Friday, October 17, 2008
Huang Songyou (黄松有), a vice president of the Supreme People's Court, is reported to have been detained under the extra-legal (a polite word for illegal) "double designation" (双规) system of Party disciplinary investigation. Huang is familiar to many in the Chinese law world as the chief promoter of the Qi Yuling decision, in which the Supreme People's Court instructed a lower court to grant a plaintiff relief based directly on a violation of rights found in the Constitution. This was widely considered to be a first step toward the eventual justiciability of the Constitution, but in the end the decision disappeared like a stone in the sea and hasn't been mentioned for years.
Here's a translation of a piece he authored at the time. I'd like to give credit for the translation, but I don't even remember who gave it to me, let alone who translated it. My apologies to the translator.
Wednesday, October 15, 2008
The lawsuit was filed on Oct. 13 at the Intermediate-Level People's Court of Lanzhou in Gansu province. As with the other cases, the court has not yet accepted the case for hearing. According to the Caijing report, court officials said they were "waiting for unified arrangements to be made by superiors" (什么时候立案要等上面的统一安排), meaning apparently the provincial-level court. This does not, under Chinese law, constitute grounds for refusing to take a case. Art. 111 of the Civil Procedure Law states that courts must take cases that meet the criteria of Art. 108 and don't fall under the exceptions of Art. 111. Here's what these two articles say specifically (I'm borrowing here from a translation I didn't do myself):
Art. 108: When instituting an action, the following criteria must be fulfilled:
(1) the plaintiff is an individual, legal person or other organisation with a direct interest in the case;
(2) there is a specific defendant;
(3) there is a specific claim, factual basis and a reason for the action;
(4) the action falls within the jurisdiction of the people's court and is subject to the jurisdiction of the people's court in which it is brought.
Art. 111: The people's courts must accept for hearing actions filed in compliance with the provisions of Article 108 of this Law. The people's courts shall handle the following types of actions according to their specific circumstances:
(1) in a case within the scope of administrative proceedings as prescribed by the provisions of the Administrative Procedure Law, the plaintiff shall be notified to institute an administrative action;
(2) in a case where, pursuant to legal provisions, both parties to a contract dispute voluntarily reach a written agreement on arbitration whereby they will apply to an arbitration authority for arbitration and the parties are prohibited from instituting an action in a people's court, the plaintiff shall be notified to apply to an arbitration authority for arbitration;
(3) in a dispute which should be handled by another administrative organ as prescribed by the law, the plaintiff shall be notified to apply to the relevant administrative organ for resolution;
(4) in a case which is not within the jurisdiction of the people's court with which it is lodged, the plaintiff shall be notified to institute an action in a competent people's court;
(5) in a case in which a party institutes an action again after the judgement or ruling has already become legally effective, the plaintiff shall be notified that the action shall be treated as an appeal, except in a case where a ruling by the people's court allows the withdrawal of the action;
(6) in a case in which, according to law, no action is permitted to be brought within a specified period of time, but an action is brought in spite of this provision, the action shall not be accepted;
(7) in a case in which a judgement has already denied the granting of a divorce or in which the parties were reconciled after mediation or in a case involving an adoptive relationship in which a judgement has been made or mediation conducted, if an action is instituted again within six months in the absence of new circumstances or new grounds, the action shall not be accepted.
In short, the court is not even pretending that there is some defect in the filing. The court explained that the case has a broad impact and there are many potential plaintiffs - all good reasons, perhaps, for trying to come up with a unified system for dealing with these claims, but instead of the matter being handled by a body with clear authority - the NPC Standing Committee could, for example, pass legislation governing litigation and compensation matters - it's being handled by (here) a provincial-level court, which can't impose a national solution and has its own institutional priorities to think about.