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My Forty years struggle for Freedom and Justice V

1/21/2016 02:55| 发布者: 郭国汀| 查看: 741| 评论: 0|原作者: 郭国汀

My Forty years struggle for Freedom and Justice V
By Thomas Guoting Guo
"The great value of Biography or Autobiography lies in the feeling of the attitude of great men face the world and people’s social and personal manners , of their spiritual personality charisma , of their characteristics strength, and of their age style. The great figure's character fight against the fate shown by rising above commoners , their praise for love, ethics, and virtue; their great love and hatred , affection, adoration, sorrow , mercy, compassion, curiosity, joy, gratitude, villain, envy, jealousy, anger , shameless , cruel, etc. all can vividly reflected in an excellent discipline; human reason mind and body are closely linked, beauty and ugliness, great and little, will affect people's emotions; natural beauty can pure human soul, the beauty make people feel wonderful, the righteness virtue make people admire with respect. "                                                  -Thomas Guoting Guo-
Chapter V Raise up again (东山再起)
"Those ancient great men who made significant achievements, not only possess the super- talented, but always have the indomitable ambition ," Mencius pointed out 2300 years ago, although I do have some talent, I do not know whether they are super-talent, I do have the steel-will.
5.1 I belong to more professional and scholarly lawyer , whenever handle each case, I always write one or two articles; when encountered important and difficult cases, I usually did extensive legal research to study the specific legal issues relevant the cases. In the process of handling a case of Xiamen International Trust and Investment Co v Hong Kong United China Enterprise Co.Ltd import 5,000 tons of Chilean fishmeal quality dispute, I published nine articles and comments base on legal research, which earn me a reputation of "the PhD lawyer".
5.2 However, I have to recognize that although I had handle a number of important foreign economic cases, almost 90 % of cases are appointed by the director of law firm, despite I had been practiced nine years in 1993, I am still an " poor great lawyer" who has few direct clients. Because I focus my mind on reading, translating, writing but Ignoring developed public relationship, as the result lacking direct clients.
5.3 Despite I deeply understand the importance of public relationship as one of the top talent skill to be success in almost all area, especially in China, every business rely upon "Guanxi" (public relationship), I even bought five books in public relationship and read them through, but I still feel so difficult to handle Chinese public relationship that make me almost have no experience at all. I know to be a successful lawyer one must be good at professional skills while sociable, I was not walking on the road for a successful lawyer , at least in the sense of making money, maybe I spent too much energy to deal with all the hardships and bad luck ; maybe I really like someone said , " there are too many intellectuals aloof ."
5.4 After years of unremitting diligent study and practice , my lawyer capacity has made great progress , especially after successfully handle the " advanced bills of lading 'case , the boss of law firm always appoint me to deal with a number of major and difficult cases . For example, the first copyright dispute in Fujian Province, criminal-police torture people to death, the Fastest Sword " Zhan Lu" trademark dispute, the great shipwreck cargo damage case, foreign guarantees delivery case,the 69 villagers orchard contract dispute, $ 2.3 million obtain with good faith, $ 4 million foreign currency guarantee contract dispute, $ 19 million foreign administration litigation, International commercial arbitration case etc. Despite I lost some case, due to my serious and responsible attitude to deal with each case, and base upon my extensive researching and investigating facts, evidences, jurisprudence and law as well as applicable acts, made strong persuasive and convincing reasoned defense statements, I did win a number of important cases. However, practicing nine years, I never bribe judges or other power holder for exchange winning the cases, nor act as a "judicial prostitute" which in China under the CCP regime,over 98% lawyers are forced to do so, sooner or later.
5.5 Director Mr. Lin Shunsheng mocked me as a "bookworm"which means I do not know the reality; others said that I am "play intellectual elegant"; My close friend Lawyer Huang Xiaoming point out that I am the "man who are living in the Heaven", which means I not belong to this dirty world.
5.6 In fact, I firmly believe that lawyers must fight for justice, truth, fairness, and law, but for money or authority, not to say for win the cases do whatever they like, whether it is illegal or immoral. Despite nowaday rely on money exchange power, depend on bribe to mislead judges to win cases, has become many lawyers the practicable weapon, accompany the political regime's reform and progress of the society, judicial judgement institutional reform and perfection, established the authority of the rule of law, set up and perfection of public opinion and media surveillance system, such act as "the judicial prostitute" must be eliminated by history.
5.7 Ironically, History under Hu Jingtao CCP regime neither did any substance political reform, nor establish any sense of the rule of law, nor set up any free medias or independent judicial; therefore, instead of give up the "judicial prostitutes", I as one of the first human rights lawyer in China and as the justice and integrity the top maritime lawyer in China was seized my law license and under house arrested for my strongly and publicly defense of political dissidents and Fa Lungong practitioners, eventually I was forced into exile oversea.
5,8 It is hard to become an excellent lawyer , and become a great lawyer is even harder, but my goal is to become a great and excellent lawyer.To become an excellent and great lawyer , we must first have a solid legal jurisprudence theoretical foundation and a wealth of legal and life knowledge and practical experience in law, then possess strict logical thinking ability,including analysis, critical, strategic thinking capacities, while also with a good social communication skills and the ability to apply public relationship; finally, we must have the continuous learning pioneering spirit .Despite I still have a long way to catch up the goal, I firmly believe that one day I will come true all my great dreams.
5.9 In the early 1991, I and Beijing lawyer Mr. Tan Jiaodong co-host handle the Xiamen International Trust and Investment Co(XITIC) v Hong Kong United China Enterprise Co.Ltd(HKCEC) import 5,000 tons of Chilean fishmeal quality dispute,is one of my best cases I have handle excellent in lawyer's capacity sense during my twenty-one years as a trial lawyer.
5.10 The HKCEC claim $ 760,000 from the XITIC due to its breach contract refuse to issue the letter of credits, and illegally seize 20% of cargo's payment, while the XITIC counter-claim for $ 1.05 million damages caused by fishmeal vermin, fumigation, and delay delivery cargo. The Praintiff's lawyer is well-known senior lawyer Zhang Bingsheng, Beijing lawyer Mr. Tang Jiaodong and me represent the defendent. Both side submits hundred documents evidences, the witness appear in court involving quarantine , fumigation, insurance , border and other departments officers and workers. The case is complicate involving the risk duty of international cargo buying and selling, the buyer's re-examination rights, the seller's principle of strict compliance documents,the buyer's duty of issuing letter of credits, and the cargo's inherent defeat and etc.
5.11 After accepting a commission, I devote himself into research investigation and evidence preparatory work, for easier to remember , I categorized and induced evidences, and lists legal issues and controversial evidences .According to  the initial study I concluded : Even fishmeal did find vermin in Xiamen, the port of destination , according to C & F conditions, it should belong to the buyer's risk of liability ; and analysis of the evidences indicates that there is no sound evidence to prove that the fishmeal in the port of destination have vermin , or the fumigation has done In Xiamen, and delayed the selling season.
5.12 To seek reconciliation of the controversy , we had several special trip to Xiamen in consultation and mediation with the plaintiff, but the plaintiff not only insisted on refusing to return of unreasonable deduction of $ 310,000 payment, but also counter-claims $ 500,000 in so-called loss , following increase to $ 850,000 , and finally in court it becomes $ 1,050,000 .
5.13 At that time many people predicted that our client can not win the lawsuit . Because the Xiamen special economic zone International Trade and Trust company, has a pivotal position in the local , its relationship with the local court apparently very close, its lawyer has rich experienced in the international commercial litigation, our client also worried the court will favor the plaintiff.I believe that the key issue is discover evidence and clear facts, at meantime we should convincing judges in jurisprudence.
5.14 Then we began the arduous and meticulous investigation and evidences gathering , through visited quarantine , fumigation team , insurance companies, border check points , Trade and Industry Bureau , the Port Authority , fishmeal sub-buyers, surveyed and copied a number of key evidences.
5.15 Then for the legal issues involved in the case I did extensive studies and wrote and published: " Analysis of a major international sale of goods disputes ", " The evidence analysis of a major international sale of goods quality disputes", " The right of rejection in the international sale of goods " " Risks responsibilities in the international sale of goods ", " On the principle of strict compliance documents ", " The buyer's responsibility to issue the letter of credit In the International documentary credit transactions," " On the cargo inherent defeats " etc research papers.
5.16 On the basis of these theoretical research and on the controversial issues in the court, I wrote two statement of claim with strong persuasive and convincing reason and evidences, achieved good results. In December 1994 , Xiamen Court made the judgement in favour of my client in the " case of payment ", both sides accepted the judgement; as to the " quality dispute case" , although the court did not made sentence yet(in 1994), but I am confidence of the winning. In January 1995 the court made the judgement in favour of my client again, then plaintiff appeal to the high court of Fujian province, eventually the case reheard by the Supreme courty of China in Octorber 1998, however, up to date, the court refused to delieve the finally judgement, for all evidences, law and appliable acts are back up my clients claims and in order to favour the plaintiff, the court under heavy pressure come from high level officers, simply let it sleep for 24 years!
5.17 Fishmeal cases indicate that if lawyer make best effort to take serious and responsible, basis on facts, evidences, and legal theory as well as the law, to persuade and convince judges, we can win the trust of our clients, earn the respect of the judges, and eventually win the cases.
5.18 In February 1993, I went to Vancouver and Montreal to handle a complicate international commercial arbitration dispute. BF Canada Co. had 20 years business relationship with Fujian Foods and Oils Inport and Export General corporation., which located at the outside of Montreal, due to Western economic recession effect, it on the verge of bankruptcy. Therefore, BF co fraudulently insert a trust receipt clause on the letter of credit, misappropriated the seller $ 250,000, and due to the buyer's defaults caused the seller losses another $ 260,000 Canadian dollars .
5.19 Due to the sell contract stipulated that all disputes shall be submitted to arbitration in the accused country , I on behalf of the seller to submit the case to the Colombia International Commercial Arbitration Centre in Vancouver for arbitration , and appointed Professor Tang Houzhi as arbitrator for the Chinese , and hired QC. Edward Chiasson at Ladner Downs ( a Vancouver law firm) as my cooperate lawyer to handle the case; He focus on the issues of arbitration procedures, such as adopt property preservation measures, apply to the President of the High Court on behalf of the buyer to designate an arbitrator, etc. , I focus on the substantive legal issues, because the case should apply China foreign Economic Contract Law and the 1980 United Nations Convention on the sales contract.
5.20 But then the respondent claime that either accept 1/4 payment that is $ 62,500 Canadian dollars, or they declare bankruptcy. Our application for the property preservation measures did not work, Mr. Edward is a common law lawyers , while Montreal apply civil law , he suggested that we hire a Montreal lawyer handling the case jointly , to recruits the second Canadian lawyer , attorney's fees will be greatly increased, so I decided to find out the buyer's real financial situation, then make a decision whether to proceed with arbitration.
5.21 On 25 February 1993, I was on board of an airline through Tokyo to Vancouver, 13 hours later I was in Vancouver international airport, and this is the first time I went out of China to handle a case. Ladner Downs is one of the top law firm in Vancouver, set up in 1911, located at water front centre, there are more than 200 lawyers, divided into 20 special sections, it has a large law library and each lawyer has a legal secretary. Mr. Edward warmly welcomed me, show me around the law firm first, then he through telephone arrange my hotel, my barget limited to $ 45 per day, and finally he find me a hotel which need $ 49 per day. However, I only sleep there one night and find that place is not safe for its ground floor is a strip clubs. From local newspaper, I find a hotel if rent per weeks average daily coats only need $ 35, and its outsite looks like a storage but its inner decoration is better than three star hotel.
5.22 After three meetings with Mr. Edward, we have achieved a consensus , to certify the Buyers true state, then decide whether to arbitration. For cutting the coats, I decide myself travel to Montreal to investigate. I found that the Buyer is a small company with only five staffs, the director left Canada for the US for several months, all staffs left the company, and no business going on for months, even its office has rent out to another company, the Buyer has signed a agreement with 30 creditors clean its debt base on pay 1/4 credit, including the first and second creditors, the Food and Oils Co is the third creditor, if we do not accept the condition, even if we win the arbitration, the award of the arbitration only has paper meaning.
5.23 After carefully study and analysis, I hold that according to the trust receipt clause on the letter of credit, the ABN Canada hardly can shift its responsibility for the payment of cargo, for the bank failure rely on the term of the trust receipt to control the sales proceeds, after the buyer using the Trust receipts borrow the documents to delivery the cargo and sell them, and the banks return the worthless documents only after the seller demand two months later. Thus, I suggest my client to bring a lawsuit against the ABN bank.
5.24 But the BF hold on seventy thousand payment(1/4 of cargo price) Canadian dollar , forcing the seller to give up the lawsuit against the ABN bank, plus legal opinions of a Montreal law firm on the case believe that the ABN Bank has no responsibility; to avoid total lost outcome , the seller finally choose to withdraw seventy thousand Canadian dollars payment scheme . Afterwards another American large law firm offer an analysis report,which conclude the same analysis as mine, but under the civil law of Montreal, the seller accepted a settlement can not renege , thus leaving a lesson to be learned .
5.25 In July 1992, I start to assitence a New York lawyer to dealing with a litigation amounted to $ 12 million US dollars of foreign sexual harassment.US attorney handling the case with a carefully style , make me feel ashamed. Only a party record of inquiry that is up to 230 pages! Of course, the United States attorney bill their clients according to actual working hours , led lawyers do everything possible to earn an hour fee is not surprising .The investigate enquired the parties need to have notarized transcripts and video present by both side lawyers, thus ensuring the objectivity and fairness of the testimony of witnesses , it is worth learning by Chinese judicial rules of evidence .
5.26 The plaintiff on the grounds of sexual harassment claims for $ 12 million of the huge compensation , purely fantasy in China , while in the United States once identified sexual harassment is true, then it is not impossible . I think the plaintiff is actually due to adultery revealed, to save her face , at the expense of her lover , and inspired by her lawyer, to take the opportunity to knock a ruthless ; her attorney was a Jew , a short big guy, looks quite strange , oversized nose , his small eyes constantly rotated , giving me an impression of a hunger tiger looking at its prey.
5.27 It is said that the Jews are renowned for their clever and cunning known to the world economy , along with he can turn a lover's dispute into a $ 12 million claims ability , it seems somewhat sound enough, that in all times and in all countries, took the opportunity to extort can not spared.
5.28 Having Practice nine years , I hosted dozens of major highly profile foreign economic litigation, translated three law books, authored and compiled another two law books, published case analysis and comment papers over 70 essays , successed pass twice entry examination for graduate study of international maritime law; however, due to my political opinion, I have been shut out by the CCP regime. The hope and disappointment often intertwined ; although I bent to learn and progress , has worked hard in obscurity , but because of two sentences of complaint in one of my love letters, it costed me lost repeatedly the opportunities to study abroad , which made me very frustrating : the growth of national talents require personal struggle , but also need a favorable external environment. Only leaders at all levels , the various departments , businesses , all with full respect , attention , care and proper use of personnel , forming the social atmosphere of desperate talent as if thirsty, love talents as precious treasures, our great nation might have the chance to restore her great glorious.
5.29 " The men who made great achievements in antient time, not only possess the super- talented, they always have indomitable ambition ," although I lack the super- talented, but I have the steel-will . Despite along the road there will be many twists and turns, ups and downs , I always believe that history is irreversible , extreme injustice of the current political and legal system in China must be overhauled , impartial judicial system bound with political reforms and set up improved the economic system. Have genuine talent of professional, scholarly lawyer will surely be welcomed by the society and country.
5.30 Nine years practice I tested with "sweet, sour, bitter and spice", what I wrote revealing entirely a real me, an honest , confident , resolute , strong, despite experiencing hardships, always had a sincere , kind , generous heart and noble soul. In my most difficult years , the divine gave me a beautiful , gentle, strong wife [Note ] , she accompanied me through that vast hopelessness and long days and nights, and brought up my only beloved five -year-old smart, cute daughter. I would take this opportunity once again to show my thanks to all my teachers and friends who had help, support , concern and care me. I will not disappoint the people of culture , my mother's expectations, as always, I will be a hard-working , responsible, honest lawyer , to our motherland future, in order to set up genuine rule of law, I would like to use my humble strength, to work hard together with all the people!
[Note ] Thomas G.Guo July 6, 2008 Note: Due to my ex-wife unbearable CCP spies to track long-term monitoring tremendous mental stress caused by 18 years of marriage, and because she heard and saw the CCP despotic regime of a series political persecution against me , and I do not willing to compromise with the Communist tyranny, and determine to fight to the end , causing her to disappointed me completely, and forced divorce on March 6, 2005.

Published in December 1993 by the "Lawyers and Legality" and published in Octorber 2008 by the Freedom Torch.










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