Tuesday, August 2, 2016

China - the law of uneven development and the Supreme People's Court

There is deep concern among western scholars of China, and lawyers organizations here that President Xi Jinping is pursuing a dictatorial agenda.  Prominent authorities such as Jerome Cohen  see it that way.  Among the most alarming signs are prosecutions of lawyers who represent dissenters.  One -  Pu Zhiqiang - was convicted and disbarred for "picking quarrels" on his WeChat pages.  The Chinese law relied on is obviously drafted to ban what we call "fighting words".  But a compliant judge lacked the courage to reject the charge.

 For such reasons many view Chinese law as a mere charade.  But the Communist Party Central Committee's 2014  Fourth Plenum embraced as its theme becoming a "country governed by law". [法治国家].  Is there a contradiction?  In our terms - Yes because we see the right to contest openly for power as essential.

But China's Supreme People's Court has been active in ways that are meaningful for the more mundane aspect of rule of law:  resolving disputes in an orderly manner.  The SPC commands  that all judicial decisions be posted on the official government website.  This has created  a huge database for analysis - not just for scholars and policy analysts but for all interested parties.

Although there are binding "guiding cases" there is no system of reliance on judicial precedent.  But as Harvard's Mark Jia explains in an impressive student law review Note these databases aid judges who can learn from the work of others, and lawyers who can learn how judges decide.  Susan Finder (Peking University Transnational School of Law) elaborates this point in a recent post on Supreme People's Court Monitor -  How China's Non-Guiding Cases Guide.  She observes
What few recognize is that the millions of non-guiding cases on the Supreme People’s Court’s China Judgments Online website (and its commercial counterparts, such as 无讼(and any internal version that there may be)) are guiding the development of Chinese law, including what arguments lawyers make and how judges decide cases.  

Another aspect of the regularization of dispute resolution mechanisms is detailed by Finder in a post The Supreme People's Court Diversified Dispute Resolution Policy.  She reports that "On 29 June 2016, the Supreme People’s Court (SPC) issued a policy document on diversified dispute resolution (Opinion on the people’s courts more deeply reforming the diversified dispute resolution mechanism) (Diversified Dispute Resolution Opinion)(关于人民法院进一步深化多元化纠纷解决机制改革的意见)"

Finder does not see the push toward what we call "alternative dispute resolution" as a turn against law.  We are influenced by the campaign against jury trials which is an anti-democratic impulse championed by corporations seeking to minimize liability and maximize predictability. As Finder explains the document seeks to implement the 4th Plenum's rule of law mandate:
The objective of the document is to promote a more sophisticated, efficient, and effective approach to dispute resolution that will reduce social tensions. Part of the objective is to reduce the number of cases filed, heard, and tried by courts. For commercial disputes, it is intended to push disputes to institutions that can more competently, efficiently and timely mediate cases.  These institutions include those affiliated with industry associations, arbitration commissions, or specialized mediation associations.  The Diversified Dispute Resolution Opinion also calls for better mediation of cases within the courts by involving court-annexed mediators, before or after the person or entity files suit. The implications of this document for the reform of labor and rural land contract dispute resolution remain to be seen.
It is of course the case that "rights on paper" do not equal rights in fact, yet the direction of change is toward greater effectiveness.  For the reasons discussed, in my opinion, change in China follows the law of uneven development.  Although we hope that there will be greater respect for political rights, the development of a society governed by law will not inevitably lead to that.  In fact, as Hong Kong professor Fu Hualing worries, in a recent article on judicial integrity [39 Hastings Int'l & Comp. L. Rev. 167] its principal effect may be to further entrench the power of the Communist Party - a mixed blessing for China.

1 comment:

  1. George, many thanks for this. Especially in a jurisdiction such as China, it is particularly important to observe what is happening in reality "in the market", particularly in commercial practice. As I just added to the blogpost, junior lawyers are also being trained in searching cases. There are multiple themes playing at the same time. What long term consequences will the greater transparency have for the younger members of the legal profession that I am training and you and many others are training in overseas law schools? I am cautiously optimistic.