Courts and the Party-state

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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
  personnel)
• Acceptance of cases
• Handling of cases

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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
  overturned)
• 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)

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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

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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

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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

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Perceptions of Judges

• Lawyer Dai on
• Judges in Anxiang County, Hunan
• Judge in Haidian District, Beijing

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Debate/discussion

• 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

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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?

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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

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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

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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?

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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?

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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?

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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.

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Enforcement

• Chinahigher expectation of enforcement?
• Local protectionism

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Discussion

• Define adjudication
• Bureaucratic rather than adjudicatory organs

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Discussion

• 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
  theory

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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?

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• Legal profession
• State supervisednot self-regulating
• Ministry of Justice
• Administers bar exam, certifies lawyers, licenses
  firms
• Exercises supervision of lawyers
• Bar associations (often headed by MoJ officials)

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• 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

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• 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?

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• 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.

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• 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 centersFord Fdn
  funding (as with Womens Center, above)

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Recourse against the State

• Administrative Litigation Law
• Petitioning