Local governments lose an astonishing 30-50% of law suits in China, according a magazine article described in SCMP (SCMP 4/23, “Governments on wrong side of law”). The article suggests that this shows that local government are acting contrary to the law. These law suits are being brought under the China’s 1989 Administrative Procedure law. Of these administrative law suits, 30-40% consist of cases concerning land seizures, housing relocations, social security and state-owned-enterprise reform (in essence, folks getting laid off from their state company jobs).
The assertion that local governments oftentimes act contrary to the law and are sued as a result seems pretty unremarkable. However, I am astonished that the plaintiffs appear to win so often. From all the things I have heard, the plaintiffs most of the time come out on the losing end. My sense was that judges would not ordinarily rule against local government officials in such matters. Even if judges in large metropolitan areas like Beijing and Shanghai may be more professional, and so such a high loss rate seems likely in such regions, that is less the case in the rural areas and away from the coast.
I am not at all surprised by this. The judges in China are chosen by Beijing and monitored and supervised out of Beijing. As such, China’s judiciary is one of Beijing’s best means to exert central authority in the provinces. On top of this, for the court system to work, the people have to use it (rather than, let’s say, going to the party boss to resolve conflict) and for the people to use it, it must be viewed as fair. The best way to be viewed as fair is to be fair and that is generally what the courts strive to do. >>However, in lawsuits that seek to change central government policy, the plaintiff will lose nearly every time. >>P.S. You have a great site here. I will definitely be back. >>>< HREF="http://chinalawblog.com/" REL="nofollow">China Law<>
I appreciate your thoughtful comments on this important issue. (http://www.chinalawblog.com/chinalawblog/2006/04/municipalit_y_l.html). But I am afraid that I must disagree. I think that you are comparing apples to oranges.>>As a side-note, I met Professor Wang Can-fa, the Beijing environmental lawyer featured in the “China Rises” documentary, last fall. His success, by his own statements to me, has been unusual. In that sense, I would not (and I think that he would agree with me) characterize his successes as proof of the courts working well; rather it indicates that it is still possible to prevail against the odds when one has a high-profile Beijing lawyer taking one’s case. (Professor Wang is, at this point in time, probably the best known environmental lawyer in China; many local officials do not like him as a result; he was first featured in the New York Times back in 2001 or so, when he started his environmental law clinic.)>>The reason why I think you are comparing apples to oranges is that judges act differently depending on the type of case. When they have commercial disputes involving businesses or, for that matter, lawsuits between private individuals, I would expect them to act quite impartial, save for problems of direct bribes and corruption. >>However, whenever one deals with lawsuits against state-owned enterprises or against local and provincial governments themselves, I think that judges act quite differently. I am sure that you are aware that under the Chinese governmental system, judges are subordinate to other governmental officials at that level of government. So local judges are essentially subordinate to the top local official. There is no judicial independence in China – or at least not as of yet. (However, there are a number of Chinese constitutional law scholars and judges who advocate judicial independence.) So the reality is that judicial outcomes are controlled, or at least strongly affected, by the desires of other local government officials. When a lawsuit is filed against the local government, as often occurs with land takings and environmental cases, the dynamics should be easy to figure out. These dynamics are at the root of current social unrest about land takings in China and the many petitions that are filed in Beijing about local government misdeeds – because the courts do not provide a remedy for such complaints.>>I realize that some of the things I have said over-simplify some complexities about the Chinese judicial system. But overall, I continue to find the statistics surprising; in fact, I have some doubts as to whether they are in fact accurate.>>Please continue to share your thoughts on my blog (http://citizenyang.blogspot.com), especially when they raise environmental, land, or natural resource issues.>>Tseming Yang