The recent decline in economic caseloads in Chinese courts: Exploration of a surprising puzzle

China Quarterly

Volumn , Issue 190, 2007, Pages 352-374

  He, Xin ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

DISPUTE RESOLUTION; ECONOMIC DEVELOPMENT; SOCIOECONOMIC CONDITIONS; STRUCTURAL CHANGE;

ASIA; CHINA; EURASIA; FAR EAST;

EID: 34547850492     PISSN: 03057410     EISSN: 14682648     Source Type: Journal    
DOI: 10.1017/S0305741007001233     Document Type: Article

References (74)

1. Hualing Fu puts forward some preliminary accounts on the sharp increase of the civil and economic caseloads. See "Putting China's judiciary into perspective: Is it independent, competent, and fair?" in Erik Jenson and Thomas Heller (eds.), Beyond Common Knowledge (Stanford: Stanford University Press, 2003), pp. 193-219, at 199.
2. Stanley Lubman, carefully listing the caseloads and the percentages of some subcategories from 1990 to 1997, briefly mentions their increase. See Lubman, Bird in a Cage (Stanford: Stanford University Press, 1999), pp. 254-55.
3. Some Chinese publications try to describe and explain the caseload change, but none takes the stabilization and decline seriously. See e.g. Jingfu Ran, "Shehui jingji fazhan dui susonglu bianqian de yingxiang" ("The impact of socio-economic development on litigation rates"), in Xinghua Guo and Yilong Lu (eds.), Falü yu shehui (Law and Society) (Beijing: Zhongguo renmin daxue chubanshe, 2004), pp. 239-45.
4. The former vice-president of the Supreme People's Court, for example, said: "There is a tendency that the litigation right has been abused. For just a minor issue, people will not make compromise; instead, they file lawsuits," As a result, according to him, courts are overburdened by the increasing lawsuits. See "E zhi lanyong shushong qunxiang" ("Constraining the tendency to litigation right abuse"), speech by Liu hashen, Remnin fayuan bao (The People's Court News), 13 July 2002.
5. Note, "Class action litigation in China," Harvard Law Review, No. 111 (1998), pp. 1523-41.
6. In the official statistics, the original classification of civil and economic cases was changed to civil and commercial cases in 2003. Under the new classification, civil cases with economic content, such as debt, are placed in the category of commercial cases. But the total numbers of civil and commercial cases for years 2002, 2003, 2004 and 2005 are not higher than the sum of economic and civil cases in 2001, which indicates that overall civil and economic cases at least stop increasing sharply.
7. Before 2003, civil litigation was a separate category from economic litigation in China's official statistics, even though the boundary between the two was not very clear. Generally, civil litigation refers to marriage and family, housing, succession, debt, intellectual property and personal rights; economic litigation includes economic contract, economic tort (jingji qingquan), bankruptcy, transportation and so on. See Stanley Lubman, "Dispute resolution in China after Deng Xiaoping: 'Mao and mediation' revisited," Columbia Journal of Asian Law, Vol. 11, No. 2 (1997), pp.229-39 1, at 283. In practice, economic cases focus more on litigation in which institutions are involved, while that between individuals usually belongs to civil litigation. This is particularly true as between debt cases (zhaiwu and money lending cases (jiekuan). The former belongs to civil litigation simply because it occurs between individuals.
8. For example, there was an expansion and subsequent retraction in the range of litigation chambers. (shenpang ting) in the mid-1990s.
9. J. Willard Hurst, "Introduction," in Francis W. Laurent, The Business of a State Trial Court (Madison: University of Wisconsin Press, 1959).
10. Supreme People's Court (SPC) Research Department (ed.), Quanguo renmin fayuan sifa tongji lishi ziliao huibian, 1949-1998, minshi bufen (Collected Historical Judicial Statistics Relating to People's Courts Nationwide, 1949-1998, Civil Part) (Beijing: Renmin fayuan chubanshe, 2000). The numbers in this book are consistent with those in China Law Yearbook. They are also, in large measure, consistent with those of China Statistical Yearbook. Some minor discrepancies were found, but these do not affect the general pattern of caseloads.
11. I conducted fieldtrips in the summer and autumn of 2004. These were arranged by my classmates, who were working for the courts as mid-level adjudicating staff. The two courts were chosen specifically to show the regional variations as a result of the huge developmental levels across the country. I made clear to them in advanoc that my purpose was purely academic and I would not disclose their specific locations. I explicitly said that I would not be interested in criminal case numbers, which are still regarded as very sensitive by China's judiciary.
12. Clarke maintains that it could be risky to draw conclusions from caseload numbers because both the courts and adjudicating staff have incentives to overstate case numbers to enhance their performance. More specifically, since the courts have traditionally relied on litigation fees as one of their primary funding sources, they have incentives to seek cases that could bring higher fees, such as economic cases: Donald C. Clarke, "Empirical research into the Chinese judicial system," in E. Jensen and T. Heller (eds.), Beyond Common Knowledge (Stanford: Stanford University Press, 2003), pp. 164-92. These practices will surely affect the accuracy of the court statistics. But since they have persisted during the whole reform period, they may not significantly affect the general trend of caseloads, especially in the long term.
13. The degree of discrepancy between numbers from different sources is astonishing, as seen in Figure 6. The head of the case filing chamber (li'an ting) and the vice-director of the court nevertheless confirmed that the numbers collected from the case docket were real. This discrepancy is not confined to economic cases and similar exaggeration exists in civil cases. Some statisticians working with me said bluntly that the numbers in the official reports were not reliable, or were even faked.
14. The discussion of the combination of quantitative and qualitative methodology can be seen at Joe Sanders, "The interplay of micro and macro processes in the longitudinal study of courts: Beyond the Durkheimian tradition," Law & Society Review, No. 24 (1990), pp. 241-56.
15. The detailed litigation causes of action include e.g. land ownership disputes, passenger vehicle lease disputes, reputation infringements, pre-emptive rights in mortgages, and other less common causes.
16. SPC Compilation, pp. 330-33.
17. To certain extent, the three major mini-categories of economic cases reveal some organizing principles and policy priorities of the courts and the governments. Some cases which do not necessarily belong to a mim-category may be included because the institutions want to show these as disputes in their regions. This means that political forces could also be a factor, though not necessarily a significant one, affecting the caseload change.
18. Zhongguo tongji nianjian (China Statistical Yearbook), 2003, p. 1319.
19. The sum is calculated from p. 1238. China Statistical Yearbook, 2002.
20. Unfortunately, the numbers of these mini-subcategories since 1998 were not available because the SPC Compilation only covers till 1998.
21. See China Law Yearbook or the SPC Compilation.
22. Some subcategories are omitted because their number is very small, and thus marginal in the general trend. For example, the bankruptcy cases in 1998 reached only 7,746. See the SPC Compilation.
23. During the whole reform period, the Chinese population increased slightly from 962.59 million in 1978 to 1,276.27 million in 2001, with an annual natural growth rate ranging from 0.7 to 1.6%. See China Statistical Yearbook, 2002, p. 93. Population thus seems unlikely to be a factor affecting the caseload fluctuation.
24. William Felstiner, Richard Abel et al., "The emergence and transformation of disputes: Naming, blaming, claiming," Law & Society Review, Vol. 15, Nos. 3-4 (1980-81), pp. 631-54.
25. Lawrence M. Friedman, "Litigation and society," Annual Review of Sociology, No. 15 (1989), pp. 17-29.
26. Marc Galanter, "The vanishing trial: An examination of trials and related matters in federal and state courts," Journal of Empirical Legal Studies, Vol. 1, No. 3, pp. 459-570, in particular 515-22.
27. This section will only deal with the institutional aspects of the supply side. Other aspects, such as resources and capabilities of the courts, will be discussed in a later section.
28. See e.g. John Haley's classic explanation on the reluctant litigants in Japan, Authority without Power: Law and the Japanese Paradox (New York: Oxford University Press, 1991).
29. See also Erhard Blankerburg, "The infrastructure for avoiding civil litigation: Comparing cultures of legal behavior in the Netherlands and West Germany," Law & Society Review, No. 29, pp. 789-807.
30. Lubman, "Dispute resolution in China after Deng Xiaoping," pp. 297-98.
31. Zhongguo sifa xingzheng nianjian (China's Judicial Administration Yearbook), 1995-2003.
32. Yu Fan, "Dangdai Zhongguo fei shushong jiufeng jiejue jizhi de wanshan yu fazha" ("The perfection and development of ADR in contemporary China"), Xuehai (The Ocean of Knowledge), No. 1 (2003).
33. While the hotline in District G received 2,292 inquiries, it solved only six cam in 2001 through the legal aid project, according to its annals (p. 76).
34. See China Law Yearbook, 2002, p. 247. Some other sources provide different and bigger numbers, for example, China News Agency, "2000 nian zhongguo zhongcai shouan jiang tupuo wuwan jian" ("The case received by arbitration institutions will increase to more than 50,000 in 2000"), 12 December 2002.
35. See n. 22.
36. Xin Xu, Lun sili jiuji (On Private Remedies) (Beijing: Zhongguo zhengfa daxue chubanshe, 2005). Due to the illegal nature of the underground debt-collection agencies, the study was based mainly on anecdotal evidence.
37. Jingfu Ran, "The impact of socio-economic development on litigation rates," pp. 240-41.
38. According to their respective provincial annals, at least Xinjiang, Shandong, Guizhou and Heilongjiang have shown this pattern.
39. See Jose Juan Toharia, Cambia Social Y Vida Juridica en Espana, Madrid: Edicusa (1974), quoted in Lawrence M. Friedman and Robert Percival, "A tale of two courts: Litigation in Alameda and San Benito counties," Law & Society Review, No. 10 (1974), pp. 267-301.
40. See also Wayne M. McIntosh, "150 years of litigation and dispute settlement: A court tale," Law & Society Review, No. 15 (1980-81), p. 823.
41. Stephen Daniels, "Continuity and change in patterns ofcase handling: A case study of two rural counties," Law & Society Review, No. 19 (1985), pp. 381-420.
42. Lawrence M. Friedman, "Opening the time capsule: A progress report on studies of courts over time," Law & Society Review, No. 24 (1990), p. 229.
43. Emile Durkheim, The Division of Labour in Society (London: Macmillan, 1984).
44. See Austin Sarat and Joel B. Grossman, "Courts and conflict resolution: problems in the mobilization of adjudication," American Political Science Review, Vol. 69, No. 4 (1975), pp. 1200-17.
45. See Stewart Macaulay, "Non-contractual relations in business: A preliminary study," America Sociological Review, No. 28 (1963), pp. 55-67.
46. China Statistical Yearbook, 1984, p. 131.
47. China Statistical Yearbook, 1997, p. 381.
48. Ibid. p. 411.
49. Lan Cao, "Chinese privatization between plan and market," Law & Contemporary Problems, Vol. 63, No. 4 (2000), pp. 13-62
50. Jean-Francois Huchet and Cavier Richet, "Between bureaucracy and market: Chinese industrial groups in search of new forms of corporate governance," Post-Communist Economies, Vol. 14, No. 2 (2002), pp. 169-201.
51. Victor Nee, "A theory of market transition: From redistribution to markets in state socialism, " American Sociology Review, No. 54 (1989), pp. 663-81.
52. Andrew Walder, "Local governments as industrial firms: An organizational analysis of China's transitional economy," American Sociology Review, No. 101 (1995), pp. 263-301.
53. Doug Guthrie, "Between markets and politics: Organizational responses to reform in China," American Journal of Sociology, No. 102 (1997), pp. 1258-1304.
54. Jean Oi, Rural China Takes Off (Berkeley: University of California Press, 1999).
55. Jean Oi and Andrew Walder, "Property rights in the Chinese economy: contours of the process of change," in Oi and Walder (eds.), Property Rights and Economic Reform in China (Stanford: Stanford University Press, 1999), pp. 1-26.
56. Yongshun Cai, "Relaxing the constraints from above: Politics of privatizing public enterprises in China," Asian Journal of Political Science, Vol. 10, No. 2 (2002), pp. 94-121, at 105-06.
57. In some areas where privatization is still going on, for example, the urban housing privatization and conveyance caseload is expected to increase. The small percentage of these subcategories, however, may not make a difference to the general trend of civil and economic caseloads.
58. See n. 36.
59. See e.g. Shaoguang Wang, "The problem of state weakness," in Journal of Democracy, Vol. 14, No. 1 (2003), pp. 36-42.
60. It is reported that with strengthened administrative institutions and personnel and stricter regulations, the regulatory agencies have become more assertive, conducting more searches and giving out stiffer penalties to violators. In spring 2001, the central government initiated a national drive to clean up irregularities in the economic order. See "China to continue to improve market, economic order," Xinhua Newswire, 24 January 2002.
61. See Friedman and Percival, "A tale of two courts."
62. See Shari Seidman Diamond and Jessica Bina, "Puzzles about supply-side explanations for vanishing trials: A new look at fundamentals," Journal of Empirical Legal Studies, Vol. 1, No. 3 (2004), pp. 637-58.
63. See e.g. "Class action litigation in China," p. 1523.
64. The case involved in the film is not economic, and there is no corruption. It is nevertheless enlightening in indicating the problem caused by modern laws in contemporary China.
65. See Su Li, Song fa xia xiang (Delivering Law to the Countryside) (Beijing: China University of Law and Politics Press, 2000).
66. See e.g. Yi Yanyou, "Zouxiang duli yu gongzheng de sifa" ("Towards an independent and just judicature"), Zhongwai faxu (Peking University Law Journal), No. 6 (2000), p. 751.
67. Hongjun Gao and Ethan Michelson, "Shichang jingji, jiufeng jiejue he lixing fa" ("Market economy, dispute resolution and rational law"), Gongfa yanjiu (Public Law Review), No. 2 (2000), pp. 168-87.
68. All the numbers here are from County H Statistical Annals, 1999, 2000, 2001, 2002, edited by the Statistical Bureau of County H.
69. A similar situation occurs in another county court of central Hunan province, where the litigation fees taken are 12.5 times higher than the SPC standard. See Yong'an Liao and Shenggang Li, "Woguo minshi susong feiyong zhidu zi yunxing xianzhuang," ("The current operational status of the system of civil litigation fees in China"), Zhongwai faxu (Peking University Law Journal), No. 3 (2005), pp. 304-27, at 307.
70. Marc Galanter, "Why the 'haves' come out ahead: Speculations on the limits of legal change," Law & Society Review, Vol. 9, No. 1 (1974), pp. 95-126.
71. This is not to suggest that the policy is not well implanted in Court H, or a better implementation of the policy would improve the situation there.
72. The investigation was conducted by three local correspondents, five lawyers and myself. We used a questionnaire with semi-structured questions such as: "Are you satisfied with the court performance?" "Are you going to use the court again?" "Did you get what you want, are you going to appeal?" We found the plaintiffs through our original working relationships. We often began with the purpose of the interview and then initiated in-depth conversation regarding their litigation processes. Because we approached them through connections, none of them refused to talk to us. They included migrant workers, real estate developers, bankers, government workers, gift suppliers, kindergarten conductors and construction workers.
73. Su Li, Delivering Law to the Countryside.
74. He Xin, "Ideology or reality? Limited judicial independence in contemporary rural China," Australian Journal of Asian Law, Vol. 6, No. 3 (2004), pp. 213-30.