A comment on the rise and fall of the Supreme People's Court's reply to Qi Yuling's case.

• Author: Zhiwei Tong
• Position: Infringement upon Qi's right of name and right to receive education - Symposium: Constitutional Review in the People's Republic of China

On July 24, 2001, the Supreme People's Court of China (SPC or the Supreme Court) promulgated a new judicial interpretation. This interpretation, commonly referred to as the "Reply to Qi Yuling's Case" took effect on August 13, 2001. (2) On December 18, 2008, however, the Supreme Court annulled twenty-seven judicial interpretations at once, including the Reply to Qi Yuling's Case. The reason given for the annulment of the Reply was that it was "no longer applicable." (3) From its birth to its demise, the Reply survived seven years, four months, and five days in China's legal system.

Although it was never actually applied to a single case after Qi Yuling's Case, there were disputes regarding the Reply in the Chinese legal circle, which attracted almost all of the foreign scholars studying Chinese law. (4) From the very beginning, I have been one of the major participants in this long-lasting discussion and the last resolution fully adopted my point of view. (5) For many years, I insisted that the Reply to Qi Yuling's Case was unnecessary and suspiciously unconstitutional. (6)

I will address the following questions, which I believe may be difficult for foreign scholars to understand, and which may even be misunderstood by many Chinese legal professionals. First, what is the Reply to Qi Yuling's Case? Second, what is the problem in China's legal practice revealed by the disputes around the Reply? And third, what does the Reply mean and what does its annulment indicate?

1. A BRIEF INTRODUCTION TO QI YULING'S CASE AND THE SUPREME COURT'S REPLY

   Both Qi Yuling and Chen Xiaoqi were middle school students in Tengzhou City, Shandong Province. In 1990, Qi Yuling passed the entrance exam for the technical secondary schools while Chen Xiqoqi failed. That same year, the Commercial School of Jining City in Shandong Province sent Qi Yuling a letter of admission. However, Chen Xiaoqi's father and the head of Chen Xiaoqi's middle school conspired to intercept the acceptance letter without notifying Qi Yuling. Later, Chen Xiaoqi registered and studied at the Commercial School, using Qi Yuling's name. Chen continued to use Qi's name when she finished her studies and went on to work in a branch of China Bank. It was not until 1999 that Qi Yuling happened to learn the full story. In January of 1999, Qi Yuling filed a lawsuit against Chen Xiaoqi and others for infringement upon her right of name and her right to receive education. Qi's case had two issues: first, whether Chen Xiaoqi violated Qi Yuling's right of name, and second, whether Chen Xiaoqi violated Qi Yuling's right to receive education.

   In May of 1999, the Zaozhuang Intermediate Court handed down an opinion, affirming that Chen had violated Qi's right of name, ordering Chen to stop further infringement upon Qi's right of name, and ordering Chen to pay Qi 35,000 yuan in emotional distress damages. However, the court found that Chen Xiaoqi and others had not infringed upon Qi's right to receive education. (7) This led to Qi Yuling's appeal to the Superior Court of Shandong Province on the sole issue of whether Chen Xiaoqi had violated Qi Yuling's right to receive education.

   On appeal, the Superior Court of Shandong Province held that there was a very difficult problem of law involved in deciding whether Chen Xiaoqi violated Qi Yuling's right to receive education. The key legal issue, which the Superior Court had no idea how to deal with, was Qi Yuling's argument that the right to receive education was a constitutional right, rather than a civil right written into the general Principles of the Civil Law of the People's Republic of China. (8) Because the Superior Court of Shandong Province was unsure of how to best address this argument, it reported to the Supreme Court for further interpretation according to Article 33 of the Organic Law of the People's Court. (9)

   Almost two years later, on July 24, 2001, the Supreme Court promulgated the Reply, stating, "[b]ased on the facts, after consideration, the Court holds that, Chen Xiaoqi and others have infringed upon Qi Yuling's fundamental right to receive education guaranteed by the Constitution through the violation of her right of name, and they have inflicted Qi Yuling concrete damages, so they should bear corresponding civil liabilities." (10) The Reply took effect on August 13, 2001.

   The Superior Court of Shandong Province thus continued its hearing and, in its final decision, held that "Chen Xiaoqi and others should bear civil liabilities for their infringement upon Qi Yuling's right of name and they have in fact violated her constitutional right to receive education." (11) In the end of its opinion, the Superior Court also declared that Qi Yuling won the appeal after serious discussions within the Judicial Committee, according to Article 46 of the Constitution, Article 9 of the Education Law, and Article 120 of the General Principles of the Civil Law. The Court ordered Chen Xiaoqi and others to pay Qi 100,000 yuan for economic losses and emotional distress damages.

2. THE MOTIVATION FOR AND BACKGROUND OF THE SUPREME PEOPLE'S COURT'S REPLY

   The ultimate goal of the Supreme Court in responding to the Qi Yuling case was definitely not confined to solving a concrete legal problem in a single case, but was rather to expand judicial power by creating a precedent in China that gave the courts a power of constitutional review similar to that of the judiciary in the United States. In China, however, it would have been wiser to carry out this kind of experiment quietly, because it lacked clear constitutional and political bases. However, the judge who prepared the Reply in the Supreme Court did so without any misgivings.

   On the same day the Reply was issued, the chief judge of the No.1 Civil Tribunal of the Supreme Court--Huang Songyou, who was in charge of the Reply at that time--published an obviously well prepared article, stating he hoped to copy the example of Marbury v. Madison (12) in order to establish a system of constitutional review in China. (13) He said, "We can gradually implement the Constitution in litigation procedures and allow courts to rely on the Constitution in making their ruling. As we don't have a constitutional court, we can learn from the U.S. model and confer jurisdiction over constitutional litigation to ordinary courts." (14)

   The following three factors are important to note: first, Songyou Huang was the major drafter of the Reply to Qi Yuling's case; second, his article was published in People's Court Daily, which is the official newsletter of the Supreme Court; and third, the leaders of the Supreme Court silently tolerated his statements. These factors gave people reason to believe that his statement reflected the Supreme Court's real attitude. However, the theory that the Supreme Court pursued in the Reply had no textual basis in the constitution, nor did it have any basis in legal theory or political philosophy in China. one question we should ask is why responsible judges of the Supreme Court had such a revolutionary intention and the courage to enact and carry out the Reply. It looks, at present, that this result was caused by a multi-faceted situation. Among the...