Monday, June 22, 2015

New docketing procedures come to the Chinese courts | Supreme People's Court Monitor

When a case is filed in an American Court we generally are confident that it will be allowed to proceed and that we will get to engage in discovery, etc.  But in China when a hot potato lands in a court the claimanntsmayfind neither rejection nor aceeptance.  Just a stone wall.  That was the experience of some aquaculturists in the Bohai Bay after a 2010 oil spill at a platform operated by Conoco.  Cases were filed but the fisheries got no response.
At last year's Plenum the CPC central committee announced it would reform the case filing procedures. New regulations, reported here by the indispensable Susan Finder, show the process has gotten underway.
It is a more complicated problem than one might think.  Chinese courts do not have the competence we have developed for handling large scale litigation.  There is nothing comparable to the MDL procedures or the class action mechanisms we have.  Nor are Chinese law firms equipped financially to undertake the kinds of enormous efforts that we see - e.g. in the hundreds of thousands of claims brought on contingent fee basis in the BP Deepwater Horizon oil spill cases.  - gwc

New Docketing Procedures Come to the Chinese Courts
 by Susan Finder

New docketing procedures (case filing) (立案) have come to the Chinese courts. Chinese courts have a separate case filing divisions, which up until 1 May of this year acted as gatekeepers to courts. They exercised their approval authority over cases in a non-transparent manner, which meant for litigants in Chinese courts that their cases could be and were rejected without having the opportunity to argue why they should be accepted. Case filing divisions also were known to put troublesome filings aside, without issuing a rejection, or repeatedly asked for supplementary documents, seeking to drive away litigants by repeated formalistic demands.

More background is given in these blog posts and law review article. It has been an ongoing problem for many years, provoking endless complaints and articles by ordinary people, lawyers, academics, and NGOs, and has been one of the issues driving petitioners to the streets.

The Supreme People’s Court (Court) leadership identified case filing as one of the needed reforms (and as one of the many contributing factors to the low prestige of the Chinese judiciary), even before the Third Plenum. Because of that, the Communist Party’s 4th Plenum Decision and the 4th Five Year Court Reform Plan flagged this as a priority. (Unsurprisingly), the language in the two documents is almost identical...

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