II: The Laws of and Developments in China’s Major Dispute Resolution Systems

3 Civil litigation

Civil Litigation: Evolution Toward a More Litigious Society

  • 1 Introduction
  • 1.1 Preliminaries

Civil procedure commonly refers to the body of laws governing the practice of civil litigation in the court system. Civil litigation is the cornerstone of the civil procedural system of a jurisdiction.[1]

This chapter examines the civil litigation system in China. Civil litigation in China is mainly governed by China’s Civil Procedure Law, complemented by some ancillary rules and interpretations issued by the Supreme People’s Court (“SPC”). To date, all reforms introduced to the regime of civil litigation can be divided into two levels—the court level (institutional level) and the Civil Procedure Law level (procedural level). As the reforms concerning the court level have been examined in the previous chapter, this chapter now focuses on the reforms at the procedural level, in particular, the introduction of public interest litigation and its potential impact on access to justice in China. This chapter further examines the wider political, economic, and societal contextual factors that have led to the civil procedural reform, and analyses the patterns of the reform over the past decade. This chapter concludes that the Chinese path to civil litigation reform is an evolution toward a more litigious society and predicts that the future of the civil litigation regime requires further efforts in both procedural fine-tuning of the public interest litigation rules, and systemic reform to overhaul the court’s role and competence in the Chinese societal governance.

1.2 Empirical evidence

Empirical evidence on the entire civil litigation landscape in contemporary China is lacking. The statistics as to the overall caseload and actual disputed

Table 3.1 First-instance civil litigation concluded by Chinese courts (2009-2018)

Year

Total number of cases

Year-on-year increase

2009

5,797,160

TT/0

2010

6,112,695

5.4%

2011

6.558,621

7.3%

2012

7.206,331

9.9%

2013

7.510,584

4.2%

2014

8,010,342

6.7%

2015

9.575,152

19.5%

2016

10.763,889

12.4%

2017

11.651,363

8.2%

2018

12.434,826

6.7%

amounts of civil litigation in Chinese courts are generally not available—in particular, they are not available in the China Law Yearbook (or other relevant statistical yearbooks) nor traceable from the annual SPC work reports.

Table 3.1 compiles the total number of first-instance civil litigation concluded by all Chinese courts at various levels in the most recent decade (2009-2018) and an update of its year-on-year caseload increase, as these data are available at the China Law Yearbook (covering the period from 2009 to 2017) and China Statistical Yearbook (covering the year of 2018). Chart 3.1 visualizes the annual caseload of first-instance civil litigation and its trend. At the time when the manuscript is completed, the 2019 data have not been published yet.

The civil litigation caseload increased significantly in the most recent decade. In particular, there was an increase of 19.5% and 12.4% in the two continuous years of 2015 and 2016, respectively. Taking more recent years as an example, in 2017 alone, 11,651,363 first-instance civil litigation cases were concluded in 2017 by different levels of all Chinese courts, and the figure

14,000,000

2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

■ Total Number of First-Instance Civil Litigation Cases Concluded by Chinese Courts

Chart 3.1 First-instance civil litigation concluded by Chinese courts (2009-2018) rose to 12,434,826 cases in 2018 (a 6.7% increase). However, the caseload data only included those civil litigation cases which had been concluded. As the cases concluded only represented those where civil litigation had led to an end (such as cases concluded by a judgment, a mediation settlement agreement, or withdrawal of suit), empirically, the actual use of civil litigation in China is presumably wider; the overall civil litigation caseload in China could only be higher.

In addition, according to the Yearbooks, civil lawsuits in China are meant to include both civil and commercial cases. However, the Yearbooks did not provide differentiated statistics as to the specific caseload of civil cases vis-à-vis commercial cases so as to distinguish civil contracts from commercial contracts. Moreover, statistics were not provided with respect to the total disputed amount by civil litigation either. It would thus be undesirable to conduct a comparative study between the commercial litigation world and the commercial arbitration world (which is based on commercial contracts in business settings and is considered in Chapter 4), in order to assess empirically which dispute resolution mechanism is more popular in resolving commercial disputes in China.[2]-

  • 2 Regulatory framework
  • 2.1 The 1991 civil procedure law

In 1991, China’s first Civil Procedure Law was promulgated (the “1991 CPL”), after a decade of practice of the 1982 Provisional Civil Procedure Law, whereby the principles of procedural transparency and formalization were introduced to the Chinese civil procedure system for the first time. Zhang and Peerenboom summarized a chain of reasons for the promulgation of the 1991 CPL and the introduction of formal court procedures to China. First, there was the adoption of the open-door policy by the Party, leading to a shift in policy from revolution to economic modernization. Second, there had been a significant drop in political cases such as those involving counter-revolutionary acts, which used to dominate the workload of the courts. Third, there had been a quantitative and qualitative change

in civil disputes. New types of commercial disputes among strangers arose from the economic developments, such that conflicts were not limited to matrimonial and neighborhood matters, small interpersonal debts and tortious liability among acquaintances. Fourth, civil courts were left with greater autonomy to formulate and implement various court rules in handling these new cases. At that time, the SPC was also given the authority from the National People’s Congress (“NPC”) to interpret national laws on its own when dealing with civil disputes in real practice.[3] Fundamental changes were therefore initiated by the SPC—these included the need for public trials in civil cases, the demand of formal court rules and procedures, and the recognition of substantive and procedural rights of parties.

The implementation of these procedural safeguards were further crystalized in two subsequent SPC judicial interpretations: the SPC Provisions on Issues Relating to the Reform of the Mode of Adjudication of Civil and Economic Cases in 1998 (the "1998 SPC Provisions”), and the SPC Provisions on Evidence in Civil Litigation in 2001 (the “2001 SPC Provisions”). As the 1991 CPL only contained 12 articles on matters of evidence, it failed to provide sufficient legal guidance to parties. In this respect, the 1998 SPC Provisions included more detailed rules on evidence, such as those on the examination and review of evidence in civil procedures. The rules of evidence finally culminated in the 2001 SPC Provisions, which was more often referred to as the “SPC Evidence Provisions.” It contained 83 articles covering extensively the issues on various aspects on evidence, including the production of evidence by the parties, the investigation and collection of evidence by the courts, the time period for production of evidence, the exchange of evidence, as well as the examination and verification of evidence. The SPC Evidence Provisions also abolished to a great extent the power of the judges to collect evidence on their own accord, in that courts can only interfere where parties were unable to collect their evidence, and applied for collection of evidence by the judge.

The 1991 CPL also provided rules on other aspects. For example, it expanded the parties’ scope of recourse toward challenging legal judgments, in light of the increasing judicial errors and issues of corruption. Rules of prosecutorial supervision over civil adjudication were also introduced. However, the parties were not given the full range of procedural rights. Save for decisions on certain interlocutory measures where parties were given the right to object, such as the preservation of assets, parties generally had no right to interfere with the conduct of trial procedures by judges.[4] Nonetheless, the 1991 CPL was introduced as a timely legal response to the macro context when China began to develop itself into a market, where there was an increase in the volume of civil and commercial disputes from 779,999 at first instance in 1982 to around 2.5 million by the time the 1991 CPL was promulgated.

2.2 The 2007 civil procedure law

In 2007, the CPL underwent a partial revision (the “2007 CPL,” or the “first amendment”) focusing on areas of trial supervision and enforcement, as a result of a perception of rises in judicial errors and complaints against the courts. This turn of events was perhaps prompted by parties not being able to fully grasp their new roles in the courtroom following the procedural formalization with the addition of rules of evidence after the civil procedure developments in 1991, 1998, and 2001. Moreover, although parties were required to bear the burden of proof in civil trials, the trial judges still retained broad procedural powers. As a result, mechanisms of challenging legal judgments by retrials (zaishen were introduced in the 2007 CPL, with provisions on the grounds for retrial and time limits for such applications added. Specifically, greater procedural protections were conferred upon parties on the grounds for retrial—examples would include situations where parties were not given proper notice for attending trials, where they lacked proper legal representation, or where they were prevented from presenting their case.

The 2007 CPL also reinforced parties’ rights on enforcement of court judgments. These include extending the time limit for applications of mandatory enforcement (qiangzhi zhixing ) from six months to two years, and

strengthening enforcement mechanisms to boost the compliance rate by judgment debtors.[5] The new Article 203 in the 2007 CPL even specifically provided for plaintiffs to apply for a change of court where there was a delay of enforcement of judgment. Such provision was deemed to contemplate for the then prevalent local protectionism in China which caused delays in enforcement. However, the judiciary generally adopted a retreating stance in the context of the then political background of “social harmonization.” Courts frequently refused to carry out strict measures to enforce civil judgments as they were then viewed as means to advance political needs. Most of the reforms made by the SPC in response to the evolving Chinese society in the past sixteen years on evidence and procedure formalization through the 1998 and 2001 judicial interpretations were not incorporated into the 2007 CPL, even though some were arguably relevant to the two main areas of reform agenda under the 2007 CPL, that is: the procedures of retrial, and enforcement.

  • 3 Reform
  • 3.1 The 2012 civil procedure law

In August 2012, the CPL went through a substantial revision (the “2012 CPL,” or the “second amendment”). Some have argued that the 2012 CPL contains the most encompassing amendments and reforms since the 1991 CPL, which improves the rights of parties, clarifies the rules of evidence, and most importantly, introduces public interest litigation to address the problem of mass societal claims from the bottom.

The first major reform concerns the use of summary procedures. The summary procedure was first introduced in the 1991 CPL. It is offered at the basic courts and their tribunals when the plaintiff’s case is straightforward and the disputed amount is trivial. The civil procedure will be completed within three months upon filing (as compared to six months required for ordinary civil procedure cases at the first instance). In the past, there

Civil litigation 59 were debates on how to assess the “triviality” of disputed amount. The 2012 CPL now alleviates this problem by introducing a “small claims” procedure into the summary procedure under the new Article 162 with a quantitative limitation, such that civil claims involving an amount below 30% of the average annual salary of urban employees of the relevant provincial area in the preceding year would be applied; and rulings through the “small claims” procedure would be final.[6] The exact amount as determined by the 30% benchmark varies from place to place: for example, it would be around 15,000 RMB in Shanghai. The 2012 CPL also grants parties the right to opt for summary procedure if there is mutual consent between the parties. Such right to use the summary procedure by the parties will be subject to the court’s assessment and the ordinary procedure can be resorted to if the summary procedure is deemed inappropriate. This is a significant improvement from the provisions in the 2007 CPL where only courts were allowed to apply the summary procedure.

Another major reform concerns the presentation of evidence in trials. New rules in the 2012 CPL have specifically aimed to address the complaints on “surprise evidence” submitted after trials have commenced, due to a lack of clear provisions on the timeline of discovery and exchange of evidence between parties. Under the new Article 65, courts are expressly given the discretion to determine the time period for parties to produce evidence according to circumstances of the case, such as the claims of the parties and the progress of the proceedings. Where there is late submission of evidence, parties may apply to the court for an extension of the timeline, with the power of the court to request the defaulting party to explain on such late submission. If the defaulting party fails to give a satisfactory explanation or refuses to give any explanation, the court may reject such evidence, or accept such evidence by imposing a fine or issuing a warning. In addition, the new Article 66 provides a fresh layer of formality to the evidence process by establishing that the court must provide stamped and dated receipt to the submission of evidence by parties. The 2012 CPL has therefore further reinforced and expanded the evidence rules since the 2001 SPC Evidence Provisions.

There are also substantial revisions brought to the case filing system, by dispensing with the need of pre-filing substantive assessment. Under the new Article 123 of the 2012 CPL, once the basic formality requirements are

satisfied, cases will be registered forthwith. Courts are now required to issue a written receipt within seven days, failing which the plaintiff may lodge an appeal. Such requirements are further consolidated in the “SPC Provisions on Several Questions Regarding Case Registration and Filing” issued on April 15, 2015. All these provisions now aim to impose stricter supervision over the case filing process to prevent courts from arbitrarily refusing to hear certain sensitive cases.[7] On the other hand, to counter the diminished power of courts in the case filing process, the new Article 13 imposes an obligation on parties to conduct litigation in good faith. This is perhaps motivated by the increase in frivolous or malicious lawsuits and the abuse of legal process by litigants, such as falsifying evidence and intentionally delaying proceedings. Where parties engage in collusion or attempt to evade obligations through malicious litigation, the court is now authorized to sanction with fines or detain any party involved in such collusion.

Mediation procedures are also of great importance. Under the new Article 122, parties are required to attempt voluntary mediation if appropriate before filing their civil litigation, unless the parties refuse to do so. Some have argued that because of this provision, courts now have the legal basis to facilitate pre-filing mediation when necessary. A highlight in the mediation procedure as introduced by the 2012 CPL is the judicial confirmation of extra-judicial mediation efforts (i.e., mediation settlement agreements facilitated by people’s mediation committees) under the new Articles 194 and 195. The request for such judicial confirmation has to be jointly filed by mediation parties within 30 days from the effective date of the mediation settlement agreement. The reform therefore encourages extra-judicial mediation efforts by way of elevating mediation settlement agreements to the status of judicial judgments, and to thereby enjoy enhanced enforceability.

Among the major reforms introduced in the 2012 CPL, perhaps the greatest emphasis has been on the expansion of parties’ procedural rights through the addition of a new cause of civil action, the “public interest litigation” (gongyi susong

In recent years, Chinese courts have discouraged group litigations and cases with a broader social impact, mainly because of a fear that the cases might have the potential in leading to social unrest. Fears of instability have led courts to withdraw from accepting group litigations. Courts have been

Civil litigation 61 urged to divide up group litigations into individual lawsuits. In 2006, the All-China Lawyers Association even issued a “guiding opinion” instructing law firms to assign only “politically qualified” lawyers to cases involving ten or more litigants.[8]

The “public interest” under the new Article 55 of the 2012 CPL encompasses two specific areas, namely consumer protection and environmental protection cases. It provides for a generalized recourse in respect to these two areas such that “relevant bodies and organizations prescribed by law may bring lawsuit to the courts against such acts as environmental pollution, harm of consumers’ legitimate interests and rights and other acts that undermines the public interest.” This procedural revision is particularly meaningful because it recognizes the social significance of some mass torts (e.g., consumer torts and environmental torts), and offers locus standi for social organizations to sue tortfeasors on behalf of the victims (the so-called “third-party standing”). According to Fu, one of the most prominent scholars on civil procedure based in Beijing, the public interest litigation system constitutes the core theme in the 2012 CPL reform. Due to its critical importance in addressing social unrest arising out of the increasing amount of mass disputes in China, this procedural reform will be looked into more carefully in subsequent sections of this chapter.

Apart from the aforementioned major reforms, the 2012 CPL has also made amendments to other provisions to enhance parties’ procedural rights. For example, Article 34 expands the scope of jurisdiction of courts by including not only the domicile of the parties and the place where the subject matter is located, but also “any other place actually connected to the dispute.” Transparency over court judgments is also much strengthened. Judges are now required to give public judgments whether the case has been heard publicly or privately. Under the newly added Article 156, the public may also access legally effective judgments and rulings, except those involving state secrets, business secrets, and personal privacy.

All these newly added provisions in the 2012 CPL are in an effort to introduce a multi-tracked litigation system according to the specific needs of various cases, thereby to streamline cases and to counter the exponential rise

in caseload in people’s courts.[9] In the eyes of some Western scholars, the 2012 CPL reform shows an unprecedented commitment to efficiency, transparency, and access to justice in the formal legal system in China, and links to the persistent debate surrounding the developing rule of law in China.

3.2 The 2017 civil procedure law

In June 2017, the CPL was revised for the third time (the “2017 CPL” or the “third amendment”). The third amendment was small in scale and it added only one paragraph to Article 55 of the 2012 CPL, that is, the new Article 55(2), which allows Chinese procuratorates to bring public interest lawsuits in addition to the social organizations. As such, the differences between the 2017 CPL and 2012 CPL are minimal.

According to the newly added Article 55(2), the people’s procuratorates, which in general serve as the prosecutors in Chinese criminal cases, may file civil lawsuits against acts that compromise public rights and interests in cases related to environmental and natural resources protection, as well as food and drug safety. The added paragraph states that the procuratorates can only initiate civil public interest litigation when it discovers such acts in the course of fulfilling its duties, and when the social organizations are not actively initiating proceedings. If the social organizations have initiated public interest litigation, the procuratorates may support the filing of the lawsuit.

The power to file public interest lawsuits is a new extension of the authority of the procuratorates. This amendment is seen to target recent incidents related to food and drug safety that had visible impact within the civic society. The amendment increases the State’s capacity to engage in civil public interest litigations. It is also believed that the entry of the State units into this field of litigation may be helpful in enhancing the enforcement of environmental laws and consumer laws in China by their significant financial resources.

As the current civil procedure system is mainly shaped by the second amendment, that is, the 2012 CPL, the subsequent discussion will focus on the 2012 CPL, with reference to the new development of the 2017 CPL where necessary.

3.3 A closer look at public interest litigation

The addition of the new Article 55 (on public interest litigation) under the 2012 CPL has been a welcomed leap from the existing Articles 52 to 54 (on joint and representative litigation) following an increase in group litigation in recent years against China’s rapid economic reforms and social development.[10] While these provisions all provided for various causes of action to a large number of litigants, Article 55 can be distinguished from Articles 52 to 54 in two ways: (1) the nature of the targeted class of plaintiffs with standing, and (2) the nature of the litigation.

In respect of the targeted class of plaintiffs, Articles 52-54 are targeted at causes of action initiated by identified or specific (teding W/E) litigants in large numbers (duoshuren Under Article 52 which concerns joint litigation (gongtong susong -ftP''Jiff i£), where there are more than two plaintiffs in a case with common questions of law or facts, the courts are given the right to join these parties and combine the actions after obtaining the parties’ consent. In a similar vein, under Articles 53 and 54 which address representative litigation (daibiaoren susong where the number of litigants of one side

of the case is specific (teding 4$/E) and exceeding ten, that side is considered “large” (zhongduo in litigation size and is given the right to select a certain representative to follow throughout the process of litigation. The subsequent judgment will then bind all parties that were represented. According to Pan, Dean of Peking University Law School and one of the most authoritative scholars on Chinese civil litigation, the newly added Article 55, however, targets at “unspecific” (buteding AAfaE) and “mass” (duoshuren litigants. Moreover, the “unspecific” nature of the targeted class of plaintiffs under Article 55 requires that the nature of the litigation initiated thereunder must be concerned with “public interest” (gongyi Айй), as opposed to grouped individual civil litigations initiated under Articles 52 and 54 which are of “private interest” (siyi fAjjff).

Before Article 55 was added, the joint and representative litigation systems had a few serious shortages. First, Chinese courts often preferred fewer than ten plaintiffs or defendants in any legal proceedings. Second,

only two to five legal representatives may be appointed in a representative litigation in China.[11] Such practice was explained by the inherently political nature of such litigation in China which might threaten social order and by the attempt to reduce the costs of litigation, rather than to enhance procedural safeguards to the parties. Judges often fear that large numbers of litigants would decrease judicial efficiency and might potentially lead to social unrest. Many courts are hence urged to divide cases into individual lawsuits instead. As such, by not explicitly requiring the identity of the litigants to be specific (i.e., “unspecific”) and by not restricting the size of the class (i.e., the general “mass”) in public interest litigation, Article 55 has now provided for an additional channel of recourse for cases with large number of plaintiffs to which courts might have been reluctant to accept before. Moreover, Article 55 provides standing for “relevant bodies and organizations prescribed by the law” (youguan zuzhi W^^/>) to sue on behalf of the unspecific litigants. The relevant bodies refer to non-governmental social organizations in the fields of consumer and environmental protection, with the specifics to be further defined by relevant laws, that is, the Consumer Protection Law and Environmental Protection Law.

For example, on consumer public interest litigation, Article 35 of the most recent version of China’s Consumer Protection Law (amended in 2013) (the “2013 Consumer Law”), provided that courts must accept and hear mass consumer cases in a timely manner where they meet the terms of the 2012 CPL. Likewise, on environment public interest litigation, Article 58 of the most recent version of China’s Environmental Protection Law (amended in 2014) (the “2014 EPL”) was amended following the addition of Article 55 in the 2012 CPL, by expanding the scope of social organizations (shehui zuzhi which are eligible to sue to those envi

ronmental protection bodies established at the city level or above. This shows much improvement from the earlier draft which only allowed the All-China Environmental Federation, the national-level environment protection social organization, to sue. As such, the amendment will certainly

Civil litigation 65 enhance access to justice in the field, as many such social organizations are registered at the city level.[12]

The recent SPC Opinion on Environmental Public Interest Civil Litigation in 2015 (the “2015 SPC EPICL Opinion’’) further provided for extended powers to public-power holders such as procuratorates and departments responsible for environmental protection to assist in the initiation of environmental public interest litigation, or the so-called “pertinent public interest litigation.” Equivalent powers for procuratorates in respect of consumer public interest litigation, however, was neither found under the 2013 Consumer Law, nor the SPC Opinion of the Consumer Public Interest Litigation in 2016 (the “2016 CPIL Opinion”). Both Article 47 of the 2013 Consumer Law and Article 1 of the subsequent 2016 CPIL Opinion prescribed the “relevant consumer bodies” that can bring consumer public interest litigation are only those consumer protection associations which should be set up at the national level and the provincial level, with the exclusion of those set at the city level, which starkly contrasted with Article 58 of the 2014 EPL.1 While some Chinese legal scholars and public interest advocates expressed strong encouragement toward more consumer public interest litigation without ill-resourced consumers taking individual actions, others thought that with only some 30 of such consumer associations available, they would be unable to handle the workload and hence, many potential claims will not be brought to court.

Technically, the new Article 55 of the 2012 CPL represented an improvement for the courts and parties in general. Prior to the addition of Article 55, when adjudicating cases under Articles 52-54, courts had to assume the onerous tasks of supervising the appointment of class representatives, and overseeing the distribution of damages to a large number of individuals,

even though they had limited resources and were sometimes pressured by political pressures.[13] Under the new Article 55, since specific social organizations are designated with the standing to sue on behalf of multiple individuals, the tasks will have become less onerous since the entity vested with the right of standing will have served as the intermediary in facilitating the litigation process.

With respect to parties, prior to the addition of Article 55, they were often dissuaded from bringing class actions (under Articles 53 and 54) since they would incur extra costs in appointing lawyers, as well as travel expenses and costs associated with the preparation of evidence. The new Article 55 will therefore improve parties’ access to justice in two ways. First, it switches the burden to sue to social organizations which will then be responsible for the collection of evidence and associated legal costs. These social organizations are in a better position to represent clients’ interests since they are better resourced. Second, it delegates the right to social organizations to sue despite their lack of direct interest or direct standing. The amendments in 2012 CPL, which introduced public interest litigation and extended its scope to social bodies without a direct interest in the case, offer an outlet for the public to express their discontent, and help to maintain social stability.

In practice, however, the question of whether these social organizations are in active pursuit of public interest claims is thornier than expected. Realistically, many of these social organizations are still troubled by the lack of funding. Political concerns are also apparent in relation to consumer claims, with the China Consumers’ Association (the “CCA”) being the main social organization named under Article 47 of the 2013 Consumer Law, which monopolizes the handling of consumer issues to the exclusion of other consumer protection social organizations. The political connection of the CCA with the Chinese government casts doubts on its status as an independent social organization in that the CCA might be reluctant to deal with more sensitive consumer disputes which are considered as potentially disruptive to social order or challenging the governance of the state. But, without the linkage with the government, its funding might be problematic. To limit the eligibility to sue to those consumer protection organizations at the provincial level or above is also significantly inadequate to

Civil litigation 67 address China’s massive scale of consumer grievances. In this respect, there is a lack of nationwide empirical data collected either by the Yearbooks or the judiciary as to how many consumer public interest litigation cases have been brought since the 2012 CPL and 2013 Consumer Law amendments. According to a recent academic survey, there were altogether only nine public interest litigation cases in the area of consumer protection up till the end of 2017.[14] These data showed the difficulty in actively pursuing public interest claims in the consumer protection area.

Environmental public interest litigations have similar concerns, including those on the independence of the environmental protection social organizations. When compared with consumer public interest litigation, the resources to initiate environment public interest litigation is arguably more robust as environmental protection social organizations at the city level or above are allowed to sue, which might also explain why there have been more environmental public interest litigation cases in China in recent years than consumer public interest litigation cases. In this respect, the SPC started to issue China’s Environmental Adjudication White Book (the “White Book”) on an annual basis in the past few years. According to the White Book, a total of 58 environment public interest litigation lawsuits were lodged by social organizations nationwide in 2017; the caseload increased to 65 in 2018, and further increased to 179 in 2019. These data empirically indicate the importance in lowering the bar of the social organizations entitled to sue, and the enhancement of access to justice in civil public interest litigation. As discussed earlier in this chapter, the eligibility of city-level social organizations to sue in environmental public interest litigation cases (vis-à-vis provincial-level social organizations in consumer public interest litigation cases) have significantly increased the number of environmental public interest litigation cases.

The standing to bring public interest litigation has been most recently extended to the public procuratorates in the 2017 CPL. Article 55(2) of the 2017 CPL now allows Chinese procuratorates to be the plaintiffin civil public interest litigation cases, in addition to the social organizations. The standing to sue of the procuratorates has two outstanding features that distinguish it from that of the social organizations. First, as aforementioned, the procuratorates can only initiate civil public interest litigation when they discover

68 China’s major dispute resolution systems

such acts in the course of fulfilling their duties, and when the social organizations are not actively pursuing the proceedings. If the social organizations have initiated public interest litigation, the procuratorates may only be in a supportive role.[15] Second, while environmental public interest litigation cases initiated by the procuratorates are concerned with the general ecological environment and the protection of natural resources, the consumer public interest litigation cases initiated by the procuratorates are restricted to food and drug safety ones. It has been criticized that the unjustified restriction in the 2017 CPL will dismiss other aspects of consumer interests and the procuratorates could have been allowed to bring a broader scope of consumer public interest litigation cases. However, it is generally believed by Chinese scholars and practitioners that, as the statutory supervisory organ of the state, the procuratorates possess a more advantageous position in terms of social status and economic resources. While the involvement of the procuratorates in civil public interest litigations would significantly enhance the enforcement of environmental laws and consumer laws in China, such power should be restricted to very serious cases.

Finally, as a special feature of public interest litigation, in terms of enforcement, courts are given the discretion to consult different social organizations on the various enforcement methods against the defendant. If the defendant fails to comply with its legal obligations, the specific court which makes the judgment has the discretion to directly transfer the matter of enforcement to its enforcement division. This is to be distinguished from the enforcement procedure in ordinary civil litigation cases, where the plaintiff instead will have to apply for compulsory enforcement from the court’s enforcement division upon default of the defendant. Such augmentation of the enforcement system is perhaps due to the involvement of public interest which the state deems proper to require an additional layer of supervision.

  • 4 Development analyses
  • 4.1 Penetrating factors of reform

Holistically, the reforms in the 2012 CPL in relation to public interest litigation, refinement of summary procedures, recognition of extra-judicial mediation agreements and improvements in the rules of evidence, have been seen as responses to the change in social and economic conditions in modern China. The main driving force is China’s internal domestic socio-economic and socio-political context.

China has been undergoing rapid economic development since the 2000s.[16] This generated an increase in both the number and complexity of civil disputes. For example, recent statistics published by the 2012 SPC Working Report suggested that from 2008 to 2012, the number of civil cases concluded at first instance increased by around 40% as compared to that from 2003 to 2007. This perhaps led to the emphasis in the promotion of “judicial efficiency” by the SPC’s first two rounds of court reform. The explosion in the use of summary procedures follows as a natural result, and become one of the themes in the 2012 CPL reform. For example, in 2008, judges were evaluated by the proportion of cases to which summary procedure was adopted, in order to cater to the increase in the caseload and to utilize limited judicial resources.

There was also a rise in the complexity of civil disputes. As a statistical backdrop to the 2012 CPL reform, in 2010 alone, Chinese local courts at various levels concluded about 11 million cases of various types. During the year, the courts handled 20,258 cases on foreign-related issues and maritime matters, 3.239 million cases on domestic contracts and commercial relationships, 1.428 million cases on family matters, 578,919 cases on the financial market, 14,694 cases on merger, acquisition and bankruptcy, 48,051 cases on intellectual property infringement, and 12,018 cases on environmental pollution compensation. To successfully drive the economic reform from a centralized planned economy to a market-driven economy, there is consequently more economic disputes brought by new economic entities such as private businesses and foreign-invested enterprises. Coupled with the revamp of state-owned enterprises and the reduction of government interference in these entities, many disputes have now turned to courts via litigation or to arbitral tribunals via commercial arbitration, instead of being resolved by administrative authorities.

Another by-product of the rapid economic development of China is a higher awareness on various domestic problems among Chinese people within the country who are concerned with various rights. This in turn has caused the evolution toward a more litigious society and the frequent occurrence of group actions, which has led eventually to the development of public interest litigation.

There are also environmental problems, with numerous reports on water and air pollution, invariably affecting the human health and living conditions.[17] The increased domestic and international concerns on the matter has also led to an increased awareness on environmental rights in China among the public, a more active civil society community, as well as greater political attention to the issue. Administrative measures were also implemented to respond to the serious environmental problems in China, such as the establishment of an “environmental police force.” In addition, there has been an expansion of insurance coverage for environmental claims. Victims are therefore less likely to be left out of pockets due to the insolvency of defendants after succeeding in environmental cases. As such, the development of environmental public interest litigation does not come in a vacuum; rather, there are sufficient contextual factors that drive the legislative development. Prior to the addition of Article 55 to the 2012 CPL, several Chinese environment protection organizations had already initiated a few environmental public interest litigation cases. Some Chinese courts at the provincial- and city-levels had also formulated informal regulations in exploring the standing of some non-governmental organizations (NGOs) to bring environmental public interest litigation cases.

Some NGOs, such as the All-China Environmental Federation, filed both civil and administrative lawsuits with respect to environmental pollution, in addition to continuously promoting environmental protection through the Internet and social media.[18]

In a similar vein, consumer awareness on defective consumer products has also intensified following the transformation of the Chinese society from being investment-led to consumption-led, as a result of China’s rapid economic development. Since the 1990s, there has been a change in consumer culture from “buyers beware” to a more litigious culture where consumers make complaints when they wish to. This in turn led to an increase in the number of collective actions, as well as confrontations between consumers and producers in courts. For example, before the revision to the 2012 CPL, there had been a series of class actions on defective products, ranging from fake watches to substandard fertilizer. In addition to the rise in consumer awareness, there has also been an increase in media attention on individual consumer cases, although in the early days, most of the media coverage was generated by official media, such as the Xinhua Newsnet, or quasi-governmental media, such as the China Consumer Newspaper, which was in some ways affiliated and controlled by the Chinese government. Moreover, the content reported by the media has shifted to increasingly prioritize sensational stories about and concerns of Chinese consumers, as opposed to issues which were sanctioned by the central government. Examples include the reporting of some extreme consumer rights cases, such as those promoted by Wang Hai, one of the earliest activists on double compensation in consumer cases.

The most influential case during this period of time is the case of Sanlu tainted milk powder which happened in September 2008 (the “Sanlu Incident”). In the Sanlu Incident, 300,000 babies suffered urinary-related

diseases with a total of six fatalities from drinking milk from milk powder contaminated by melamine produced by the Sanlu Corporation. This caused public outrage after the revelation of the lack of regulation over food safety and the government’s deliberate concealment of the scandal.[19] In addition to media coverage both domestically and internationally, victims of the plight took initiative to use the social media for the first time. For example, Beijing resident Zhao Lianhai decided to set up a website called “Home for Kidney-Stone Babies” after he discovered that his infant son had a two-millimeter kidney stone in his right kidney. Through the website, information was reported and exchanged in relation to poisoned dairy products and a mass of other victims alike was drawn in to join the lawsuits together.

In the meantime, lawyers also became active in filing collective suits on behalf of the victims. A group of lawyers named “Sanlu Melamine Victims’ Legal Support Team” filed a tort action in the Shijiazhuang Intermediate People’s Court on behalf of 63 victims demanding for compensation for bodily harm and emotional distress arising out of the Sanlu Incident. Others offered free legal advice and attempted to file actions under Articles 54 and 55 of the then 2007 CPL on representative litigation, with the aim to reduce costs for clients, and to potentially force a settlement with Sanlu. In the end, many lawsuits against Sanlu was dismissed by courts for apparent political reasons because of the Party’s vested interests in Sanlu as a key state-owned enterprise (the “SOE”) and a national dairy product provider champion. A national policy was also put in place to let Sanlu undergo liquidation and address compensation claims for victims, after which many of the victims lost their standing to sue since Sanlu was no longer a legal

Civil litigation 73 entity and not an eligible defendant in civil litigation according to Article 108 of the then 2007 CPU[20]

Unfortunately, at the other side of the story, the All-China Lawyers Association (the “ACLA”), a semi-governmental self-regulatory organization for all Chinese lawyers, issued a guideline in 2006 which discouraged group litigations and contained onerous rules to be represented by lawyers, as well as a “guiding opinion” for law firms to only instruct “politically qualified” lawyers to handle group litigation. In the 2008 Sanlu Incident, lawyers were faced with harassments on not to take up class actions due to their inherent political nature which threatens social stability, and that if they do proceed with such sensitive cases, they may be perceived as inciting political unrests.

Although a political remedy was pursued in the end, the Sanlu Incident, as a landmark case, sparked claims in the areas of consumer protection and product liability of the consumer rights against powerful SOEs. Government authorities, including government-controlled media, have to stifle media coverage on politically-affiliated cases. The case also marked the beginning to use legal means such as collective actions by both lawyers and victims to voice out their grievances, as well as to develop consumer protection activism through non-governmental media and rights activist lawyers, going beyond government-affiliated consumer organizations.

At this juncture, the role of mediation in courts was also questioned. Prior to the Sanlu Incident, Chinese political-legal authorities had promoted the Party-led “grand mediation” in handling complex disputes which could lead to social unrests. In 2007, the SPC even singled out several types of cases where closed-door mediation should be used, including those that involved a large number of litigants and concerned with sensitive social issues, such as product liability torts and land seizures. However, after the outbreaks of

some landmark consumer cases, mediation in Chinese courts was no longer seen by the Chinese government as the panacea to pacify social anger. On the contrary, mediation exacerbated the situation, which was contrary to the Party’s policy to maintain social harmony. In relation to consumers, some argued that under the 2012 CPL, litigation was often preferred over mediation by consumers because the formal links between consumers and vendors had become increasingly distant and unregulated by the government.[21] Subsequent cases also frequently involved strangers, migrants, or corporate entities disconnected from traditional village or state-owned entities. As such, these disputes were less amenable to resolution by mediation, which relied on existing social ties in leading parties toward narrowing down differences and compromising in disputes.

Courts at this time had a historically low public satisfaction, especially following the Sanlu Incident, as the Bankruptcy Law leading to the termination of the Sanlu Corporation conflicted with the laws on consumer standing under the 2007 CPL. Hence, the new addition of Article 55 in the 2012 CPL was seen as a move by the political leadership to salvage and to maintain the legitimacy of courts, by requiring them to take up civil public interest cases and respond to social grievances.

4.2 Patterns of reform

While civil procedure reforms in other jurisdictions are largely fueled by aims to improve due process in their civil justice system, one noteworthy feature of reforms in civil procedure in China is that they were largely motivated by top-down responses from Chinese authorities to bottom-up societal grievances. A typical trajectory would involve legislative reform by introducing new causes of actions in the CPL with subsequent fine-tuning in implementation by procedural rules, following certain bottom-up triggering events. The trajectory of the reforms in civil litigation (on procedural laws and rules) are thus in contrast with the trajectory of the reforms in the Chinese courts. Reforms of the courts in China are often made in a comparatively more systematic manner through publication of policy documents at the top-down level (i.e., the SPC’s issuance of the court reform plans in a five-year-cycle), subject to some versatility in implementation on local practices and the various local economic developments at the bottom-up level.

In addition, on the pattern and trajectory of reforms in civil procedure in China, it is observed that the bottom-up triggering events must have

Civil litigation 75 reached a sufficiently serious level or even devastating in nature. Examples would include the series of events following the Sanlu Incident and the Sichuan Earthquake Incident.[22] Legal resolutions were then pursued to address grievances after the general public had been more conscious about the law, including its uses and benefits. Many movements were initiated by individual victims, specifically in the consumer protection area, as they were built on the better awareness among the citizens on consumer rights. In the example of the Sanlu Incident, as a result of intense media coverage and public discontent over the food safety among victimized babies, the Chinese government at the top level responded by correspondingly opening up a new cause of action in the 2012 CPL, in order to allow civil public interest litigations to be initiated on the basis of consumer rights. The same phenomenon and observations are applied in the situation of environmental protection, where there has been extensive media attention and public outrage over environmental pollution in China following the Sichuan Earthquake Incident.

5 The future

There remain deficiencies in the civil litigation landscape which should be addressed by the Chinese central government, in particular, those related to public interest litigation. This section therefore proposes a package of areas that need to be further fine-tuned, clarified, amended, and overhauled, both at the technical procedural level and systematic institutional level.

5.7 Public interest litigation—technical reforms

Technically, the author proposes that the public interest litigation procedure should cover other types of civil and commercial mass claims, apart from those related to consumer rights and environmental protection in China. One emerging area would be labor disputes, particularly with respect to concerns on equality, where many female Chinese workers challenge on the matter of employment discrimination. Although most of these cases resulted in labor mediation with payment compensation, it demonstrated the potential rise in the number of collective actions in the field and the need to develop an alternative channel such as public interest litigation to resolve such disputes. Other examples include securities litigation, where there were a line of landmark collective cases initiated in 2000s, with minority shareholders launching civil compensation claims against the companies

or majority shareholders, on grounds of insider trading, false statements and misrepresentations, in violation of the Securities Law.[23] Last but not least, medical malpractice incidents have been on the rise in recent years, and some are sufficiently serious to generate wide attention. As such, some scholars have called for public interest litigation to be applied in medical malpractice cases to protect patients’ rights.

One might question the legislative intent behind the new Article 55 of the 2012 CPL as to why the list of public interest litigation cases was exhaustively restricted to only those related to consumer rights and environmental protection. This is especially in view of the rise in other aforementioned collective actions. Perhaps the existing restrictive list was intended as a strategy to “start small,” to test the floodgates of mass claims which might potentially threaten social stability, and to gauge the public reaction in relation to bottom-up consumer product liability and environmental incidents. In terms of mass claims in tort in China, it is believed that the further development of the civil public interest litigations cannot be viewed in isolation, but needs to be read in conjunction with other recent enactments such as the Tort Liability Law (the “TLL”) promulgated in December 2009 and came into effect in July 2010.

The TLL consolidated existing laws concerning tort liability ranging from product liability, environment liability, to medical malpractices. For example, for environmental torts, Article 66 of the TLL specifically provides for the burden of proof to be borne by the defendant on the issues of causation, liability, and mitigation. The promulgation of the TLL therefore dealt with the substantive aspect on various types of torts and clarified the causes of action to be initiated by potential victims, leaving the procedural aspect of these actions to be determined by the rules of civil procedure. The 2012 CPL is therefore a golden opportunity to fill in the gaps in relation to the procedural aspects of these causes of action in relation to various types of torts as clarified by the 2009 TLL. For example, Article 55 of the 2012 CPL clarifies the standing of plaintiffs in collective product liability

and environmental liability actions. However, what remains to be seen is whether the legislature would subsequently expand the list of actions under Article 55 to include other types of torts, so as to complement the various substantive types of torts introduced by the TLL and the Securities Law.

The expansion of the current list would certainly be a welcomed move, since the reform of the civil procedural law would undoubtedly encourage reforms of the corresponding civil substantive law. There are already precedents to this, for example, those in the 2013 Consumer Law and the 2014 EPL discussed earlier in this chapter. Mass civil compensation claims on securities and medical malpractices would also benefit from procedural enhancements if Article 55 of the 2012 CPL could be applied. Currently, there are no class action regimes available in labor litigation (where employees could sue discriminative employers), securities litigation (where minority shareholders could sue majority shareholders or the company acting in bad faith), and in medical tort actions (where victimized patients could sue wrongful medical practitioners). The existing group litigation rules (joint action and representative action) proved to be expensive and inoperative in the context of China’s massive numbers of migrant laborers, retail shareholders in the commercialized society, and large numbers of medical patients accompanying the aging society. Moreover, civil remedies for torts concerning securities are also inadequate.[24] Therefore, the development of a better procedural system through the improvement of the civil procedure law would hopefully push for reforms in the substantive aspects of civil substantive law: labor regulations, securities regulations and medical law.

5.2 Public interest litigation—systematic reforms

The landscape of civil litigation requires not only the revamp of the civil procedural laws, but also effective reforms of the Chinese courts institutionally. These depend on many crucial concepts, such as the independence of the courts and the judges, as well as the competence of the judicial profession. There have been many positive debates and discussions from various scholars on systematic improvements which are essential to the reform of the Chinese civil procedures. Among the advocates, in 2014, Fu at the Peking University Law School (as this chapter has referred to in numerous occasions), suggested two parallel threads of reforms: (1) judicial structural reform which focuses on de-localization of budgetary control of Chinese courts and (2) revision of the accountability of Chines judges which focuses on enhancement of their specialized competence. As many of these issues have been addressed in the fourth and fifth rounds of the SPC Five-Year Court Reform Outline, which are considered in Chapter 2, the following

discussion will only outline the necessary reforms which have not been considered in Chapter 2.

First, Fu emphasized that as civil litigation reform has generally responded to changing economic and social circumstances, and with China being a vast country with many geographic divisions, the practical implementation of the formal rules has often been compromised by local practices and limited resources. For example, in economically developed cities such as Beijing and Shanghai where commercial disputes accounted for the majority of cases, judges tend to follow systemic formal rules with stronger emphasis on due process elements, such as the adoption of the adversarial model with corresponding obligations on the parties in terms of burden of proof, etc. However, in economically less developed regions, most courts responded to disputes mostly in a mediatory and inquisitorial fashion.[25] The issue of judicial disparity resulting from the economic disparity among different regions of China reflects that the budgetary system between local courts and local governments should be de-coupled. Fu suggested by gradually realizing centralized financing of various courts in China, the divergences caused by limited resources at the local level could be mitigated.

Second, Fu called for professionalization of Chinese judges in specialist fields to accompany the emergence of specialist courts and tribunals. Fu used the examples of intellectual property law and environmental law. A report in 2010 showed that there were more than 11 environmental tribunals established at the city-level intermediate courts in Southwestern and Eastern China, dealing particularly with environmental torts. The number rose to 61 by early 2012, and there was a significant increase to reach 391 environmental tribunals within China at the end of 2018, with 23 provincial-level high courts having established specific tribunals to handle disputes with respect to protection of environmental and natural resources.

In terms of the newly introduced environmental public interest litigation, Stern examined whether these specialist environmental tribunals could effectively address environmental problems. In her published paper in 2011, Stern showed that Chinese courts showed greater sympathy to victims in environmental torts, as evidenced by the increase in number of reported cases that qualified as environmental public interest litigation, although some environmental tribunals still assumed a passive role for the sake of the local governments.[26] In her subsequent published empirical study in 2014, Stern looked into the case records in the environmental tribunals in the cities of Guiyang (in Guizhou Province), Wuxi (in Jiangsu Province), and Kunming (in Yunnan Province). All three tribunals showed tentative willingness to broaden the range of plaintiff's with the legal standing to sue. For civil cases, however, the effectiveness of the tribunals suffered from a lack of public interest litigation, the court’s lack of experience with trying these cases, and considerable obstacles for NGOs to file the cases. Based on such observations, Stern then suggested that these courts were only established to fulfil the political needs of the government to address environmental problems and social unrests. It has been suggested that until judges are fully trained in the specialized fields (including expertise in environmental science in addition to legal skills on tort claims), specialized tribunals will not be able to fulfil their true functions.

Subtly, public interest litigation as introduced in the CPL will also test the Chinese courts’ role to maintain social stability. At the center of civil litigation is always the delicate balance of power between litigants and the court. Earlier, we discussed the impact of sensational cases such as the Sanlu Incident in the development of the 2012 CPL. However, if we slightly modify the timeline such that those cases occurred after the 2012 CPL, will the outcome of those cases be the same? And, will Article 55 of the 2012 CPL be able to deliver its full effect?

Let us postulate two scenarios using the Sanlu Incident as an illustration. In the first scenario, upon occurrence of the Sanlu Incident, in the beginning, there were neither any social movements from activists and victims, nor was there any media attention. In this scenario, things were largely peaceful at first, and the product liability stemmed from a private company. Eventually, after the defective milk products were exposed by the media, the public would demand a cause of action against the private company. In such circumstances, it is suggested that Article 55 would likely be of great assistance to victims in establishing a cause of action in court.

In the second scenario, the initial situation would be the same: there were no social movement from activists and victims, nor was there any media attention.

However, unlike the first scenario, the product liability stemmed from a public company, for example, an SOE where political interests of the State were involved. Eventually, after the defective milk products were discovered, media activities on reporting would be overwhelmingly stifled by State actors, in order to prevent the public from being notified of the illegal activities of the SOE. In such circumstances, it is suggested that Article 55 might have little or even no use in assisting victims or social organizations to establish a cause of action on public interest litigation. The outcome under the second scenario is explained by the stability-maintenance function of courts in the Chinese society.

The Party-State holds the instrumentalist view that the court was a means to achieve various policy aims, such as economic development and social stability. Civil justice then functions to maintain social stability as part of the State-building process, at the expense of other lofty goals such as fairness and due process.[27] Such a direction is still evident in many official documents such as the 2014 Party Central Committee Decision concerning Some Major Questions in Comprehensively Promoting Governance of the Country According to Law (the “2014 Party Decision”). Some have argued that by dedicating an entire session to the topic of law in the 2014 Party Decision, the Party attempted to reassert its role in the legal system to address the weak public trust of the legal system. This announcement was consistent with Article 2 of the 2012 CPL, which stressed that the goals of the civil procedure are to resolve disputes, under the overarching notion of “maintaining social stability.”

As the courts are being tasked with the political obligation to maintain social harmony, policy considerations played a big role in the decisionmaking process of the judges, sometimes at the cost of preserving due process. Such considerations, however, are largely undisclosed in the reasoning of the judgments unless parties have specifically presented or defended those issues. Cases related to social policies are often rejected at the docketing stage, and even if they survived that stage, most judges decline to take on multi-party cases because of the complexity and potential political interference due to the expected wider impact to the society. For these reasons, these cases tend to be mediated, withdrawn by the plaintiffs, or handled by the state through other administrative means. For example, Chinese courts in the Sanlu Incident had become a multi-purpose governance tool

Civil litigation 81 rather than the protector of rights in due process, by assuming an active role over the commencement and conclusion of Sanlu Corporation’s bankruptcy, which ultimately led to the demise of any litigation in tort.[28] Even though the new Article 55 of the 2012 CPL would seem to have improved the situation, some scholars still argue that this is a mere political move to reduce public discontent due to the rise in public awareness toward a more litigious society and with activist movements in those areas of mass claims in torts. As such, despite the issue of standing to sue has been solved, the Chinese courts are still very cautions on the development of capacitybuilding in the civil society that may potentially threaten the courts’ politically instrumental roles. As such, the new multi-tracked litigation system under the 2012 CPL reform where public interest litigation was introduced has been commented by Woo, leading scholar on China’s civil justice in the West, as another political product, where (1) pure commercial cases without socio-economic and socio-political impact can be adjudicated; (2) politically insignificant disputes can be mediated; and (3) mass claims are to be carefully controlled and shaped by the Party State through the tasks to maintain social stability (weiwen ¿BS.) designated to the courts.

6 Conclusion

The civil litigation system in China is constantly evolving, with much development introduced in the past decade. However, unlike contemporary civil procedural reforms in other jurisdictions such as Hong Kong and the United Kingdom that have been driven by procedural efficiency concerns, China’s reforms are largely triggered by social grievances at the bottom, which are then responded to by legislative amendments at the top for social stability maintenance as part of its state-building process.

The Chinese path to the civil procedure reform is thus an evolution toward a more litigious Chinese society where civil activism in certain areas of law such as consumer rights and environmental protection could be increasingly accommodated. China has been steered to revise its civil litigation regime as the political entities started to lose popular legitimacy in pacifying the general public. If the movements to reform civil procedure laws were technically motivated by procedural concerns, then the introduction of the public interest litigation system in the 2012 CPL would have also addressed other forms of malfeasance by public bodies and other areas of mass claims with a public interest element.

Fortunately, there are also signs of de-politicization of the civil litigation system in progress. Although Article 55 of the 2012 CPL is an enactment motivated by bottom-up movements, in the recent 2014 EPL, environmental protection bodies established at the city level or above are given the standing to sue, and there has been an increase in non-governmental affiliated NGOs established at the city level or above since then. Citizens are also given greater participation opportunities in certain social issues through participating in such public interest cases, which is a move that has certain impact on access to justice. Hence, public interest litigation introduced by Article 55, in connection with the subsequently amended 2013 Consumer Protection Law and 2014 EPL, have pushed the conventional boundary of access to justice of mass tort claims in China.

There are also signs of changes in mindset among both academics and political leaders. An increasing number of Chinese civil procedure scholars argue that the functions of civil litigation system should include the protection of lawful rights of the parties, and emphasize the importance of establishing a legal order as opposed to a social order, in addition to mere dispute resolution. Many have urged courts to exercise their adjudicatory power to declare legal norms and uphold justice. State leaders have started to recognize the defects in the legal system such as judicial structure and resources, as well as the need to enhance judicial competence.

Finally, regardless of the underlying political motivations on the amendments of the existing Chinese civil procedure laws and rules, it is still an important step by China to move toward better due process and access to justice. The legislative amendments also demonstrate China’s responsiveness to domestic voices, thereby constantly re-molding the landscape of civil causes of actions. Indeed, the civil procedural laws are merely a facet of civil justice, and inroads must be made and complemented by parallel technical reforms of the procedure and systematic reforms of the courts and judges. As Fu suggested, the reform of parties’ procedural rights in mass civil litigation drives systematic reforms such as the revision in the courts’ structure and functions, as well as increased professionalism and accountability of the judges. The recent development of the Chinese civil litigation landscape, in particular the evolution of public interest litigation, is one of the ongoing steps to propel China’s civil justice reform.

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4 Arbitration

  • [1] Guy I. Seidman, “Comparative Civil Procedure,” in The Dynamism of Civil Procedure— Global Trends and Development, eds. Colin B. Picker and Guy I. Seidman (New York: Springer, 2016), 5.
  • [2] China Law Society, The Law Yearbook of China (2010-2018) (showing the statistics from 2009 to 2017); National Bureau of Statistics of China, China Statistical Yearbook 2019, accessed July 8, 2020, http://www.stats.gov.cn/tjsj/ndsj/2019/indexeh.htm (showing the statistics of 2018). 2 Ibid. 3 Minshi Susong Fa (LC’Jfïfbii®) [Civil Procedure Law] (promulgated by the National People’s Congress, April 9, 1991, effective April 9, 1991), http://www.lawinfochina.com/ display.aspx?lib=law&id=19&CGid=. 4 Minshi Susong Fa (Shixing) J')) [Provisional Civil Procedure Law] (prom ulgated by the National People’s Congress Standing Committee, March 8, 1982), http:// www.npc.gov.cn/wxzl/wxzl/2000-12/06/content_4411.htm.
  • [3] Zhang Xianchu, “Civil Justice Reform with Political Agendas,” in The Development of the Chinese Legal System: Change and Challenges, ed. Guanghua Yu (Oxford: Routledge, 2011), 253; Randall P. Peerenboom, China Modernizes: Threat to the West or Modelfor the Rest? (Oxford: Oxford University Press, 2007), 216. 2 Hu Xiabing and Feng Renqiang, eds., Research on Judicial Justice and Judicial Reform (Beijing: Tsinghua University Press, 2001), 265-268. 3 Li Yuwen, “The Civil Trial Process,” in The Judicial System and Reform in Post-Mao China: Stumbling Towards Justice, ed. Li Yuwen (Oxford: Routledge, 2016), 138. 4 See Supreme People’s Court, Guanyu minshi jingji shenpan fangshi gaige wenti de ruogan guiding АJune 19, 1998, arts. 1-4, http://www. people.com.cn/zixun/flfgk/item/dwjjf/falv/9/9-l-l-ll.html. 5 See Supreme People’s Court, Guanyu minshi susong zhengju de ruogan guiding fit'Ji-ijf ТЙЙлЕ, December 6, 2001, arts. 32-46, https://www.pkulaw.com/ chl/1224979098644812995.html?Customer=tyc. 6 Fu Yulin and Cao Zhixun, “The Position of Judges in Civil Litigation in Transitional China— Judicial Mediation and Case Management,” in Towards a Chinese Civil Code: Comparative and Historical Perspectives, eds. Chen Lei and С. H. van Rhee (Leiden: Brill, 2012), 506.
  • [4] Fu Yulin, “Zou xiang xiandaihua de minshi susong chengshi” d2fiiJFfif LfL.il'JR 'IhJFi&T-ESi, (presentation, Hong Kong, October 26,2015). See also Civil Procedure Law 1991, art. 64. 2 “Home,” National Bureau of Statistics of China, accessed July 8, 2020, http://www.stats. gov.cn/english/. 3 Donald C. Clarke, “Power and Politics in the Chinese Court System: The Enforcement of Civil Judgments,” Columbia Journal of Asian Law 10, no. 1 (1996): 27. 4 Minshi Susong Fa (LC’JfjJb[Civil Procedure Law] (promulgated by the National People’s Congress, October 28, 2007, effective April 1, 2008), arts. 179(1)—(12), http:// en.pkulaw.cn/display.aspx?cgid=1811a46f52ef6533bdfb&lib=law.
  • [5] Liao Yong-an and Deng Hejun, “Comments on the Decision to Amend the Civil Procedural Law,” Xiandai Faxue no. 1 (2009): 150-160. 2 Ibid. 3 Fu Yulin f'JJfiMI', “Social Harmony at the Cost of Trust Crisis: Goals of Civil Justice in China” Peking University Law Journal, no. 2 (2014): 373-390. 4 Liu Jialiang, “It is Necessary to Overhaul the Civil Procedure Law,” Jiancha Ribao WHftt, March 18,2008,4. 5 Kristie Thomas, “Dynamism in China’s Civil Procedure Law: Civil Justice with Chinese Characteristics,” in The Dynamism of Civil Procedure—Global Trends and Developments, eds. Colin B. Picker and Guy 1. Seidman (New York: Springer, 2016), 129; Ariel Ye and Yu Song, “Justice, Efficiency and the New Civil Procedure Law,” China Law and Practice 20, no. 12(2012). 6 Civil Procedure Law 1991, arts. 142-146.
  • [6] Civil Procedure Law 2012, art. 162. 2 “Shanghai chutai xiao’e susong shenpan gongzuo shishi xize JtHlB'&zbSliJF W1!,” The Supreme People’s Court of the People’s Republic of China, December 28, 2012, http://www.court.gov.cn/zixun-xiangqing-11892.html. 3 Civil Procedure Law 2012, art. 157. 4 Ibid., art. 163. 5 Ibid., art. 65. 6 Ibid., art. 66.
  • [7] Fu Yulin, “Zhongguo dahi sifa gaige de mubiao he weidu—chengshi, jizhi, tizhi” K'WlitiSiifjEl'KinfiiJxi—6iC tlLHiL (lecture. Hong Kong, October 26, 2015). 2 Jones Day, Adding More Strings to the Bow: The 2012 Amendments to China’s Civil Procedure Law, accessed July 8, 2020, https://www.jonesday.com/en/insights/2013/01/ adding-more-strings-to-the-bow-the-2012-amendments-to-chinas-civil-procedure-law. 3 Civil Procedure Law 2012, arts. 112-113. 4 Ye and Song, "Justice, Efficiency, and the New Civil Procedure Law.” 5 Civil Procedure Law 2012, arts. 194-195.
  • [8] Margaret Woo, “The Dynamism of China’s Civil Litigation System,” in The Dynamism of Civil Procedure—Global Trends and Developments, eds. Colin Picker and Guy I. Seidman (New York: Springer, 2016), 147. 2 See Civil Procedure Law 2012, art. 55. 3 “Third-party standing” means to stand as the plaintiff even though it may not have been directly injured by defendant’s conduct. 4 Fu, “Zhongguo dahi sifa gaige de mubiao he weidu ФИ Ік’ТііЖЙ.” 5 Civil Procedure Law 2012, art. 34. 6 Ibid., art. 148. 7 Ibid., art. 156.
  • [9] Wang Huazhong and Wang Jingqiong, “Courts Hit by Rising Number of Lawsuits,” China Daily, July 14, 2010, http://www.chinadaily.com/cn/china/2010-07/14/content_10102630. htm. The number of cases rose by at least 25% between 2005 and 2009 but the total number of judges remained almost the same. 2 Thomas, “Dynamism in China’s Civil Procedure Law,” 132. 3 Minshi Susong Fa (fti'I'iTF fi,ii') [Civil Procedure Law] (promulgated by the National People’s Congress Standing Committee, June 27, 2017, effective July 1, 2017), art. 55(2), http://en.pkulaw.cn/display.aspx?id=6d9ce94e57cee7afbdfb&lib=law. 4 “China Focus: China Amends Law to Allow Public Interest Litigation by Prosecutors,” Xinhua News (June 27,2017), http://www.xinhuanet.eom//english/2017-06/27/c_136399032.htm
  • [10] Sun Lijuan and Xie Jun, “Access to Collective Litigations in China: A Tough Work,” Journal of Politics and Law (Zhengzhi yu Falv) 3, no. I (2010): 45. The Mar. 9, 2005 Annual report by the president of the Supreme Court stated that the number of the collective suits has reached 538,941, increased by 9.5% comparing with 2004. 2 Civil Procedure Law 2012, art. 52. 3 The Supreme People’s Court defined “large” to be ten or more persons, and that two to five representatives may be chosen.) 4 The difference between Articles 53 and 54 is whether the number of litigants has been fixed at the time of litigation, with Article 53 being “fixed” and Article 54 as “yet to be fixed” (shangwei queding ù'i'j fiffl ÂÎ2). 5 Pan Jianfeng, “The Role of Comparative Law in Teaching and Research,” (lecture, Hong Kong, January 19,2018).
  • [11] Ibid. 2 Woo, “The Dynamism of China’s Civil Litigation System,” 146. 3 Civil Procedure Law 2012, art. 55. 4 Pan, “The Role of Comparative Law in Teaching and Research.” 5 Xiaofeizhe quanyi baohu Fa [Consumer Protection Law] (promul gated by the National People’s Congress Standing Committee, October 25, 2013, effective January 1,2014), http://www.npc.gov.cn/wxzl/gongbao/2014-01/02/content_1823351.htm. 6 Huanjing baohu Fa [Environmental Protection Law] (promulgated by the National People’s Congress Standing Committee, April 24, 2014, effective January 1, 2015), art. 58, http://en.pkulaw.cn/display.aspx?cgid=4544&lib=law. Two conditions have to be satisfied: (1) the organization has to be registered at the civil affairs departments of people’s governments at or above the city level with sub-districts in accordance with the law; and (2) it has to specialize in environmental protection public interest activities for five or more consecutive years, and have no records in violating the law.
  • [12] According to the U.S. based National Resource Defence Council’s Beijing office, this will apply to about 300 NGOs in China. See Woo, “The Dynamism of China’s Civil Litigation System,” 151. 2 Supreme People’s Court, Interpretation of the Supreme People's Court on Several Issues con-cerningthe Application of Law in the Conduct of Environmental Civil Public Interest Litigations January 6, 2015, art. 11, http://pkulaw.cn/(S(pvgjlx45wuwnwm5555df4e55))/fulltext_form.aspx?Db=chl&Gid= f81c55e05ed7c7f6bdfb. 3 Supreme People’s Court, Guanyu Shenli xiaofei minshi gongyi susong anjian shiyong falii ruogan wenti de April 25, 2016, art.l, http://www.court.gov.cn/zixun-xiangqing-20082.html. 4 Consumer Protection Law 2013, art. 47. 5 “Amendments to Consumer Protection Law Allows for Public Interest Lawsuits With Limitations,” Congressional-Executive Commission on China, January 14, 2014, http://www.cecc.gov/publications/commission-analysis/amendments-to-consumer-protection-law-allows-for-public-interest#_ednref3. 6 See Xiao Jianguo and Huang Zhongshun^MBI “Xiaofei gongyi susong zhong de dangshiren shige wenti yanjiu” Shandong jingcha xueyuan xuebao 11 l/ji'r:15u!r:fizno. 6 (2013): 7-10.
  • [13] Benjamin Liebman, “Class Action Litigation in China,” Harvard Law Review, 111 (1998): 1533. 2 See “Bereaved Parents Compensated by Sanlu,” China Daily, January 17,2009, http://www. chinadaily.com.cn/cndy/2009-01/17/content_7405679.htm. (e.g., Shen Xianlai, a lawyer representing a couple from Gansu whose 5-month-old son died from milk poisoning, stated that “the couple was unlikely to get more than 200,000 RMB by taking their case to court in Gansu.”) 3 Thomas, “Dynamism in China’s Civil Procedure Law,” 137. 4 Ibid. 5 Civil Procedure Law 2012; See also Jonathan Benney, Defending Rights in Contemporary China (New York: Routledge, 2012), 64.
  • [14] Chen Lei, “The Role of Comparative Law in Teaching and Research,” (conference, Hong Kong, January 19, 2018). 2 Jiang Bixin il'JÜ'^r, Zhongguo huanjing ziyuan shenpan 2017-20J8 2017-2018, March 2, 2019, https://www.cenews.com.en/subject/2019/20191h/a/201903/ t20190302_894317.html. 3 “ ji niandu dianxing anli xinwen fabu hui” «^a[3=IIT'iyii)7f?llj,7[ll’)-|J(2O19)>> «ffiBlif J^tjjÜ^J^fttJn(2019)» Ä|if]2
  • [15] Civil Procedure Law 2017, art. 55(2). 2 Ibid. 3 Wu Jun “Zhongguo minshi gongyi susong niandu guancha baogao (2017)” ФДКТ (2017), Dangdaifaxue Sf®?, no. 5 (2018): 141. 4 "China Focus: China Amends Law to Allow Public Interest Litigation by Prosecutors.”
  • [16] See “The World Bank and Development Research Center of the State Council, the People’s Republic of China,” China 2030: Building a Modern. Harmonious, and Creative Society (Washington: World Bank, 2013), 2030: XV, 8, http://www.worldbank.org/content/dam/ Worldbank/document/China-2030-complete.pdf. 2 Supreme People’s Court, “Report on the Work of the Supreme People’s Court,” May 8, 2014, http://en.chinacourt.org/public/detail.php?id=4867. 3 “Renmin fayuan <‘yiwu’ gaige gangyao> yu <‘erwu’ gaige gangyao>”AR$tl® 7t.”& ТМЙ-» , Legal Daily China, April 30, 2009, http://www.legaldaily. com.cn/zbzk/2009-04/30/content_1091822.htm. 4 Thomas, “Dynamism in China’s Civil Procedure Law,” 136; Some, however, have argued for other reasons for the increased use of summary procedures, one of which is to safeguard SPC’s own self-interest to promote its finances rather than reducing the workload of courts. See Zhang Taisu, “The Pragmatic Court: Reinterpreting the Supreme People’s Court of China,” Columbia Journal of Asian Law 25, no. 1 (2012): 34. 5 See “Highlights of work report of China’s Supreme People’s Court,” China Daily, March 11, 2011, http://www.chinadaily.com.cn/china/2011npc/2011-03/ll/content_12157831.htm. 6 Li Yuwen, The Judicial System and Reform in Post-Mao China (New York: Routledge, 2014), 133-164.
  • [17] John C. Nagle, “How Much Should China Pollute?,” Vermont Journal of Environmental Law 12, (2011): 591-632. Nagle stated that China is the world’s greatest polluter. See also Rachel E. Stern, “The Political Logic of China’s New Environmental Courts,” The China Journal 72 (2014): 58. 2 The political endorsement by Chinese leaders in fact started in 2000s where President Hu Jintao introduced the term “ecological civilization.” For the first time, meeting pollution targets was included in evaluating local governmental officials’ political performance. See Shannon Tiezzi, “China’s Fifth Plenum: What You Need to Know,” China Dialogue, October 29, 2015, http://thediplomat.com/2015/10/chinas-fifth-plenum-what-you-need-to-know/; see also “Woguo huanjing shijian nianjun dizeng 29%” 29%, Caijing October 27, 2012, http://tinyurl.com/dycoh82. 3 Anna Lora-Wainwright, Zhang Yiyun, Wu Yunmei, and Benjamin Van Rooij, “Learning to Live with Pollution: How Environmental Protestors Find their Interests in a Chinese Village,” The China Journal 68, no. 1 (2012): 106-124; see also State Environmental Protection Agency and the Insurance Regulatory Commission, Opinion on Development of Environmental Pollution Liability Insurance December 4,2007, http://www.gov.cn/zwgk/2008-02/25/content_899905.htm. 4 Wang Xiaogang, “Review of Public Interest Litigation in Fundamental Environmental Law” flllLfdji MA'ii411 ffij
  • [18] Yang Guobin, “Environmental NGOs and Institutional Dynamics in China,” The China Quarterly 181, no. 1 (2005): 46-66. 2 “China Overhauls Consumer Protection Laws,” Hong Kong Lawyer, October 2013, http://www.hk-lawyer.org/content/china-overhauls-consumer-protection-laws; see also Deborah Davis, “Urban Consumer Culture,” China Quarterly 183 (2005): 692-702 (arguing that Chinese culture now prioritizes consumer goods and process of consumptions). 3 Fu Hualing and Richard Cullen, “The Development of Public Interest Litigation in China,” in Public Interest Litigation in Asia, eds. Yap Po Jen and Lau Holning (New York: Routledge, 2010), 1-29; Liebman, “Class Action Litigation in China.” 4 See Ho Suk-ching, “Executive Insights: Growing Consumer Power in China: Some Lessons for Managers,” Journal of International Marketing 9, no. 1 (2000): 64-83. (e.g., in 1999, the China Consumer Newspaper filed a lawsuit on behalf of a university student in Shanghai who was strip-searched in a Watson chain store branch in Shanghai to claim for mental suffering she suffered.) 5 Davis, “Urban Consumer Culture.”
  • [19] Andrew Jacobs, “Chinese Release Increased Numbers in Tainted Milk Scandal,” The New York Times, December 2, 2008, http://www.nytimes.com/2008/12/03/world/asia/03milk. html?_r=l. 2 Benney, Defending Rights in Contemporary China, 89. 3 Qin Yudong, “Sanlu pochan shanhou nanti shouhaizhe quanyi shuilai baozhang” iMi Caijing December 25, 2008, http://www.caijing. com.cn/2008-12-25/110042541.html. 4 The distinction between Article 54 and Article 55 is on the number of litigations being known at the time of the litigation (Art 54) or being unknown Art 55. (e.g., led by the Beijing-based lawyer Xu Zhiyong, 15 lawyers decided to bundle up cases of up to 100 families into a single lawsuit against Sanlu seeking for medical expenses, payments for trauma and compensation for the babies who died. In doing so, the lawyers aimed to reduce costs for their clients and to “set a benchmark for compensation.”) 5 “Sanlu Faces Class-Action Lawsuit,” Newshub New Zealand, November 13, 2008, http:// w w w. newshub. co. nz/world/sanlu-facing-classaction-lawsuit-2008111406#axzz44e-zlYycR. (The collapse of Sanlu would also create enormous economic impact on the market, in that many provinces relied heavily on Sanlu for employment and taxes.) 6 L.M. Katz, “Class Action with Chinese Characteristics: The Role of Procedural Due Process in the Sanlu Milk Scandal,” Tsinghua China Law Review 2, no. 2 (2010): 421-466.
  • [20] Ibid., 440. (As part of the national policy of the Central Government, Shijiazhuang Intermediate Court accepted a creditor’s bankruptcy petition on December 23, 2008, where Sanlu were to undergo liquidation with its legal personality being discontinued following its liquidation. This would mean that for Sanlu’s victims, they would have to establish themselves as legitimate creditors within a restricted time frame after the court’s acceptance of the bankruptcy petition, in order to get legal priority over Sanlu’s bankruptcy assets. However, most victims were not able to establish creditors rights as most civil actions were rejected by courts prior to the bankruptcy petition, and by the end of the bankruptcy process, victims had lost their standing to sue as Sanlu was no longer a legal person according to the 2007 CPL.) 2 “Guiding Opinion of the All China Lawyers Association Regarding Lawyers Handling Cases of a Mass Nature (CECC Full Translation),” March 20, 2006, http://www.cecc.gov/resources/legal-provisions/guiding-opinion-of-the-all-china-lawyers-association-regarding-lawyers. 3 Edward Wong, “Courts Compound Pain of China’s Tainted Milk,” New York Times, October 16, 2008, http://www.nytimes.com/2008/10/17/world/asia/17milk.html?_r=0. 4 See discussions in Chapter 5. 5 Carl Minzner, “China’s Turn against Law,” American Journal of Comparative Law 59, no. 1 (2011): 942.
  • [21] Huang Philip C.C., ed., Chinese Civil Justice. Past and Present (Maryland: Rowman & Littlefield, 2010), 125-144. 2 Katz, “Class Action with Chinese Characteristics,” 431. 3 Examples included 1998 Woolf Reforms in the United Kingdom and the subsequent 2009 Civil Justice Reform in Hong Kong which mirrored the 1998 Woolf Reforms. See discussions in Chapter 9.
  • [22] Liu Chenglin, “Profits above the law: China’s melamine tainted milk incident,” Mississippi Law Journal 79, no. 2 (2009): 371-418. 2 Woo, “The Dynamism of China’s Civil Litigation System,” 151.
  • [23] Gu Weixia, “Securities Arbitration in China: A Better Alternative to Retail Shareholder Protection,” Northwestern Journal of International Law and Business 33, no. 2 (2013): 283-323. 2 See generally, Ding Chunyan, Medical Negligence Law in Transitional China (Cambridge: Intersentia Publishing, 2012). 3 Tort Law of the People’s Republic of China (promulgated by the National People’s Congress Standing Committee, December 26, 2009, effective December 26,2009), http:// www.wipo.int/edocs/lexdocs/laws/en/cn/cnl36en.pdf. 4 Ibid., arts 41-47 for product liability; arts. 65-68 for environmental liability; arts. 54-64 for medical malpractice. 5 Ibid., art. 66; see also Supreme People’s Court, Zuigao Renmin Fayuan Guanyu Shenli Huanjing Qinquan Zeren Jiufen Anjian Shiyong Falii Ruogan H'enti de Jieshi ЖЙіЛ[Д June 1. 2015, http://www. court.gov.cn/fabu-xiangqing-14615.html, where the burden of proof and presumption of liability in environmental tort cases were clarified by the Supreme People’s Court.
  • [24] Gu, “Securities Arbitration in China,” 296. 2 Fu, “Social Harmony at the Cost of Trust Crisis,” 373-390.
  • [25] Li, The Judicial System and Reform in Post-Mao China, 136. 2 Fu, “Social Harmony at the Cost of Trust Crisis,” 373-390. 3 Fu Yulin, “Sifa zeren de zhongxin zaiyu quanze jieding he quanze yizhi” uliiSt'fEiff'R —it, (lecture, Hong Kong, October 26,2015). 4 Alex L. Wangand Gao J ie, “Environmental Courts and the Development of Environmental Public Interest Litigation in China,” Journal of Court Innovation 3 (2010): 38-39. 5 Zhang Sha “Renda daibiao jianyi dali tuixing huanbaofating qianghua jianguan” Sina Green, March 13, 2012, http://green.sina. com.cn/news/roll/2012-03-13/100424106526.shtml. (NPC Deputy Zhang specifically stated in the report that the National People’s Congress is actively advocating the development of environmental courts, in view of the rampant pollution by large corporations who would rather pay fines over clearing up the polluted areas. Such concern has manifested in a multitude of pollution cases in 2011 which included the Jiangxi water pollution, blood lead poison cases along the Eastern coastal areas, Yunnan Qujing factory chromium leakage, and the Wuhan water pollution cases.) 6 Zhongguo huanjing ziyuan shenpan 2017-2018.
  • [26] Rachel E. Stern, “From Dispute to Decision: Suing Polluters in China,” The China Quarterly 206, (2011): 294-312. 2 Stern, “The Political Logic of China’s New Environmental Courts,” 53-74. 3 Zhang Sha, “Renda daibiao jianyi dali tuixing huanbaofating qianghua jianguan.”
  • [27] Jerome Alan Cohen, “Body Blows for the Judiciary,” South China Morning Post, October 18, 2008, http://www.scmp.com/article/656696/body-blow-judiciary. 2 “Decision of the CCP Central Committee on Major Issues Pertaining to Comprehensively Promoting the Rule of Law,” China Law Translate, October 28, 2014, http://chinalaw-translate.com/fourth-plenum-decision/?lang=en. 3 Woo, “The Dynamism of China’s Civil Litigation System,” 153. 4 Civil Procedure Law 2012, art. 2. 5 Fu, “Social Harmony at the Cost of Trust Crisis,” 173. 6 Ibid., 177.
  • [28] Ibid.. 179. 2 Thomas, “Dynamism in China’s Civil Procedure Law,” 138; Woo, “The Dynamism of China’s Civil Litigation System,” 151. 3 Woo, “The Dynamism of China’s Civil Litigation System,” 149. 4 See discussions in Chapter 9. 5 Thomas, “Dynamism in China’s Civil Procedure Law,” 138.
 
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