June 2020 – European Chinese Law Research Hub

A new book by Jasper Habicht

In the People’s Republic, campaigns are an established means for achieving political and legal aims. Since the beginning of the economic reforms, the country has developed rapidly economically, giving rise to both the constant development of the legal system and China’s attractiveness for workers from abroad. In response, two somewhat divergent strategies for handling immigration surged side by side, namely, campaigns and legislation.

In 2004, a fundamental revision of Chinese immigration law began. The old law could no longer meet the requirements resulting from the economic development that not only pushed the production of a detailed framework of administrative law, but also transformed China into a country of immigration. At the same time, reports about campaigns against illegal immigration and illegal employment of foreigners emerged in the media. In the context of these campaigns that targeted illegal entry, illegal stay and illegal employment of foreign nationals (so-called “sanfei” 三非 campaigns), the public was invited to report any suspicious activities related to illegal immigration to the police. Shortly before the revised law was promulgated, a large campaign against illegal immigration was deployed in Beijing.

The revision of immigration law and the deployment of campaigns against illegal immigration obviously took place during the same period, which suggests a relation between both. This raises the question: Why was it necessary to deploy campaigns when the law was already being revised? Apparently, the revision of the law would not suffice to strengthen control over immigration issues.

Jasper Habicht investigated the topic in detail in the course of his PhD project and found: law and campaigns are interrelated and dependent on one another.

His analysis of the internal structure of the campaigns and the embedding of the current immigration law in the context of Chinese administrative law showed that one the one hand, it was necessary to revise the law. On the other hand, its thorough implementation at the local level required the compliance of local police authorities. Because China is a centralistic state, control of the central level over local officials is often limited, especially in the police sector. Campaigns are an established means not only to communicate to the public that the central government has succeeded in strengthening control over a certain issue, but also to exert pressure on local police officials to comply with central-level norms.

The above-mentioned whistle-blower scheme, in the course of which the public reports illegal activities to the police, urges local police to act, resulting in higher compliance. The campaigns therefore not only tackle the issue of illegal immigration directly, but also by attacking regulatory failure or non-compliance of local police officials. On the other hand, the Chinese government understands that campaigns need to be legitimised by legal norms. Purely political campaigns would be harmful to the emerging economy.

In summary, it is precisely the combination of law and campaigns that is an effective means of governance in the context of immigration law.

Find Habicht’s careful examination of the role of campaigns in the context of China’s immigration law in his book “The Role of Campaigns in Law Enforcement: The Example of Sanfei Campaigns in Chinese Immigration Law” (e-book) recently published with Nomos. The print version can be purchased here.

The Chinese leadership has responded to the growing load of online-shopping related disputes by setting up a special type of court: The Internet Courts (互联网法院) not only specialize in issues brought about through the internet, but also conduct the entire proceedings online.

Since 2017, the Internet Courts in Hangzhou, Guangzhou and Beijing enable litigants to file a claim, attend the hearing, and receive the judgment all without needing to go to a court (check out the pioneer among them, the Hangzhou Internet Court, here). These digital courtrooms may be frequented for certain administrative and civil cases, such as lawsuits regarding sales contracts, including product liability matters, services and loans.

In his recent analysis, Max Planck Institute’s Benjamin Knut Pißler finds the Internet Courts to be a useful new tool in the hands of consumers to secure their rights. This new type of court, which ist likely to be replicated in several other cities in China in the near future, constitute the latest innovation in a rather young field of law in China with surging importance: costumer rights protection. As an addition to the legal mechanisms developed in the past decades, namely the individual actions, representative actions and public interest litigation, the Internet Courts appear to make lawsuits more accessible for the general public, “File a law suit in only 5 minutes”, as the Hangzhou Court advertises on its website.

However, in his analysis recently published in the German Journal of Chinese Law (article in German), Pißler also identifies fundamental problems. “There are some indications that defendants can avoid the proceedings relatively easily,” he points out, as it is unclear what the consequences are if the defendant does not act upon receiving the electronically transmitted notification that he or she has been sued. The relevant regulations laid down by the Supreme People’s Court leave several questions unanswered, and it remains to be seen whether for example a legal duty to regularly check emails and text messages will arise due to the fact that the Internet Courts rely on such communication channels instead of traditional mail.

Further, it is found that the courts are the result of a decision of the Communist Party and a judicial interpretation of the Supreme People’s Court and thus not created in line with the official procedures for founding courts, including a relevant motion on the part of the Standing Committee of the National People’s Congress.

Apart from their regular judicial adjudication work however, the Internet Courts also provide a field for experimentation with new technologies in court proceedings. As innovative institutions outside of the judicial bureaucracy of traditional courts, the Internet Courts could become the arena where the application of artificial intelligence in court decisions, which is vigorously researched in China, may find a testing zone, Pißler indicates.

Read Benjamin Knut Pißler’s Paper here (in German).

European Chinese Law Research Hub

Month: June 2020

China’s “Campaigns + Law” Formula

A new book by Jasper Habicht

Taking Consumer Rights Protection Online