Assessing China's Legal Reforms

This essay will begin with a short summary of the dramatic changes in China's legal system during the reform era and will then discuss challenges that the legal system is confronting today. These include the need to balance populism with respect for legal institutions, excessive discretion, rising inequalities and unequal access to justice, lack of transparency, and the need to make courts more autonomous and independent. China is not alone in facing these challenges. Yet the ways that these problems are manifested in China differ significantly from those in other countries, reflecting both China's history and the institutional framework in which the Chinese legal system exists

Legal Reform: China\u27s Law-Stability Paradox

In the 1980s and 1990s, China devoted extensive resources to constructing a legal system, in part in the belief that legal institutions would enhance both stability and regime legitimacy. Why, then, did China’s leadership retreat from using law when faced with perceived increases in protests, citizen complaints, and social discontent in the 2000s? This law-stability paradox suggests that party-state leaders do not trust legal institutions to play primary roles in addressing many of the most complex issues resulting from China’s rapid social transformation. This signi½es a retreat not only from legal reform, but also from the rule-based model of authoritarian governance that has contributed much to the resilience of the Chinese system. The law-stability paradox also highlights the difficulties facing efforts by China’s new leadership to reinvigorate legal reform

Innovation through Intimidation: An Empirical Account of Defamation Litigation in China

Consider two recent defamation cases in Chinese courts. In 2004, Zhang Xide, a former county-level Communist Party boss, sued the authors of a best selling book, An Investigation into China\u27s Peasants. The book exposed official malfeasance on Zhang\u27s watch and the resultant peasant hardships. Zhang demanded an apology from the book\u27s authors and publisher, excision of the offending chapter, 200,000 yuan (approximately U.S.$25,000) for emotional damages, and a share of profits from sales of the book. Zhang sued in a local court on which, not coincidentally, his son sat as a judge. In 2000, Song Dianwen, a peasant, sued the Heilongiiang Daily, the official paper of the Communist Party, in his home province for defamation after it published an article reporting that, during a village disturbance, Song had lit a fire that killed two people. He won a judgment from a local court, affirmed on appeal, for 3,500 yuan (approximately U.S.$430) in emotional damages. The cases exemplify two different tracks of defamation litigation in present-day China. Track-one cases, like Zhang\u27s, are brought by local public officials, government and Communist Party entities, or corporations to punish and control the increasingly aggressive Chinese media. In these cases, courts serve as state institutions at the local, as opposed to central, level to restrict and retaliate against the media and to block central oversight. On the second track, persons without power or Party-state ties sue the media, which, despite widespread commercialization, virtually all continue to be linked to the Chinese Party-state. Many such cases are brought by ordinary persons against Communist Party mouthpiece newspapers. Track-two cases thus represent a deployment of the courts by ordinary citizens against state entities. Empirical evidence from 223 defamation cases studied in this Article indicates that the media lose the overwhelming majority of cases on both tracks

China's Courts: Restricted Reform

This essay surveys recent developments in China’s courts. Part I examines recent top-down reforms in China’s courts, highlighting what some advocates of a stronger judiciary consider signs of progress. Part II discusses new challenges that may be undermining courts’ already limited autonomy. Part III argues that the most significant changes in China’s courts are coming from the ground up, in particular from growing horizontal interactions among judges. Part IV asks whether recent developments suggest fundamental changes to courts’ power, and then returns to the two questions posed above: First, why has the Party-state permitted the courts to develop even limited new roles? Second, can courts play an effective role in a non-democratic governmental system? My focus is primarily on civil and administrative litigation, where reforms have been more significant than in the criminal justice system. Much theoretical scholarship on courts focuses on why democratic systems permit and encourage the development of independent courts. Explanations include the knowledge that rulers may one day find themselves out of office, the desire to make commitments credible, and the need to constrain bureaucracies. Most such explanations have limited applicability in China, where courts are not designed to be independent of Party leadership. Scholarship on the role of courts in authoritarian societies has been limited. This essay seeks to add to this literature by exploring why a single-Party state might encourage court development, and whether courts can play significant new roles without necessarily challenging Party authority

Watchdog or Demagogue? The Media in the Chinese Legal System

Over the past decade, the Chinese media have emerged as among the most influential actors in the Chinese legal system. As media commercialization and increased editorial discretion have combined with growing attention to social and legal problems, the media have gained incentives to expand their traditional mouthpiece roles in new directions. As a result, the media have emerged as one of the most effective and important avenues of citizen redress. Their role in the legal system, however, has also brought them increasingly into conflict with China’s courts. This Article examines the implications of the media’s roles in the Chinese legal system for China’s legal development. It shows how media commercialization has resulted in incentives for the media to expand the scope of critical reporting, to challenge propaganda department content regulations, and to influence court decisionmaking. This Article details four distinct mechanisms by which the media influence China’s courts, demonstrating that the media’s effectiveness and influence stem from a combination of their continued position as an arm of the Party-state and their ability to reflect and create public opinion. Media commercialization may be reinforcing traditional norms of Party-state interference in the courts, while at the same time media scrutiny increasingly highlights problems in the Chinese justice system. Despite significant reforms and increasing caseloads, the authority of China’s courts remains limited. Yet the media’s ability to enjoy significant autonomy within the confines of Party supervision also suggests that a similar model of autonomy may be possible, and is perhaps already emerging, for China’s courts

Ordinary Tort Litigation in China: Law versus Practical Justice?

This essay examines the roles courts play in tort litigation in China, in particular in litigation resulting from death and injury on China’s roads. At first glance traffic accident litigation in China appears to be an area in which courts play minor roles. The police, not courts, are the primary fact-finders. China’s mandatory automobile insurance system has clear guidelines for compensation levels and imposes nearly strict liability in most traffic accident cases. Courts’ roles are, at least in law, largely relegated to calculating damages. Chinese law provides schedules for assessing damages based on average local income levels, and thus outcomes in theory are highly predictable

Legal Reform: China’s Law-Stability Paradox

In the 1980s and 1990s, China devoted extensive resources to constructing a legal system, in part in the belief that legal institutions would enhance both stability and regime legitimacy. Why, then, did China’s leadership retreat from using law when faced with perceived increases in protests, citizen complaints, and social discontent in the 2000s? This law-stability paradox suggests that party-state leaders do not trust legal institutions to play primary roles in addressing many of the most complex issues resulting from China’s rapid social transformation. This signifies a retreat not only from legal reform, but also from the rule-based model of authoritarian governance that has contributed much to the resilience of the Chinese system. The law-stability paradox also highlights the diffculties facing efforts by China’s new leadership to reinvigorate legal reform

Scandal, Sukyandaru, and Chouwen

Jose Canseco\u27s use of steroids, the sale of used girls\u27 underwear in Japan, penile mutilation, and the moral failings of both Bill Clinton and former Japanese Prime Minister Sosuke Uno are not topics that often appear side by side, much less in a scholarly work of comparative law. And few law professors have the chance to publish a book whose jacket features a picture of a scantily clad woman. In Secrets, Sex and Spectacle, Mark West does both. He also does much more, unraveling the interplay of social and legal rules that influence the formation of scandal and spectacle in Japan and the United States. West clearly delights in the retelling of scandal. His readers will as well. Yet his aim is not simply to provide an account of scandal in Japanese (and American) society; it is to explore in a comparative context what makes certain conduct scandalous and how societies differ in the formation and management of scandal. In keeping with these aims, West\u27s study is also a call for greater emphasis on the comparative study of scandal and its interaction with law. This Review takes up West\u27s challenge, discussing West\u27s book with reference to China. Secrets, Sex, and Spectacle has little, if anything, to do with China. Nevertheless, examination of scandal in China largely supports West\u27s central arguments: institutions and rules, both formal and informal, matter in determining the types of occurrences that become scandal in a given society; and scandal is not simply the product of culture. China\u27s recent experience with scandal also shows some of the ways scandal can play a positive role in opening up discussion of taboo topics – perhaps even more so in a nondemocratic state than in a liberal democracy. Analysis of selected recent Chinese scandals, however, also suggests the benefit of further refinement of West\u27s analysis

Malpractice Mobs: Medical Dispute Resolution in China

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this Essay adds depth to existing understanding of institutional development in China, showing that increased innovation and competence are not providing greater authority for the courts. Despite thirty-four years of legal reforms and significant strengthening of legal institutions, the shadow of the law remains weak. Medical cases highlight largely unobserved trends in both law and governance in China, in particular state overresponsiveness to individual grievances. The findings presented here suggest limitations to contemporary understanding of both the functioning of the Chinese state and of the role of law in China, and add to existing literature on the nonconvergence of the Chinese system with existing models of legal and political development