Abstract
This chapter addresses ‘social harmony’ as the ultimate goal of civil justice in China and its adverse impact on the public’s trust in the justice system. The author introduces and analyses this issue in three dimensions: statutory law, judicial policy and comments from scholars. This chapter attempts to view the situation in the context that China’s justice system has been undergoing rapid transition following continuous reforms. As the author indicates, although the law provides diverse and vague purposes of civil procedure, in practice the goal of dispute resolution always takes precedence over rights protection, with the ultimate policy goal of ‘social harmony’. The pre-eminence of this fundamental policy goal, coupled with the common use of informal procedures and the tradition of judicial mediation, creates a civil justice with the following main features: (1) emphasis on dispute resolution especially by judicial mediation, while neglecting protection of private rights and justice; (2) overemphasis on speed or efficiency; (3) the dualism of ‘ordinary’ and ‘summary’ procedures; (4) preoccupation with routine cases while lacking mechanisms to handle hard cases; (5) user orientation (as intended by lawmakers) being usually ruined by judges’ super-power and discounted by some binding opinions of the Supreme People’s Court.
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Notes
- 1.
This situation is particularly serious in the basic people’s courts, which are responsible for disposing about 80 % of all civil cases in China.
- 2.
Compare the annual reports of the Supreme People’s Court with the reports of the Central Committee of the Chinese Communist Party before/around the same time.
- 3.
- 4.
The CPL 2012 therefore modified the mechanism of debt collection. Where the debtor objects to a court order for payment, litigation should be initiated directly, unless the party applying for the order for payment refuses to institute an action.
- 5.
However, these rules are very rarely applied in practice.
- 6.
In contrast, there are some substantive provisions in Chinese law that impose more onerous burden of proof rules regarding certain dangerous industries and some highly specialized professions.
- 7.
In this context, I would say that incorrect justice cannot be efficient; mistaken justice is equal to no justice at all.
- 8.
Among such cases were e.g. disputes arising from rural land rights (these were regarded not to be typical ‘civil’ cases because of their dependence on political reforms of the economic structure in society). Another example where SPC ordered the courts to refuse cases was tort claims arising from stock transactions that were socially sensitive and difficult to be dealt with by the courts, because the stock market was undergoing institutional reforms with a very scarce legal basis in substantive law.
- 9.
Instead, citizens are entitled to the basic right to complain against officials and/or government branches under Art. 32 of the Constitution of the PRC; and this so-called ‘right of complaint’ is ridiculously read as the constitutional source of right of petition against effective judgments with probable ‘errors’.
- 10.
In an attempt to collect money, even the Supreme People’s Court introduced some unreasonable charges which were beyond statutory regulations, causing a reaction by the State Council that issued a new regulation on litigation fees drafted by the Treasury Department in 2006.
References
CCP (2006) The Decision of the Central Committee of the Communist Party of China: decision to construct socialist harmonious society, 11 October 2006
CPL (1982) Civil Procedure Law 1982
CPL (1991) Civil Procedure Law 1991
CPL (2012) Civil Procedure Law 2012
Hao Li (2009) Prefer to being slower but better. Peking University Law Review 2009/4
SPC (1998) Several Provisions on the Issues Concerning the Civil and Economic Trial Mode Reform 14
SPC (2001) Some Provisions of the SPC on Evidence in Civil Procedures 33
SPC (2007) The Supreme People’s Court: opinions on providing judicial guarantee for the construction of socialist harmonious society, 30 January 2007. No.2 法发[2007]
Suli (2009) Legalism, popular will and hard case. Peking University Law Review 2009/1
Weijian Tang (1997) Market economy and looking into the future of civil procedure law. Forum of Politics and Law 1/1997
Yaxin Wang (2004) Procedure, institution and organization: routine procedures in grass-roots courts and the transformation of governance structure. Social Sciences in China 2004/3
Yulin Fu (2011) Small claims vs. procedures classification/systematization. Tsinghua Law Review 3/2011
Acknowledgements
The author would like to thank Prof. C.H. (Remco) van Rhee, Mr. Peter C.H. Chan and Prof. Alan Uzelac for their comments.
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Yulin, F. (2014). Social Harmony at the Cost of Trust Crisis: Goals of Civil Justice in China. In: Uzelac, A. (eds) Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems. Ius Gentium: Comparative Perspectives on Law and Justice, vol 34. Springer, Cham. https://doi.org/10.1007/978-3-319-03443-0_8
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