What the Bao Fan disappearance tells us about China's legal system

China's current political system has been in place since 1949: 74 years ago. Xi Jinping has been in power for more than 10 years. And yet the government still cannot bring itself to follow its own law

It's being reported that Bao Fan (包凡), the chairman and CEO of China Renaissance, has disappeared. (Here's the announcement from the company filed with the Hong Kong Stock Exchange.) This is part of a continuing pattern in China in which corporate executives simply disappear. As the Financial Times reports,

Bao’s disappearance makes him the latest in a long list of Chinese financial executives who have disappeared while being caught up in related corruption investigations in the mainland.

Mao Xiaofeng, the president of Minsheng Bank, disappeared in 2015 and was held for 21 months before being released on bail amid a corruption probe at the bank, according to domestic media reports. Yim Fung, the head of Chinese broker Guotai Junan International, was also detained in 2015 but released five weeks later after helping Chinese authorities with an investigation.

Bao's disappearance is no doubt part of this pattern; it is virtually certain that he has been detained by the Party-state, and not, say, by gangsters or kidnappers.

What's worth noting is how extraordinary we ought to find this. China's current political system has been in place since 1949: seventy-four years ago. Xi Jinping has been in power for more than ten years. And yet the government still cannot bring itself to follow its own law.

Under Chinese law, coercive detention must have a statutory basis: a law passed by the National People's Congress or its Standing Committee. The obvious candidate here would be the Criminal Procedure Law. Under that law, there are only three ways to have your personal freedom curtailed: (1) residential surveillance, in which case you obviously have not disappeared; (2) residential surveillance at a designated location (RSDL); and (3) detention at a detention center (“detention”). For RSDL, family must be notified within 24 hours (Art. 75). For detention, the family must be notified within 24 hours (Art. 85). The only exception is crimes of endangering state security or terrorism, pretty clearly not implicated here.

Another possible candidate might be the Law on State Supervision. This is the only other statute I know of that provides a basis for coercive detention (called liuzhi 留置 in the Law in order to distinguish it from detention under the Criminal Procedure Law). But Article 44 of the Law and Article 94 of the Implementing Regulations both provide that the family should be notified within 24 hours. Interestingly, there is a loophole: it also provides that notification may be withheld if the detaining authorities in their own judgment believe it's not appropriate for various reasons. This, of course, is an exception big enough to drive a truck through. But I don't think the Law on State Supervision applies at all here, since the Law gives supervisory commissions jurisdiction only over public employees. This term is broadly defined, but I don't see how it can plausibly cover Bao.

Two interesting bottom-line conclusions emerge here. First, we are still, here in 2023, seeing many cases where the Law on State Supervision does not plausibly apply, but the Party-state chooses just to blow off the requirements of the Criminal Procedure Law. Some might be tempted to dismiss these as outlier cases--just a few tycoons. But the whole point of law being a meaningful constraint is that it's supposed to constrain precisely when the state most wants to be unconstrained. Second (and this is unrelated to the Bao case, but stood out when I was looking into the Law on State Supervision), the Party-state can actually detain some people for up to six months (Art. 43 of the Law on State Supervision) without ever giving notice.