the courts and judges in the 1980s managing 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 judges would help.

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; what evidence do you have?"

Elderly woman: "What evidence do I need? Being hit is evidence enough! If you don't help me, 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 looked into it; several people said it was the young man who 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 looked into it; 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's the court police?"

Outcome Three:

Judge: "I'm sorry; I couldn't find any witnesses; I didn't get to the bottom of it."

Young man: "So does that mean I've won?"

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 implementation" tail and simultaneously limited the burden of proof on 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 stipulated that the people's courts collect evidence that they "believe should be collected," which exempted the courts from the obligation to "necessarily" gather evidence. Thus, the general principle of "who asserts bears the burden of proof" emerged, but this principle 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: "Judge, it's been a long time! I was hit by the young man again; will you help me?"

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

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

Elderly woman: "What evidence do I need? Being hit is evidence enough! If you don't help me, you might as well go home and sell sweet potatoes!"

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

Elderly woman: "Don't bully me just because I can't read! I just flipped through the law before coming here; if the judge thinks it's necessary, you can still investigate!"

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

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

Outcome One:

Judge: "Young man, look, several witnesses said it was you who 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 gathering 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; how can you help one party gather evidence during the case process? Evidence should be provided by the parties themselves."

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

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

The Supreme People's Court produced a document called "Several Provisions on Evidence in Civil Procedure" and slammed it on the table: "Come on, I'll give you a law to follow. Parties have the obligation to provide evidence; if they don't provide it, they 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 defensive exercise, so please don't mess around."

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

Judge: "Young man, your withdrawal of '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 it."

Elderly woman: "I agree to let him withdraw his 'admission'; just treat it as if he never admitted to hitting anyone."

Judge: "Thank you so much."

Part 2

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

Elderly woman: "Why should I? Why do I have to prove he hit me? Shouldn't he prove he didn't hit me?"

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

Elderly woman: "Oh, if you don'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, doesn't this count as bias?"

Judge: "I'm educating you, 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 'injury'; I found a witness to confirm 'the young man hit me,' and the police report shows 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 a normal 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, you generally 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 with 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 I wasn't the one who hit her. Besides, I won't mediate, thank you."

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

Part 5

Judge: "Why don't 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 or not, 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 bribes 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 more like it."

Judge: "The assessment conclusion is out; there are collision marks on the car, and the height matches the injury location on the elderly lady's knee and ligaments, which are also severely damaged. Therefore, 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'm proud!"

Judge: "Young man, when doing good deeds, you also need to pay attention to your posture. The Ministry of Health has a 'Technical Guide for Intervening in Falls Among the Elderly'; have you read it? If your posture is incorrect, it can cause secondary injuries from fractures piercing internal organs, worsening the injury, and you will be liable for the aggravated part of the injury."

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 it has not yet been determined who was more at fault during 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 you both equally!"

Young man: "You're just muddling things up!"

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

Everyone: "Alright..."

5. Why Can't We Find Cases Where the Elderly Woman Loses?

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 suggest that there is a tortious fact but have relatively weak evidence, and they have all been mediated; as for those who purely want to frame good people, they generally choose to create 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 judge.

I suddenly understood.

In 2015, there was media coverage of a judgment from a court in Guangdong that I found 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. As a result, Tingting accidentally inhaled a piece of banana while eating and choked to death. Tingting's family sued Su and Xiaoqin in court, seeking compensation of 738,000 yuan. The first-instance court dismissed 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 food-sharing behavior 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 muddle through; 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, ensuring that the public not only knows right from wrong but also understands good from evil and distinguishes beauty from ugliness.

2. Mediation is a Double-Edged Sword; Hurt Others First Hurts Oneself#

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

Judge: 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 make it so there are no lawsuits!" It is precisely under this Confucian thought of "harmony is precious" that one of the most notable achievements in the development of China's legal system is the undefeated and invincible "Eastern experience"—the mediation system.

The "Han Feizi" from the Warring States period records that land boundaries often got mixed up, leading to frequent disputes among farmers. Emperor Shun worked the land with the farmers for a year, understood the situation, and then clearly delineated the boundaries for them. Fishermen would seize advantageous positions to compete for fish schools, so Emperor Shun went there and fished with them for a year, ultimately persuading 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 the importance of honesty in business. This is likely the initial germination of the mediation system. The saying "a wise judge finds it hard to resolve family matters" sufficiently illustrates 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 "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 mainly depended on personal connections—generally, both parties to a dispute would "settle privately" based on the mediator's (community elites, family elders, etc.) face, and it was inevitable for the mediator to be biased, with the interests of both parties not being guaranteed. Moreover, the biggest problem with this folk mediation was that the mediation agreements lacked legal effect.

During this period, 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 formally 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 presided over by the court with legal effect and non-litigation mediation led 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 way to conclude cases," followed by a formal document titled "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.

To this day, 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" that work effectively in a "familiar society," relying on experience, qualifications, and face. They are flexible to use, but the agreements signed during these mediations need to be specially applied for judicial confirmation to have legal effect, ensuring that the other party cannot play tricks.

② Case filing mediation means mediation without filing a case; entrusted mediation means specifically inviting community aunties, village officials, neighborhood police, industry seniors, or association leaders to mediate again. Of course, since the court is involved, the mediation agreements have legal effect.

③ Pre-litigation joint mediation is organized and specifically invites several related units to form a team for mediation, unlike the previous spontaneous and temporary mediations.

④ Formal mediation means 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; one can still continue to reconcile with the other party during the application for compulsory execution, exchanging partial concessions for payment.

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?

Honestly speaking, 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 is a 50% chance of obtaining 100 yuan or nothing, and the other is a 100% chance of obtaining 70 yuan, which option would you choose? I believe both options will have their supporters, with the first option representing litigation and the second option representing mediation.

Litigation carries risks, while mediation can avoid them.

In civil disputes, harmony is precious.

In neighborly or family disputes, both parties are likely to see each other frequently, and even if they go through a lawsuit, they still need to interact and socialize in daily life. Therefore, many people believe that it is unnecessary to resort to litigation, which harms both parties and severs relationships. Even when conflicts escalate to an irreconcilable point, the final choice of litigation is often just a matter of "saving face," and pursuing litigation is merely a temporary reaction of anger.

Parties in civil disputes 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 the couple found various ways to annoy each other, such as alternately hiring thugs to cause trouble at each other's workplaces, taking turns to secretly photograph each other with their lovers, and shifting 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, with both parties willing to gamble and accept the outcome. However, since there are rules, there are also loopholes to exploit. Just finding reasons to delay time in litigation can involve many tricks, such as casually raising jurisdictional objections and requesting a different court to hear the case.

If one chooses to safeguard rights through litigation, regardless of the costs of litigation, lost work time, lawyer fees, and other expenses, the time cost alone is enormous. 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, rights defenders often cannot fully fulfill their burden of proof for various reasons, but they are not without evidence; or the time and effort spent fulfilling the burden of proof far exceed the benefits of winning the case.

One day, an elderly woman was hit by a young man but lacked direct evidence. There was no surveillance 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, but this evidence was unlikely to meet the standard for winning the case. Directly ruling against her would also violate the value of justice. The judge, based on life experience and case handling experience, might be willing to believe the elderly woman's account, but he could not write in the judgment, "Because I believe the elderly woman is telling the truth, I rule in her favor." In such cases, using mediation to work on both parties' thoughts 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. Therefore, the first question to clarify is whether what one truly needs is "to save 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 a face-saving manner, one is willing to incur any litigation costs, especially in criminal cases, where the victim's agreement to reconcile has a significant impact on the criminal outcome—if the victim firmly refuses to reconcile, the perpetrator often faces harsher penalties. 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 were ultimately sentenced to death, 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 about "economic benefits," then choosing mediation poses no pressure; anything that can be resolved with money is not a problem. It is just that 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 consult experienced lawyers, compare similar judgment results, and estimate the likelihood of winning or the compensation outcome. Subsequently, one should estimate the costs required for safeguarding rights through litigation (such as filing a case, transportation costs for attending court, time and effort spent gathering evidence, and the risks of losing due to insufficient evidence), as well as whether the other party has the actual financial capacity to fulfill compensation after the judgment.

Particularly, attention should be paid to assessing the risk of "whether the other party can fulfill their obligations." In common cases of personal injury or death, the tortious facts are usually quite 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 has no financial capacity for compensation, 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, while if one goes through litigation, it becomes very difficult to enforce the payment after the judgment.

Specific case circumstances suitable for mediation

Based on specific case circumstances, different types of mediation should be chosen. Disputes particularly suitable for resolution through mediation generally include:

Conflicts between parties (such as relatives, friends, neighbors) that have some form of fate binding them together, especially when it is necessary 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. People's mediation can be chosen, with community committees, village committees, township officials, or respected local 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 consensus.

For disputes involving relatively small amounts or particularly cumbersome evidence gathering, where the litigation costs do not align with the benefits, such as minor contract disputes, debt disputes, or partnership agreement disputes, mediation can be conducted during the filing and trial process, with the court presiding over the mediation and issuing legally effective mediation documents to ensure that the other party cannot backtrack.

Involving criminal offenses, mediation can be conducted during the police's initiation of criminal investigations, 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, transportation 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 led by individuals in the industry or associations who understand the actual situation and have some control is more effective.

4. Traps to Avoid During Mediation

Do not think that mediation is just about 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, or because the case is complex and they do not want to handle it, or they may be biased, etc. This makes mediation take on a semi-coercive nature. If mediators intimidate or threaten the parties with their own authority, this is not true mediation. It is essential to ensure that the parties 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 on the grounds of significant imbalance or violation of voluntariness. Therefore, after reaching 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 person (A) quarreled with another (B) at B's home and, out of anger, broke a piece of antique porcelain belonging to B. After B reported the case, the police filed a case against A for intentional destruction of property and assessed the porcelain's value at 100,000 yuan. However, B insisted that the porcelain should be worth 1 million. During the trial of this case, A and B reached a settlement, and A compensated B 1 million yuan, after which 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. The court (yes, the same court) reviewed it and found that compensating 1 million yuan for a loss of 100,000 yuan was indeed a significant imbalance, so it ruled to revoke the agreement and ordered B to return the 1 million to A.

Therefore, during mediation, it is best to give the mediation agreement a legal insurance by means of a mediation document or by applying for judicial confirmation as soon as possible.

Anticipate potential future damages.

Especially in cases of tort involving bodily injury, 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 the eye during a fight with a colleague at work, diagnosed with a mild 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 significantly, so he went back to the owner to demand further 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 the two signed another agreement. Two years later, the worker's vision was nearly gone, but he found that he could not locate the colleague or the factory.

In traffic accident cases, one must also further 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 driver, considering he 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 parties suffering damage, some parties may sidestep one or several parties and privately settle between two parties.

For example, if three perpetrators jointly cause 90,000 yuan in damages to the victim, and the victim finds that one of the perpetrators, A, is particularly wealthy, they may privately agree with the other two perpetrators, B and C, that as long as B and C each pay the victim 15,000 yuan, the victim will no longer seek the judgment amount from them after the judgment. 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 one truly left in the dark and suffering losses was A.

At this point, one should 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 someone else'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, so 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 in a sudden conflict. When the police arrive to handle the situation, 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 condition or fail to gather evidence from witnesses present, and they may not retrieve surveillance footage. Many non-police surveillance recordings have a short retention period and may be overwritten after a few weeks. If the mediation process causes these pieces of evidence to be lost and an agreement is ultimately not reached, it would be a regrettable situation.

Additionally, during mediation, one should also take the opportunity to understand the other party's financial situation, whether they have the actual capacity to fulfill obligations 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 rights after the lawsuit.

Agreement clauses can only bind both parties.

When signing a mediation agreement, it is important to note that the agreement clauses can only bind the signing parties and are invalid for non-signatories. For example, clauses 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 of water" that people often think. Both the mediator and the parties accepting mediation 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 16-year delay), and quickly stated: we must resolutely stop domestic violence!

Thus, in the 1995 "Regulations on Administrative Penalties for Public Security," it mentioned, "Abuse of family members, if the abused party requests handling and it is not sufficient for criminal punishment, shall be detained for less than fifteen days, fined less than 200 yuan, or warned." This statement caused a wave of applause in the public, especially among women suffering from domestic violence and the newly emerging feminists, but then... nothing happened. Because this document was merely to support 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—Slogan Proposed

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

State Council: Resolutely stop domestic violence!

Public: Applause.

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 a document, "Several Provisions on Preventing and Stopping Domestic Violence," look at how supportive I am of the central government!

Various regions: ... (silently observing without speaking)

Changsha (anxious): Why don't you give some supportive applause?

2000

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

Guangdong's public security, prosecution, and judicial departments: We will also issue a document together!

Changsha: Thank you.

2001—Marriage Law Amendment

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

Public: Can we have something practical?

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

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

Community auntie (I'm a mediation expert): You should reconcile!

Public: ... I have already written the divorce complaint; are you telling me this?

2005—Amendment to the Women's Rights Protection Law

Public: It's 2005, ten years have passed; is there any sincerity in protecting us? At least say something.

All-China Women's Federation: Uh... look, I've included anti-domestic violence in this year's key women's work.

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

Public: Can you provide some practical solutions to the problem?

Supreme Court (pulling out the "Guidelines for Handling Marriage Cases Involving Domestic Violence"): Here are the practical solutions.

Women: Thank you.

2011—Every Year We Hear About Legislation

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

NPC Representatives: Hurry up and legislate.

NPC Legislative Affairs Committee: Alright, we're preparing.

2015—Just Said to Use Violence to Counter Violence and Legislate

Supreme Court Inspection Company: These 20 years have passed, and the dark door has reopened; don't wait for the anti-domestic violence law; just fight back against domestic violence directly. At that time, we will give you a lighter sentence.

Public: You should have said that earlier!

National People's Congress: Using violence to counter 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 parents who held economic power in the family naturally enjoyed supreme control over family members. Correspondingly, judicial concepts also remained at the level of "wise judges find it hard to resolve family matters." Many judicial personnel believed that domestic violence was a private matter, and the "internal affairs" of the family could not be interfered with. Moreover, domestic violence is not merely a public security issue; it also involves emotional factors, leading judicial personnel to believe that it is better to avoid trouble. Thus, 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 content of anti-domestic violence in the law, victims of domestic violence have slowly developed different coping methods based on the severity of the violence they suffered:

1. Minor Violence Seeking Assistance—Community and Police Mediation

Although the execution power of village committees and community committees may often be ineffective, the revised Marriage Law of 2001 recognized the combat power of village and community committees in eliminating the seeds of domestic violence, stipulating that victims can seek help from village committees, community committees, and public security organs. For emotional and psychological violence in domestic violence, village officials or community 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—many times, prior warnings are more effective than post-punishment.

Among all the rights protection methods, this is the only skill that can be used freely during the implementation of domestic violence, and 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 Handling Marriage Cases Involving Domestic Violence" back in 2008, and pilot programs had been conducted in several local courts.

In any case, this provided victims who were still hesitating between separation and reconciliation with 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 ongoing entanglements after divorce... There are many reasons that prevent perpetrators and victims from completely severing ties. This adverse situation cannot be eliminated solely through 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, the effectiveness of this new skill has not been clearly answered by past pilot programs, and there are still no specific measures in place.

3. A Clean Break—Divorce

Completely severing ties with the perpetrator may be the best choice, but in the past, generally, the first time a divorce lawsuit was filed, it was not allowed, and one had to wait six months to file for divorce again, giving the perpetrator the opportunity to continue the violence.

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. This has become the best way for many victims to escape the suffering of domestic violence, with about one-third of divorce cases each year being due to domestic violence. However, in divorce lawsuits, the recognition of domestic violence is still limited to physical harm of a certain degree (usually above minor injuries), while mental harm has yet to form evidence in litigation.

4. Legal Action—The Crime of Abuse

The crime of abuse is a self-reported case, dealing with chronic, long-term torture that causes physical harm in a continuous manner; intentional injury and intentional homicide, on the other hand, cause direct harm in a one-time manner.

Some scholars have proposed the establishment of a specific "domestic violence crime," but the behaviors that cause physical harm in domestic violence overlap with the punishment content of the crime of abuse. Moreover, how to establish standards for mental harm caused by domestic violence has been a point of contention. 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," into the scope of the "domestic violence crime," sparking a new round of debates.

As a self-reported case, the biggest problem with the crime of abuse is that it requires the victim to provide evidence, which has led to its limited practicality 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: if the victim of the crime of abuse is unable to file a lawsuit, it can also be handled as a public prosecution case by judicial organs. This change also addressed the weakness of victims lacking investigative and evidentiary capabilities.

5. The Most Desperate Resistance—Using Violence to Counter Violence

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

It is under such adverse circumstances that 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 for those who have long suffered domestic violence and, in a state of anger or fear, intentionally kill or injure the perpetrator in self-defense, they may receive leniency in punishment.

3. How to Preserve Evidence

If the only goal is to prove the fact of "domestic violence" in order to win a divorce lawsuit, then usually, one can find some evidence to achieve the purpose of divorce. However, how can the victim be satisfied if there is no punishment for the perpetrator, especially since the "Criminal Law Amendment Nine" has included the crime of abuse as one that can be prosecuted by the state? The biggest problem with the crime of abuse is that its abusive behavior is long-term and continuous, and state organs find it difficult to investigate and gather evidence for every instance of abusive behavior in a timely manner. Therefore, victims should pay attention to preserving evidence during daily domestic violence, which will greatly assist in future litigation, whether the 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 preserve evidence.

I once encountered a very strange case. A defendant in a criminal case involving harboring others for drug use 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 withdraw their appointment after hiring a lawyer, so I directly ruled on this criminal case. A few months later, we received a lawsuit from the criminal's wife, who filed a self-reported case of abuse against him, and her agent was the lawyer she had previously hired. I later learned that this criminal had long been abusing his wife after using drugs. The wife could no longer tolerate it and reported her husband for drug use. During the trial of the criminal case, the wife happened to hear several witnesses mention how the criminal boasted about how he hit his wife while they were using drugs. The wife then sought the lawyer to copy the relevant witness testimonies as evidence of the abuse she suffered, and ultimately, this evidence became an important basis for recognizing the abusive behavior. This wife's awareness of evidence preservation was truly the strongest I have encountered among parties involved.

2. Violence with Physical Force is the Easiest to Preserve Evidence

For 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, medical records from hospital visits, etc., which are easy to obtain and preserve. If one can take photos of the scars and keep them together with the medical records, that would be even better. Additionally, if furniture, utensils, or clothing are damaged due to violent behavior, preserving or photographing those items is also easy to preserve and very useful evidence.

3. Neighbors are 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 the most likely to understand the circumstances of the parties involved, and their testimonies are also important evidence in domestic violence cases. Therefore, when domestic violence occurs, one might intentionally or unintentionally let neighbors know about the events by calling for help loudly, arguing, or entrusting minor children to neighbors for care and complaining to them.

4. Records from Public Security Agencies, Social Organizations, and Related Mediation are the Most Credible

When seeking protection from village committees, community committees, women's federations, and public security agencies during domestic violence, the significance lies not only in timely stopping domestic violence but also in leaving written records each time protection is sought. These written records, especially police reports, are important evidence for recognizing domestic violence. These records usually document the specifics of each incident, the situation at the scene, the emotions of both parties, and other present individuals, and because 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 in the future 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 fix 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, mental trauma can occur, and due to the lack of clear evaluation standards, it is difficult to recognize this in litigation. Therefore, if one feels mentally traumatized, they can first seek psychological counseling. Records from psychological counseling can serve as evidence of domestic violence and also as a reference for assessing the degree of psychological trauma suffered by the party involved. 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 Written Apologies During Mediation

In the early stages of domestic violence, when the conflicts between the parties are not deep, it is often possible to reconcile under the mediation of community members or police. At this point, the perpetrator may only offer a verbal apology. However, 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 in critical moments.

7. Prevent Being Bitten Back

There was once a case involving domestic violence where the woman continuously attacked the man through verbal abuse, sarcasm, and insults. Eventually, the man could no longer endure it and hit the woman. The woman then reported to the police that she had been abused and subsequently filed for divorce, seeking additional compensation on the grounds of domestic violence. The man had not accumulated evidence during this time, and he could not substantiate his defense, leading the judge to initially determine that the man had committed domestic violence. However, with the aim of mediation, the judge met with the man before the ruling and sensed something was amiss, so he inquired with neighbors and security personnel to understand the real situation, ultimately dismissing the woman's request.

Sometimes, what we consider the "perpetrator" may actually just be a victim fighting back against violence. However, the truth is hidden in layers of fog, and evidence is the only treasure to dispel the fog. Only by paying attention to preserving evidence in daily life and increasing awareness 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 tagline symbolizing 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 rented a room.

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#

When it comes to personal privacy, one cannot avoid mentioning human flesh searches. 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' netizens began to enthusiastically engage in "human flesh searches," with incidents like "Copper Beard Gate," "High Heels Abusing Cats," "Qian Jun Assaulting People," "Rogue Foreign Teacher," "Illex Assistant," "Very Yellow and Violent," "South China Tiger," and "Jin Jing Being Beaten," showcasing their style, skill, and creativity. Some see it as moral judgment, while others view it as online violence.

Indeed, human flesh searches not only satisfy 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! Those who violate group morals should be publicly shamed.

However, netizens went too far in 2008, leading to a major news event.

In 2007, a woman named Jiang committed suicide by jumping off a building after her husband, Wang, cheated on her. Before her death, she posted photos of her husband and the third party on her 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, "What a great human flesh search topic!" During the process, they inadvertently dug up the personal information of the deceased's husband, who shared the same name as a certain singer, and the third party. Netizens collectively targeted him, with some even going to his 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 2008, this incident was tried as the "First Human Flesh Search Case" by the Chaoyang District People's Court in Beijing. The court unprecedentedly organized 54 senior judges to hold a joint meeting to discuss the case. Ultimately, the court determined that the defendant, Zhang, and the posting website both constituted violations of reputation rights and privacy rights.

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

Privacy Rights: Why Don't You Give Me a Seat?

The term "privacy" was mentioned in judicial documents as early as the 1950s and 1960s, but in formal law, it was first mentioned in the "Civil Procedure Law" trial implementation in 1982. Subsequently, it appeared in dozens of laws, including the "Criminal Procedure Law," "Minor Protection Law," "Mental Health Law," "Practicing Physician Law," and "Lawyer 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 back at the "General Principles of Civil Law" promulgated in 1986, which involves rights related to "personality," it only mentions rights such as the right to life and health, name rights, name rights, portrait rights, reputation rights, and honor rights, but the entire "General Principles of Civil Law" does not mention the term "privacy."

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

The second law that defined "privacy rights" was not until 12 years later, in the 2005 amendment to the "Women's Rights Protection Law," which stated that "women's reputation rights, honor rights, privacy rights, portrait rights, and other personal rights 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: Why Don't 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 rights in Article 101, which protects reputation rights.

In 1988, the Supreme People's Court issued an opinion on "Several Issues Regarding the Implementation of the General Principles of Civil Law (Trial)," which, in a "roundabout way," filled the gap in the "General Principles of Civil Law" by stipulating 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, considering the disclosure of relatively private secrets as a violation of reputation rights (for example, if intimate photos are uploaded online). From this point on, privacy rights became part of reputation rights.

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

However, this fix led to another problem. "Disclosing privacy leading to a violation of reputation rights" can be addressed, 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 without affecting their reputation, can it be addressed? The Supreme People's 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. Thus, in 2001, the Supreme People's Court felt that it could not leave the gaps unaddressed and issued an "Interpretation on Several Issues Regarding the Determination of Civil Tort Liability for Mental Damages." 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 personal interests, victims may file lawsuits for compensation for mental damages, and the people's courts should accept them." When this document was released, everyone breathed a sigh of relief: finally, we don't have to worry about whether reputation rights have been violated.

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

Besides Civil Law, There is No Other Choice#

1. What Counts as Privacy?

After the "Tort Liability Law" clearly stated the protection of privacy rights, the civil protection of this right began to take 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, Beijing, there was a clear definition of privacy and privacy rights, but it did not gain unanimous recognition in the academic community. For example, in the aforementioned case, extramarital affairs are considered absolutely private information and thus privacy, but whether personal information such as names, photos, and home addresses that are publicly available within a certain range can be protected under "privacy rights" remains controversial.

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

"Privacy" is related to the identity of the parties involved. For example, if netizens expose the "expensive cigarettes" smoked by corrupt official Zhou Jiugang in Jiangning at 1,500 yuan per pack, it is public supervision of the official's integrity. However, if a regular citizen is reported to smoke cigarettes worth 1,500 yuan, it is personal privacy. Similarly, personal information such as birthdays, family members, addresses, and portraits of public figures like celebrities is considered public information, while these details for ordinary citizens can be regarded as personal privacy.

2. Online Privacy Infringement is Not Just Human Flesh Searches

Every action people take on the information network is silently recorded in a little black book—shopping records, search records, blog posts, friend additions, etc., can all be found in that 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, while you are using the internet, the internet is saving 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 or 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 sending spam messages and illegal information, as well as selling user information—this involved the leakage of detailed personal information for 20 million people, including names, ID numbers, gender, date of birth, phone numbers, and registered emails.

Once this information is leaked, the consequences are not as simple as just being scolded by netizens. For example, employees 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. Buyers then used this information to impersonate staff from the vehicle management office or the national tax bureau to contact car 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 such information from communication companies, banks, real estate agents, and even internal public security organs; others specialize in buying and compiling citizens' information for resale at a markup. Once this information is leaked, the consequences are not limited to mere harassment from real estate agents, credit card applications, or personal loans; the ensuing crimes become increasingly diverse: telecom fraud can be organized, with each person handling dozens or hundreds of pieces of information to make phone calls for money; fake documents can be created using others' information; even customer accounts and passwords from JD.com can be sold, allowing buyers to directly log into customer accounts and steal funds for consumption; and more specialized individuals can use this information to establish "private investigation companies" or debt collection agencies, extorting money based on hotel stay 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 fake names—when registering on Sina, use "Zhang Sina," when registering on Yahoo, use "Zhang Yahoo," when registering on Baidu, use "Zhang Baidu," and when registering on Google, use "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

In any case, privacy violations at least have some civil rights protection, but the punitive measures against violators are limited to a few situations specified in the "Public Security Administration Punishment Law" enacted in 2005, which allows for penalties against behaviors such as peeping, secretly photographing, eavesdropping, or disseminating others' privacy, which can lead to detention or fines.

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, it cannot invoke the criminal law's related charges of insult or defamation for punishment. Therefore, a specific "human flesh search crime" should be established. Subsequently, some NPC representatives indeed proposed related motions, but they were met with severe criticism.

The greatest advantage of the internet is anonymity, and thus the biggest obstacle to safeguarding rights when facing online infringement lies in identifying the true identity of the infringer. This raises another question: should there be real-name registration for internet use?

This question leads to a series of issues: does 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 the interests of others or public interests, should there be exemptions? How to determine punitive measures, and should criminal law be invoked for punishment?

These academic issues have not reached a consensus, making the use of criminal law to protect privacy the greatest obstacle.

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 opinions. This personal information protection guideline was drafted in collaboration with companies like Tencent, Baidu, Sina, and Qihoo.

Just the amount of information Tencent holds about us is staggering: personal identity, QQ number, WeChat number, phone number, email, and various email contents, bank account numbers, shopping habits, online habits, activity times, videos, photos, login locations, work units, relationships with relatives and friends, work and study resumes...

However, these events have also allowed legislators to grasp the crux of the problem well: in online infringement incidents, the most critical issue is the leakage of personal identity information of the parties involved. Therefore, can we first protect the personal information of the infringed parties?

1. Online Defamation and Insult Can Seek Help from the Police

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

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

However, in the 2015 "Criminal Law Amendment Nine," this dilemma was finally resolved: victims can apply to the court to hand over this technical problem to 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 2009 "Criminal Law Amendment Seven" first proposed "protecting citizens' personal information" to combat the source of information leakage—state organs or those in finance, telecommunications, transportation, education, and medical fields 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 for a while, with even cases of selling six pieces of personal information leading to imprisonment.

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

Therefore, 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 present in "Criminal Law Amendment Seven."

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

Rights Protection Methods—Guidelines for Justifiable Defense#

1. Rich Ideals

In the perception of many ordinary people, the most useful aspect of the law is "rights protection." However, the law has a fatal weakness: it always takes effect only after the damage has occurred. Because of this, 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 that simple to operate. Nevertheless, even if one cannot learn the ability of justifiable defense, at least they 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 components: "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, or capturing fugitives cannot be resisted under the guise of justifiable defense.

Secondly, it must be determined that the interests you are protecting are "justifiable." Imagine if an enemy approaches you unarmed to rob you, and you pull out a knife to defend yourself. The enemy would find this unacceptable, as the disparity in lethality between the two sides threatens their life, and the enemy would also draw a weapon in self-defense. Can you accept that? Moreover, with so many "black-on-black" incidents occurring, if illegal interests are allowed to justify defense, society would descend into chaos.

Thirdly, the harmful behavior must be "ongoing." That is, an unjustifiable infringement is currently harming a justifiable interest. In this urgent state, the defensive behavior is justified and does not become a new harm. To borrow a line from a certain movie, "what is happening is happening; being early or late by a minute is not what is happening."

Defense

In simple terms, one must have a heart for defense and clearly recognize that they are "defending," not "attacking." Although in practice, there are often more situations where one attacks to defend, it is still essential to recognize that "defense" is the essence of "attack." The purpose of attacking is 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 perpetrator is a person or an animal, an adult or a child under 14, or whether they are mentally ill, as long as they are committing an unlawful act, one can implement defense against them. Although there is ongoing debate in the theoretical community about whether to defend against the actions of non-criminally responsible subjects (animals, children under 14, or mentally ill individuals), this debate does not affect the defender's lack of responsibility.

Everyone can help.

Many people believe that only the victim can engage in justifiable defense; however, this is not the case. The core of justifiable defense is only one—stopping the perpetrator. Therefore, regardless of who the target of the perpetrator's attack is, others nearby can also defend. This is the essence of "I for everyone, everyone for me."

Justifiable defense is not a trump card.

Some may ask: If I can both dodge and strike, must I prioritize dodging first and only strike if I cannot dodge?

Of course not. Even if there are other means or conditions to evade illegal aggression, citizens still have the right to implement justifiable defense. This is also a 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 in defense.

Some students may think flexibly and wonder if they can provoke or ridicule the perpetrator to lure them into attacking first, allowing them to counterattack under the guise of justifiable defense.

This idea is good, but unfortunately, legal scholars have anticipated this tactic. In this case, the purpose of the defense is to kill, which is not out of justifiable protection of oneself, and thus it is actually a premeditated act of harm, not justifiable defense.

Hypothetical defense.

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

For example, if a passerby is walking alone on an empty street at night and suddenly someone jumps out of the bushes, the passerby is startled and instinctively strikes 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 that the other party is committing an unlawful act when they are not. Since the defender did not have the intention 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 their duty of care.

5. Choosing the Right Tools

Sharp tools are not recommended.

An ordinary person who is not trained in combat may have a higher chance of successfully defending themselves with equipment than without it, so it is essential to be prepared. 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 weapon is too sharp, it can cause severe disabilities due to amputation; if it is not sharp enough, its lethality is low. As for stabbing weapons, they are even harder to use; the human body is full of vital points, and a random stab can easily hit an artery and cause severe bleeding. In short, the biggest problem with sharp tools is their excessive lethality, which can easily lead to serious injuries, disabilities, or even death, resulting in criminal liability for excessive defense. As an ordinary person, it is better not to choose such difficult-to-handle tools. As the old saying goes, "The blade has no eyes."

B. Difficult to use, and may be taken away by the opponent, leading to counterattack. As the "Guerrilla Song" says, without guns or cannons, the enemy provides us with weapons. When most ordinary people who have never killed a chicken or duck hold a sharp weapon with lethal power, they often find themselves at a loss due to not mastering the correct usage techniques, making it difficult to seize the opportunity, and they may easily be dis