Resolving Constitutional Disputes in Contemporary China

Beginning in 1999, a series of events generated speculation that the Chinese Party-state might be prepared to breathe new life into the country’s long dormant constitution. In recent years, as the Party-state has strictly limited constitutional adjudication and moved aggressively to contain some citizen constitutional activism, this early speculation has turned to pessimism about China’s constitutional trajectory. Such pessimism obscures recognition of alternative or hybrid pathways for resolving constitutional disputes in China. Despite recent developments, Chinese citizens have continued to constitutionalize a broad range of political-legal disputes and advance constitutional arguments in a variety of forums. This article argues that by shifting focus from the individual legal to the collective political dimension of constitutional law, a dimension dominant in China’s transitional one-party state, we can better understand the significance of the constitution in China and identify patterns of bargaining, consultation, and mediation across a range of both intrastate and citizen-state constitutional disputes. Administrative reconciliation and “grand mediation,” dispute resolution models at the core of recent political-legal shifts in China, emphasize such consultative practices. This zone of convergence reveals a potential transitional path for resolving constitutional disputes. Specifically, the Party-state could choose to adapt and apply the grand mediation model in the context of constitutional disputes. Grand mediation involves a multilevel, Party-state political consultation that preserves a limited but meaningful role for the judiciary. An adaptation of the grand mediation framework would provide an indigenous dispute resolution model for resolving constitutional disputes, regularize informal constitutional dispute resolution practices, and bring judges to the constitutional interpretation table. At the same time, it would take account of the realities of China’s current political environment. Chinese reformers could use such a mechanism (or existing informal dispute resolution practices) to advance their long-term goals of facilitating citizen-state consultation, reform concessions, and the diffusion of constitutional norms through the Chinese polity

Resolving Constitutional Disputes in Contemporary China

Beginning in 1999, a series of events generated speculation that the Chinese Party-state might be prepared to breathe new life into the country\u27s long dormant constitution. In recent years, as the Party-state has strictly limited constitutional adjudication and moved aggressively to contain some citizen constitutional activism, this early speculation has turned to pessimism about China\u27s constitutional trajectory. Such pessimism obscures recognition of alternative or hybrid pathways for resolving constitutional disputes in China. Despite recent developments, Chinese citizens have continued to constitutionalize a broad range of political-legal disputes and advance constitutional arguments in a variety of forums. This article argues that by shifting focus from the individual legal to the collective political dimension of constitutional law, a dimension dominant in China\u27s transitional one-party state, we can better understand the significance of the constitution in China and identify patterns of bargaining, consultation, and mediation across a range of both intrastate and citizen-state constitutional disputes. Administrative reconciliation and grand mediation, dispute resolution models at the core of recent political-legal shifts in China, emphasize such consultative practices. This zone of convergence reveals a potential transitional path for resolving constitutional disputes. Specifically, the Party-state could choose to adapt and apply the grand mediation model in the context of constitutional disputes. Grand mediation involves a multilevel, Party-state political consultation that preserves a limited but meaningful role for the judiciary. An adaptation of the grand mediation framework would provide an indigenous dispute resolution model for resolving constitutional disputes, regularizing informal constitutional dispute resolution practices, and bringing judges to the constitutional interpretation table. At the same time, it would take account of the realities of China\u27s current political environment. Chinese reformers could use such a mechanism (or existing informal dispute resolution practices) to advance their long-term goals of facilitating citizen-state consultation, reform concessions, and further the diffusion of constitutional norms through the Chinese polity

Watching the Watchdog: China\u27s State Compensation Law as a Remedy for Procuratorial Misconduct

In 1994, China enacted a comprehensive State Compensation Law ( SCL ). The SCL provides individuals and legal entities with the right to compensation in a limited number of situations in which they are harmed by illegal government acts. The purpose of the law is twofold: (1) to guarantee the rights of individuals and legal entities to obtain compensation and (2) to encourage state officials to exercise their powers lawfully. In theory, the SCL provides an important check on the conduct of procurators and other government officials. China\u27s procurators serve dual roles as criminal prosecutors and as supervisors of the legal process. As supervisors of the legal process, procurators are largely responsible for policing themselves and preventing procuratorial misconduct. There are few external controls on procurators, and the controls that exist are weak and seldom applied in practice. This Comment examines the issue of whether the SCL will provide an adequate citizen-based check on procuratorial power. It argues that while the SCL should be considered a positive step towards promoting greater official accountability and protecting individual rights in China, limitations on the scope of the law, flaws in the procedures for state compensation, the limited liability of individual procurators for compensation expenses, and official resistance to the SCL\u27s implementation severely limit the utility of the law as a remedy for procuratorial and other official misconduct

An Inquiry into Several Difficult Problems in Enacting China\u27s Uniform Contract Law

Translator\u27s Forward: In March of 1999, China\u27s Ninth National People\u27s Congress ( NPC ) passed the Contract Law of People\u27s Republic of China. The new law is the product of nearly six years of drafting work by China\u27s Legislative Affairs Commission and contains over 400 articles, including 129 general contract provisions and 299 articles dealing with specific types of contracts. When the law takes effect on October 1, 1999, it will unify China\u27s contract law by replacing the three principal contract statutes currently in force, the Economic Contract Law, the Foreign-related Economic Contract Law, and the Technology Contract Law. The passage of this statute is thus a significant milestone in the development of China\u27s contract regime. The article translated here was originally published in the Chinese law journal Zhengfa Luntan in 1996. The author, Professor Wang Liming of the People\u27s University of China, has written numerous articles on contracts and was intimately involved in the drafting of the Contract Law as an NPC deputy. He is thus well qualified to provide insight into the drafting process. For those seeking to understand the new statute, this article provides an introduction to Chinese contract theory as well as a comprehensive analysis of the policy considerations and practical problems that influenced the drafters of the Contract Law. Some minor revisions to the original text have been made with the cooperation of Professor Wang. In addition, translator\u27s notes have been included to clarify aspects of Chinese law that may be unfamiliar to Western readers and to direct the reader to supplementary source material

Factors affecting mortality in late stage Parkinson’s Disease

To determine the effect of dysphagia and hospital admissions on mortality in late stage Parkinson’s disease

Evaluating cutpoints for the MHI-5 and MCS using the GHQ-12: a comparison of five different methods

Background The Mental Health Inventory (MHI-5) and the Mental Health Component Summary score (MCS) derived from the Short Form 36 (SF-36) instrument are well validated and reliable scales. A drawback of their construction is that neither has a clinically validated cutpoint to define a case of common mental disorder (CMD). This paper aims to produce cutpoints for the MHI-5 and MCS by comparison with the General Health Questionnaire (GHQ-12). Methods Data were analysed from wave 9 of the British Household Panel Survey (2000), providing a sample size of 14,669 individuals. Receiver Operating Characteristic (ROC) curves were used to compare the scales and define cutpoints for the MHI-5 and MCS, using the following optimisation criteria: the Youden Index, the point closest to (0,1) on the ROC curve, minimising the misclassification rate, the minimax method, and prevalence matching. Results For the MHI-5, the Youden Index and the (0,1) methods both gave a cutpoint of 76, minimising the misclassification rate gave a cutpoint of 60 and the minimax method and prevalence matching gave a cutpoint of 68. For the MCS, the Youden Index and the (0,1) methods gave cutpoints of 51.7 and 52.1 respectively, minimising the error rate gave a cutpoint of 44.8 and both the minimax method and prevalence matching gave a cutpoint of 48.9. The correlation between the MHI-5 and the MCS was 0.88. Conclusion The Youden Index and (0,1) methods are most suitable for determining a cutpoint for the MHI-5, since they are least dependent on population prevalence. The choice of method is dependent on the intended application. The MHI-5 performs remarkably well against the longer MCS