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China’s Courts. “Utterly Worthless” Is Probably An Overstatement.

By Dan Harris on Posted in Legal News

In the early years of this blog, when discussing China’s court system, I would make it a point to emphasize that I was limiting my comments to how the courts handle business law matters. I did this for two reasons. One, my sense is that the quality of court handling of business cases is very different from the quality of judging given to criminal matters. Two, I am not the least bit qualified to talk about how Chinese courts handle criminal matters as I never studied Chinese criminal procedure and my firm has never (and will never) represented a Chinese criminal defendant. Working in tandem with Chinese lawyers, we have represented a number of foreigners in criminal proceedings in China, but those cases do not qualify me to speak on China’s criminal justice system as a whole. For these same reasons, I always beg off whenever journalists contact me for my legal analysis on this or that high profile criminal case in China. 

I thought of all this today while reading a post by Stan Abrams, entitled, “Zhao Lianhai and Criticizing China’s Legal System.” Stan is all up in arms (and few people do better when up in arms than Stan) about a Peter Foster blog post, entitled, “Zhao Lianhai’s Apology Exposes the Utter Mess of China’s Legal System.” Grossly summarizing Stan’s ire, it stems from Foster’s conflating the Zhao Lianhai case into a claim that China’s entire court system is rotten to the core and utterly worthless.

Stan then makes the following case:

But to take the criticism to the next level, saying that China’s legal system is an “utter mess” or that it is functionally nonexistent, well, this is way over the top. Perhaps Foster falls into use of such hyperbolic language because the judicial cases he looks at are the “bad” ones, like that of Zhao Lianhai or perhaps Xue Feng, a US geologist sentenced to 8 years on a state secrets charge. 

One can criticize these cases on their merits, on the choice of the government to get involved in the first place, or on the resulting erosion of public confidence of the judiciary. But if you focus on these cases, you get a very skewed view of China’s legal system.

Lots of law professors have written entire books about this subject, so let me make some sweeping generalizations of my own here in the interest of brevity. China’s legal system is complicated and deals with a wide range of subjects. Highly-charged political cases involving whistleblowers and dissidents are important cases, but they represent a very tiny fraction of judicial activity.

China has a thriving court system, and the number of civil cases, for example, has skyrocketed in recent years along with economic growth. Obviously the public retains some confidence in parts of the legal system here.

Speaking for myself and my own experiences as a lawyer, I have seen tremendous strides made within the legal sector as successive waves of reform have targeted the way courts are run, cases are handled, and judges are selected and trained. China’s economy would not be where it is today without a functioning legal system, its many flaws notwithstanding.

I don’t think anyone would point to the Zhao Lianhai case as an example of China’s legal system at its best. On the other hand, it and other politically sensitive cases represent only one aspect, albeit a very significant one, of China’s judicial framework and its approach to Rule of Law.

Let’s not pretend that a functioning legal system doesn’t exist in this country or that it has not made tremendous progress to date. Whether it can ever reach a point where Westerners would be comfortable with China’s interpretation of Rule of Law, however, is a question for the future.

I completely agree with Stan and I expressed similar views in a 2006 post, entitled, “The Yin And Yang And The Apples And Oranges On Chinese Courts.“

What do you think?

  • Franky Z

    Foster is ordinarily an excellent and very careful reporter. I think he just got a little sloppy here on his blog.

  • http://www.chengdulawyergary.com Gary

    I’m a Chinese lawyer and member of ABA. If the cases are general civil cases, I think the lawyers can play very import roles in them, collecting evidence, arguing and so on. The side who has no lawyer to represent ,he will be in disadvantageous position as the procedures are not easy.

  • Mukeshi

    I had a business case in a Chinese court last year and it really wasn’t much different than the cases I have had in U.S. courts. The judge did his best to rule fairly. The proceedings were certainly not a joke.

  • Andeli

    Still a court system that in civil, business or criminal cases cannot rule against its own political system is a mess not matter how much it improves.

  • bob

    I have been told that, in higher level courts, e.g. those in Shanghai and Beijing, the system is not bad and improving incrementally. Where it may be [still] a total mess are the local courts which still clearly bias towards local parties unless one has superior connections or a larger red envelope. But this would appear nothing new in China’s political landscape when one is far from the emperor….

  • http://www.sanfernandovalleylawyers.com Joe

    If the Chinese judcial system has made progress, you have to give them credit for it, not put them down for how far “behind” us they are.

  • Twofish

    PRC law is pretty clear that you will get into trouble if you organize in ways that the Party-State dislikes. The courts are enforcing the laws as written. We can argue that the laws are unjust or wrong, but I don’t think that the “legal system is non-existent” is valid.
    One reason that the Party-State wants a strong legal system and that this strong legal system helps people do business is that if the Party says “don’t do X”, they don’t want a judge come up with a alternative interpretation of the law or for someone to be able to bribe their way out of trouble. They want a system in which the Party can say “do X and you’ll get into trouble, do Y and you won’t.”
    That actually works pretty well for businesses.
    Andeli: Still a court system that in civil, business or criminal cases cannot rule against its own political system is a mess not matter how much it improves.
    It’s pretty much impossible for any court to rule against their own political system. If you had the US Supreme Court rule in a way that 90% of the people in Congress and the executive branch opposed, it wouldn’t be worth much. Courts become useful in situations where the political system doesn’t know what it is supposed to do, and you need an umpire to sort things out.
    In the PRC, this doesn’t happen much when it comes to the role of the Party. It does happen a lot in business cases. If the Politburo cares about a case, then the judge will rule in a certain way, but in most business cases, the Politburo doesn’t know what to think.

  • AT

    Well, SA is right that it is not fair to condemn the ENTIRE system based on the outcome of Zhao’s case, but I think Zhao’s case is in fact representative for the type of case that it is. It’s also just one of a string of similar cases that have been reported over the last few years, and the fact that it became one of the high-profile cases does not mean that it, or any of the others for that matter, is an isolated incident. One can say that people have made too much of a few high profile cases. But one can also justifiably infer that there are probably many, many others like it that have not been reported.
    Entire sectors of the system–particularly in public interest and criminal defense–are repressed. In that sense, the system really is a mess. The cause of the problem is the Party’s ultimate control over the outcome of any case in which it has an interest, a characteristic that is by no means limited to cases like Zhao’s, even if that’s where the problem most often surfaces. It surfaces in corporate cases as well, when the competitive interests of powerful, strategically oriented SOEs are at issue.
    I don’t think Foster’s opinion is really that absurd, even if the majority of cases turn out just fine. SA seems to be particularly critical of Foster’s normative judgment regarding legal systems in which the dominant political party can easily manipulate judicial outcomes. But it is perfectly reasonable to believe that a legal system will fail when it matters most if the ruling political party can determine legal outcomes whenever it has the will to do so. In turn, it’s not entirely unreasonable to believe such a legal system is a mess. In terms of progress, everyone is right to highlight successes, but we can’t forget to highlight cases like Zhao’s that demonstrate the limits of progress–limits, not only in the sense that the system hasn’t gotten there yet, but also in the sense that it will never get there as long as the political apparatus is set up the way it is.

  • Andeli

    “It’s pretty much impossible for any court to rule against their own political system. If you had the US Supreme Court rule in a way that 90% of the people in Congress and the executive branch opposed, it wouldn’t be worth much. Courts become useful in situations where the political system doesn’t know what it is supposed to do, and you need an umpire to sort things out”.
    Silly me I was under the impression that the Supreme Court of the United States could rule against the US senate and Congress if their legislation violated the U.S. Constitution.
    If the Congress or executive branch opposed the Supreme Courts decision, then of course they just have to find a two-thirds vote in each house of Congress and have it ratified by three-fourths of states. Not something done one a day to day basis.
    I am not sure the Chinese courts hold the same kind of constitutional backing, but I could wrong…

  • Twofish

    Andeli: Silly me I was under the impression that the Supreme Court of the United States could rule against the US senate and Congress if their legislation violated the U.S. Constitution.
    And Congress and the President could ignore the court if there really was a sense that the Court was really out of line. The Court has neither the power of the purse or the sword. The reason people don’t ignore the Court is the Court rarely if ever issues decisions that *everyone* is against.
    The story of how the Supreme Court got the power of constitutional interpretation is pretty interesting. There’s nothing in the US Constitution that explicitly allows a court to overrule legislation, and how it took about a hundred years (and one major war) to give the court that power.
    Andeli: I am not sure the Chinese courts hold the same kind of constitutional backing, but I could wrong…
    The SPC issues opinions that are legally binding. They can be overruled by the NPCSC but that rarely happens. Chinese courts do not have the power to overrule legislation, but usually the legislation is written ambigiously enough so that there is plenty for the courts to rule on.
    Of course, one major difference is that China has one party, whereas the US has two. However, you rather frequently run into the situation in which there are enough differences within the Party that it’s up to the courts and legislature to figure out how to resolve the differences.

  • Twofish

    AT: Entire sectors of the system–particularly in public interest and criminal defense–are repressed. In that sense, the system really is a mess.
    On the other hand, that’s glass half empty.
    AT: he cause of the problem is the Party’s ultimate control over the outcome of any case in which it has an interest, a characteristic that is by no means limited to cases like Zhao’s, even if that’s where the problem most often surfaces.
    However, the Party is not monolithic and there are areas in which the Party has no interest or has an interest in which it doesn’t know what it is. In situations where the Party *is* pretty sure that it knows what it whats, then no court is going to help you, because in those situations the Party can rewrite the laws.
    AT: It surfaces in corporate cases as well, when the competitive interests of powerful, strategically oriented SOEs are at issue.
    But then you have conflicts between the interests of SOE’s and the interests of local officials and the interests of senior Party officials, which more often than not are conflicting.
    AT: But it is perfectly reasonable to believe that a legal system will fail when it matters most if the ruling political party can determine legal outcomes whenever it has the will to do so
    Fail at what? The CCP is not a human being. How does an organization have a will?
    On the other hand, because the Party is in control of the legislature, they can change the laws to get the legal outcomes that they want. If you have a case even get to a court in China, that means that at some point, someone in the Party thought it would be a good idea to bring the case to a court.
    AT: We can’t forget to highlight cases like Zhao’s that demonstrate the limits of progress–limits, not only in the sense that the system hasn’t gotten there yet, but also in the sense that it will never get there as long as the political apparatus is set up the way it is.
    Progress toward what? (It’s not a rhetoric question).
    One thing that I get the strong impression is that Zhao Lianhai (like a lot of other people) was an “accidental dissident”. That he really didn’t think that what he would do would get him into trouble and he wouldn’t have done it if he did.

  • Alexander D.

    Foster’s argument seems to be that if A is bad, than B and C must also be bad and if A, B and C are all bad, then the system is bad. Is his reasoning based on a lack of logic or an unwillingness to recognize China’s progress?