China Law Blog

There is a difference between civil law and common law systems that is worth noting here. In common law systems, to bring a lawsuit, you need a specific cause of action which is authorized by the law.

Civil law systems like China work differently. There isn't anything like a "cause of action." There is an abstract framework (which comes from German law) of "rights" and "obligations" and to bring a court case, you need to fit the situation into the abstract framework rather than to bring a specific cause of action.

So there was never any legal bar to the student bringing the court case. What might be different has been a few court cases which have found education as a right, but that is pure speculation since I haven't read the court case.

Also, China and the United States use fundamentally different legal language. The term "right" in American law is a very different (but related) concept to the term "right" in Chinese or German law. "Right" in American law is generally found in constitutional law in the context of limitations on state power, whereas the concept of "right" in Chinese law (which comes from German law) makes the idea of a "right" central in civil procedure, and always pairs a right with an obligation. If I hit your car in an accident, and you sue me in a Chinese or German court, you are suing ne for a delict, i.e. violating your right to property thereby creating an obligation to compensate.

If this was in an American or British court, you'd use a different set of concepts to describe the situation.

Joseph Wang --

Yes and no. Yes, Chinese courts are mostly based on a civil system so everything you say is true (and least as far as I can tell based on my somewhat limited knowledge of civil law court systems, this is true of all civil systems), but at the same time, when you get right down to it, the real question someone pursuing a law suit should ask is "do I have a good claim or don't I." I have asked this question of Korean, Japanese, German, French, Swiss, and Chinese lawyers at least 250 times and they have always fully understood what I meant and have always responded appropriately. The point is not what to call the claim but to seek to value it. This case seems to indicate Chinese courts are more liberal in their legal analyses (or granting of claims) than is probably widely believed. In fact, I am always surprised at how liberal China is in this regard as compared to civil law countries like Korea or Japan, which are more influenced by German law than China.

This is pure speculation but.....

I'd be very interested if there was evidence that Chinese courts in general are more liberal than Korean and Japanese courts, but that would require a statistical study.

What I think that the situation is is that China unlike Japan or Korea does not have a comprehensive civil code nor does it have quite as much practice with the law. That means that there is probably a lot more variation in what courts will allow or not allow, which means that you have a higher chance of a particular court ruling liberally even if on the average Chinese courts don't.

I am a little annoyed that newspapers print cases like these without linking to primary source materials on the case. I'm trying very hard to keep myself from having an opinion on this case because I don't really know anything about it.

Mr. Wang --

Thanks for checking in. I too would love to see such a study, but it certainly "seems" to me that Chinese courts are more liberal than both Korean and Japanese courts.

I also think your suggestion as to why this might be the case makes sense. I will add a couple more things: China's laws are new; China's laws are frequently changing; China's best lawyers are under 45 years old. I spoke with Steve Dickinson about this and he thinks another important reason is that the Chinese government wants its courts assuming more power and the Japanese and Korean governments do not.

I agree with you that it is difficult to really know what happened in a case from a newspaper article (and every time a newspaper has written on one of my cases they always get something wrong) but there are definitely things I will do on this blog that I would never do on a real case, like rely on a newspaper article for what happened in a case.