Courts and the Party-state - PowerPoint PPT Presentation

1 / 29
About This Presentation

Courts and the Party-state


Title: Slide 1 Author: susan Last modified by: susan Created Date: 10/16/2007 5:08:17 PM Document presentation format: On-screen Show Company: University of Washington – PowerPoint PPT presentation

Number of Views:56
Avg rating:3.0/5.0
Slides: 30
Provided by: Susan776


Transcript and Presenter's Notes

Title: Courts and the Party-state

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 (?????)
  • Have influence over
  • Court personnel
  • (technically Peoples Congress authority of
  • Acceptance of cases
  • Handling of cases


???? ( 2007-12-26 ?01? )
????? ??? ? ????12?25?? (?????????)??????????????????????25?????????????????????????????????????,????????????????????,??????????????????????,?????????????????,?????????,???????????,???????????????????????????????? ???????????????????????,??????????????????,????????????????????????????????????????????????? ?????,??????????????????????,?????????????????????????????????????,??????????????,??????????????????????,????????,????????,????????,?????????????
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 mediationslow)
  • Overturned judgments (mediationcant be
  • Mediation rate (politically promoted)
  • Supreme Peoples Court (center)
  • Higher-level peoples courts (prov)
  • Intermediate-level peoples courts (prefect)
  • May be court of first instance if
  • High-level gov dept involved
  • Large amount of money involved, etc.
  • Basic-level peoples courts (county)
  • Peoples Tribunals (some townships)

Courts and Judges
  • 3,133 basic-level peoples courts (2004)
  • with 148,555 judges (??),
  • of which 91,099 were front-line judges
  • (????) (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

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

(No Transcript)
Case Typology
  • Administrative
  • Cases against government (ALL 1989)
  • Civil (including economic)
  • Family law, debts, contracts, personal injury,
  • Labor (separate division)
  • Criminal
  • Enforcement court
  • Handles applications for compulsory enforcement

(No Transcript)
Perceptions of Judges
  • Lawyer Dai on
  • Judges in Anxiang County, Hunan
  • Judge in Haidian District, Beijing

  • Debate Sending Law to the Countryside (Frank
    Upham on Zhu Suli)
  • Zhu native resources ? Why?
  • Not because of
  • Chinese tradition,
  • Asian values,
  • Social connections (guanxi ??)
  • Rather
  • Institutional weakness

  • Debate Sending Law to the Countryside (Frank
    Upham on Zhu Suli)
  • Judicial independence
  • Why does Zhu support the role of adjudication
  • Why does Upham see this as problematic?

  • 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

  • Debate Sending Law to the Countryside (Frank
    Upham on Zhu Suli)
  • Meaning of judicial independence
  • Why does Zhu support the role of adjudication
  • Low level of professional sophistication of many
  • 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

  • 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

  • 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

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?

(No Transcript)
  • 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.

  • Chinahigher expectation of enforcement?
  • Local protectionism

  • Define adjudication
  • Bureaucratic rather than adjudicatory organs

  • Urban vs. rural norms Zhu (p. 8)
  • Zhu rural bargaining highly constrained urban
    highly competitive, complete well-functioning
    markets (ask then why courts at all?)
  • Upham this is a linear version of modernization

The Law and Development Movement
  • Note areas of emphasis in international legal aid
    weve seen so far
  • Legislative drafting
  • Judicial training
  • ? Which is more valuable?

(No Transcript)
  • Legal profession
  • State supervisednot self-regulating
  • Ministry of Justice
  • Administers bar exam, certifies lawyers, licenses
  • Exercises supervision of lawyers
  • Bar associations (often headed by MoJ officials)

  • Supply of lawyers and litigious cultures
  • Cultural or institutional?
  • Peng (200032) Japan, Taiwan, S. Korea
    lawyerless wonderlands
  • China2002 per capita income US 960
  • Korea2002 per capita income US 11,280
  • Chinaone lawyer for every 9,510 people
  • Koreaone 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

  • Consulting a lawyer significant factor in
    escalating a dispute, e.g. litigating (Landry,
  • 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

  • Lawyers as a force for social change
  • Public interest lawyers
  • Supreme Peoples 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
  • 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
  • Titi Liu (UW) Jan 24th 12noon 317 Thomson
  • NGOs (Beijing Univ. Law Depts Center for Womens
    Law Stds and Legal Services
  • C. David Lee, Legal Reform in China A Role for
    Nongovernmental Organizations, Yale J. of Intl
    Law Vol. 25 (2000
  • 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.

  • Legal Aid
  • Regulations on Legal Aid by the State Council in
  • 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 centersFord Fdn
    funding (as with Womens Center, above)

Recourse against the State
  • Administrative Litigation Law
  • Petitioning
Write a Comment
User Comments (0)