China's courts: Restricted reform

China Quarterly

Volumn , Issue 191, 2007, Pages 620-638

  Liebman, Benjamin I ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

LEGAL SYSTEM; POLITICAL SYSTEM; REFORM PROCESS; TOP-DOWN APPROACH;

ASIA; CHINA; EURASIA; FAR EAST;

EID: 37749023663     PISSN: 03057410     EISSN: 14682648     Source Type: Journal    
DOI: 10.1017/S0305741007001610     Document Type: Article

References (57)

1. Donald Clarke, "Empirical research into the Chinese judicial system," in Erik Jensen and Thomas Heller (eds.), Beyond Common Knowledge: Empirical Approaches to the Rule of Law (Stanford: Stanford University Press 2003), pp. 164-92.
2. For example, see Liao Weibua, "Fayuan zuzhi fa jiang chutai zhuanjia jianyi jiang renmin fayuan gaiming fayuan" ("Court organization law will come out, experts suggests changing people's courts into courts"), 4 December 2004, Nanfang Chuang, available from http://www.southen.com/news/china/zgkx/200412040062.htm.
3. Although noting that any reform must accord with China's "national conditions," the Supreme People's Court (SPC) has acknowledged the need to look overseas in designing court reforms. SPC, "Renmin fayuan dierge wunian gaige gangyao (2004-2008)" ("The second five-year reform plan of the people's courts (2004-2008)") 26 October 2005, available from http://www.law-lib.com/law/ law_view.asp?id=120832.
4. "Beijing susong shuliang baozhashi zengzhang, qunian 76% anjian weinong jiean" ("The number of cases in Beijing increases explosively, the percentage of not closed cases increased by 76% last year"), Fazhi wanbao (Beijing. Legal Times), 27 April 2005, available from http://news.xinhuanet.com/legal/2005-04/27/ content_2884636.htm.
5. Xiao Yang, "Zuigao Renmin Fayuan gongzuo baogao (2007)" ("SPC work report (2007)"), 14 March 2007, available from http://www.chinacourt.org/public/detail.php?id=239089.
6. For analysis of the decline in caseloads, see Xin He, "The recent decline in economic caseloads in Chinese courts: Exploration of a surprising puzzle," The China Quarterly, No. 190 (2007), pp. 352-74.
7. Interviews. Much of the information in this article is based on interviews with more than 200 judges, lawyers and academics. Interviews were conducted in Beijing, Shanghai, Guangdong, Jiangxi, Hubei, Jilin, Sichuan and Shaanxi between 2003 and 2007.
8. Interviews.
9. The number of disputes resolved through People's Mediation Committees grew in 2005, the first increase in more than a decade. The increase probably reflects renewed state emphasis on mediation as part of efforts to construct a "harmonious society."
10. Although the total number of complaints raised is not made public, the system handles an enormous volume of grievances each year. Carl F. Minzner, "Xinfang: An alternative to the formal Chinese legal system," Stanford Journal of International Law, Vol. 42, No. 1 (2006), pp. 101-79.
11. Wen Jie, "2006 Niandu quanguo zhongcai anjian shouli shuju jianxi" ("Brief analysis of arbitration cases decided nationally in 2006"), China-arbitration.com, 15 March 2007, available from http:/hwww.china-arbittation.com/ readArticle.do?id=ff80818111440b34011153d7086a0046.
12. Ministry of Labour and Social Security, "Zhongguo laodong tongji nianjian (2005)" ("Yearbook of China labour statistics (2005 "), pp. 523-24, available from http://www.molss.gov.cn/images/ 2006-11/16/27110316153762520791.pdf.
13. For example, see Jiang Zemin, Report to the 15th National Congress of the Communist Party of China, 12 September 1997 (discussing judicial reform), available from http://dcdj.ccp.org.en/old/Read/ News.asp?NewslD=3395.
14. SPC, "Renmin fayuan wunian gaige gangyao" ("The five-year programme for reform of the people's courts"), 20 October 1999, available from http://law.chinalawinfo.com/newlaw2002/SLC/ slc.asp?db=chl&gid=23701.
15. "The second five-year reform plan of the people's courts (2004-2008)."
16. Although the plan covers the period 2004-2009, it was not made public until 2005. The delay may reflect internal division regarding its contents.
17. "Woguo faguan he jianchaguan zhengti suzhi tigao benke bili guoban" ("The overall quality of our nation's judges and procurators is raised, more than half are university graduates"), Renmin ribao (People's Daily), 17 July 2005, available from http://news.xinhuanet.com/legal/2005-07/17/content-3228617.htm. The 50% number probably includes not only graduates of four-year universities, but also those from evening classes, junior colleges, or da zhuan, as well as correspondence courses. These degrees are not necessarily in law.
18. "Wenping shangqu budengyu shuiping tigao, faguan peixun buneng zhi benzhe wenping qu" ("An advanced degree does not equal enhanced ability, judge training should not solely aim at degrees"), Xinhua wang (Xinhua Net), 11 March 2004, available from http://news3.xinhuanet.com/newscenter/2004-03/11/content_1360136.htm. Obtaining such training, however, appears relatively easy.
19. The failure to reform the appointment system for court presidents continues to serve as a major impediment to strengthening the courts.
20. "Zuigao Renmin Fayuan guanyu zai quanguo fayuan minshi he xingzheng shenpan bumen kaizhan 'Guifan sifa xingwei, cujin sifa gongzheng' zhuanxiang zhenggai huodong de tongzhi" ("Notice of the SPC regarding implementing the 'Standardizing judicial acts, enhancing judicial justice' special alteration and correction movement in the civil and administrative divisions of courts nationwide"), 15 July 2005, available from http://www.findlaw.cn/findlaw/ lawdetail.asp?id=94852.
21. Interviews.
22. "Zhongyang Zhengfawei: Dongyaan shehui liliang, qieshi jiejue zhixing nan" ("Central Political-Legal Committee: Mobilize the resources of society, conscientiously solve the problem of enforcing judgements"), Xinhua wang, 23 January 2006, available from http://news.xinhuanet.com/legal/2006_01/23/content_4090238.htm. One response of courts to problems in enforcement has been renewed stress on mediation to reduce contradictions and conflict in society. The most recent SPC work report, stated that 30% of all civil cases were resolved through mediation in 2006, and that 55% of first-instance civil cases were mediated or withdrawn prior to judgement (SPC Work Report 2007). Judges cite two primary reasons for this trend: Mediated decisions are more likely to be enforced than adjudicated cases, and they are less likely to result in protests and complaints.
23. Yu Zhong, "Lun Zuigao Renmin Fayuan shiji chengdan de zhengzhi gongneng: Yi Zuigao Renmin Fayuan linian 'gongzuo baogao' wei yiju" ("On the actual political function of the SPC: Using the annual 'work report' of the SPC as a base"), Qinghua faxue (Tsinghua Legal Studies), Vol. 7, available from http://law-thinker.com/ show.asp?id=2829.
24. "Ganshou sifa zunyan: Chuan fapao qiao fachui xingshi beihou de yiyi hezai" ("Feeling the honour of the judiciary: What's the meaning behind the actions of wearing robes and, hitting gavels"), Xinhua wang, 5 June 2002, available from http://news3.xinhuanet.com/newscenter/2002-06/05/content_425067.htm.
25. "Luo Gan zai shehui zhuyi fazhi linian yantaoban shang qiangdiao: shenru kanzhan shehui zhuyi fazhi linian jiaoyu, qieshi jiaqiang zhengfa duiwu sixiang zhengzhi jianshe" ("Luo Gan emphasizes in a symposium on socialist rule of law theory: Deepen education on socialist rule of law theory, enhance the ideological and political construction among workers in the political-legal system"), Zhongguo fayuan wang (China Court Weh), 14 April 2006, available from http://www.chinacourt.org/public/detail.php?id=201753. In a speech in November 2006, Luo again called for strengthening Party oversight of legal institutions. He also added a more direct critique of those advocating judicial independence and Western-style legal reforms. Luo warned against underestimating the influence of such arguments, in particular arguments that deny the Party's leadership of legal and political institutions, on those working in the political-legal system. He also stated that "hostile forces" were trying to use legal institutions as an entry-point for Westernizing and splitting China.
26. Luo Gan, "Zhengfa jiguan zai goujian hexie shehui zhong danfu zhongda lishi shiming he zhengzhi zeren" ("Political and, legal institutions shoulder an important historical mission and political responsibility in the construction of a harmonious society"), Qiushi (Seeking Truth) No. 3 (2007),'available at http://www.qsjournal.com.cn/qs/20070201/GB/qs%/5E448%5EO%5E1.htm.
27. "Cao Jiaming zai shehui zhuyi fazhi linian yantaoban shang qiangdiao: renmin fayuan yao laogu shuli shehui zhuyi fazhi linian" ("Cao Jianming emphasizes in the symposium on socialist ride of law theory: the people's courts must steadily establish socialist rule of law theory"), Zhongguo fayuan wang, 14 April 2006, available from http://www.chinacourt.org/public/detail.php?id=201755. Cao also spoke of the need to avoid "extreme 'left' thoughts" and the "remnants, of feudalism." His speech appeared primarily aimed at placing the courts in line with current Party ideology, and thus perhaps designed to insulate them from criticism for excessive reliance on Western models. But such comments also reflect the SPC's move away from aggressively promoting court reform.
28. For analysis of court-media relations, see Benjamin L., Liebman, "Watchdog or demagogue? The media. in the Chinese legal system," Columbia Law Review, Vol. 105, No. 1 (2005) pp. 1-157.
29. For example, see "Beijing fayuan dui zhongda shesu xinfang An jiang shixing lingdao baoan zhidu" ("Beijing courts will implement a system making court leaders responsible for the resolution of major litigation-related letters and visits"), Zhongguo xinwen wang (China News Net), 28 July 2005, available from http://news.qq.com/a/20050728/000926.htm.
30. 2004 SPC Work Report; Zuo Weimin and He Yongjun, "Zhengfa chuantong yu sifa lixing: Yi Zuigao Fayuan xinfang zhidu wei zhongxin de yanjiu" ("Politics and law, tradition and judicial rationality: Research centred on the SPC's letters and visits system"), Sichuan Daxue xuebao: Zheshe ban (Journal of Sichuan University: Philosophy and Social Science Edition), No. 1 (2005), available from http://www.usc.cuhk.edu.hk/wk_wzdetails.asp?id=4523. The SPC's 2007 Work Report did not include figures on the total number of letters and visits raised with the courts, but did note that letters and visits to local courts decreased by 11% in 2006 and that those to the SPC decreased by nearly 5%. The continued declines probably reflect the SPC's instruction that courts at all levels should work to reduce litigation-related letters and visits (SPC Work Report 2007).
31. For example, see "Jiangsu Hebei deng sheng bufen qunzhong yueji xinfang shijian diaocha" ("An investigation of skipping-level letters and visits by masses from Jiangsu, Hebei and other provinces"), Liaowang xinwen zhoukan (Outlook Weekly), 30 October 2004, available from http://news.xinhuanet.com/newscenter/ 2004-10/30/content_2156474.htm.
32. Interviews.
33. "Jinhua Zhongyuan zhashi zuohao shesu. xinfang gongzuo" ("Jinhua'lntermediate Court works hard on litigation-related letters and visits"), 27 December 2005, available from http://www.jhcourt.cn/news/news_detail.asp?id=626 (link no longer valid; copy on file with author). 'Courts have also created "judicial relief" funds to assist poor litigants who are unable to enforce judgements in their favour. "Zuigao fayuan tan tuidong quanguo fanwei nei jianli zhixing jiuzhu jijin" ("SPC discusses promoting the establishment of an enforcement relief fund nationwide"), Sina.com, 21 January 2007, available at http://news.sina.com.cn/c/2007-01-26/114912148273.shtml.
34. "Woguo xinfang zhidu xianru sichong kunjing mianlin fazhi tiaozhan" ("Our nation's letters and visits system encounters four difficulties, faces challenges from rule of law"), Xinhua wang,' 30 June 2004, available from http://news.sina.com.cn/c/2004-06-30/12143565398.shtml.
35. Interviews.
36. He Weifang, "Panjueshu shangwang nan zai hechu" ("What's the difficulty in putting court decisions online"), Fazhi ribao (Legal Daily), 15 December 2005, available from http://law-thinker.com/show.asp?id=3025.
37. Vivian Wu, "Press quiet on changes to reporting court cases," South China Morning Post, 14 September 2006.
38. For one example, see "Guangxi bu shouli 13 lei ruoshi qunti an, sheng gaoyuan cheng you guoqing jueding" ("Guangxi refuses to accept 13 categories of cases relating to disadvantaged people, high court asserts it is decided by the situation of the country"), Zhongguo qingnian bao (China Youth Daily), 24 August 2004, available from http://news.qq.com/a/20040824/000070.htm. Doing so is understandable: Many such cases in practice involve complex or sensitive issues potentially touching on social unret, and are disputes that courts could not resolve on their own.
39. Benjamin L. Liebman and Timothy Wu, "Chinese network justice," Chicago Journal of International Law, Vol. 8, No. 1 (2007).
40. Similar observations have been made regarding the growth of trans-national judicial networks. Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2004), pp. 65-103.
41. For a discussion of the case, see Zhao Lei, "Li Huijuan: Tiaozhan difang lifa" ("Li Huijuan: Challenging local legislation."), 25 July 2004, available at http://www.dffy.com/fayanguancha/fangyuan/200407/20040725162155.htm.
42. Benjamin L. Liebman, "Innovation through intimidation: An empirical account of defamation litigation in China," Harvard International Law Journal, Vol. 47, No. 1 (2006), pp. 33-177.
43. For analysis of the cases, see Tom Kellogg, "Campus and the courts: education litigation and judicial protection of rights in China," Harvard Human Rights Law Journal (forthcoming 2007).
44. For an example of such arguments, see Li Fujin, "Xingzheng shenpan de kunjing yu chulu" ("The difficulties in and remedies for administrative adjudication"), 19 September 2003, available at http://www.dffy.com/faxuejieti/xz/200311/20031119203349.htm.
45. One exception to this pattern was the Qi Yuling case, in which the SPC,in 2001 seemed to suggest that a case could be brought directly under the PRC Constitution. The decision was both opaque and controversial, and no subsequent cases have endorsed or acknowledged the principle.
46. Liebman, "Innovation through intimidation."
47. For example, see Benjamin L. Liebman, "Note, class action litigation in China," Harvard Law Review, Vol. 111 (1998), p. 1523.
48. China Law Yearbook 2006, p. 1001.
49. In March 2006 the All-China Lawyers Association issued a notice requiring lawyers handling collective (defined as involving ten or more people) or sensitive disputes to report such representation to, and accept "guidance from," the local lawyers' association and justice bureau, "Zhonghua quanguo lüshi xiehui guanyu hishi banli quntixing,anjian zhidao, yijian" ("Guidance notice of the All-China Lawyers Association regarding lawyers' handling of group cases"), 20 March 2006, http://www.dffy.com/faguixiazai/ssf/200606/ 20060620110110.htm.
50. The list provided here is not exhaustive. For more detailed afialysis, see Matthew C. Stephenson, "'When the devil turns...': The political foundations of independent judicial reliew," The Journal of Legal Studies, Vol. 32 (2003), pp. 61-64.
51. Andrew J. Nathan, "Authoritarian resilience," Journal of Democracy Vol. 14, No. 1 (2003), pp. 6-17.
52. One exception is the work of "new-left" scholars'such as Pan Wei, who have argued that China can and should establish rule of law without democracy. See, for example, Pan Wei, "Fazhi yu weilai de zhongguo zhengti" ("Rule of law and China's future political system") Zhanlüe yu guanli (Strategy and Management), No. 5 (1999), at pp 30-36.
53. José J. Toharia, "Judicial independence in an authoritanan regime: the case of contemporary Spain," Law and Society Review, Vol. 9, No. 3 (1975), pp. 475-96.
54. John O. Haley, "The Japanese judiciary: Maintaining integrity, autonomy and the public trust," Washington University in St Louis School of Law, Faculty Working Papers Series, Paper No. 05-10-Ol (forthcoming in Daniel J. Foote (ed.), Law in Japan: A Turning Point (Seattle: University of Washington Press, 2007)). Haley notes a long tradition of judicial independence in Japan stretching back to the 19th century. In contrast, Mark Ramseyer and Eric Rasmusen argue that courts in democratic Japan, although generally independent, have yielded to LDP interests in certain sensitive cases.
55. J. Mark Ramseyer and Eric B. Rasmusen, Measuring Judicial Independence: The Political Economy ofJudging in Japan (Chicago: University of Chicago Press 2003), pp. 122-23. Haley finds no evidence of such political influence on modern Japanese courts.
56. Tamir Moustafa, "Law versus the state: The judicialization of politics in Egypt," Law and Social Inquiry, Vol. 28 (2003), pp. 883-930.
57. In Egypt, as Moustafa describes, the Constitutional Court has developed into a forum for challenging the regime. In China, in contrast, courts have neither challenged single-party rule nor served as fora for those seeking to do so.