China Law Blog

It's not either-or. Any effective legal strategy is going to include both formal and informal methods of resolving the dispute. In Chinese societies, shame and embarrassment tends to be an extremely powerful weapon, and you can use those in conjunction with formal legal channels.

One thing that people mistake is to think of law as being the same as a lawsuit.

Granted legal disenfranchisement is near universal among the world's poor, I think China faces particular problems in this area because of the fear many of China's poor have of their own government. Your average Li, Zhang or Wang is unlikely to stick his neck out to seek legal redress, especially if the offending party is part of the government or a wealthy/connected individual. Note the Li, Zhang and Wang I mention are not from the urban, tech-savvy middle class we hear so much about, but rather they are the nameless souls whose toil makes the coastal cities gleam. My humble opinion is that this is a symptom of an age-old culturally-nurtured fear of the powerful, but perhaps with the passage of time and the continuing development of a strong legal system in the PRC, things may change for the better.

Just for comparison's sake, if Joe Sixpack is roughed up by the police in the US, he will likely report it, though he might not be able to afford pricey legal representation. I can't imagine police brutality making much of a stir in the PRC, not yet, at least.

Your readers might want to take a look at the work by International Bridges to Justice to assist China's National Legal Aid of China organization with the development of a public defender corps. There is obviously much more to be done, but their efforts are noteworthy.

http://ibj.org/where-we-work/asia/china/

There is also a strong historical cultural bias towards avoiding getting authorities involved in disputes in China as well. Traditionally the view was that if you are going to court(or yamen)you must be guilty of something and there is a long held presumption of guilty until proven innocent and the use of torture to extract confessions. There are tons of folk stories and historical literature, where the aggrieved party ended up being imprisoned or tortured for bring up charges (often as a result of the magistrate or his minions being bribed by the more powerful party).

This is even the case in overseas Chinese communities in common law jurisdictions such as Hong Kong, Malaysia and Singapore. It is only when informal methods have been totally played out that people will consider involving authorities of one form or another.

I once did jury duty in Hong Kong in the 80's in a high court case complete with barristers and wigs!! and was amused and yet also disgusted by the tone and attitude of the Chinese court translator who was not impartial (thought the english may not have understand what was going on in Cantonese). He obviously presumed guilt and felt his role was to be accusatory and threatening and to quickly extract confessions from the accused.

Glen Wilkins: you might want to catch up with a breaking story in which police appear to have beaten to death an uncertain number of people in Tianmen, Hebei on the 7th. Headlines on today's QQ's news service (http://news.qq.com/zt/2008/hbtmcg/index.htm ) report that 24 people have been detained, 4 arrested, and 10s of thousands have shown support for the families of the victims.
This is perhaps an extreme case, but police brutality can and does cause a stir in today's PRC.

JL, the guy, Mr. Wei, is a notable citizen in the city, and the people who beat him to death were deputized citizens.

In addition to the arrests, the official responsible for deputies is now dismissed.

To address Glen's concern, some cases where ordinary farmers sought satisfaction in China's legal system over land use rights were cited previousely.

terry: Traditionally the view was that if you are going to court(or yamen)you must be guilty of something and there is a long held presumption of guilty until proven innocent and the use of torture to extract confessions.

That isn't the reason why a confession is essential. The problem is that without a confession the possibility exists that you *didn't* do something wrong, and at that point things look really bad for the people that put you in jail.

terry: There are tons of folk stories and historical literature, where the aggrieved party ended up being imprisoned or tortured for bring up charges (often as a result of the magistrate or his minions being bribed by the more powerful party).

Yup, which shows that the public *doesn't* have the view that someone that is accused by the state is automatically guilty. Which is why the authorities need the confession. Without a confession there is often the public perception that the state is in the wrong in a particular situation, and in any case the accused can often get a huge amount of sympathy.

The trouble with this is that if you put enough pressure on someone, they will confess to anything, which is why a prohibition against coerced self-incrimination is so important.

terry: This is even the case in overseas Chinese communities in common law jurisdictions such as Hong Kong, Malaysia and Singapore. It is only when informal methods have been totally played out that people will consider involving authorities of one form or another.

That's actually generally true in all communities. Quick question, when is the last time you had a legal dispute. Second question, when is that last time you sued someone or were sued?