Chinese Judges Research Articles

Contextualizing Relations Between Presumptions and Legal Fictions: An Analysis of the Chinese Civil Code

This research aims to achieve two goals: first and foremost, clarify the similarities and dissimilarities among statutory (legal) presumptions, judicial (factual) presumptions and legal fictions. The second is to provide a set of theoretical tools that can correctly distinguish two types of presumptions from legal fictions, so as to facilitate the accurate identification and application of those three by Chinese judges in their judicial practice. This study mainly adopts two research methods: legal theory analysis and law article analysis. The research results of this paper mainly are: first, compared with legal fictions, two types of statutory presumptions are more or less refutable. Their differences are as follows: on the one hand, the scope of refutation is different; on the other hand, the difficulty of refutation is different, too. Second, litigators are forbidden to refute the conclusive part of an applied legal fiction, but they can disprove its premise fact. By nature, that refutation is “a challenge against the lawfulness of that legal fiction’s usage”. Third, for related ultimate facts, the using of statutory presumptions will not lead to their reversed burden of persuasion. Fourth, when the principle of presumptive fault is applied, as for the issue of whether the defendant has subjective fault or not, the related burden of persuasion will be reversed to be assumed by the defendant. By comparison, in the usage of statutory presumptions, there will be no inversion of burden of persuasion. Fifth, direct denials, indirect denials and defenses can be used to rebut premise facts of the legal fiction, basic facts of two types of statutory presumptions, and presumptive facts of the refutable statutory presumptions. Sixth, when direct denials and indirect denials are launched, the evidence is the disproving evidence (Gegenbeweis). When the defenses are raised, the evidence is the proving evidence (Hauptbeweis). Seventh, the successful effect of discrediting basic facts of refutable statutory presumption: the using of that presumption lacks legitimacy, so the corresponding presumptive facts are untenable, too. Eighth, the successful effect of contradicting the presumptive facts of the refutable statutory presumption: while those presumptive facts are proved groundless, the related basic facts will be considered as confirmed continually. And finally, the successful effect of disproving basic facts of irrefutable statutory presumption: because it has been proved that the using of that presumption is lack of lawfulness, the related presumptive facts can not be sustained, either. By making use of those aforesaid study results, 28 statutory presumptions and 30 legal fictions are identified in the Civil Code of China.

Mismatched Perceptions Between Assessors and Others: An Empirical Examination of the People’s Assessor System in China

Despite efforts to rejuvenate the people’s assessor system in recent years, it still suffers from a number of problems such as elitism in the selection of assessors and the lack of meaningful assessor participation and function. Past empirical studies in this field are still limited, and to date, none has compared assessors’ perceptions about the system with those of judges and other key participants. Based on survey and interview data conducted in Hunan province, this study adopts a mixed method approach to examine potential perception mismatches between assessors and other legal practitioners in the existing system. Findings suggest that there exist significant disjunctions between what assessors are capable of and desire to accomplish and what others believe. Often, Chinese judges and legal professionals have underestimated the potential values and contributions of the assessors. Such perception mismatches hinder the practice of the system, and have a real effect on assessor motivation and performance.

The Judge as a Negotiator: Claims Negotiating and Inequalities in China’s Judicial Mediation

I propose a three-way model of negotiation on judicial mediation: the judge as a negotiator. Primarily drawing on ethnographic observations of a civil judge in a basic-level court in hinterland China, I document Chinese judges’ tactics at the micro level. I find that the Chinese judge not only “expands” and “narrows” claims. In addition, included in her repertoire are “repression,” “conversion,” and “facilitation.” Following this, I explore the inequitable consequences of the judge’s apparent success in disposing cases. In negotiating the claims, the judge convinces or cajoles litigants who are economically vulnerable, inexperienced in the courtroom, legally bewildered, or timid in confronting the judges’ authority, into the settlement. But she often facilitates the claims of litigants who can mount credible political resistance. The interests of those who are vulnerable in one way or another, but not in a position to initiate political threats, are often dispensed. Inequalities are thus generated, reproduced, and reinforced. This three-way negotiation model provides a new perspective to study judicial mediation comparatively.

Brief for Amici Curiae, Shanghai Yongrun Investment Management Co., Ltd. v. Kashi Galaxy Venture Capital Co., Ltd.

This amicus brief argues that New York’s Appellate Division should reverse the Supreme Court’s decision to deny recognition and enforcement of a Chinese judgment on the ground that China lacks impartial tribunals and procedures compatible with due process. The brief makes three main arguments. First, the reasoning of the decision below would end the recognition and enforcement of Chinese judgments in New York State because it indicates that Chinese courts can never produce judgments entitled to recognition. Because other states adopting the Uniform Acts have the same ground for non-recognition in their laws, the effect of the Supreme Court’s decision may extend beyond New York. Second, the reasoning of the decision below applies to countries other than China. Country Reports on 141 other countries express concerns about judicial independence or corruption similar to those on which the Supreme Court relied. Third, the decision below would likely end the recognition and enforcement of U.S. judgments in China. China has recognized U.S. judgments based on reciprocity, but such reciprocity will be difficult to maintain in the face of a decision condemning the Chinese judicial system as incapable of ever producing a judgment entitled to recognition.

Perfectionism and Psychological Distress among Chinese Judges: Do Age and Gender Make a Difference?

Background:Judges may experience mental health problems, which reduces their performance in juridical cases, and constitutes a great threat to both the authority of law and social justice. This study aimed to assess the prevalence of psychological distress among judges and examine the effect of perfectionism on psychological distress with age and gender as the moderators.Methods:This survey was carried out in person with 565 Chinese judges in 2016, using the Almost Perfect Scale-Revised and the Kessler Psychological Distress Scale. The effects of perfectionism on psychological distress was explored by Structural Equation Model (SEM), and the moderating effects of age and gender were tested by Multi-group analysis.Results:Psychological distress was reported by 89.20% of the judges surveyed. Discrepancy had a significant positive effect on psychological distress, but order had a significant negative effect on psychological distress, with high standards exerting no significant effect. Age had a significant moderating effect, whereas the moderating effect of gender was not significant.Conclusion:The three dimensions of perfectionism exerted different effects on psychological distress of Chinese judges, and the relationships were moderated by age.

The internet echo chamber and the misinformation of judges: The case of judges’ perception of public support for the death penalty in China

In authoritarian regimes, without voting as a channel to gather public preferences, online public expression may become a major type of public opinion the government collects. However, online information can be biased and thereby mislead decision-makers. Combining data from a survey of judges and a national population survey, this article provides evidence that i) Chinese judges rely on online public opinion to infer public attitudes toward the death penalty, ii) online information is biased – online opinion is more punitive than the general public opinion, and, iii) biased online information seems to have a strong influence on judges’ perception of strong public support for the death penalty, and this may explain why Chinese scholars, lawyers, and other practitioners have persistently overestimated public punitiveness. The findings reveal a less discussed peril of the internet echo chamber: its misleading effect on the information collection process of the government, especially in autocracies.

The Rule of Climate Policy: How Do Chinese Judges Contribute to Climate Governance without Climate Law?

AbstractChina's climate governance is distinguished by the contrast between an abundance of policies on climate change and the lack of legally binding laws. This article argues that Chinese courts bridge this difference, which fosters a ‘rule of climate policy’ rather than a strict rule of law. The effective authority of Chinese climate policy is made possible in practice both by provisions of the Chinese Constitution and the prevailing use of legal reasoning. China's constitutional design of ‘ecological civilization’ delegates the duty and the power of managing climate change issues to the executive branch of its government. Most Chinese documents on climate governance have no binding legal force, which means, according to positive law, that they cannot serve as legal grounds for judicial decisions. Chinese judges, in deciding climate-related disputes, must combine legal provisions and non-binding materials to achieve regulatory goals. They use non-legal materials to support statutory or contractual interpretations and determine the existence or limits of rights, which alters the meaning and scope of existing legal terms and principles. This rule of climate policy is possible in the courtroom because judges justify public policy considerations with arguments of principle that are substantiated in various non-binding climate plans.

Precedents and Chinese Judges: An Experiment

Abstract We experimentally study the decision-making process of judges in China, where judges are specifically prohibited from citing prior decisions as the basis for their judgments, and where, in past surveys, most judges explicitly stated that precedent played at most a marginal role in their decisions. In an experiment resembling real-world judicial decision making, we find, however, that precedent seems to have a significant influence on the decisions of the participating Chinese judges. Indeed, judges spend more time reading prior cases than statutes, and they typically read precedents before they access the statutes. On the other hand, judges rarely mention the precedent in their reasons. Our findings suggest that the Chinese judiciary operates much more similarly to its homologues in the United States and elsewhere than their written opinions and much folklore would suggest.

Can Restorative Justice Reduce Incarceration? A Story From China

This paper attempts to investigate the capacity of restorative justice (RJ) to reduce incarceration in China. It utilizes a “top-down” approach to explore how macro transitions in Chinese politics and criminal justice translate into micro implementation of RJ, which ultimately affects incarceration. Interviews with Chinese police, prosecutors, and judges revealed how minor injury cases were diverted by RJ throughout the criminal justice system. In addition, 172,731 judicial judgments were coded to estimate RJ’s effect on sentencing lengths and the probability of probation for offenders. The findings suggest that the Chinese approach to implementing RJ does liberate numerous offenders from harsher incarceration. Yet, Chinese RJ reforms remain a thin version without deep roots in civil society, in “bottom-up” social movement excellence, or thorough foundations in restorative Confucianism with roots in ancient Chinese society. RJ is still a marginalized part of a Titanic that resists turning away from the punitive “Strike-Hard” ideology.

Corporate judicial dissolution in China

AbstractCorporate judicial dissolution was formally introduced into Chinese Company Law in 2005, and yet there has been scant academic research exploring the function and implications of this procedure. This paper aims to rectify this by offering a comprehensive empirical study of the practice. Research shows that the procedure has been increasingly exercised by shareholders, though the total number of such cases is relatively small. The research also revealed many flaws in the procedure, which is not surprising; teething troubles are all but inevitable for a new procedure. The study also reveals that the courts do not strictly follow the relevant provisions of the Company Law and Judicial Interpretations when adjudicating judicial dissolution cases. Instead, Chinese judges appear to have created their own specific rules, a practice that runs counter to China's current legal system. Finally, this article proposes that the shareholder oppression could be introduced and enacted as one of the grounds to initiate the judicial dissolution.

A Typology of Judicial Liability for Error in Chinese Courts

Based on a fieldwork investigation of frontline judges in Chinese courts, this article provides empirical evidence for understanding the nuances of accountability of Chinese judges for error. The study looks at the wider perspective of judicial errors (encompassing mistakes, omissions, faults and wrongdoings committed by judges at any stage of the proceedings), as opposed to simply, incorrectly decided cases. We incorporate “the seriousness of the consequence of the error” and “the cause of the error” to develop a two-by-two matrix to explain the nature and gravity of liability of the judge. It is discovered that the same error may result in varying magnitudes of sanctions because of the different social and political consequences that emerge from the error. An error of institutional cause attracts lighter sanction as compared to an error of individual cause when the consequence is of the same magnitude. We also argue that the judicial reform in 2015 did not fundamentally transform the logic of disciplining judges and the way judges are held accountable for their errors in the Chinese courts as the reform did not bring about any major change in the institutional environment. The typology thus provides a comprehensive theoretical framework for understanding judges’ accountability for error and judicial discipline in China.

Elicitation of US and Chinese expert judgments show consistent views on solar geoengineering

Expert judgments on solar geoengineering (SG) inform policy decisions and influence public opinions. We performed face-to-face interviews using formal expert elicitation methods with 13 US and 13 Chinese climate experts randomly selected from IPCC authors or supplemented by snowball sampling. We compare their judgments on climate change, SG research, governance, and deployment. In contrast to existing literature that often stress factors that might differentiate China from western democracies on SG, we found few significant differences between quantitative judgments of US and Chinese experts. US and Chinese experts differed on topics, such as desired climate scenario and the preferred venue for international regulation of SG, providing some insight into divergent judgments that might shape future negotiations about SG policy. We also gathered closed-form survey results from 19 experts with >10 publications on SG. Both expert groups supported greatly increased research, recommending SG research funding of ~5% on average (10th–90th percentile range was 1–10%) of climate science budgets compared to actual budgets of <0.3% in 2018. Climate experts chose far less SG deployment in future climate policies than did SG experts.

Pressures on Chinese Judges under Xi

Drawing on interviews with Chinese judges, this paper reveals the major effects of judicial reforms during the past half decade. It focuses on the ramifications of a new quota and responsibility system for judges and on the strengthening of central-government controls over the judiciary. The paper differentiates between what the Party considers to be legitimate and illegitimate influences on judges, which sheds light on recent legal developments and the role of the judiciary in Chinese governance. The article finds that illegitimate influences on courts have declined palpably, but what the Party perceives to be legitimate influences have persisted and even been reinforced. More direct, comprehensive control over judges has replaced previously fragmented, multilayered mechanisms. Despite important changes, the reforms did not lead to institutional independence of Chinese judges, nor has the stature of the courts in China’s political landscape changed.

Legal reasoning: a textual perspective on common law judicial opinions and Chinese judgments

Abstract The issue of legal reasoning has been addressed widely in legal academia and practice, but rarely considered by linguists. This paper, employing the Systemic Functional Linguistics (SFL) genre perspective and the discourse semantics system as its conceptual framework, attempts to reveal the different ways of legal reasoning of common law judicial opinions and Chinese judgments from a textual perspective. One judicial opinion of a British case and one judgment of a Chinese case are explored for comparison. The findings suggest that Chinese judgments as a legal genre, compared with its counterpart of common law judicial opinions, unfold not in waves construed by multilayered Theme-and-New structure, but in chunks establishing no prediction or consolidation. We argue that this mode of text unfolding in waves is vitally important for readers to follow the judge’s reasoning and construct a sense of fairness and justice. We suggest that the periodicity and the generic structure of common law judicial opinions would be a valuable frame of reference for the Chinese judicial reform on judgments in improving its legal reasoning.

Pressures on Chinese Judges under Xi

AbstractDrawing on interviews with Chinese judges, this paper reveals the major effects of judicial reforms during the past half decade. It focuses on the ramifications of a new quota and responsib...

The labour disputes of Chinese posted workers in the B&amp;R countries

PurposeThis study aims to decrypt the efforts made by Chinese people's courts nationwide to protect the rights of Chinese posted workers in the Belt &amp; Road (B&amp;R) countries by investigating labour litigation cases with an extraterritorial application of Chinese labour law (under the “doctrine of overriding mandatory labour rules”).Design/methodology/approachThis study collected all labour litigation from 2014 to 2018 brought forward by Chinese posted workers in Chinese courts against Chinese enterprises regarding the performance of employment contracts in the B&amp;R countries where Chinese labour laws were mandatorily applied under the doctrine of overriding mandatory labour rules. The study adopted a qualitive research approach to analyse the compiled cases to explore their characteristics and effects.FindingsThis study found that the volume of labour disputes in the B&amp;R countries had a somewhat positive correlation to the amount of investment from China. However, this correlation was rather superficial when compared with the correlation to the type of industrial sector (e.g. the construction sector) and to the claim category (e.g. remuneration claims). Moreover, labour disputes in both the B&amp;R countries and China shared a great deal of similarity with regard to their concentration in certain sectors and in certain types of claims. Therefore, mandatorily applying Chinese labour law could be convenient for Chinese workers returning from abroad who seek remedies and could allow Chinese judges to issue affirmative decisions regardless of the territory in which the worker was posted.Research limitations/implicationsThe cases collected by this study were limited to those filed in China by Chinese workers who were hired by Chinese enterprises and sent to work in the B&amp;R countries and did not include those filed in the B&amp;R countries by Chinese posted workers. Future research should therefore attempt to gather a broader range of labour disputes to further clarify the issues and need for labour protection for Chinese posted workers in the B&amp;R countries.Practical implicationsThis study argues that the doctrine of overriding mandatory labour rules is not entirely unproblematic because it might arbitrarily rule out the standards set by foreign labour legislation that could be more favourable to workers or offer them greater protection. Therefore, giving judges a certain degree of discretion is imperative to allow them to apply foreign labour standards when they have been proven to benefit workers.Originality/valueApart from a handful of reports on individual cases, there have been very few empirical studies regarding the general picture of labour protection for Chinese posted workers in the B&amp;R countries. This study has adopted a novel approach to collect information on labour disputes in the B&amp;R countries and to facilitate a qualitative analysis to test the practical implications of the doctrine of overriding mandatory labour rules.

The Best Interests of the Child Principle in Residence Disputes after Parental Divorce in China

Abstract This article analyses how the best interests of the child principle have been implemented in residence disputes following a parental divorce in China. In doing so, it will analyse the Chinese Marriage Law 2001 and the Specific Opinions on Child-upbringing Issues after Parental Divorce, drawing on an empirical study conducted by the author involving 300 litigated cases over residence disputes in courts. This study shows that the continuity of circumstances and the abilities of each of the parents are used as the primary and secondary criteria for residence judgments, respectively. And it appears that Chinese judges prefer certain easily ascertainable factors, eg parents’ financial ability and the continuity of circumstances, to other internally emotional factors, eg children’s emotional needs and attachments. In addition, a considerable number (69 per cent) of the judges tend to simplify the decision-making process by only considering a single factor alone, or even no specific factor. In view of this, several legislative proposals for the statutory provision of residence disputes in the forthcoming Chinese Civil Code are put forward.

Air pollution lowers high skill public sector worker productivity in China

China’s urbanites continue to be exposed to high levels of air pollution. Such pollution exposure raises mortality risk, lowers the day-to-day sentiment of the population and lowers outdoor worker productivity. Using a unique set of data for Chinese judges, we document that local air pollution also lowers the productivity of high skilled government officials who work indoors. Our new evidence on the effects of air pollution highlights both the challenge that pollution poses for quality of life and workforce productivity and indicates that the Chinese urban elites gain co-benefits when their cities burn less fossil fuel.

STRONG ECONOMIC DEVELOPMENT WITHOUT JUDICIAL INDEPENDENCE IN CHINA: A REVIEW

Over the last four decades, China has sustained extraordinary economic development despite Western assertions of under-constructed economic markets and the lack of an independent adjudicative process. The purpose of this paper is to set out the context of China’s judicial independence and high economic development scenario in the global economy. The paper aims to establish that vast economic expansion is possible without the conventional concept of an independent judiciary in which China provides an important example for the world. The study is mainly qualitative in nature and takes the analytical approach. The data and statistics have been collected from sources of the World Bank, IMF, WTO, UNCTAD, The World Factbook of the CIA, and the Chinese National Bureau of Statistics. The content analysis references the Chinese Constitution and judges law, reports of the Supreme People’s Court, books, journal articles, newspaper articles, media reports, and internet documents. The findings of the study are that China preserves “adjudicative independence” as a unique feature instead of embracing the Western concept of judicial independence that promotes the confidence of investors to make more investments. Additionally, the initiatives of “Made in China” and “One Belt, One Road” attach new wings to China’s emergence as the world’s crucial economic power. The article concludes that China’s experience provides a lesson for policymakers and economists of other developing or transitional countries struggling with weak legal and court systems, and emerging financial markets. The study strengthens the flourishing literature on the connection between judicial independence and economic development.

New Private Law? Intellectual Property 'Common-Law Precedents' in China

China has established a dynamic legal system by using guiding cases to improve adjudicative consistency. The guiding cases are de facto binding as “common-law precedents” and the only binding cases in China. The Supreme People’s Court (SPC) selects, compiles, and publishes guiding cases. In China’s dynamic legal system, the U.S. notably influences the intellectual property (IP) legal mechanism and the legal rationales for adjudicating IP disputes. Some amendments to the IP statutes of China are in response to actions and criticisms by developed countries, especially the U.S. The IP guiding cases reflect the voluntary development of the IP regime and the enforcement of the IP statutes in China. In the U.S., IP laws are mainly considered as private law, but they do involve some public law characteristics, as shown by the intervention of legislators and the development of statutory interpretation by the courts. These public law characteristics do not transform IP laws into public law, but they evoke the concept of New Private Law in modern IP laws. This study reviews all twenty-two IP guiding cases (i.e., patent, copyright, trademark, anti-unfair competition, anti-monopoly) in China and compares them with corresponding judicial precedents in the U.S. I argue that Chinese IP guiding cases are not conventional private or public law, but instead can be explained under the theories of New Private Law. The IP guiding cases follow public policies to be part of governance and, as a result, show their influence on policymakers and legislators. Consistent with the concerns of U.S. IP holders, these guiding cases show that Chinese courts are instructed to be conservative in awarding both damages and injunctions. The courts function as a gatekeeper and consider IP quality to prevent over-rewarding IP holders either through the judicial system itself or the market when government agencies liberally or incautiously granted the IP rights. For trademark and unfair competition cases, the courts are instructed to give public apologies for substituting economic damages to IP holders. Moreover, the IP guiding cases suggest that the SPC and Chinese judges are inclined towards a utilitarian and realistic/pragmatic judicial philosophy rather than a formalistic approach in their statutory interpretation.