Saturday, March 24, 2012
When you sue someone in a Chinese court, your complaint must first pass through a gatekeeping procedure in which a special division of the court (the case filing division [立案庭]) decides whether or not to accept (受理) and docket (立案) the case. According to Art. 108 of the Civil Procedure Law and Art. 41 of the Administrative Litigation Law (the applicable law depends on the kind of case), courts must, unless an exception applies, accept cases that meet the following standards:
- the plaintiff has a direct legal interest (a term of art) in the case;
- there is a specific defendant;
- there are specific claims, facts, and causes of action; and
- the lawsuit is within the court's geographical and subject-matter scope of jurisdiction.
The decision to accept or not is a pre-trial procedure that is undertaken on the basis of the complaint and evidence you may be asked to submit; if the court doesn't accept the case, you never get the chance to prove your claims at trial. Moreover, it's made in something of a black box without the benefit of adversarial arguments. When the system works as intended, the case filing division makes its own initial determination of the merits, deciding whether there is enough there to warrant going forward. In practice, a court trying to avoid a nettlesome case can use the case filing stage to reject the case.
Any judicial system needs some kind of gatekeeping, of course. Consider how the US system works: when you bring a complaint, the court makes no initial determination of the merits. It's up to the defendant to challenge it. Now the defendant does have a chance to try to make it go away without all the expense of a trial: it can move for dismissal for failure to state a claim. That means that the defendant says that even if all the facts you allege are true, you still have no legal claim. (For example, I sue you for damages because I allege that you published a letter to the editor praising the president, and I don't like the president. We don't need to empanel a jury to decide the truth of your factual allegations; even if I didn't write the letter, I can admit for the sake of the motion that I did, and say, "So what?") Even if I don't win at this stage, I can still cut things off before trial. Suppose you sue me for saying, "Good morning" to you, alleging that in fact it was a secret code phrase known to both of us meaning I was threatening to kill you. OK, perhaps the court will allow you to survive summary judgment and bring evidence to prove your claim. Before the trial gets underway, I can ask the court again to dismiss on the grounds that no reasonable factfinder could, on the basis of the evidence you've brought, conclude that when I said, "Good morning," it was intended as a threat.
In both of these gatekeeping proceedings, both parties appear and make arguments, and the court gives a decision that can be appealed. But this is precisely what doesn't happen in the Chinese case filing stage, and that has led to dissatisfaction and criticism. There are always cases where, for one reason or another, a court won't want to give a judgment declaring the plaintiff the winner (e.g., powerful people or institutions will be offended), but at the same time doesn't want to declare it the loser, either (e.g., the evidence in favor of the plaintiff's case is overwhelming). The best thing to do in these case is simply to avoid taking the case.
I've long thought that this system deserved more attention in the English-language literature on Chinese law, but my own efforts were confined to encouraging students to write about it. I'm glad to see that it's now getting the scholarly attention it deserves. In fact, I'm writing this post solely to call attention to two recent contributions:
- Nanping Liu & Michelle Liu, "Justice Without Judges: The Case Filing Division in the People’s Republic of China," 17 U.C. Davis J. Int’l L. & Pol’y 283 (2011)
- Mark Cohen, "“Case Filing” In China’s Courts and Their Impact on IP Cases," China IPR blog, March 24, 2012
Apologies if I've missed anyone else's recent contribution.
Wednesday, March 21, 2012
As reported by Reuters,
China's Justice Ministry has ordered lawyers to take a loyalty oath to the Communist Party, in an unusual move that has drawn condemnation from attorneys worried about the government's attempts to rein them in.
The ministry issued a notice on Wednesday demanding that first-time applicants and lawyers who want to renew their licenses have to take the oath.
The story goes on to quote prominent lawyers Mo Shaoping, who calls it "inappropriate," and Pu Zhiqiang, who calls it "baffling."
Both of them condemn it. According to Mo, "If the oath says you must be faithful to the Communist Party and accept the leadership of the Party, that may exclude many other people in the legal profession who belong to other political parties or have other religious beliefs. . . . The oath will hurt the development of the Chinese legal system." According to Pu, the oath "will produce a conflict" among lawyers who want to be independent of the Party.
I think the oath requirement is at least interesting, and possibly important, as a manifestation of the Party's policy toward the legal profession and what it expects of lawyers. I have a hard time believing, however, that it's really going to cramp any individual lawyer's style. Many outspoken lawyers and legal academics are right now members of the Party, and presumably have taken some loyalty oath already. Yet this hasn't stopped them from speaking their mind. Nor do I think that there are a lot of would-be lawyers who will be deterred from taking the oath because they know their conscience will demand that they keep whatever promise of loyalty they make to the Party.
What this oath really shows, I think, is the complete bankruptcy of the imaginative faculties of those in charge of keeping society in line. We have just seen a recent roll-out of yet another Lei Feng campaign, as if this could have the slightest effect on the behavior of an increasingly cynical population. Now we see that whoever is in charge of these things apparently believes that having lawyers swear loyalty to the leadership of the Communist Party will actually cause them to be loyal to the leadership of the Communist Party.
Here's the full text of the oath, translated at Siweiluozi's Blog:
I volunteer to become a practicing lawyer of the People's Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!
Here's the Chinese text:
Thanks to Siweiluozi's Blog for English translation and link to Chinese text.
Tuesday, March 20, 2012
Here are some source materials in Chinese and English for anyone interested in studying the recent revisions to the Criminal Procedure Law:
- Original 1997 version
- New version (effective Jan. 1, 2013)
- NPC Decision spelling out the specific revisions
Note that you can create your own 山寨 English version of the new law by taking one of the English versions of the 1997 text and inputting the changes from the translation of the NPC Decision.
In addition, the Dui Hua Foundation has posted an excellent commentary that focuses on the controversial provisions for secret detentions. There's a nice table showing differences from the August 2011 draft and the final version.
Sunday, March 18, 2012