China After the Reform Era

China’s reform era is ending. Core factors that characterized it – political stability, ideological openness, and rapid economic growth – are unraveling. In part, this is the result of Beijing’s steadfast refusal to contemplate fundamental political reform. Since the early 1990s, this has fueled the rise of entrenched interests within the Communist Party itself. It has also contributed to the systematic underdevelopment of institutions of governance among state and society at large. Now, to address looming problems confronting the nation, Chinese leaders are progressively cannibalizing institutional norms and practices that have formed the bedrock of the regime\u27s stability in the post-Mao era

What Direction for Legal Reform Under Xi Jinping?

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why China’s legal reforms have shifted over the past two decades, (2) outline the direction of reform under Xi, and (3) sketch out the institutional considerations that are likely to steer state efforts in the legal field over the coming years

Judicial Disciplinary Systems for Incorrectly Decided Cases: The Imperial Chinese Heritage Lives On

Local Chinese courts commonly use responsibility systems (mubiao guanli zeren zhi, zeren zhuijiu zhi) to evaluate and discipline judges. Judges receive sanctions under these systems for a wide range of behavior, such as illegal or unethical dealings with parties and lawyers, inappropriate courtroom behavior, and neglect of duty.Many local court Chinese responsibility systems also discipline judges for simple legal error. Judges may face sanctions linked to the number of cases that are reversed on appeal, simply because the interpretation of law made by a higher court differs from that of the original trial judge. Sanctions include monetary fines and negative notations in a judge’s career file. Such practices violate Chinese Supreme People’s Court (SPC) judicial interpretations specifically barring the use of responsibility systems to sanction judges for simple legal error. Local Chinese courts, however, have continued to promulgate such systems.Court responsibility systems that discipline judges for simple legal error create a perverse set of incentives for Chinese judges. In order to avoid appellate reversal, lower Chinese judges rely on an ill-defined system of advisory requests (qingshi) to solicit the views of higher courts and judges regarding how to decide pending cases. As Chinese judges themselves note, excessive resort to qingshi practices has many negative effects. It undermines appellate review, since the court or judge who reviews the case on appeal can be the same one who responded to the initial qingshi request regarding how to decide the case in the first place. It creates a relatively passive Chinese judiciary reliant on top-down direction. Last, it contributes to an overload of higher-level judicial authorities forced to handle a myriad of requests for guidance from lower-level courts. Unsurprisingly, the SPC has made qingshi reform a key component of both the 2004–2008 and the 2009–2013 plans for court reform.So what is going on? Why do local Chinese courts continue to use internal disciplinary systems that violate Chinese law and negatively affect daily operations of the judiciary? Historically, the use of disciplinary sanctions to punish judges for cases of simple legal error reversed on appeal is deeply rooted in imperial Chinese legal practices dating back to the Qin dynasty. Politically, the disciplinary sanctions employed by modern Chinese court responsibility systems and their imperial analogues reflect a comprehensive governance strategy employed by generations of centralized, authoritarian Chinese rulers to address pervasive principal–agent problems in a sprawling bureaucracy. However, these policies are generating conflict with rule-of-law norms established in the post-1978 reform period, and incarnated in the 1998 SPC judicial interpretations.Existing literature on the post-1978 Chinese legal system has devoted significant attention to formal legal norms promulgated by central institutions such as the SPC and the National People’s Congress (NPC), but ignore the underlying incentive structures that can drive judicial behavior. Local court responsibility systems and the incentives they create for individual Chinese judges are “terra incognita in terms of published systematic studies. This article presents an overview of Chinese court responsibility systems and their disciplinary treatment of incorrectly decided cases (cuo’an), and analyzes the important practical problems created in the Chinese legal system as a result of official use of responsibility systems to discipline judges for legal error. It also identifies the extent to which the key elements of modern People’s Republic of China (PRC) court responsibility systems are firmly grounded in prior imperial precedent

Xinfang: An Alternative to Formal Chinese Legal Institutions

Formal legal institutions are almost entirely absent from the lives of most Chinese citizens. A range of petitioning institutions and practices operate as a dysfunctional proxy for formal legal channels. Deeply rooted in imperial Chinese history, these practices and institutions have survived into the present in the form of citizen petitioning efforts directed at numerous “letters and visits” (xinfang) bureaus distributed throughout Chinese government organs, including the courts. This Article examines the historical origins and regulatory basis for the modern xinfang system. It outlines the characteristic tactics of Chinese petitioners who seek to use the system to resolve their grievances. The Article also examines the overlap between xinfang institutions and formal legal ones, and analyzes statistics suggesting that the use of the former far exceeds the latter. The Article argues that the xinfang system serves as a multi-purpose governance tool for Chinese leaders, with resolution of individual grievances but one of several objectives. Xinfang interests overlap with, but also contradict, those of formal legal institutions. Further, Chinese xinfang regulations and institutions create a unique incentive system to which the behavior of Chinese petitioners is an adaptive response. This interplay not only poses serious challenges to the development of the rule of law in China, but may also be fueling a dangerously escalating cycle of social destabilization

Riots and Cover-Ups: Counterproductive Control of Local Agents in China

Chinese cadre responsibility systems are a core element of Chinese law and governance. These top-down personnel systems set concrete target goals linked to official salaries and career advancement. Judges and courts face annual targets for permissible numbers of mediated, reversed, and closed cases; Communist Party secretaries and government bureaus face similar targets for allowable numbers of protests, traffic accidents, and mine disasters. For many local Chinese officials, these targets have a much more direct impact on their behavior than do formal legal and regulatory norms. This Article argues that Chinese authorities are dependent on responsibility systems, particularly their use of strict, vicarious, and collective liability principles, as an institutional tool to address pervasive principal-agent problems they face in governing a large authoritarian bureaucracy. But excessive reliance on these methods to control local officials ironically fuels governance problems that Chinese central leaders seek to address. Central Chinese authorities do not want township officials colluding to falsify tax records or engaging in ill-conceived development projects that waste central funds. Nor do they want rural residents burning down government buildings or staging mass petitions to Beijing to protest the actions of local officials. But these are the direct results of cadre evaluation systems that Chinese authorities use to govern their local agents. Continued reliance on responsibility systems as a tool of governance raises significant conflicts with the legal reforms that Chinese authorities have pursued since 1978. And recent developments suggest that central Chinese authorities may be backing away from their efforts to govern China, and their local agents, through law and legal institutions. At least some leaders appear to favor an alternative strategy--strengthening the role of responsibility systems as a tool for monitoring local agents. This is a fundamental conflict over the core question of how to govern China. How it is resolved will have lasting implications for China\u27s domestic evolution and stability

Legal Reform in the Xi Jinping Era

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The plenum decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This article attempts to do three things: (1) analyze how and why China’s legal reforms have shifted over the past two decades, (2) outline the direction of reform under Xi, and (3) sketch out the institutional considerations that are likely to steer state efforts in the legal field over the coming years