Although many regard the post-2013 era as a return to unchecked authoritarianism that undermined the law and institutions, the current administration has introduced groundbreaking institutional reforms. Many of them have brought about the somewhat counterintuitive result of increased institutional autonomy.
Björn Ahl has edited a book on Chinese courts and criminal procedure that focuses on the post-2013 era. It combines a wide range of analytical perspectives and themes in order to investigate questions that link institutional changes within the court system and legal environment with developments in criminal procedure law.
The edited volume includes the following chapters:
1. Post-2013 Reforms of the Chinese Courts and Criminal Procedure: An Introduction (Björn Ahl) (preliminary version already available on SSRN)
2. The Meandering Path of Judicial Reform with Chinese Characteristics (Yu Xiaohong),
3. Dimensions and Contradictions of Judicial Reforms in China (Fu Yulin),
4. How the Supreme People’s Court Drafts Criminal Procedure Judicial Interpretations (Susan Finder),
5. Judicial (Dis-)Empowerment and Centralization Efforts: Institutional Impacts of China’s New Supervision Commissions (Meng Ye),
6.New Model of Habeas Corpus in China? Procuratorial Necessity Examination of Pre-Trial Custody (Alexandra Kaiser),
7. Live Witness Testimony in the Chinese Criminal Courts (Guo Zhiyuan),
8. Blood Money and Negotiated Justice in China (Kwai Hang Ng and He Xin),
9. Performance Evaluation in the Context of Criminal Justice Reform: A Critical Analysis (Michelle Miao),
10. From Populism to Professionalism: The Media and Criminal Justice in China (Daniel Sprick).
The book will be published by Cambridge University Press in 2021. A version of the introductory chapter is available on SSRN here.
Why is there so much ado about the responsible person of an administrative agency appearing in court? Nina Rotermund set out to look for answers in the latest interpretation of the Supreme People’s Court.
When the government of Zunyi City in Guizhou announced its plan to construct a highway close by, local residents had to fear expropriation. Mr. Ding decided to file a request with the Guizhou Provincial People’s Government for a reconsideration of the construction notice and its revocation. The provincial government rejected his reconsideration request because it considered the notice to be an internal administrative document. It argued that the kind of administrative actions that circulate within administrative organs do not directly affect the rights and obligations of a citizen, legal person or other organization outside the administration. Therefore, it rejected the reconsideration request. So, Mr. Ding filed an administrative lawsuit with the Intermediate People’s Court of Guizhou’s provincial capital Guiyang. During the court trial, the plaintiff presented the reasons and evidence supporting the revocation of the provincial government’s reconsideration decision. Surprisingly, Guizhou’s deputy governor, Mr. Chen, responded to the claims in court in person. The news of him attending the trial went viral. Mr. Chen confirmed that he participated in the trial in person to signal the government’s respect for the people’s rights and interests. He emphasized that the government accepted public and judicial monitoring. Whereas making statements in administrative trials is usually a rather short part, the entire exchange in this trial lasted for an hour.
This example highlights the symbolic meaning that is attached to the presence of the responsible person of an administrative agency in court. People, legal scholars, and politicians all attach great importance to the appearance of the responsible person of an administrative agency in court. But why does it seem to be such a big event at all?
Before the revised Administrative Litigation Law (ALL, with translation here) became effective in 2015, in general, administrative officials usually refused to appear in court and only sent their lawyers as representatives. Besides the regular administrative work, attending administrative trials seemed to be unworthy and a waste of resources. Traditionally, in China, it was common for people not to fight with magistrates (民不与官斗). Rather, magistrates were regarded as taking care for the people like parents for their children (父母官). This conviction still seems to be present somehow.
In 2011, Jiang Bixin, then vice-president of the Supreme People’s Court (SPC), emphasized that the presence of the responsible person of an administrative agency in court was an effective means to resolve the dispute between the people and the government and to understand the mood and emotions of the people. In a similar vein, the State Council had also underlined its support for monitoring the lawful actions of the administration. It indicated that administrative personnel usually lacked legal knowledge, although it was essential to abide by the laws. Attending administrative trials seemed to be an excellent way to learn a lesson.
However, as mentioned before, the enthusiasm about the responsible person of an administrative agency appearing in court was not shared by the administration itself. In its 2015 annual report, the Supreme People’s Court (SPC) reflected on the situation of administrative trial work and found that main problems inhibiting successful adjudication in administrative litigation include leading cadres not treating administrative litigation correctly, not respecting the people’s right to sue, and not supporting courts in accepting administrative cases, as well as officials unwilling to appear in court or to make a statement, or to accept an unsuccessful outcome.
The political and legal proponents truly believed that appearing in court would benefit the resolution of administrative disputes. Eventually, they came to dominate the drafting process of the ALL: The third paragraph of Art. 3 of the Administrative Litigation Law states that the responsible person of an administrative agency, their deputy, or a relevant employee of that agency shall appear in court to respond to the complaint against them. However, the ALL remains vague and does not provide any further details: Who is a responsible person in the administrative agency? In what kind of cases do they have to appear in court? Are there exemptions from that obligation? How does the court handle a situation when the responsible person refuses to appear in court?
The latest Interpretation of the SPC concerning the application of the ALL (2018 SPC Interpretation, with translation here) offers answers. Its Art. 128 defines the “responsible person of an administrative agency” as either the head or their deputy or even a person charged with special responsibilities. According to the second paragraph of Art. 128, besides the responsible person, one or two litigation representatives can respond in court. But the head or their deputy has to appear unless they have a good reason for their absence. In that event, they shall authorize a relevant employee to attend. However, they are not allowed only to send a lawyer to participate in the trial.
Moreover, Art. 129 determines that the people’s court can propose in writing to the agency that the responsible person is to appear in court when the case involves significant public interest, generates enormous publicity, or is likely to cause a mass incident. The people’s court shall indicate that attendance is mandatory in the their notice, according to the second paragraph of Art. 129. Besides, Art. 132 stipulates that the court shall document any misconduct in the ruling and send a recommendation to the relevant agency in case the responsible person or the relevant employee refuse or fail to attend the hearing themselves and only authorize a lawyer to attend.
The SPC’s Provisions were necessary because of various regional differences in the interpretation of the Law. For example, in 2016, Li Huai from the University of Wuhan had looked at normative documents of about 51 local governments that specify in which cases the head of the alleged administrative agency should or must attend the trial. He indicates that local decisions focus on different aspects such as the significance of a case, the year of its filing etc. to determine when the responsible person must appear in court. Unfortunately, Li Huai’s analysis offers no answers whether how many responsible persons actually appear in court. Some statistics of lower-level courts illustrate the impact of the system of responding to court proceedings. But the numbers are not representative for the entire country. For example, the government in Hangzhou presented some results. In 2017, the rate of appearance was still about 37,7% whereas in 2018, it increased to about 69.8% because the Standing Committee of the Hangzhou Municipal People’s Congress introduced supervision mechanisms. Their aim was to foster a change of thinking from “I have to appear in court” towards “I want to appear in court”. In their study about the appearance rate in Mudanjiang City in Heilongjiang, intermediate people’s court judges Liu and Jiang conducted statistics and concluded that the appearance rate reached 100%, but the rate to make a statement was lower. For instance, in 474 administrative cases filed in 2017, the appearance rate was 100%, but only 69 representatives of the administrative agency made a personal statement, which account for 14,6%. They assume that the administrative representatives are afraid of making mistakes when they express their opinion. They do not want to be responsible for negative legal consequences or of losing the lawsuit.
Still, the local differences underline that a nation-wide and uniform system was still lacking. Therefore, since 2018, the Supreme People’s Court conducted pilot work in Beijing, Shanxi, Chongqing, Jilin, Fujian, Hubei, and other places. It also collected opinions of the high courts, and suggestions of some front-line judges of the basic and intermediate people’s courts. Interestingly, it took 12 draft versions of the “Provisions on several issues concerning the responsible person of the administrative agency appearing in court” (Provisions, translated here), that include only 15 articles, until the final Provisions where agreed on.
Why are the Provisions necessary on top of the official 2018 interpretation? Was it not detailed enough? What are the differences between Section Nine of the 2018 SPC Interpretation (Art. 128-132), and the SPC provisions issued in March this year? The obvious answer is that the provisions constitute a special judicial interpretation intending to facilitate legal practice and to improve the application of the ALL (see Zhang 2020). In essence, the Provisions correspond to Section Nine of the 2018 SPC Interpretation, but the ALL and the 2018 SPC Interpretation are not as explicit as the Provisions, which the table below highlights.
Comparison of the 2018 SPC Interpretation and the Provisions:
2018 SPC Interpretation, Section 9
Provisions July 1, 2020
Art. 1 I: The responsible person must appear in court in first, second, and retrial proceedings, according to Art. 3 III of the ALL, exercise litigation rights and perform litigation obligations. II: The responsible person of an internal organization of the administrative agency authorized by the laws, rules, and regulations to exercise administrative power independently, [or the responsible person] of a dispatched agency or other organization shall appear in court. III: If it is added as another defendant and the plaintiff or defendant do not agree, the people’s court shall add the administrative agency as a third party, the responsible person shall appear according to the preceding paragraph.
Art. 128 I: The responsible person of an administrative agency” is either the principal or deputy or another person charged with special responsibilities. II: One or two litigation representatives can attend in addition; a relevant employee shall replace the principal or deputy; a lawyer as the only representative is not allowed.
Art. 2 I: The responsible person includes the principal of the agency or deputy or another person in charge of the enforcement of the alleged administrative action or another responsible person. II: The responsible person of an entrusted organization or the lower-level administrative agency is not the responsible person who must appear in court.
Art. 3 In administrative cases with co-defendants, the administrative agencies can consult to determine the responsible principal who must appear in court, or they can let the court decide.
Art. 129 I: Attendance is mandatory in the cases with a significant public interest, generating enormous publicity, possibly leading to mass incidents. II: The people’s court has to specify if appearance is mandatory in its notice for the agency. III: If the responsible person cannot appear, they have to give a proper reason, and the agency has to submit a statement that is sealed. IV: In case of refusal, the court may offer judicial recommendations.
Art. 4 I: In cases involving significant public interests such as food and drug safety, the protection of the ecological environment and resources and public health safety, or, in cases generating enormous publicity, possibly leading to mass incidents, the people’s court must notify the responsible person to appear in court. II: In one of the following circumstances, the responsible person has to appear in court, the people’s court may notify the responsible person to appear: The alleged administrative action involves significant personal and property rights of the citizen, legal person or other organization,Cases concerning administrative public interest litigation,Normative documents of the higher-level agency require the responsible person of the agency to appear in court,Other circumstances where the people’s court deems it necessary to inform the responsible person to appear in court.
Art. 130 I: The relevant employee is an employee on the national administrative staffing or any other employee fulfilling their duties in accordance with the law. II: Any employee of the legal affairs department of the local people’s government or of the specific department taking the administrative action may be deemed as the relevant employee.
Art. 10 I: The relevant employee specified in Art. 3 III of the ALL refers to staff members with special administrative functions and powers in the agency. II: Employees of organizations or subordinate administrative agencies entrusted by another administrative agency to exercise administrative functions and powers may be regarded as relevant employees. III: The people’s court shall refer to Art. 6 II of these Provisions to examine the identification materials of the relevant employees.
Art. 5 I: The people’s court shall inform the responsible person of the agency about matters like their rights and legal obligations and the related legal consequences. II: When the court notifies the responsible person of an agency to appear in court, it shall send the notification letter three days before the hearing starts. It shall also inform the responsible person of the negative legal consequences if they do not appear in court III: If the agency requests to replace the responsible person that must appear in court before the hearing, the people’s court shall allow it.
Art. 131 I: The administrative agency must to submit materials of identification. II: A relevant employee must submit a power of attorney sealed by the administrative agency.
Art. 6 I: The responsible person that appears in court shall submit their identification documents before the hearing. The identification documents shall explicitly say the name, position, and other necessary information of the responsible person and shall be sealed by the agency. II: The people’s court shall examine the identification documents. If it deems that the conditions are not met, it shall notify the agency to make corrections. If they do not correct or supplement, which can influence the regular opening of the hearing, the people’s court regards this as if the responsible person did not appear.
Art. 7 I: If the same case requires multiple hearings at the same instance of trial, it can be regarded as fulfilling the duty to appear in court when the responsible person appears in the first court hearing unless the court notifies them to appear again. II: If the responsible person appears in court in one trial of the procedure, it does not exempt them from their duty to appear in other hearings.
Art. 8 I: Under one of the following circumstances, the responsible person as prescribed in Art. 3 III of the ALL cannot appear in court: Force majeure,Accidents,They need to perform official duties that others cannot replace,Other legitimate reasons for failing to appear in court.
Art. 9 I: If the responsible person has a proper reason, they have to submit the relevant evidence and seal it with the administrative agency’s stamp or have the principal of the administrative agency sign an approval. II: The people’s court shall examine the reasons and supporting materials explaining why they do not appear in court. III: If the responsible person of the administrative organ fails to appear in court for proper reasons, and the administrative organ applies for postponement of the hearing, the people’s court may allow it; the people’s court may also decide to postpone the hearing by its authority.
Art. 11 I: Litigation participants shall exercise their litigation rights and perform their litigation obligations, abide by court rules, and consciously maintain litigation order according to law. II: The responsible person of the agency or the relevant employee entrusted by the agency shall make a statement, reply, submit evidence, debate, issue a final opinion on the situation of the case, and explain the normative documents on which it is based. III: If a responsible person appears in court, they shall express an opinion on the substantive settlement of the administrative dispute. IV: If the participants in the litigation or others disturb the order of the court by means like an insult, verbal abuse, threats, the people’s court shall stop them and deal with them according to Art. 59 of the ALL.
Art. 132 If the responsible person does not appear in court, or only send a lawyer, the people’s court shall record and specify in adjudicatory instruments the failure to respond and may propose that the relevant agency conduct disposition.
Art. 12 I: In any of the following circumstances, the people’s court shall provide judicial recommendations to the supervisory organ of the administrative organ or the administrative agency at the next higher level of the administrative agency taking the administrative action: The responsible person fails to appear in court and does not explain the reasons or the reasons are unfounded.The administrative agency has proper reasons to request postponement of the hearing. After the people’s court approved it, and the hearing starts, the responsible person fails to appear in court without proper reason.Neither the responsible person nor the relevant employee of the agency appears in court.The responsible person withdrew from court without permission to leave.The people’s court asks the responsible person to explain the relevant issues during the hearing, but the responsible person refuses to respond, resulting in the failure of court proceedings. II: In the event, there is one of the circumstances; the court has to record and specify in the judgment the failure to respond.
Art. 13 I: If a litigation party objects the circumstances of the administrative agency as mentioned in Art. 12 of these Provisions, the people’s court may specify it in the transcript of the court hearing without affecting the regular trial procedure. II: If the plaintiff refuses to appear in court on the ground that the administrative agency acts according to one of the circumstances of the first paragraph in Art. 12 of these Provisions, or withdraws from the hearing without the court’s permission, the people’s court can treat it like withdrawal. III: If the plaintiff clearly refuses to make a statement because the administrative agency has a circumstance of the first paragraph in Art. 12 of these Provisions or refuses otherwise resulting in the failure of trial proceedings and still does not state their opinion after the court has explained the legal consequences, the court can regard this as renouncing the right to make a statement, and they shall bear the corresponding legal consequences.
Art. 14 The people’s court may disclose to the public through an appropriate form the situation of the responsible person appearing in court. II: The people’s court may regularly conduct statistics, analyses, and evaluations of the appearance of the responsible person in court within its administrative jurisdiction and report to the people’s congress at the same level or to the people’s government at the same level.
Art. 15 These provisions shall be in effect as of July 1. 2020.
Translation by Nina Rotermund
At first glance, we can see that the Provisions provide details on the pre-trial and trial procedure concerning the appearance of the responsible person. For instance, the Provisions emphasize that the responsible person has to attend first instance, second instance, and retrial procedures (Art. 1), but it acknowledges that administrative officials have limited time resources. That is why, Art. 7 says that in the same case that requires multiple hearings at the same trial instance, it is acceptable if the responsible person appears in the first hearing. However, it stipulates that the obligation to appear in court affects all cases. Hence, responsible persons cannot excuse themselves if they appeared in one case in the first hearing but fail to appear in the first hearing of another case. The explicit mentioning of the court’s obligation to examine identification documents (Art. 6) reveals that it is not enough to send anyone to court but the right responsible person. In case the actual responsible person cannot appear in court, another relevant employee of the administrative agency can be designated, but their name and identification must be submitted to the court for the examination beforehand (Art. 10).
But besides these specifications, the core answer to initial questions seems to be hidden in the third paragraph of Art. 11: “If a responsible person of an administrative organ appears in court, they shall express an opinion on the substantive settlement (实质性化解) of administrative disputes.” The keywording is a substantive settlement that conveys a political message: The grievances of the people are taken seriously to preserve social order. The responsible person, their deputy or other relevant employees must be committed to genuinely solving the dispute. The trial in court provides the platform to enter into an active dialogue with the people. If the responsible person or any other entrusted person does not appear without proper reason that was announced before the hearing started, the court can sanction the misconduct according to Art. 59 of the ALL. Sanctioning misconduct does not only include internal supervision of the supervisory administrative organ, or the higher-level administrative agency (Art. 12) but public control as well (Art. 14).
To sum up, the ado about the responsible person appearing in court is justified for three reasons: In terms of psychological impact, the appearance in court is a signal of respect for the people and their need. In terms of substantive justice, the Provision guarantees substantive rights by demanding substantive settlement of the dispute. In terms of procedural fairness, the Provisions drew from judicial practice and pilot work to provide the people’s courts with an encompassing catalog about how to deal with the rights and obligations of the litigation parties in the trial.
LI Huai (李淮), The appearance of administrative organ in court: status and prospect – Review of the third paragraph of Art. 3 of the new Administrative Litigation Law (行政机关负责人出庭应诉：现状与展望——兼对新《行政诉讼法》第3条第3款之检讨), in: Journal of the Administrative Institute of Gansu (甘肃行政学院学报) 2016, No. 4, 114-125, 116-117.
ZHANG Weiwei (张维炜), The legal revolution of overturning “noble officials and low people” – The birth of the administrative litigation law (一场颠覆“官贵民贱”的立法革命 — 行政诉讼法诞生录), in: The People’s Congress of China (中国人大) January 16, 2014, 21-23.
LIU Hao (刘灏), The origin and meaning of “father and mother official” (“父母官”的由来与内涵), in: World of Literature and History (文史天地), August 4, 2007, 89.
JIANG Bixin (江必新), Actively innovate the ideal system for an effective resolution of administrative disputes (积极创新理念机制 有效化解行政争议), issued April 27, 2011 in: Journal of the People’s Court (人民法院报), available at: http://fzzfyjy.cupl.edu.cn/info/1044/1794.htm [May 11, 2020].
LI Huai (李淮), The appearance of administrative organ in court: status and prospect – Review of the third paragraph of Art. 3 of the new Administrative Litigation Law (行政机关负责人出庭应诉：现状与展望——兼对新《行政诉讼法》第3条第3款之检讨), in: Journal of the Administrative Institute of Gansu (甘肃行政学院学报) 2016, No. 4, 114-125, 116-117.
HE Lei (何蕾), Delegate YU Yuemin talks about improving the ability of the responsible person of the administrative agency to appear in court – Promoting more prominently the head of administrative agency to appear in court (于跃敏代表谈提升行政机关负责人应诉能力 — 促行政领导出庭出声更出彩), in: Legal Daily (法制日报), March 15, 2019, available at: http://www.npc.gov.cn/npc/c30834/201903/20b975ca99c54fe19a3cc30efc042f75.shtml [July 12, 2020].
LIU Zhongyuan (刘忠元), JIANG Lilong (蒋利龙), The responsible person of an administrative agency appearing in court – Taking Miganjiang City as an example (行政机关负责人出庭应诉研究———以牡丹江市为例), in: Journal of Heilongjiang Administrative Cadre College of Politics And Law (黑龙江省政法管理干部学院学报) , Vol. 6, 22-25.
GAO Jiawei (高家伟), The appearance of the responsible person in court is a systemic innovation for fostering grassroot democracy (行政机关负责人出庭应诉作为持续稳定推进基层民主的一项制度创新), in: Administrative law enforcemtn and administrative trial (行政执法与行政审判), July 2, 2020, available at: https://mp.weixin.qq.com/s/BqsKN7AkecTDkzXBbUHMxg [July 7, 2020].
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.
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.
If, at the time of Carl Schmitt’s death in 1985, one had by some unknown premonition declared that the enfant terrible of twentieth-century German Staatsrechtslehre would soon become a major source of inspiration for twenty-first-century Chinese neo-conservatives’ theorisation of China’s party-state…well, then most people would have dismissed this prediction out of hand as a plainly ludicrous thought. Yet, strangely (and perhaps disconcertingly), this is precisely the role that was assigned to the erstwhile “crown jurist” of the Reich in the past two decades. That the “wisdom of this dead Nazi”, as Martti Koskenniemi put it unforgivingly, now serves as a conceptual (and, for some, quasi-metaphysical) guidance in the interpretation of China’s constitutional order is no longer a secret, as attested by a growing body of research.
Lucas Brang’s new paper(free draft here) taps into this ongoing debate about Schmitt’s unexpected reemergence to global intellectual prominence. Shifting between intellectual history, conceptual analysis, and constitutional theory, Brang traces Schmitt’s influence on Chinese liberal, left-leaning, and neo-conservative legal theorists. Rather than postulating a straightforward bearing on Chinese theoretical debates, however, his article finds that Schmitt’s persona functions as a kind of Jungian shadow projection – intellectual nemesis for concerned liberals, spiritus rector for neo-authoritarians – and hence leads to a variety of ideological performances of mutual suspicion. Likewise, Schmitt’s oeuvre, rather than being studied or adopted in its entirety, serves as a conceptual toolbox that lends itself to different normative projects.
On the whole, the paper suggests that the history of Chinese political constitutionalism and the Chinese reception of Carl Schmitt is essentially one of an intellectual co-evolution – which serves as a stark reminder of the often-unexpected paths of contemporary legal globalisation.
You can find the paper published in the latest issue of the Cambridge University Press Journal Global Constitutionalismhere. A free draft PDF ist online here.
Calls for and attempts to rendering the Chinese Constitution meaningful in judicial adjudication have officially stopped in 2008, when the decision by the Supreme People’s Court based on the Constitutional Right to Education of Qi Yuling was withdrawn years after it had been made (find the somewhat odd story about a student who has stolen another’s identity to enter college and the ensuing case here). The move has made it clear that the authorities do not wish that the Chinese Constitution serve as a legal basis for judgments. However, judges continue to invoke the Constitution, if less as a direct legal basis, but more so in the reasoning part of their decisions. As judgments by courts from all over China were gradually being entered into an open-access database, Daniel Sprick seized the opportunity asked: If it is not permitted as legal basis, in what ways does the Constitution still play an authoritative role in adjudication?
The quest for today’s functions of the Constitution in the daily adjudication work of local judges appears even more significant when considering the growth of a net of legislation that offers judges alternative legal sources to choose from. A law laying down the Right to Education for example was not yet existent when the controversial Qi Yuling case was first decided on.
For this study, Sprick looked at case groups invoking the Constitution that concerned disputes over citizen’s duty to support elderly parents, land administration or the right to work. Cases, where the Constitution is being referred to due to a lack of lex specialis particularly emerge from disputes over land administration. However, in most cases Sprick found in the database, invoking the Constitution would indeed technically not have been necessary- other laws are the decisive base. Nevertheless, judges are “seeking a higher authority in order to frame a more compelling argument and exhibit an understanding of the constitution as a programmatic document that links the CCP’s policies with the state law.”
Apart from functioning as a link of law and CPC policy, he further finds the Constitution as useful tool for judges working on tort law cases. More precisely, the right to work is being referred to when interpreting relevant statutes, stressing the rights of seniors who were working even though they had reached the retiring age: “the use of the constitution demonstrates that the courts are here filling a legislative gap for the purpose of social justice.” Given the propaganda campaigns calling the general public for the “implementation” and “ardent study” of the Constitution in the aftermath of its amendment in 2018, Sprick’s research appears as relevant as ever.
There is a complex strategy behind the fierce measures the People’s Republic’s leaders applied to curb the spread of COVID-19, argues Felix Wemheuer, Professor for China Studies at Cologne University (in German). A lockdown is easily enforceable in gated communities, which make up the most part of cityscapes in China: If a citizen’s QR-Code does not show green, but yellow or even red, access is denied to parks, restaurants, public transit, residential areas and one’s workplace. Companies work hand in hand with the local administration, the Chinese army and the Communist Party, the latter of which already celebrates the victory over the pandemic as its own achievement.
The army also plays a key role: It constructed a hospital in Wuhan within ten days and provides crucial expertise in the area of virology gained from experience in fighting diseases abroad as well as their work on biological warfare. Further, blacklisting has in many localities become an additional punishment for concealing one’s health history, disregarding compulsory quarantine or trading medical supplies illegally.
While Chinese diplomats aggressively spread a success story to the world, Wemheuer says it is too early to make a final judgment about the effectiveness of the People’s Republic’s measures. “[…] in this global epidemic, the schematic comparison of authoritarian and democratic systems can do little to explain why countries are affected to varying degrees by the epidemic”, Wemheuer explains in an interview with DW (in German). “Freedom of information by itself is no guarantee that measures against an epidemic will be taken quickly, as the cases of the USA and the winter sports industry in Tyrol have demonstrated. The pursuit of profit can also be a reason for cover-up.”
Recent Covid19-related restrictions on entering the People’s Republic aside, foreign immigration in China has been on the rise and is becoming more diverse. Besides high-skilled foreigners from developed countries, the number of foreign students, many from lesser developed countries low-skilled laborers and marriage migration increases. Pieke, Ahl, Barabantseva, Pelican, Speelman, Wang and Xiang have analysed how the increasingly diverse foreign immigration is shaping Chinese society.
Along with the rising numbers, the legal framework has undergone fundamental reformation. In a forthcoming chapter now available on SSRN, Björn Ahl and Pilar-Paz Czoske have observed on the one hand that streamlined application procedures that are available online and clarified competences have increased efficiency whereas the classification scheme of different categories of foreign nationals has enhanced transparency. On the other hand, recent reforms have been more symbolic than functional and the protection of rights of migrants has not been significantly improved by recent reforms. With regard to international law, China has not ratified the Convention on the Protection of the Rights of Migrant Workers and does not model the protection of labour rights of foreign nationals on the equal treatment principle as it is embodied in the Convention. However, China voted for the Global Compact for Migration after being actively involved in its drafting process and further committing itself in this context to improve national migration legislation.
The chapter on the Reform of Chinese Migration Law and the Protection of Migrants’ Rights for ‘East Asian Migration Governance in Comparative Perspective: Norm Diffusion, Politics of Identity, Citizenship’ is available here.
Our year 2020 began with a new research project: Funded by the Fritz Thyssen Stiftung, we will explore the Chinese social credit systems and the development of smart courts. The Chinese social credit system initiative is intended to systematically assess the trustworthiness of citizens in complying with law, moral norms and professional and ethical standards. Nudging through rewards and punishments, restricting access to public transport, hotels, educational institutions and social security systems shall induce compliance. The social credit system initiative is designed as a comprehensive instrument of social control and a cure-all tool for societal ills that aims at upgrading the Chinese authoritarian system. The research project addresses three interlinked issues that are fundamentally transforming Chinese society and will have an impact that goes far beyond the Chinese state: (1) the rise of assessment systems of individual social behaviour that circumvent, supplement and change legal regulation as well as traditional law enforcement mechanisms; (2) the development of smart courts that are partially changing into automated decision makers through an increased use of big data and AI and (3) the legal regulation of social credit systems, in particular the legal protection of personal data.
Under the guidance of Prof. Dr. Björn Ahl, our team (Haixu Yu, Lu Yu and Marianne von Blomberg) will pool their skills from various backgrounds to excavate the dynamics and impact of the transformative developments social credit systems in China bring about.