Courts and the Party-state. Courts beholden to local party-state No tenure for judges Local government controls funding Local party committee and party political-legal committee ( 政法委员会 ) Have influence over Court personnel (technically People’s Congress authority of personnel)
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(technically People’s Congress authority of personnel)
《人民日报》 ( 2007-12-26 第01版 )
(一线法官) (i.e. those hearing cases),
1987 17% of judges had college degrees
1992 66.6% of judges had college degrees
Note: night school, party school phenomenon
is a basis for demerits
Really promotes local judicial independence
Really a means of party control
Which is more valuable?
State supervised—not self-regulating
Ministry of Justice
Administers bar exam, certifies lawyers, licenses firms
Exercises supervision of lawyers
Bar associations (often headed by MoJ officials)
Supply of lawyers and litigious cultures
Cultural or institutional?
Peng (2000:32) Japan, Taiwan, S. Korea “lawyerless wonderlands”
China—2002 per capita income US $ 960
Korea—2002 per capita income US $11,280
China—one lawyer for every 9,510 people
Korea—one lawyer for every 9,383 people.
In 2004, Shanghai alone had more than 6,000 lawyers in 592 law firms, while Korea had 6,273 lawyers in 258 law firms nationwide
Consulting a lawyer significant factor in “escalating” a dispute, e.g. litigating (Landry, RDI)
Contrast Michelson: lawyers as gatekeepers
“Students of contemporary China have uncritically assumed that lawyers open courtroom doors… Why are so few grievances transformed into legal claims?”
Lawyers as a force for social change
Public interest lawyers
Supreme People’s Procuratorate
Encourage local procurates to bring pilot cases in the “public interest”
Henan: loss of state-owned assets, environmental pollution, market, industrial and administrative monopolies and the destruction of natural resources or public facilities
arguably at odds with the standing requirements for civil litigation as stipulated in the Chinese Civil Procedure Code, but the procuracy and courts agreed to overlook
Individual lawyers (Qiao Zhanxiang v. Ministry of Railways )
train price ticket increases during the Spring Festival, the biggest travel holiday on the Chinese calendar, were in violation of the Price Control Law
hosted a local talk show answering callers’ questions on traffic law
Qiao lost his cases in Beijing Intermediate and High Courts, but won his case in the court of public opinion. During the subsequent Spring Festival, the Ministry of Railways held a hearing on contemplated price increases.
case selected to highlight the need for transparent administrative processes
Titi Liu (UW) Jan 24th 12noon 317 Thomson
NGOs (Beijing Univ. Law Dept’s Center for Women’s Law Stds and Legal Services
C. David Lee, “Legal Reform in China: A Role for Nongovernmental Organizations,” Yale J. of Int’l Law Vol. 25 (2000
Lawyering in repressive states
Jane Winn (UW) and Tang-chi Yeh, “Advocating Democracy: The Role of Lawyers in Taiwan's Political Transformation,” Law & Social Inquiry, Vol. 20, No. 2. (Spring, 1995), pp. 561-599.
Civil law vs. common law system—fewer opportunities
Turn to opposition political party
Regulations on Legal Aid by the State Council in 2003
Duty of county-level governments
Narrow scope for qualifying for legal aid
No recourse for denial of legal aid
Private lawyers de facto compulsory provision of legal aid
foreign donor activity
educated the National Legal Aid Center, the organization charged by the Ministry of Justice with formulating legal aid policy, about legal aid systems in other countries.
Non-governmental legal aid centers—Ford Fdn funding (as with Women’s Center, above)