Responsive justice in China during transitional times: revisiting the juggling path between adjudicatory and mediatory justice.

• Published date: 01 January 2015
• Author: Gu Weixia,Weixia, Gu
• Date: 01 January 2015

China has been discussed in international literature as a transitional state in both social and economic senses; however, scholarly literature analyzing how China's justice system responds to the country's social and economic transitions is scant. This Article studies the international "transitional justice" framework that examines justice systems in economic, societal, and political transition in post-Communism Central and Eastern European (CEE) jurisdictions. Although China is not a transitional state in a political sense, the transitional justice framework, particularly its analyses on how successor regimes in CEE countries deal with the aftermath of economic restructuring and societal reparations through the justice system, is of relevance to China's ongoing judicial reforms and its future development. By comparing the judicial situation in China to that of CEE countries during transitional times, this Article attempts to analyze China's distinctive judicial response to her massive economic and societal transformation so as to conceptualize "responsive justice " in China during transitional times.

I. INTRODUCTION

China has been discussed in international literature as a transitional state in social and economic senses; (1) however, literature analyzing how China's justice system responds to the country's social and economic transitions is scant. This Article studies Professor Teitel's "transitional justice" framework, which examines how the justice systems in post Communism Central and Eastern European (CEE) jurisdictions respond to massive economic, societal, and political transitions. (2) China is not a transitional state in the political sense wherein the state is transitioning from authoritarian rule to building a democracy; however, international studies on "transitional justice," particularly on how successor regimes in CEE countries deal with the aftermath of economic restructuring and societal reparations during transitional times through the response of the judiciary, are pertinent to current Chinese society and governance, and will shed light on China's ongoing judicial reforms as well as its future development.

This Article gives a comprehensive analysis of the above issues and is intended to make three contributions. First, by comparing current judicial situations in China to the international "transitional justice" framework, this Article attempts to analyze the distinctive response of China's judiciary towards the country's massive economic and societal transitions so as to conceptualize "responsive justice" in China during transitional times. In doing so, this Article compares China and CEE jurisdictions as transitional states in social and economic senses, and examines the judiciary's responses to the transitions within both jurisdictions. Through comparative research, this Article concludes that China's justice system displays salient features that distinguish it from other transitional states in responding to massive social and economic transformation. Second, as China does not fall squarely into the category of a transitional state, particularly in regard to its political system, this Article proposes the new idea of "responsive justice" and attempts to conceptualize it for China. This will also contribute to the international transitional justice literature and be relevant to judiciary and justice development discourses in jurisdictions not undergoing political transformation. Third, with respect to China's future judicial path, this Article identifies the tensions, worries, compromises, and expectations of different currents in China's ongoing judicial reform as the country faces deepening marketization and intensifying social movements. Facing many challenges, the author argues that the Chinese government should reconsider the path of China's judicial reform and the importance and relevance of both Western experience (universal-value-based rule-of-law, judicial independence, etc.) and her home-grown alternatives (mediatory justice, but in proper forms) so as to turn "responsive justice" into serious judicial justice.

This Article is organized into four parts. Following the Introduction, Part II discusses China's three rounds of judicial reforms from 1999 to 2013. It examines the checkered development of judicial reforms in China between adjudicatory and mediatory justice over the past one and a half decades. Comparing China's recent judicial responses to economic and societal changes with the international framework on transitional justice featuring CEE jurisdictions, Part III attempts to identify the distinctive features present in the current Chinese justice context in responding to economic and social transitions and to conceptualize "responsive justice" in China. Part III also argues that, to serve China's deepening marketization and intensifying social movements, mediation can still play an important role and has socioeconomic impact in the Chinese justice system; however, judicial mediation should be adopted legally and properly rather than for purely political motives. Part IV concludes the Article and looks at the future direction of judicial reform in China for rendering real judicial justice.

II. CHECKERED DEVELOPMENT OF JUDICIAL REFORM OVER ONE AND A HALF DECADES (1999-2013): PENDULUM SWINGS BETWEEN MEDIATORY AND ADJUDICATORY JUSTICE

A. From Mediatory to Adjudicatory Justice

In the past one and a half decades, the Supreme People's Court ("SPC") initiated three rounds of reforms and measures to improve China's judicial infrastructure. The first of these reforms was the Five-Year Reform Plan of the People's Court (First-Five-Year-Reform-Plan) from 1999-2003, (3) which focused on promoting the quality of judges through a more depoliticized judicial selection system. (4) Subsequently, in October 2004, the SPC promulgated the Outline of the Second-Five-Year Reform Plan of the People's Court (Second-Five-Year-Reform-Outline) from 2004-2008. (5)

The First-Five-Year-Reform-Plan took place against the backdrop of steady growth in the number of court cases, especially in large coastal cities. Pressure gradually increased on judges during the years prior to the First-Five-Year-Reform-Plan to decide cases quickly, relying on formal rules with little time to consider the social consequences of their judgments. (6) With the core of these judicial changes being the promotion of judicial justice and efficiency, the emphasis on substantive justice shifted to procedural justice, which in turn indicated a shift from judge-centric justice to party-centric justice. (7) These changes, focusing on judicial professionalism, procedural justice reform, and the introduction of adversarial proceedings, led to the steady decline of mediated cases from the mid-1990s to the mid-2000s. (8) Chinese authorities, under the First-Five-Year-Reform-Plan, attempted to reverse some of these changes beginning in 2002 by restoring people's mediation committees administered by local villagers and residents committees, which had previously been spurned during the legal changes of the 1980s and 1990s. (9)

The Second-Five-Year-Reform-Outline set bolder reform goals, as it laid out no fewer than fifty objectives for upgrading the Chinese court system. As a whole, the provisions demonstrated a cautious awareness of the importance of greater professionalism, independence, and integrity of the judiciary. At the same time, the provisions aimed to reduce local protectionism and stamp out corruption while acknowledging the leadership by the Party and supervision by people's congresses at each level. (10) On collective independence, the SPC sought, through the Second-Five-Year-Reform-Outline, to enhance the autonomy of local people's courts and began to explore the establishment of guaranteed financing for local courts by inserting provisions in central and provincial government budgets. (11) Perhaps the program's boldest proposal was loosening the grip of local power holders over local courts. The SPC called for, "within a certain geographic area, the implementation of a system of uniform recruitment and uniform assignment of local judges in basic and intermediate courts by the upper level people's courts." (12)

Judicial personnel were required to pass the national judicial exam to get qualified (which was reflected in the amended Judges ' Law in 2001). (13) Existing judges now needed to participate in annual judicial training to keep up-to-date on professional knowledge. (14) Some other legal education programs in the area of commercial law, particularly international commercial transactions, also began in China in an attempt to respond to the country's accession to the World Trade Organization ("WTO"). For example, beginning in 1999, provincial and intermediate-court-level judges began attending the Tsinghua-Temple International Business Law program sponsored by the SPC, with more than 500 judges having since graduated from the program. (15) Local judges from coastal area courts have had more chances to study abroad due to the more developed economies and more liberal administrations of those areas. (16) This supports the findings of better enforcement records of both judgments and arbitral awards in coastal city courts. (17) These measures are seen as important steps to improve the institutionalization and professionalization of Chinese courts.

Despite the bold objectives to cultivate the Chinese judiciary's professionalism, beginning in 2003, judicial reform projects underwent criticism for importing formal law and legal institutions that might have satisfied urban users but that completely failed to harmonize with practical realities in China's rural areas. (18) There were also criticisms that, under the corrosive influence of Western legal concepts, Chinese courts and officials had been led astray from their populist roots. (19) Alongside the castigation of judicial reform...