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Law as a Weak Social Control-Why the Chinese Judicial System Should Change

-- By MeiqiangCui - 23 May 2012

Chinese judges’ duties are profoundly different from their US counterparts. Their goal, according to the Chinese government, is to guarantee the satisfaction of the parties and make litigation a tool readily accessible for everyone. But if law is a weak social control, court probably should not be the main forum to resolve disputes.

The Bonus System-Law as a Major Social Control

Several of my friends, all of them Chinese trial court judges, described to me how their bonus is to be determined. In the Beijing court system, a judge’s year-end bonus depends on two factors: how many cases she ended this year, and how many complaints she received. A case is not considered ended if it is pending on review by a higher court, but is ended if the judge managed to persuade the parties to withdraw the action or reach a settlement. A litigant may complain to the court about the presiding judge. The judge’s bonus may be reduced if the litigant is not happy with the result, the procedure, or simply the judge’s attitude towards her.

Thus, the judges put priority at reducing their caseload way ahead of writing persuasive opinions. It is common for a Chinese trial court judge to briefly state the facts, recite the statute he thinks applicable, and give a conclusion that is barely supported by any reasoning. By truncating the reasoning part, the judges manage to conclude much more cases. For example, at Chaoyang district court, a judge on average decides more than 500 cases per year.

Meanwhile, to avoid disappointing one party, the judges often prefer to arrange for court mediations to settle the disputes. Court mediation sometimes proves to be efficient in China, as lots of litigation is about trivial or intimate matters for which there are no satisfying answers from the legal perspective. For instance, many couples use the court as a forum to voice their dissatisfaction towards each other. They want the judges to be more of sympathetic listeners than judicial authorities to resolve the disputes. As an extreme example, in a divorce proceeding, the wife insisted that her husband sit in front of the judge and she read out a list of items she bought for the family, detailed to the number of hangers. Although pushing the litigants to settle will cost time, the judges also save the effort to conduct legal analysis and articulate the reasoning steps. For cases ended through court mediation, the opinions only contain the settlement arrangements. There is no need to record the mediation process or each party’s legal basis for the claims.

Problems Resulted from Using Law as a Major Social Control

While the purpose is to encourage people to seek help from the judicial system, the government neglects that law is a weak control vehicle. It derives its long-term power from public recognition and acknowledgement. If the readers cannot follow an opinion to see how it reaches the conclusion, they naturally will doubt the court’s legality. Many of my colleagues, including myself, encountered opinions that were so cursorily drafted that we could not help wondering whether the court had really thought through the issues. As a result, the courts’ authority in interpreting the statutes and rendering well-founded judgments declines in the eyes of professionals.

Moreover, while the judicial system is designed to be readily available to everyone without the need for lawyers, the courts’ credibility deteriorates precisely because of such accessibility. Law as a weak control cannot-and should not-govern every aspect of people’s life. It is not as effective as culture, and far more costly to administer. Therefore, no matter how hard the judges tried to remove the conflicts, such as in divorce proceedings, lawsuits by parents for support from issues or inheritance disputes among siblings, the parties are likely to end up feeling unsatisfied with the results, and probably also doubt the judges’ impartiality.

Comparing the Chinese Judicial System with the US Counterpart

Consequently, a question emerges when one compares the Chinese judicial system with its US counterpart: should courts serve as a major conflict resolution channel at the price of professionalism, or should courts be used only in limited circumstances where other social controls are likely to be ineffective? I think the answer partially depends on the societal condition where the laws are in operation. In China, the modern legal system was developed to be a clean break from the past, not only from the past legal system, but also from the traditional culture. The Chinese government envisioned the courts to be a frontier to reshape the society. It therefore requires that courts resolve as many disputes as possible, even scarifying the part of legal analysis. On the contrary, litigation is considered a very expensive and somewhat inefficient tool in the States. The most valuable part of a judicial opinion is not its conclusion but its reasoning, which may be supported or refuted in the future. It is the reasoning that reflects the changing social values, and subtly changes the society in the long run.

Conclusion

Aside from the obvious power rooted in the enforcement mechanism, law derives its authority from conforming to people’s sense of justice. Justice, while it may be an amorphous idea, requires that the litigants and the public in general are not left in dark regarding how a court applied the law to reach its conclusion. Therefore, law is a week social control in that it cannot function properly in the absence of substantial time, financial and human resources, so that people can have faith in the systematic justice of the judicial system. Furthermore, law is a weak social control in that as a state imposed restriction, it necessarily meets stronger resistance when regulating social norms, especially concerning intimate relationships. Thus, with more and more complicated disputes arising in China, the government probably should revise its policy using law as a major social control, allow the judicial branch to retreat from its currently too comprehensive role, and focus on building the courts’ legality through the force of reasoning.

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