University of Michigan Law School University of Michigan Law School Scholarship Repository Other Publications Faculty Scholarship 2010 China's Judicial System and Judicial Reform Nicholas C. Howson University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/other/3 Follow this and additional works at: https://repository.law.umich.edu/other Part of the Comparative and Foreign Law Commons, Courts Commons, and the Rule of Law Commons Recommended Citation Howson, Nicholas C. (2005- ). "China's Judicial System and Judicial Reform." Law Quad. Notes 54, no. 1 (2011): 62-4. (This text is an extract from the statement delivered by Professor Howson at the inaugural "China-U.S. Rule of Law Dialogue" held at Beijing's Tsinghua University, July 29-30, 2010.) This Speech is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Other Publications by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. FacULTY VIEWS China’s Judicial System and Judicial Reform The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the COURTESY OF COURTESY support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The N dialogue was organized as a private meeting between senior PRC I C law professors and U.S.-based Chinese law specialists to discuss HOLAS China’s three decades-long legal reform program and progress H towards “rule of law” in the People’s Republic of China in all OWSON areas of the domestic legal system. Professor Howson addresses the Rule of Law Dialogue in Bejiing, with Recently I have spent a significant amount of time studying Harvard Law Professor William Alford, the late Professor Betty Ho of the University of Toronto and Tsinghua University (and a former visiting Chinese People’s Court judicial opinions in the corporate law and scholar at Michigan Law), and Tsinghua Law School Dean Emeritus securities regulation areas, and have come across examples of Wang Chenguang. extremely competent judicial work by the People’s Courts at all levels. This in turn has pushed me to reconsider the goals and trajectory of “judicial reform” outside of the usual focus—the “vertical” social control/criminal law function—but still in the commercial real estate, intellectual property, labor contracting, broader context of China’s movement towards “rule of law” and a family property, media and publication, etc.—may presently or in desired “rule of law state.” the future be asserted against institutions which have that present monopoly on political or coercive power. These claims Admittedly, it is the judicial function in the social control/criminal may thus be seen as embryonic identities of the more sensitive law areas which attracts the most attention from Chinese and civil and political rights understood to be at the core of “rule of foreign legal scholars and journalists—e.g., with respect to law.” judicial constitutional review, administrative law and review, criminal law and criminal procedure, or mass torts that threaten Let me be more concrete by citing two examples of what I think is to conjure group political action and social instability. That focus highly competent adjudication in contemporary China, culled is entirely appropriate, for what we loosely understand as judicial from publicly available judicial opinions. These examples, two independence (against superior political or military power) and among thousands, will never be described in the pages of the autonomy of the law (against political commands or shifting Nanfang Zhoumo [Southern Weekend], Caixin Magazine, the policy, and as contrasted with raw instrumentalism) must be at New York Times, or Le Monde. Yet they reveal commendable the core of anyone’s conception of rule of law. At the same time, judicial action that is relatively common, and distinct from the however, we must understand that the majority of the PRC always fascinating stories of lack of judicial independence, citizenry intersects with law and legal institutions “horizontally” official corruption, summary procedure, coercive use of the legal Spring 2011 and at the apparently more mundane level of property and system and more that feature in the Chinese and foreign media. • contracts rights and expectations. A first case arose in Shanghai Municipality’s relatively distant 1 As scholars intent on understanding the development of “rule of Baoshan District. In the opinion, the Shanghai Baoshan District law” in contemporary China, we cannot therefore ignore entirely People’s Court (later upheld by the Shanghai No. 2 Intermediate how legal institutions function, day to day, in the corporate/ People’s Court) looked through a de jure “corporate” establishment commercial/contract/property rights spheres, and most to understand a de facto “partnership” and to rule on the investing Law Quadrangle importantly how they are perceived to function by civil actors participants’ rights accordingly. Disregarding form (and an who have recourse to the same institutions for the settlement of disputes, clarification of property and contract rights, and enforcement of those rights—at least against other, horizontally 1Zhang Qingzhao v. Zhang Wenhu, Shanghai Baoshan District People’s Court (2002); upheld on positioned, actors. Indeed, many of the rights described and appeal Shanghai No. 2 Intermediate People’s Court (2004). Reproduced in Supreme People’s enforced in the commercial sphere—e.g., residential and Court China Practical Jurisprudence Research Institute, ed., 55:1 RENMIN FAYUAN ANLI XUAN (2006), pp. 234-41. 62 FacULTY VIEWS apparent Shareholders’ Agreement between the investors), the In these two cases we see something which might be considered Baoshan court ruled that the entity at the center of the dispute extraordinary in the PRC context: technical competence certainly, was a kind of general partnership and ordered equal partner but also the ability of Chinese judicial institutions to go beyond the distributions of the enterprise’s residual assets (instead of bounds of formal statute in crafting a legal characterization and different proportions of the company’s residual assets determined applying doctrine that vindicates important legal rights in a highly by the participants’ notional “equity” investment). The Baoshan sophisticated and justice-facilitating way. Court did not base its ruling on the imperfect PRC Partnership Tom Ginsburg and Timira Moustafa have identified five primary Enterprise Law or any other positive law, but what are understood functions for judicial institutions in authoritarian political systems: to be universal partnership law principles: Unless subject to ex (i) social control and the containment of political opposition; (ii) ante contract, partners share in the residual assets of the bolstering government “legitimacy”; (iii) support of administrative partnership equally, regardless of their investment or contribution compliance and coordination of competing functions; (iv) to the partnership. This decision demonstrates a very high level of facilitation of trade and investment; and (v) the provision of cover technical insight and competence, which even many U.S. state for controversial policies. I understand the Ginsburg-Moustafa list courts struggling to adjudicate close corporations might have had as somewhat partial and pessimistic. In fact, judicial institutions difficulty implementing. in non-democratic or authoritarian societies do much more than A second case comes from the city of Zhengzhou in Henan erect a Potemkin Village of purely symbolic decision-making and Province,2 where the shareholder of a property development convenient cover for oppressive political organization. This is company was permitted to initiate a derivative suit against a especially true as even politically unreconstructed societies contractor that had not performed on a construction contract experience economic system transformation, putting property and entered into with company. The problem in the case, for the contract rights into the hands of low-level civil actors: contract initiating plaintiff at least, was that the complaining shareholder parties, residential property owners, shareholders, inheritance had not formally served the requisite demand on, or met with beneficiaries, copyright owners, etc. One proof of this is the refusal from, the development company (the true party in interest degree to which citizens in China with no particular political in the derivative action) in conformity with Article 152 of China’s background, or assurance of a politically determined result, 2006 Company Law. The defendant and non-performing continue to refer to “law” and formal judicial institutions for construction contractor offered as one defense that “the plaintiff remedies. We saw this in the strong appetite among individual has not exhausted all internal remedies in accordance with legal shareholders for remedies against false or misleading disclosure stipulations,”