China Courts And Abuses Of Power

Interesting post on the Black China Hand, entitled "Judge and Jury," referring to a New York Times article [free on the Amherst Times, hence the link there] on court problems.  The article highlights wretched court facilities, a lack of due process, and a lack of qualified judges:

Some of the courtrooms are not even courtrooms: tiny offices or basement rooms without a judge's bench or jury box.  Sometimes the public is not admitted, witnesses are not sworn to tell the truth, and there is no word-for-word record of the proceedings.

Nearly three-quarters of the judges are not lawyers, and many --truck drivers, sewer workers or laborers -- have scant grasp of the most basic legal principles.  Some never got through high school, and at least one went no further than grade school.

People get sent to jail "without a guilty plea or a trial, or [are] tossed from their homes without a proper proceeding."  Defendants are refused lawyers or sentenced to weeks in jail because they cannot pay a fine.  "Frightened women have been denied protection from abuse."

China?

No.  New York State.  This is an article on New York State's Justice Courts.

So, why are we talking about this at all on a blog about China?

First, because the Black China Hand, who interned at the China National Legal Aid Center working on rule of law issues back when he was in law school, sees this article as a good "primer on some of the more complex issues that are confronting China's legal reform."  That makes sense to me.

Second, because this New York Times article helps illustrate the unfairness of the standards we Westerners often apply to China's court system.  I am not for a moment claiming China's courts even approach US courts in terms of fairness or due process.  Indeed, for the most part, I think such a claim would be ridiculous.  Yet, at the same time, this article highlights how when talking about unfair decisions in Chinese courts, we must be careful to discern the court from which the decision was issued.

Fellow China Law blogger Steve Dickinson, who resides in Shanghai, told me the other day that every time someone complains to him about China's courts not enforcing intellectual property rights, Steve asks them to tell him of a single instance in the last two years where a Beijing or a Shanghai court failed to enforce a foreign company's validly registered trademark.

Nobody has yet met Steve's challenge.

It is no fairer to judge China's courts on a few decisions than it would be to judge the US courts on its municipal courts.  As always, however, I am talking strictly about commercial cases in China, not political or criminal cases. 

For more on the fairness of China's courts, check out "The Ying And Yang And Apples And Oranges On Chinese Courts," "China's Courts Are Fair" and "China's Courts Are Fair, Part II."