Courts and the Party-state

1. Courts and the Party-state • Courts beholden to local party-state • No tenure for judges • Local government controls funding • Local party committee and party political-legal committee (政法委员会) • Have influence over • Court personnel (technically People’s Congress authority of personnel) • Acceptance of cases • Handling of cases

2. 立足中国特色社会主义事业发展全局扎扎实实开创我国政法工作新局面 《人民日报》 ( 2007-12-26 第01版 )

3. The Court Structure • Court hierarchy • Supervisory responsibilities (contrast appellate courts, Lubman, 295) • Merit/demerit system • Upham: “judges taking a ‘mistaken’ position face possible fines, loss of bonus, or even dismissal” • Time limits on cases (not mediation—slow) • Overturned judgments (mediation—can’t be overturned) • Mediation rate (politically promoted) • Supreme People’s Court (center) • Higher-level people’s courts (prov) • Intermediate-level people’s courts (prefect) • May be court of first instance if • High-level gov dept involved • Large amount of money involved, etc. • Basic-level people’s courts (county) • People’s Tribunals (some townships)

4. Courts and Judges • 3,133 basic-level people’s courts (2004) • with 148,555 judges (法官), • of which 91,099 were front-line judges (一线法官) (i.e. those hearing cases), • reduction of 13.07 percent from 2000 • may reflect a new emphasis on training and appropriate educational attainment • Background • 250,000 judges in 1997 • Many transferred from military, party

5. Training of Judges • Judicial training college established 1997 • Judges Law 1995 • Required college degree • Judges in place could acquire degree over time 1987 17% of judges had college degrees 1992 66.6% of judges had college degrees  Note: night school, party school phenomenon

8. Case Typology • Administrative • Cases against government (ALL 1989) • Civil (including economic) • Family law, debts, contracts, personal injury, land • Labor (separate division) • Criminal • Enforcement court • Handles applications for compulsory enforcement

10. Perceptions of Judges • Lawyer Dai on • Judges in Anxiang County, Hunan • Judge in Haidian District, Beijing

11. Debate/discussion • Debate “Sending Law to the Countryside” (Frank Upham on Zhu Suli) • Zhu: rely on “native resources”  Why? • Not because of • Chinese tradition, • Asian values, • Social connections (guanxi 关系) • Rather • Institutional weakness

12. Debate/discussion • “Situational justice” / “morality play” • Policeman Wang and college grad • Farmer who lost a leg • Note the political backdrop • Local party leaders evaluated by their party superiors on indicators of social stability • protests, stikes, demonstrations, violence in their jurisdiction  is a basis for demerits

13. Debate/discussion • Debate “Sending Law to the Countryside” (Frank Upham on Zhu Suli) • Judicial independence • Why does Zhu support the role of adjudication committees? • Why does Upham see this as problematic?

14. Debate/discussion • Debate “Sending Law to the Countryside” (Frank Upham on Zhu Suli) • Meaning of judicial independence • Why does Zhu support the role of adjudication committees? • Low level of professional sophistication of many judges • Social, institutional support against local pressure on judges  Really promotes local judicial independence • Why does Upham see this as problematic?  Really a means of party control

15. Debate/discussion • Debate “Sending Law to the Countryside” (Frank Upham on Zhu Suli) • Why does Zhu think demobilized military officers make good judges? • Why does Upham or He Weifang see this as problematic?

16. Debate/discussion • Debate “Sending Law to the Countryside” (Frank Upham on Zhu Suli) • Why does Zhu think demobilized military officers make good judges? • Military experience source of respect in community • Can resist local pressures • Why does Upham or He Weifang see this as problematic? • More consistent with rule of law (ques of timing?) Note: He Weifang surrounded at home (Zh. Jing)

17. Judicial mediation • Judicial mediation vs. formal judgments • Problematic formal judgments • Land disputes link to social stability • Sales non-payment dispute link to labor • Contradictory trends • Data  why? • New policy emphasis on mediation  why?

20. Enforcement • China—higher expectation of enforcement? • Local protectionism

21. Enforcement • Enforcement • Martin Shapiro (1981: 13) writes, • In most societies courts have had only the most rudimentary enforcement mechanisms… Courts typically do not monitor compliance, and they re-intervene to exact compliance only at the request of one of the parties. The re-intervention often takes the form of a simple repetition of the previous order. The successful suitor even in a modern industrial society frequently finds that the decree is only the first in a long series of painful, expensive, and often inconclusive steps aimed at getting his remedy. Courts, we are repeatedly and rightly told, have neither the purse nor the sword.

22. The Law and Development Movement • Areas of emphasis in international legal aid that we’ve studied so far • Legislative drafting • Judicial training  Which is more valuable?

24. Legal profession State supervised—not self-regulating Ministry of Justice Administers bar exam, certifies lawyers, licenses firms Exercises supervision of lawyers Bar associations (often headed by MoJ officials) Note: fight in Beijing Bar Association 2008

25. China lawyers call for more open bar association The Associated Press Friday, September 12, 2008 BEIJING: A splinter group of Chinese lawyers, frustrated by official interference in their work, is pushing Beijing's government-controlled bar association to hold open elections, complaining that the organization doesn't safeguard their rights. The disaffected lawyers have in recent days circulated petitions online, sent text messages and letters, and tried to mobilize their colleagues to urge the Beijing Lawyers' Association to hold free and fair elections for senior officers later this year. Their campaign faces long odds. Only 56 out of Beijing's 16,000 lawyers have so far signed up. But their struggle highlights the growing assertiveness of lawyers in a legal system tightly controlled by the communist government. Activist lawyers have in recent years been at the forefront of the fight to use the law to press for civil liberties and combat abuses of power. At least one other association has already started to have more open elections. "I think it's indicative of these larger battles just for the bar associations themselves to become more autonomous, more professional, and more representative of the lawyers' interest," said Randy Peerenboom, a law professor at La Trobe University in Melbourne, Australia. Lawyers engaged in cases considered politically sensitive have been harassed and intimidated and sometimes had their licenses revoked. Last year one noted rights attorney in Beijing, Li Heping, was forced into a car by unidentified men who then beat him with electric batons. Tussles between lawyers and authorities are made worse, lawyers and rights activists said, because bar associations often act in the government's interests or at least are powerless to intervene on behalf of their members. In Beijing, lawyers say the association is generally secretive about its proceedings and is beholden to the city's Justice Bureau.

26. Supply of lawyers and litigious cultures Cultural or institutional? Peng (2000:32) Japan, Taiwan, S. Korea “lawyerless wonderlands” China—2002 per capita income US $ 960 Korea—2002 per capita income US $11,280 China—one lawyer for every 9,510 people Korea—one lawyer for every 9,383 people. In 2004, Shanghai alone had more than 6,000 lawyers in 592 law firms, while Korea had 6,273 lawyers in 258 law firms nationwide

27. Consulting a lawyer significant factor in “escalating” a dispute, e.g. litigating (Landry, RDI) Contrast Michelson: lawyers as gatekeepers “Students of contemporary China have uncritically assumed that lawyers open courtroom doors… Why are so few grievances transformed into legal claims?”

28. Results from 2007 survey of 638 rural households in Hunan Province (Whiting, et al) Approach to Dispute Resolution for Respondents with Land Disputes (N=89) (Percent of respondents attempting any given action) No action 31.5 Direct negotiation 50.6 Mediation 43.8 Petition for government intervention 28.1 Court 6.7 Local People's Congress 3.4 Protest 6.7 Media 2.2

29. Lawyers as a force for social change Public interest lawyers Supreme People’s Procuratorate Encourage local procurates to bring pilot cases in the “public interest” Henan: loss of state-owned assets, environmental pollution, market, industrial and administrative monopolies and the destruction of natural resources or public facilities arguably at odds with the standing requirements for civil litigation as stipulated in the Chinese Civil Procedure Code, but the procuracy and courts agreed to overlook

30. Lawyers as a force for social change Public interest lawyers Individual lawyers (Qiao Zhanxiang v. Ministry of Railways ) train price ticket increases during the Spring Festival, the biggest travel holiday on the Chinese calendar, were in violation of the Price Control Law hosted a local talk show answering callers’ questions on traffic law Qiao lost his cases in Beijing Intermediate and High Courts, but won his case in the court of public opinion. During the subsequent Spring Festival, the Ministry of Railways held a hearing on contemplated price increases. case selected to highlight the need for transparent administrative processes NGOs (Beijing Univ. Law Dept’s Center for Women’s Law Stds and Legal Services C. David Lee, “Legal Reform in China: A Role for Nongovernmental Organizations,” Yale J. of Int’l Law Vol. 25 (2000

31. Lawyers as a force for social change Lawyering in repressive states Jane Winn (UW) and Tang-chi Yeh, “Advocating Democracy: The Role of Lawyers in Taiwan's Political Transformation,” Law & Social Inquiry, Vol. 20, No. 2. (Spring, 1995), pp. 561-599. Civil law vs. common law system—fewer opportunities Turn to opposition political party

32. Legal Aid Regulations on Legal Aid by the State Council in 2003 Duty of county-level governments Narrow scope for qualifying for legal aid No recourse for denial of legal aid Private lawyers de facto compulsory provision of legal aid foreign donor activity educated the National Legal Aid Center, the organization charged by the Ministry of Justice with formulating legal aid policy, about legal aid systems in other countries. Non-governmental legal aid centers—Ford Fdn funding (as with Women’s Center, above)

33. Recourse against the State • Administrative Litigation Law • Petitioning