December 16, 2015, by editor
Creating a civil justice system with Chinese characteristics
Written by Kristie Thomas.
Recent amendments to China’s civil procedure law (CPL) have highlighted key tensions in the wider legal system. Detailed analysis of these changes has revealed questions including those related to the continuing role of informal dispute resolution such as mediation; the balance between justice and efficiency; and the formal role of the courts. The crucial question is whether the dynamic reforms witnessed since 1978 in the civil procedure laws are primarily for the benefit of the existing Party-state or are aimed at increasing the rights of ordinary citizens and embedding the rule of law?
It is undeniable that the civil justice system has transformed unrecognisably since the reform era began in the late 1970s. A provisional CPL was passed in 1982 as part of the initial attempts to introduce a rudimentary legal system in order to boost the confidence of investors into China and support economic reform. A broader CPL was then passed in 1991 to deal with the considerable increase in civil disputes (from 779,000 in 1982 to 2.5 million in 1991) and to add support for the growing professionalization of the judiciary. The CPL was also subject to amendments in 2007 and 2012, the former to tackle difficulties in enforcing civil judgments and the latter to further modernise and adapt the civil justice system to local conditions. Each of these laws can act as a ‘snap-shot’ of the state of the civil justice system at that time and reveals tensions about the wider role of the legal system in contemporary China.
The first of these trends highlighted by the evolving CPL is the use of mediation, which was the primary method of dispute resolution in pre-reform PRC and indeed, is said to reflect a reluctance to litigate based on traditional Confucian cultural influences. Consequently, the initial 1982 CPL maintained the continued role of mediation as the primary method of dispute resolution. However, the 1991 CPL shifted the emphasis to formal adjudication by the courts and led to significant increases in the number of civil disputes filed with the courts throughout the 1990s, reaching a peak of over 5 million in 1999. Correspondingly, the proportion of cases resolved via mediation declined year-on-year from 70+% in the 1980s until it reached a nadir in the early 2000s of around 30%.
However, around the turn of the 21st century, the race towards judicial dominance began to slow and even reverse, a move which has been notoriously dubbed “China’s turn against law.” This reverse is thought to be led by political concerns that formal court-based adjudication was failing to quash citizen’s grievances against the state. The current position is that mediation should be attempted first (Article 122 CPL 2012), with judges evaluated according to the proportion of cases mediated amongst other indicators. Thus, it is clear that the most recent changes to the CPL entrench mediation as the preferred option for resolving civil disputes, primarily in order to minimise citizen dissent.
China has also displayed a shifting attitude to the use of summary procedures in civil dispute resolution. Article 162 CPL 2012 now provides that where a court hears a case under this procedure, if the amount subject to dispute is less than 30% of the local average annual wage, then the first instance judgment shall be final. Cases heard under this small claims procedure are also subject to simplified rules of process and a three-month deadline for concluding the case. Promotion of such a simplified process arises from a drive for greater ‘judicial efficiency’, a key theme within the agenda of the Supreme People’s Court since the first five-year plan to develop the judicial system was released in 1999.
However, although it is undeniable that China initially experienced an unparalleled explosion in the sheer quantity of civil cases heard by the courts, there is some scepticism as to whether China’s judges are really overworked compared to other jurisdictions. Consequently, the primary motivation behind such enthusiastic promotion of the use of summary procedures may be more to do with protecting the court’s finances rather than any loftier ideals related to timely access to justice.
The final shift is in relation to the overall role of the courts. The expansion in the 2012 CPL of public interest litigation (PIL) to bodies which do not have a direct interest in a case offers an outlet for mass discontent. However, the only two areas where PIL can be initiated are environmental pollution and infringement of consumer rights, both frequent concerns in the Chinese media; accordingly, the central government are again seeking to strike a delicate balance between minimising citizens’ discontent whilst still maintaining tight control over the operation of such mechanisms.
Overall, the recent amendments to the CPL appear to support an agenda of striving to minimise citizen dissent rather than espousing any higher ideals of the functioning of the legal system following the rule of law. This corroborates the notion that top-down efforts to reform the courts have focused primarily on political demands to maintain harmony and stability in Chinese society. Nevertheless, litigants in the courts are largely satisfied with their experiences and the civil justice system has improved immeasurably since the reform era began. Ultimately, the CPL amendments discussed here and trends observed in mediation, summary procedures and PIL will continue to develop a modern civil justice system with Chinese characteristics not only focused on resolving disputes but also on maintaining social harmony as an instrumental tool of the state.