Chinese Legal System: Continuity and Change

This assignment delves into the complexities of the Chinese legal system, focusing on how it has evolved while maintaining certain traditional elements. It analyzes various aspects of the system, including mediation and arbitration practices, as well as ongoing reforms within the judiciary. The provided bibliography highlights scholarly works and case studies relevant to understanding China's unique legal landscape.

Running head: GLOBALIZATION OF LAW AND DEVELOPMENT IN ASIA
Globalization of Law and Development in Asia
Name of the Student
Name of the University
Author Note

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Abstract
The concept of judicialization refers to the dependence on the judicial means and courts in order
to address any fundamental political controversies, public policy question, issues arising in civil
practice and other moral predicaments. The judicialization process is equipped with the newly
acquired judicial review procedures and the national high courts that are usually used to resolve
issues related to civil practice, privacy to property, trade and commerce and environmental
protection. This global trend towards judicialization results from the adoption of several forms of
constitutional review that significantly expanded the policy-making capacity of the judges by the
civil law countries and even authoritarian regimes. This research paper analyzes the nature,
scope, significance and limitation of judicialization process in East Asian countries like China.
The paper also discusses about the relation of People’s Republic of China (PRC) with its legal
framework and with mediation and arbitration as the most common dispute resolution methods
and the significant changes it has brought about in the area of civil practice in China.

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Table of Contents
Introduction......................................................................................................................................2
Judicialization: Meaning..............................................................................................................3
Significance of Judicialization in China..........................................................................................3
Limitation of judicialization in dispute resolution and policy making process...............................6
Reasons for limited judicialization..................................................................................................8
Dejudicialization..............................................................................................................................9
Mediation: an effective alternate dispute resolution method.........................................................10
Conclusion.....................................................................................................................................12
Reference list.................................................................................................................................13

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Introduction
In democracies, especially in the elected assemblies, decision-making is based on a free
and majority principle among equals. However, in regards to the courts, the court procedures
generally include special staff, including judges who possess legal knowledge and skills. It
further includes the conflict resolution between various parties in either an authoritative or a
regular way in accordance to the predetermined rules. This further includes ascertainment of
facts of the different cases and assessing the arguments advanced by the conflicting parties,
considering its prospective effects on similar cases in the future.
Judicialization of politics refers to the trustworthiness towards the judicial means and
courts for addressing central moral dilemma, political controversies and public policy questions.
Given the newly acquired judicial review procedures, national high courts universally have been
frequently addressed to resolve variety of issues, right from equality rights, privacy, religious
liberties, education, immigration, environmental protection, etc. In East Asian countries like
china, several changes have been undertaken in the incidence and nature if conflicts, social
disturbances, dispute as well as in the mechanisms used to address the same. The global trend of
judicialization is seen to be inclined towards social, political and economic issues.
This research paper aims at explaining the concept of judicialization and its significance
as an essential objective in law. The research talks about the growing judicialization trend and its
impact on the significant developments in dealing with the socio-economic claims, issues
relating to civil practice in East Asia countries like China. The paper further demonstrates a
critical analysis of the changes that judicialization has brought in the dispute resolution

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mechanisms prevalent in china. It discusses about the changing attitude of people towards
resolving the disputes post the emergence of judicialization the country.
Judicialization: Meaning
The term ‘judicialize’ means to treat judicially for arriving at a decision or a judgment. In
this context, the term ‘judicially’ would either refer to the way a legal judgment is made by a
judge in the office in the capacity of judge for administering justice; or it may refer to the manner
of a judge arrives at the decision with the judicial skill and knowledge that he possess to
administer justice. The judgment is made by a legal process or by a sentence of court of justice.
Thus, the meaning of judicialization of politics is two-fold. Firstly, it would mean expansion of
the judges or the court provinces at the cost of the politicians and/or the administrators, implying,
a shift of the decision-making rights from the legislature, civil service or the cabinet to at least
the courts. Secondly, judicialization of politics may refer to the spread of judicial-decision-
making methods outside the judicial province. In simple words, judicialization refers to
transformation of any process into a legal process.
Significance of Judicialization in China
Lian (2015) states that Chinese courts have been given a little more importance than a
venture of the party-state as the courts are perceived as unsophisticated, uniformly passive and
politically impotent. However, Bo (2015) argues that the courts have been playing a significant
role in resolving disputes as compared to its history. This evident from the incline in the cases to
8 million cases every year approximately throughout the 1980 and 1990s while the country has
witnessed a decline in the arbitration and mediation rate during the same period. This incline
signified the growing trend towards judicialization globally with an essential role being played

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by the judiciary is not only evident from the increase in the number of cases but also from the
broad range of controversial economic, political and social disputes that are being dealt with by
the courts.
While enforcement is often perceived as difficult in China, in the recent years, it has been
observed that judicial enforcement in China is comparatively less difficult as compared to the
other rich countries such as UK, Russia or USA. The reasons behind the improvement in the
judicial enforcement attributes to the changes in the judicial reforms that aims at building and
enhancing the professionalism of the judiciary.
However, Jin (2015) argues that the legal reform in China has lost its importance for the
sole reason that it failed to untie itself from the political dominance of the ruling Chinese
Communist Party [CPP] for three decades and, therefore, is deprived of institutional authority
and independence that is essential to perform its functions appropriately and effectively. Jin
(2015) believes that this is a one of the reasons why courts are treated as only a part of the local
government. This necessitates development of rule of law in China that might be termed as
‘rights approach’. According to Bin (2015), the consciousness of the common citizens about
their rights and their communications with the government plays fundamental role in the
constitutional development and this approach considers courts as the agents of the state at least,
if it is not perceived as the part of the government. Although this approach reflects the
development in the rule of law and establishes that constitutionalism is not a top-down process, it
has minimized or ignored the role played by the courts.
Nevertheless, Lian (2015) argued that this long-perceived viewpoints on Chinese courts
has been subjected to controversies. Lian (2015) further asserted that although the courts play a

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restricted role in the policy-making process making it incapable to resolve several controversial
issues, there are certain research and studies that establish that there has been occurrence of
judicialization and judicial innovation to certain extent. Further, Hwang and Wang (2015)
demonstrated that the Chinese courts have exhibited innovations in expanding their own
jurisdictions by striking down regulations that are in non-conformity with the national
legislations. Other researchers asserted that despite serious restrictions on the power of the
courts, they have been able to demonstrate creative and innovative initiatives by applying the due
process principle.
From the political viewpoint, development in the Chinese judiciary like any other
political actors has strategically followed its institutional interests and enhanced the position and
authority of the courts. Courts have the jurisdiction to deal with minority shareholders suits
against the state–owned enterprises for disclosing contraventions and informing about number of
complicated issues with respect to improvement of damages resulting in bankruptcy of the
company and enhancement in social stability. FU and Palmer (2015) asserts that the courts are
also engaged in resolving labor disputes involving legal suits against unlawful termination and
unsafe and unhygienic working conditions, unpaid or underpayment of wages, etc, that
contravenes the provision of labor law of the country.
There are wide range of discrimination claims that are brought before the courts, which
includes claims relating to rights of the migrant worker, education, AIDS, retirement age for
female workers and unequal treatment of rural and urban residents in the wrongful death cases.
Ng and He (2014) agrees that land disputes are rising significantly both in the rural and urban
areas of government giving rise to collusion and corruption related issues. Further, the courts
have been dealing with cases relating to assembly and religion, freedom of speech. Furthermore,

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several cases usually give rise to issues pertaining to social justice given that people who failed
out in the economic reforms usually seek protection from the court.
Zhang and Morris (2014) believes that there has been an incline in the support structures
for judicialization that is evident from numerous facts. Firstly, the special interests groups and
social activists are taking help of the courts to demonstrate their agendas. A number of law firms
and lawyers specialize in ‘impact litigation’, which is often associated with the legal aid centers
or are linked to local or national bar association or universities. Surprisingly, courts have gained
its momentum and have become more powerful than it was before as is evident from the incline
in the administrative litigation cases and the fact that the courts have often quashed the decision
taken by the administrative agency.
Limitation of judicialization in dispute resolution and policy making process
Despite the judicial expansion, Koo (2015) argues that the courts play limited role in
policy-making and dispute resolution with respect to certain types of issues or cases, in
particular. The Administrative litigation law permits parties to initiate legal proceedings when
there is an infringement of the legal interest and rights due to a specific administrative act or any
administrative personnel. This legal requirement has been subjected to narrow interpretation to
safeguard those with indirect interests to initiate any legal proceedings. Consequently, such a
narrow interpretation prevents individuals and interest groups who act as ‘private attorney
generals’ from challenging the administration or its personnel.
Koo (2015) agrees that the limitation with respect to the efficiency of the court is a
significant concern in China. It is evident from the fact that quality of judiciary remains to be an
issue, the basic level courts, in particular, the poorer regions. Since most of the basic level courts

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are situated in the rural areas, the cases that these courts mostly deal with include minor property
disputes and small claims, which are usually dealt with by laypersons and magistrates without
any formal legal training for the same. Chow (2015) states that courts in china carry out a
abstract view of specific acts and arrive at decisions based on higher level legislations, thus,
disregarding the local level legislations. Consequently, the refusal of the court to follow local
regulations often causes agencies to change their policies, sometimes, after surmounting local
resistance.
This is evident from the case of Guangxi people’s Congress where it passed regulations
affecting a toll on non-residents, in contravention of the national laws. The regulation was
challenged in High People’s Court where the High Court based its decisions on SPC’s reply,
thus, deciding in favor of the plaintiff. However, the Guangxi People’s Congress threatened to
remove the judge if the decision was in favor of the plaintiff and they retreated only after the
intervention from SPC on behalf of the judge who insisted the court to support the national law.
In most of the cases, majority of the disputes that are brought in the court are settled through
judicial mediation.
However, He (2016) argues that despite the limitations, the Chinese citizens have a
positive attitude towards the courts, though there may be variations in the results on the grounds
of region, nature of the plaintiff, actual experience with the courts and type of cases. Courts are
generally considered as a fair and effective medium to settle legal claims despite the allegations
that courts are easily subjected to corruptions. In order to support the increasing trend towards
judicialization, there are three theories namely, political, normative and economic theories.
According to the political theory, members of the ruling party fear the risks of losing power in
the near future resulting, which they surrender their power to the courts to ensure that their

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policies shall be reviewed by a third party instead of the incoming party and that they will be
subjected to fair treatment. Further, the separation of powers theory states that politicians usually
surrenders power to the courts to avert any deadlock in the system where one political party
would exercise control over the legislature and the other party would control the executive
branch by winning the presidency. He (2016) states that in china, the application of this theory
would imply limited judicialization as the country is a single party state where state and party
have distinct functions but the courts, however, do not review any decisions made by the Party.
As per the economic theories, the most powerful clarification for judicialization is
economic reforms. The investors demand for a forum for resolving disputes efficiently and in a
fair manner and in a reasonably complex economy, informal mechanisms and relational
contracting are not sufficient to resolve disputes between the contracting parties. The four
million cases per year in china establish the fact that a market economy is perceived as a rule of
law economy. Lastly, the normative theory states that the increasing trend in legal globalization
is encouraged by an increasingly assertive international human rights and economic legal regime.
An activist and independent judiciary having broad powers of administrative and
constitutional review is often perceived as advantageous for safeguarding human rights and
enhance economic growth. The extent to which judicialization has been initiated in China due to
rights-protection; it has been established to safeguard property interests, which is needed to
ensure growth. The constraints on political and civil rights and protection of commercial interests
of businesses and property rights have become general feature of the East Asian model of
development.

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Reasons for limited judicialization
Dong, Zhu and Luo (2014) believes that the primary reason, which limits judicialization
in China, is that courts do not provide best forum for resolving the socio, economic and political
issues that arises in country like China, because of their complicate nature. Moreover, several
problems are not even resolved through judicial means as the courts fail to provide any
enforceable and effective remedies for such issues. In addition, Sullivan (2016) states that the
courts fail to provide justifiable reliefs to the legal entitlements of the plaintiffs, thus, not
providing any effective remedy. This is related to cases that are economic in nature such as
retirement payments, labor suits, welfare benefits. The plaintiffs are not entitled to compensatory
benefits due to lack of adequate resources available to the state to satisfy such legal claims.
Furthermore, several cases are inconsistent with the fundamental policy goals.
Environmental protection related cases are difficult to deal with, as people do not have any clear
idea about balancing between the need for clean water and air and the need for economic growth.
Similarly, land-taking cases demonstrate tension between the desire to retain historical places
and the desire to modernize such historical places. Land cases highlight problems pertaining to
lack of rules that often results from the delay made in respect of policy decisions by the
legislature. However, Sullivan (2016) states that the problems associated with the courts should
not be exaggerated as the courts are competent to deal with most of the cases reasonably well
and the parties to the suit are generally satisfied with the performance of the court and the reliefs
that is granted to such parties to the cases. Despite the satisfaction of the parties to the suit in
respect of the performance of the court, the courts are often fail to deal with certain form of cases
especially cases that are politically sensitive and those portraying the growing difficulties of the
developing countries.

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Dejudicialization
One of the primary reasons that signify a pushback on judicialization is that the judges as
well as the government officials find it difficult for the courts to deal with certain types of cases
that are sensitive and political in nature, in particular. Notwithstanding the general growing trend
towards better access through legal aid, the simplification of filing procedures and the waiving of
the court fees, the limited access to the courts with respect to certain controversial cases is
regarded as a significant reason for dejudicialization. This is evident from the fact that Courts
often recommended the plaintiffs to file cases especially those, which are politically sensitive in
a higher-level court or another jurisdiction.
The courts in China have issued rules that prevent parties from giving repeated petitions
to the court for retrying the cases. If the parties are not satisfied with the decisions of the court
after following the normal appeal process, they are recommended to seek remedy through
administrative or political channels. The courts have provided the parties with another
requirement where they are advised to exhaust all the available administrative remedies before
seeking remedies to court.
The other significant reason of judicialization is the renewed emphasis given on
mediation. Due to the inconvenience and difficulty, that the court faces while determining
policies and laws, the Supreme People’s Court (SPC) have recently began to lay more emphasis
on mediation even in cases related to administration.
Mediation: an effective alternate dispute resolution method
The SPC believes that mediation shall permit the parties to arrive at solutions that is
mutually acceptable, thus, permitting the courts to avert making any difficult decisions that are

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not easy to enforce. Mediation has always been a significant form of dispute resolution in China.
Even during the Mao era, mediation persists to be the most popular means for resolving disputes
and conflicts. Ji (2014) states that in the contemporary era, there are several forms of mediation
such as mediation by People’s Mediation Committees; specialized mediation like labor
mediation, formal and informal commercial mediation, judicial mediation and mediation that
takes place during arbitration.
According to Du, Ronen and Ye (2015), another significant reason behind the shift from
litigation to mediation was the inability and incompetency of the courts to endow with adequate
legal remedy or resolve issues that accelerated pain in developing countries. Such cases include
entitlements like medical and welfare claims, socio-economic rights etc. The inability of courts
to resolve conflicts led to an inline in petitions before the government entities and courts by
aggrieved parties seeking legal reliefs and enhanced social disturbances. Under such
circumstances, mediation is considered as a broader strategy for maintaining a harmonious
society. In order to maintain efficiency, some judges have ensured that mediation was conducted
in manner that is cost-effective as well as less time consuming. The parties to the dispute are
asked if they are willing to resolve the dispute.
In Ansung Housing Co. Ltd v People’s Republic of China, ICSID Case No. ARB/14/25
and Hela Schwartz GmbH v People’s Republic of China, ICSID Case No. ARB/17/19, the
issues were resolved using the PRC Arbitration process. Peerenboom (2014) states that the
socio-economic cases including welfare claims, pension, labor disputes and environmental issues
are a major concern for the country as the institutions are weak and the lack of financial
resources acts as hindrance to resolve such socio-economic disputes. The dispute resolution
methods of the socio-economic cases include mediation, arbitration, public hearings and the

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administrative reconsideration. However, these alternate dispute resolution methods have been
criticized for being inconsistent with the rule of law. The mediator of the people did not posses
legal training and some cases are decided based on factors other than law and the parties are
forced to accept settlements, thus, depriving such parties of their legal entitlements and rights.
Conclusion
From the above discussion, it can be inferred that courts are one of the ways to resolve
any conflicts or address any social issues as a last resort in any nation. As per the present nature
and development of the disputes in China, the courts are incapable of providing adequate
solution in certain types of cases, in particular the politically sensitive cases and those that reflect
the growing concerns of the developing countries. The failure of courts to provide reliefs often
results in dissatisfaction of the parties leading to social protests and unrests.
A certain level of judicial retrenchment or dejudicialization is considered as a judicial
choice that requires people to think about institutions that would be appropriate to deal with such
cases and disputes. Such institutions shall also reduce the burden of courts by dealing with cases
that the courts are unable to determine such cases. Dejudicialization however, should be
subjected to limitations in certain arenas. The general trend shall persist towards better and
greater judicialization, which would also, includes cases related to administration.

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