Dispute Resolution in China


Dispute Resolution In China

DONALD C. CLARK"

I. INTRODUCTION

Chinese dispute resolution procedures, especially mediation, have
long been perhaps the single feature of the Chinese legal system most
extensively studied in the West. In part, this is because the Chinese
government has permitted the flow abroad of a great deal of informa-
tion about dispute resolution institutions other than courts.! In the
United States in particular, interest in Chinese methods has grown
along with the interest in alternative dispute resolution (ADR) in
general 2 Even the former Chief Justice of the United States Supreme
Court, Warren Burger, has expressed his admiration of Chinese
mediation institutions

Just as most of the Western studies on Chinese dispute resolution
institutions have concentrated on mediation, so have they also tended
to accept that the Chinese procedure translated as "mediation" (tiaojie)
is roughly comparable to what we understand by the English term: that
is, a procedure whereby a third party attempts to bring disputing
parties to a voluntary settlement of their dispute. Both Chinese and
Western commentators are usually aware of evidence that mediators
often pressure or even coerce parties to accept a suggested settlement,

© Copyright 1992 by Donald C. Clarke
* Assistant Professor of Law, University of Washington School of Law.

I would like to thank William Jones and John Haley for their comments, and the
University of Washington Law Library staff for the speed and good humor with which they
provided needed materials.

1. It is still extremely difficult to obtain reliable information about the functioning of
courts.

2. See, e.g., U. Holt Meyer & Charles 3. Wysocki, Chinese Mediation, N.Y. ST. BAR J.,
April 1985, at 37; William O'Hara, Dispute Resolution in the Union of Soviet Socialist
Republics and the People's Republic of China, R.L BAR J., Feb. 1985, at 4 (1985); Kenneth
. Rigby, Alternate Dispute Resolution, 44 LA. 1. REV. 1725, 1729. Kenneth Karst mentions

Chinese society as one that puts "emphasis on mediation to preserve ongoing relationships," but
takes care to note that "[s]uch a society may not be all sweetness and light." Kenneth Karm,
Woman's Constitution, 1984 DuKE L.J. 447, 490 n.166.

3. See US Chief Justice in Shanghai, Xinhua She [New China News Agency], Sept. 8,
1981, in BRrrxSH BROADCASTING CORPORATION, SumtARY OF WORLD BROADCAM, PART 3:
THE FAR EAST [SWB/FE], Sept. 10, 1981, at Al/I.



JOURNAL OF CHINESE LAW

but this phenomenon is seen as aberrational and generally deplorable.
The purpose of this article is to suggest that this understanding

of Chinese mediation is incomplete. The picture usually painted of
mediation is far from wrong - the idea of mediation as the English
term is commonly understood is an important strain in Chinese theory
and practice, and the principle of voluntariness is constantly stressed
both in academic commentary and in legislation. But that strain is only
one strain, and it coexists with other strains that pull mediation as
practiced in other, more coercive directions. Thus, the standard picture
of mediation needs to be enriched by a recognition that some of its
elements previously thought aberrational, such as coercion, may in fact
be a vital part of a different, competing logic operating within Chinese
mediation institutions. Thus, where this article uses "mediation" and
cognate terms in reference to Chinese institutions and practices, they
should be understood simply as rough-and-ready translations of tiaojie.
Whether and to what extent tiaojie is "really" mediation is one of the
questions the article aims to explore.

IE. THEORETICAL FRAMEWORK

A. Standard Classification of Dispute Resolution Procedures

Methods of dispute resolution are traditionally placed along a
spectrum that ranges from informal negotiations between the parties at
one end to formal adjudication by some court-like body at the other.
Once third parties are involved - and it is with third-party dispute
resolution procedures that this article is concerned - commentators
commonly put the procedure in one of three categories: mediation,
arbitration, and adjudication.4 Mediation involves a third party who
attempts to bring the parties to a voluntary agreement. Neither party
is required to accept any proposal of the mediator. Arbitration involves
a third party, chosen by the disputants either before or after the dispute
arises, whose decision is binding on the parties by prior agreement. In
other words, whereas mediation involves voluntariness as to outcome,
arbitration involves voluntariness only as to process. In adjudication,
neither the process nor the outcome can be rejected at the will of the
parties. An authoritative organ - let us call it a "court" - decides on
its own whether it has jurisdiction to decide the dispute and what the

4. See, e.g., STEPHEN B. GOLDBERG Er AL, DisptrE RESOLUTION 7-10 (1985); MARTIN
M. SHAPIRO, COURTS, A COMPARATIVE AND POLITICAL ANALYSIS 3-17 (1981) (discussing
continuum of "go-between, mediator, arbitrator, judge").

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outcome will be.5
These models do not, of course, exist in such splendid isolation

in real life.6 When a party "voluntarily" decides to accept a settlement
reached through mediation, that acceptance is based on a calculation
that the consequences of not accepting would be worse than the
consequences of accepting. Whether we call the acceptance "voluntary"
depends on whether we think it is legitimate to impose the conse-
quences of not accepting upon the party. If the consequences of a
party not accepting such a settlement are that the mediator shoots that
party, we would not call acceptance "voluntary." If the consequences
of not accepting are for the parties to proceed to expensive and time-
consuming adjudication likely to result in a large judgment against the
party, we usually call acceptance of a mediated settlement "voluntary:'

The outcome of arbitration is also affected by the presence of
adjudicative institutions. In each of the three models it is only
adjudicative institutions that have the power to enforce their judgments
coercively. Thus, where the losing party to arbitration breaks its
promise to abide by the outcome, the winner must go to adjudicative
institutions to obtain enforcement and must satisfy whatever require-
ments those institutions have.

Finally, the process of adjudication in real life can contain
substantial elements of mediation. The party expecting to win must
take into account the possibility of difficulty in enforcing the judgment.
Judges may for reasons of their own wish to encourage the parties to
reach an agreed settlement before judgment and thus may implicitly or
explicitly threaten the party deemed recalcitrant.

Like many societies, China has institutions conventionally labeled
mediation, arbitration, and adjudication. As might be expected, the real
institutions do not fit the models outlined above exactly, nor do they
correspond exactly to institutions going by the same name in other
countries. The shape of each is influenced not only by the special
features of Chinese society, but also by the features of alternative
avenues of dispute resolution. It is not by chance that a dispute ends
up in one forum and not another. Certain fora are conducive to certain
substantive rules and substantive results. Some processes are hospitable
to particular visions of social order and inimical to others. Conversely,
some concrete social orders are hospitable to certain procedures for
dispute resolution and inimical to others. This article will explore the

5. See the table in GOLDBERG Er AL., supra note 4, at 8.
6. For a concise discussion of the interrelatedness of vaious fora, see Sally Engle Meny,

Disputing Without Culture, 100 HARV. L REV. 2057, 2064-67 (1987).

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reciprocal influence between Chinese society and its institutions for
dispute resolution.

B. Two Paradigms of Dispute Resolution

Although dispute resolution is commonly thought of in terms of
the three ideal-typical modes of mediation, arbitration, and adjudication,
a complete model of dispute resolution in China requires the introduc-
tion of another axis containing the categories of internal resolution and
external resolution.

By "external resolution" as an ideal type, I mean the resolution
of the dispute by a third party (whether labelled mediator, arbitrator,
or adjudicator) who has no distinct relationship with the parties other
than a specialized function as dispute resolver. The dispute resolver has
no particular interest in the individual or collective well-being of the
parties. External resolution is the dominant paradigm in writings about
dispute resolution in Western societies.7 The disputing parties are
assumed to be legally independent of each other and of the dispute
resolver.

By "internal resolution" as an ideal type, I mean the procedure
whereby a parent corporation, for example, resolves disputes between
managers of two wholly-owned subsidiaries, or the President resolves
turf battles between competing executive agencies. The dispute resolver
has authority not because of its specialized function as dispute resolver
but because of some other distinct relationship with the parties.
Moreover, the well-being of the parties bears directly on the well-being
of the dispute resolver. As a result, the dispute resolver may be more
interested in maximizing values such as the collective well-being of the
whole dispute triangle - the two parties and the resolver - than in
deciding who should "win" by applying rules relating to matters such

7. See, for example, the tables in GOLDBERG ErI AL, supra note 4, at 8-9. None of the
nine models of "primary" and "hybrid" dispute resolution processes presented by the authors
adequately describes the resolution of disputes within a family or within a corporation by a
common superior with a strong interest in the welfare of the disputants. Other writers stress the
public nature of the disputes with which they are concerned, deliberately defining as outside the
realm of their analysis intra-family and intra-corporate disputes or bureaucratic turf battles within
the executive branch. See, e.g., P. H. Gulliver, Introduction to Case Studies of Law in Non-
Western Societies, in LAW IN CULTURE AND SOCIETY 11 (Laura Nader ed., 1969) (defining
dispute as a public assertion, usually through some standard procedures, of an initially dyadic
disagreement); Merry, supra note 6, at 2061 (defining dispute as a "confrontation that has
escalated into a public arena"). This article is concerned with disputes that get taken to a third
party, but that third party need not be very "public," and indeed may be organizationally very
close to the parties.

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as fault. Both parties can be viewed as pockets of their common
superior, and the decision how much to take from one pocket and put
in the other is decided by considerations such as convenience and
efficiency, not justice and fault.

Internal and external resolutions can differ markedly in their
procedures and outcomes. Procedurally, internal resolution blurs the
lines between mediation, arbitration, and adjudication. Because of its
special relationship with the parties, the dispute resolver is in a
position to impose an outcome no matter what mode is ostensibly
used. Unlike an external mediator, a parent company can, for example,
fire the manager of Subsidiary A who refuses to accept the proposed
"voluntarily mediated" solution of the dispute with Subsidiary B. On
the other hand, disputants can bring special pressures of their own to
bear on the dispute resolver that are not available to litigants in court.
If it would not be easy for the head office to replace the managers of
Subsidiary A, they can effectively, if only implicitly, threaten non-
cooperation if they feel especially aggrieved by a decision of the head
office. Thus, parties are not completely free to reject "mediated"
solutions, and the dispute resolver is not completely free to impose an
"adjudicated" solution.

Internal resolution is also likely to produce a different outcome
from external resolution. This is because different norms can be
applied. In the realm of external resolution, even a mediated settlement
is formed in the shadow of the norms that the parties believe would
apply if the dispute went to adjudication. Thus, whoever makes the
norms to be applied in external adjudication can shape the outcome of
disputes even between parties who keep the dispute entirely private,
provided that such external assistance remains a real possibility.8

In the realm of internal resolution, on the other hand, the norms
established for external resolution may never come into play. Instead,
the standard will likely be one of what is good for the organization of
which the parties and the resolver are members. To take a concrete
example, suppose Factory A promises to supply a certain grade of steel
to Factory B. It later finds that it can save $10,000 by delivering an
inferior grade. If Factory B accepts the inferior grade steel, it can

8. As Owen Fiss points out, however, there are many reasons to suppose that the terms
of a negotiated or mediated settlement may not simply reflect the parties' view about the norms
that would apply in adjudication. Among other things, 'the distribution of financial resources,
or the ability of one party to pass along its costs, will invariably infect the bargaining process,
and the settlement will be at odds with a conception of justice that seeks to make the wealth
of the parties irrelevant." Owen Fiss, Against Settlement, 93 YAE LJ. 1073, 1076 (1984).

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produce different products for a loss of only $1,000. External
resolution may require finding who is at fault if A fails to deliver the
promised grade of steel. If the contract is upheld, A will lose and be
out $10,000. If both factories are owned by the same parent company,
however, B will be instructed to accept the inferior steel because in
that way the total losses of A and B are reduced from $10,000 to
$1,000. Fault may be irrelevant. Of course, if transaction costs were
zero, substantially the same end result might be reached under a
regime of external resolution: it would be rational for A to offer, and
for B to accept, any amount more than $1,000 and less than $10,000
in exchange for B's accepting the inferior steel. In the real world,
however, transaction costs are never zero and are often substantial
enough to block any such solution.9

In looking at dispute resolution in China, it is crucial to
remember that while the standard paradigm of external resolution may
often be appropriate when considering the resolution of disputes
between individuals, the structure of the planned economy often makes
the paradigm of internal resolution more appropriate in the analysis of
disputes between enterprises in the state-owned and collective sectors.

The traditional model of the planned economy views the state as
essentially one giant vertically-integrated productive firm, "China,
Inc."'" Various ministries are divisions within the firm, and enterpris-
es are factories. When Steel Plant believes that a delivery from Iron
Plant is not up to standard, it can complain to government administra-
tors, and the dispute would eventually rise to the first administrator
with authority over both plants.' That official's primary concern is
to take the action that will best fulfill the goals of the plan. If the iron
is indeed of poor quality, which party is in the best position to refine
it? Can Steel Plant's targets still be met with inferior iron? Fault

9. On the effect of transaction costs on bargaining over legal entitlements, see Ronald
Coase, The Problem of Social Cost, 3 J. L. & ECON. 1, 15-19 (1960). For an update on debate
over the Coase Theorem, see Robert Cooter, The Cost of Coase, 11 J. LEGAL STUD. 1 (1982)
and sources cited therein.

10. A brief description of the Chinese planning system can be found in Donald Clarke,
What's Law Got to Do with It? Legal Institutions and Economic Reform in China, 10 U.C.L.A.
PAC. BASIN L.J. 1, 5-6; (1991); for a fuller account, see Barry Naughton, China's Experience
with Guidance Planning, 14 J. CoMP. ECON. 743 (1990); Barry Naughton, Industrial Planning
and Prospects in China, in U.S.-CHNA TRADE: PROBLEMS AND PROSPECTS 179 (Eugene K.
Lawson ed., 1988).

11. This example is taken from, and more fully.detatled in, John A. Spanogle, Jr. & Tibor
M. Baranski, Jr., Chinese Commercial Dispute Resolution Methods: The State Commercial and
Industrial Arbitration Bureau, 35 AM. J. COMP. L. 761, 764-65 (1987), who label it
"administered resolution."

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comes into the picture only, if at all, when it is time to assess the
performance of plant managers for the purpose of bonuses or
promotions. (Indeed, because we are assuming that both plants are in
the same industrial "system" (xitong), a promotion may take a manager
from one plant to the other.)

Both internal and external resolution of disputes have their
characteristic flaws. External resolution is unconcerned with minimizing
net social loss, and may involve high transaction costs. Lawyers may
be hired, for example; allegations must be proved. As in Bleak
House's case of Jarndyce and Jarndyce, the entire amount in
controversy could end up being consumed by legal fees. 2 To this
social cost must be added any costs attributable to dispute resolution
not borne by the parties (for example, the cost to the public of running
a court system).

Internal resolution - such as occurs in planned economies, for
example - also leads to inefficient allocation of resources. In the
above example of the contract for steel between A and B, B has little
incentive to expend resources trying to find a way to minimize its loss
- for example, by looking for the most profitable line of alternative
products. Instead, its time is better spent making representations to the
parent that the unexpected loss cannot be fairly blamed on its
management.1

3

Economic reform in China has brought about a reduction in the
scope of the centrally planned economy. In some cases, this has meant
a reduction in the scope of internal dispute resolution. The internal
resolution paradigm can by no means, however, be discarded. Whether
or not enterprises are formally within the plan (and often they will be
partly in and partly out), various government organs remain keenly
interested in them and affected by their well-being. In particular, the

12. For a modem example, see Stephen Labaton, The Ronan Case. A Giant Legal Battle
Over a Tiny Company, N.Y. TIES, Sept. 1, 1989, at B8. For an interesting economic analysis
of litigation expenditures, see Avery Katz, Judicial Decisionmking and Litigation Expenditure,
8 INT'L REv. L. & ECON. 127 (1988). For a review of the relevant literature, s=e Robed D.
Cooter & Daniel L. Rubinfeld, Economic Analysis of Legal Disputes and Their Resolution, 27
. ECON. Lrr. 1067 (1989).

13. This is a specific manifestation of a more general problem:
The lack of universally applicable rules diverts the energies of enterprises to bargaining
from improving efficiency and product quality. Enterprises seek rents rather than profits.
They look for ways to manipulate the rules to their financial advantage rather than taking
the rules as given.

Gene Tidrick, Planning and Supply, in CHINA'S INDUSTRIAL REFoRM 175, 198-99 (Genz
Tidrick & Jiyuan Chen eds., 1987) (footnote omitted). See generally Anne 0. Krueger, The
Political Economy of Rent-Seeking Society, 64 AMERL EcON. REv. 291 (1974).

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decline of central planning has in many cases simply meant the rise
of local government control over enterprises. If two disputing
enterprises are run by the same municipal government, it is still
necessary to keep the internal resolution paradigm in mind. It is
possible that in any particular case internal resolution will not be the
appropriate paradigm, but such can only be a conclusion of analysis,
not a premise of it.

C. Structure of Analysis

One way of looking at dispute resolution in China is to analyze
separately the conventional modes of mediation, arbitration, and
adjudication: the mode of dispute resolution is held constant, while one
or more institutions that can resolve disputes in that mode are
studied.14 The problem with this approach is that it commits one a
priori to the position that one is studying essentially the same thing
(e.g., "mediation") as conducted by different institutions. To the extent
that one can overcome this methodological predisposition and discover
important differences, as some writers have done,' 5 the whole point
of the study - the analysis of a particular mode of dispute resolution

is lost.
Moreover, the mode-centered approach tends to neglect the actual

experience of disputants. The contention of this article is that the
institution that deals with a dispute is more important than the mode
of dispute resolution the institution might use. Disputants find
themselves in a particular concrete forum for dispute resolution, not in
an abstract mode. Concentrating on particular third-party fora for
dispute resolution allows us to see more clearly the ways in which one
apparent mode of dispute resolution may shade into another. It allows
us to dispense with concern over how to classify a particular style of

14. See, e.g., Jerome A. Cohen, Chinese Mediation on the Eve of Modernization, 54
CALIF. L. REv. 1201 (1966); David Hunter, Chinese Labour Dispute Arbitration Procedures:
An Early Review in Zhejiang Province, 11 COMP. LABOR L.J. 340 (1990); Stanley Lubman,
Mao and Mediation: Politics and Dispute Resolution in Communist China, 55 CALIF. L. REV.
1284 (1967); Michael Palmer, The Revival of Mediation in the People's Republic of China: (1)
Extra-Judicial Mediation, in YEARBOOK ON SOcIAlIST LEGAL SYSTEMS 1987, at 219 (W.E.
Butler ed., 1987) [hereinafter Palmer, Extra-Judicial Mediation]; Michael Palmer, The Revival
of Mediation in the People's Republic of China: (2) Judicial Mediation, in YEARBOOK ON
SOCIAlIST LEGAL SYsTEms 1988, at 143 (W.E. Butler ed., 1989) [hereinafter Palmer, Judicial
Mediation]; Spanogle & Baranski, supra note 11 (arbitration).

15. See, e.g., Lubman, supra note 14, at 1329 ("[A]ithough mediation is discussed in
Communist Chinese sources as if it were a single, well-defined method of resolving disputes,
it may vary significantly with the type of mediator.").

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dispute resolution; instead, we can simply examine each style on its
own terms. This article, therefore, will take an institution-centered
approach to dispute resolution in China.

1II. INSTrUTIONS FOR DISPUTE RESOLUTION

A. Courts'
6

1. In General

China has a system of courts of general jurisdiction and various
specialized courts. I7 There is generally one appeal from the trial in
first instance. The trial in second instance is de novo, but the judgment
is final. There is no third appeal, even on issues of law alone.18

There are four levels of courts of general jurisdiction. All can
serve as courts of original jurisdiction, depending on the perceived
importance of the case and the status of the parties. 9

At the top of the structure is the Supreme People's Court (zuigao
renmin fayuan) (SPC). Below it, at the provincial level, are the thirty
Higher-Level People's Courts (gaoji renminfayuan) (HLPC). There is
one HLPC for each province, autonomous region (e.g., Tibet or
Xinjiang), and centrally-administered city (e.g., Beijing or Shanghai).

Below the HLPCs are the 381 Intermediate-Level People's Courts

16. This section on courts is based on my fuller discussion in Clarke supra note 10, at
57-69, but has been condensed, modified, and updated.

17. The structure of the court system is set out in Zhonghua Reanmin Gongheguo Renmin
Fayuan Zuzhi Fa [Law of the People's Republic of China on the Organization of People's
Courts], as amended, 1983 ZHONGHUA REMIUN GONGHEGO FAcmI HumIIAN [COLLEE LAWS
AND REGULATIONS OF THE PEOPL.'S REPUBLIC OF CHINA] [FGHB] 4 [hereinafter Court
Organization Law].

18. Parties can still contest judgments that have become legally cffective through a
procedure kmown as shensu (petition). A petition is essentially a request to the court that made
the judgment or its superior court to have another look at the case. The procuracy can also b-
petitioned to re-open the case. There are as yet no clear standards governing the grounds on
which petitions may be brought or the number of times they may be brought. On petitions
generally and their relationship to appeals, see Margaret Y. K. Woo, The Right to a Crindnal
Appeal in the People's Republic of China, 14 YALE M. INT'L L 118, 133-141 (1989).

19. For example, Intermediate-Level People's Courts am the courts of original jurisdiction
in all criminal cases where a foreigner is the accused or the victim. Zhonghua Renmin
Gongheguo Xlngshi Susong Fa [Criminal Procedure Law of the People's Republic of China],
1979 FGI-B 87, Art. 15 [hereinafter Criminal Procedure Law].

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(zhongji renmin fayuan) (ILPC).2° These are established just below
the provincial level in prefectures (diqu), provincially-administered
cities, and within centrally-administered cities.

At the bottom are the 3,000-odd 2' Basic-Level People's Courts
(jiceng renmin fayuan) (BLPC), which exist at the county level. Each
court has a president, a vice-president, and several judges. Because it
may be difficult for parties from outlying areas to attend court, a
BLPC may establish branch courts known as People's Tribunals
(renmin fating) (PT) outside the town in which it is headquartered. The
decision of a PT is the decision of the BLPC and is properly appealed
to the court above the BLPC, not the BLPC itself.22 There were
about 18,500 PTs across the country by the end of 1990.23

The jurisdiction of specialized courts is by subject matter and is
not limited by administrative boundaries.24 Their personnel are
appointed from the center, not by a People's Congress at a particular
level. The specialized courts include military courts, maritime courts,
forestry courts, and railway courts.

China's approximately 3,500 courts have a staff of 215,000, of
which 125,000 are judges.' Court presidents are usually chosen by
the People's Congress at the same administrative level (e.g., city or
county or province), but vice-presidents and other judges are chosen

20. The figure is derived from Ren Jianxin, Zuigao Renmin Fayuan Gongzuo Baogao
[Supreme People's Court Work Report], 1989 ZHONGHUA RE'MIN GONct.E3UO QUANGUO
RENMIN DAIBLAO DAHUi CHANGWu WEIYUANHUTi GONGBAO [GAZETTE OF THE STANDING
COMMHITEE OF THE NATIONAL PEOPLE'S CONGRESS OF THE PEOPLE'S REPUBLIC OF CHINA]
[NPCSC GAZETTE] No. 2, at 109, 115, translated in FOREIGN BROADCAST INFORMATION
SERVICE, DAILY REPORT, CHINA [FBIS-CHNA], May 2, 1989, at 83.

21. See Ren, supra note 20, at 122.
22. Court Organization Law, supra note 17, Art. 20.
23. See Ren Jianxin, 7uigao Renmin Fayuan Gongzuo Baogao [Supreme People's Court

Work Report], FAZHI RIBAO [LEGAL SYSTEM DAILY], Apr. 12, 1991, at 2, translated in
SWB/FE, Apr. 25, 1991, at Cl/I.

24. There are about 132 specialized courts. See Chang Hong, Top Judge Feels Law Has
Made Big Gains, CHINA DAILY, Oct. 3, 1989, at 4, col. I.

25. See id. I have estimated the number of courts at 3,500, instead of using the figure of
3,358 given in this 1989 source, by adding up the figures given for people's courts in the text
and making allowances for specialized courts and for growth. In his 1988 report to the National
People's Congress, then-Supreme People's Court president Zheng Tianxing gave a figure of
3,435 courts as of the end of 1987. See Zheng Tianxiang, Zuigao Renmin Fayuan Gongzuo
Baogao [Supreme People's Court Work Report], 1988 NPCSC GAZETTE No. 4, at 24, 34.
Neither the 1990 nor the 1991 Supreme People's Court work reports contain information on the
number of courts.

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by the corresponding People's Congress Standing Committee. 6 The
effect of this system is that court personnel are controlled by the
government at the corresponding level. 7 Chinese judges have no
security of tenure and below the SPC are not appointed by the central
government. Hence, BLPC judges are beholden to the county-level
government, HLPC judges are beholden to the provincial-level
government, and SPC judges are beholden to the central govern-
ment,

China's courts hear and decide cases in three basic organizational
forms. First, a single judge can try minor civil and criminal cases in
the first instance.

Second, other cases are tried by a collegiate bench composed
solely of judges or of judges and "people's assessors" (renmin
peishenyuan) selected from the populace. Members of the collegiate
bench, whether lay or professional, are supposed to enjoy equal rights
to participate in the bench's decision, which is made by majority vote.
In fact, it appears that the role of people's assessors is largely a
formality and that they are not expected to disagree with the views of
the presiding judge?9

Third, each court has an Adjudication Committee, which is the
highest decision-maling body within the court. It is composed of the
court president, the vice-president, the head and deputy head of the
various specialized chambers, and ordinary judges. The Adjudication
Committee has the power to decide individual cases if it wishes and

26. The exception to this rule is the ILPC, where the provncial-level People's Congress
Standing Committees usually choose all judges, including the court president. In minority areas
and in cities, there may be a level of People's Congress between the province and the county.
If so, that People's Congress and its Standing Committee choose ILPC ptrsonnel according to
the regular procedure above.

27. Officially, the court president is appointed by the People's Congress of the same level
as the court; the vice-president and other judges are appointed by the Standing Committee of
the same People's Congress. People's Congresses are rarely if ever anything more than rubber
stamps for the local Chinese Communist Party (CCP) organization, particularly in matters of
legal administration, which are handled by the same Party committee that handles public security
matters. See infra notes 61-64 and accompanying text.

28. Many ILPCs have no People's Congress at the same level Prefectures, for example,
are units of administration immediately below the provincial government established for th-.
convenience of that government and have no People's Congress of their own. In that case, ILPC
judges are officially appointed by the provincial People's Congress. See supra note 26.

29. See, for example, Liu Shouhai, Peishen)uan Liangdi Su [Letters from [People's]
Assessors in Two Places], FAZHI RIBAO, Aug. 25, 1988, at I, where the writer recalls his
service as a people's assessor. After the trial but before any discussion, he was informed that
the court president had already decided how the case was to be disposed of and was presented
with a copy of the judgment to sign. His career as a people's assessor ended when, in another
case, he ventured to question the conclusions of the presiding judge.

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to direct the judge or bench that heard the case to enter a particular
verdict."

In addition to deciding cases by adjudication, courts can and
indeed are encouraged to lead the parties to a mediated agreement.
Courts have authority to conduct mediation in two types of cases: civil
cases and minor criminal cases heard only upon complaint.3 Until its
1991 revision, the Civil Procedure Law instructed courts to "stress
mediation"; when attempts at mediation failed, they were to proceed
to adjudication.32 The category of "civil cases" is generally deemed
to include disputes over property and status arising under civil law or
the Marriage Law, as well as disputes arising under economic law and
labor law.33 The Criminal Procedure Law provides that in cases heard
only upon complaint, such as defamation or abuse of family members,

30. The Adjudication Committee is discussed in greater detail below: see infra text
accompanying notes 51-55.

31. See RENMIN TIAOIE SHIYONG DAQUAN [PRACTICAL COMPENDIUM OF PEOPLE'S
MEDIATION] 15 (Liu Zhitao ed., 1990) [hereinafter MEDIATION COMPENDIUM]. It is likely that
the latter category should be expanded to include all cases amenable to private prosecution. The
category of "civil cases" should be understood to include matters such as contract disputes
between enterprises, which in China would probably be considered "economic" cases. It is
unclear to what extent "administrative" cases - disputes between citizens and government
organs over which courts have authority - can be mediated. Article 50 of the Administrative
litigation Law (ALL) states flatly: "When the people's courts try administrative cases, mediation
shall not be used." Later on, however, Article 67 provides that mediation may be used after all
when the case involves a demand for compensation for injuries. Zhonghua Renmin Gongheguo
Xingzheng Susong Fa [Administrative Litigation Law of the People's Republic of China], 1989
ZHONGHUA RENMIN GONGHEGUO GUOWUYUAN GONGBAO [GAzerE OF THE STATE COUNCIL
OF THE PEOPLE'S REPUBlIC OF CHINA] [STATE CoUNCIL GAZ-TE] 297 [hereinafter Administra-
tive Litigation Law], translated in Stephen G. Wood & Chong Liu, China's Administrative
Procedure Law: An English Translation with Comments, 43 ADMIN. L. REv. 89 (1991); PRC,
Administrative Litigation Law, CHINA L. & PRACTnCE, No. 5, 1989, at 37.

32. See Zhonghua Renmin Gongheguo Minshi Susong Fa (Shixing) [Civil Procedure Law
of the People's Republic of China (for Trial Implementation)], 1982 FGHB 133, Art. 6. Article
6 is now Article 9 in the revised Civil Procedure Law. Where it formerly said that people's
courts should "stress mediation," it now says they should "conduct mediation in accordance with
the principles of voluntariness and lawfulness." Zhonghua Renmin Gongheguo Minshi Susong
Fa [Civil Procedure Law of the People's Republic of China] [hereinafter Civil Procedure Law],
reprinted in RENMIN RIBAO (HAIWAI BAN) [PEOPLE'S DAILY (OvERsEAS EDmoN)] [hereinafter
Renmin Ribao-HB], Apr. 15, 1991, at 2, Art. 8 [hereinafter Civil Procedure Law], translated
in SWB/FE, May 8, 1991, at Cl/l; CHINA L. & PRACTICE, No. 5, 1991, at 15. The translation
here is my own.

In the view of the Economic Chamber of the Beijing Intermediate-Level People's Court,
to "stress" mediation meant that the court should attempt mediation in every case before it. See
Liang Qinhan, Chuli Jingji Jiufen Anjian Ying Ziuozhong Tiaojie [In Handling Cases of
Economic Disputes One Should Stress Mediation], 1981 FAXUE YANJIU [LEGAL STUDIES] No.
4, at 13, 13. Although this article predates even the old Civil Procedure Law, to "stress
mediation" appears to have been a well-settled policy directive for courts.

33. See MEDIATION COMPENDIUM, supra note 30, at 15.

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DISPUTE RESOLUTION

the court "may" conduct mediation.' Mediation may also be conduct-
ed by a court hearing an appeal.

An important feature of court mediation is that the mediation
agreement has the same effect as a court judgment once it is delivered
to the parties. 5 In fact, it arguably has a stronger effect. Since it is,
in theory, voluntary, it may not be appealed.3 6 In addition, in divorce
cases, court mediation is the only type of mediation attempt that can
be required before a court will give judgment.37

2. Shortcomings of Dispute Resolution Institutions

China's courts suffer from severe limitations as dispute resolution
institutions because they are often unable or unwilling to enforce legal
standards. First, judges may simply lack the education necessary to do
the job competently. China now has some seven "political-legal
institutes" and thirty-three university law departments which annually
produce about 4,000 LL.B. graduates?' Because very little legal
education took place between the mid-1960s and the late 1970s, 3

there is a great shortage of persons qualified to serve as judges.'
Recent graduates, in their early twenties, are simply too young.' A
large number of judges are demobilized army officers,42 and some

34. See Criminal Procedure Law, supra note 19, Arts. 13, 127. In cases heard only upon
complaint (zisu anjian), victims (or in some cases others acting on their behalf) must act as
prosecutors.

35. See MEDIATION CoMiPENDrUm, supra note 31, at 17.
36. See id, supra note 31, at 17; Palmer, Judicial Mediation, supra note 14, at 161.
37. See Zhonghua Renmin Gongheguo Hunyin Fa [Marriage Law of the People's Republic

of China], 1980 FGHB 3, Art. 25 [hereinafter Marriage Law].
38. See James Kraus, Legal Education in the People's Republic of China, 13 SUMFEIO

TRANSNAT'L IJ. 75, 85 (1989). The LL.B. is a four-year undergraduate degree in China.
39. See Jerome A. Cohen, Notes on Legal Education in China, 4 LAWASIA 205 (1973)

("[Tihe first thing to understand about legal education in China today is that there isn't any.");
see generally Timothy Gelatt & Frederick Snyder, Legal Education in China: Training for a
New Era, 1 CHINA L. REP. 41, 41-50 (1980).

40. In 1980 Deng Xiaoping himself lamented the severe shortage of competent judicial
officials. See DENG XIAOPING, Muqian de Xingshi he Retm-u [The Present Situation and Tasks],
in DENG XIAOPING WEXUAN 1975-82 [SELE=ct WORKS OF DENG XIAOPING 1975--82] 203,
227 (1983).

41. See Huang Mingl. rews on Judicial Refonm, 1985 ZIENGFA LUNTAN [POLrITCs AND
LAW FORUM] No. 1, at 71, translated in JOINT PUBUCA71ONS RESEARCH SERVICE, CHINA
REPORT: POImCAL, SOCIOLOGICAL AND MILiTARY AE7AIRs [JPRS-CPS], Oct. 10, 1985, a 42,
46.

42. These officers are simply assigned to a court whether they are wanted there or not.
In 1988, the then-president of the Supreme People's Court asked the National People's Congress
to give the courts more power to refuse assignments of unqualified personnel and begged local
Party committees, People's Congresses, and governments not to send such people. See Zheng,

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JOURNAL OF CHINESE LAW

courts even draft their clerks into service as "substitute judges" (daili
shenpanyuan) when manpower is short.43 There is as yet no career
judicial bureaucracy with clear, or even vague, standards of competen-
cy. There are no objective qualifications that all judges must have.44
In August, 1990, the President of the Supreme People's Court
estimated that by 1991, 40% of China's judges would still lack a
college education - and the percentage would be even higher among
court presidents and vice presidents. 5

Judicial ignorance of the law is particularly devastating in a
system such as China's because it is so difficult to remedy. Chinese
judicial procedure is basically inquisitorial, leaving a great deal of
initiative to the judge instead of to the parties and their lawyers. Just
finding the applicable law can be an impossible task. Laws and
regulations are promulgated by a bewildering variety of governmental
and quasi-governmental bodies, and no comprehensive and up-to-date
indexes are available. 6 There is no regular system of case reporting

supra note 24, at 36.
43. See Li Yuming, Shujiyuan Bu Neng YI "Daili Shenpanyuan" Shenfen Ban'an [Clerks

Cannot Handle Cases as "Substitute Judges"], 1990 FAXUs [JURISPRUDENCE] (Shanghai) No.
11, at 39. Clerks are often recent law graduates whose career track leads next to an assistant
judgeship and who may know more law than the judges.

44. In 1988, Supreme People's Court president Zheng Tianxiang announced that a Law
on Judges (Faguan Fa) was being drafted. See Zheng, supra note 25, at 36. According to his
successor, Ren Jianxin, this law would establish a unified national standard of qualifications for
judges. See Su Hongyu & Yu Xinnian, Fayuan Gaige he Jianshe Shi Wancheng Shenpan Renwu
de Zhongyao Baozheng [The Building and Reform of Courts Are Important Guarantees of the
Fulfillment of Adjudication Tasks], FAZHI RiBAO, July 19, 1988, at 1 (quoting Ren Jianxin). Ren
repeated the announcement that a Law on Judges was being drafted in 1989, see Ren, supra
note 20, at 118, and in 1991, see Ren, supra note 23, at 2 (this time labelling it "Regulations
on Judges" (Shenpanyuan Tiaoi)). No draft of this law is publicly available and it has yet to
be enacted.

45. See Ren Jianxin Stresses Need to Educate and Train Court Personnel, in SWB/FE,
Aug. 28, 1990, at B2/1. The apparent inverse relationship between rank and educational level
is explained by the primacy accorded to political reliability in the selection of cadres. Many
court presidents and vice presidents are demobilized army officers with little schooling.

Other sources corroborate the general picture. In 1989, one writer asserted that only 10%
of all judges and procurators had been educated at or above the college level See 1I Maoguan,
Why "Laws Go Unenforced", BEIJING REV., Sept. 11-17, 1989, at 13, 15. In his 1989 report
to the National People's Congress, the President of the Supreme People's Court stated that 30%
of "court cadres" (fayuan ganbu) had graduated from institutions of higher education. See Ren,
supra note 20, at 119. The term "court cadres" covers more than merely judges (shenpan
renyuan).

46. An egregious example of the problem of keeping track is reported in Ao Yi, Bel
Lengluo de Xin de "Zhian Guanli Chufa Tiaoli" [A Cold Shoulder to the New "Security
Administration Punishment Regulations"], FAZHI RIBAO, Jan. 17, 1989, at 2. One of China's
most important statutes is the Security Administration Punishment Regulations (SAPR), which
designate a variety of public order offenses and grant to the police the authority to try and

[5:245



DISPUTE RESOLUTION

that would allow judges to see how other courts had handled similar
problems.4 Quite often there will simply be no statutory rule directly
on point, or there may exist contradictory rules. In these cases, there
is simply no way of guessing how an untrained and ill-educated judge
will choose to decide the issue and no sense of what sorts of
arguments should or should not count.

Second, even if judges have enough education to do the job, they
may be corrupt or partial and unwilling to render a correct judgment.
Official corruption is a serious problem in China' - indeed, it was
one of the grievances that sent the people of Beijing and other cities
into the streets in the spring of 1989"9 - and it extends to the
judiciary.5 ° It is difficult, however, to quantify it in a rigorous way

punish offenders. The SAPR were first promulgated in 1957 (1957 [July-Dec.] FGHB 245) but
were reissued with substantial revisions in 1986 (1986 FGHB 151). The reissue was
accompanied by a substantial, even unavoidable publicity campaign. Nevertheless, several
authoritative law books published in 1987 and 1988 continued to refer to the 1957 SAPR as
the current statute, and one even recommended that it be revised to fit current conditions.

47. The Supreme People's Court does publish the Supreme People's Court Gazette, a
periodical containing directives, interpretations, and cases (generally lower court dicisions
thought to be particularly instructive). In addition, judges no doubt have access to case reports
that are not publicly available. I know of no publication, however, that indexes cases by subject
matter, and thus case reports are not as useful as they might othervise be.

A useful introduction to the role of the Supreme People's Court Gazette is Liu Nanping,
"Judicial Review" in China: A Comparative Perspective, 14 REV. SOCIA.IS L. 241, 246-250
(1988).

48. For a sampling of Chinese and foreign assessments, see John P. Bums, China's
Governance: Political Reform in a Turbulent Environment, 1989 CHINA Q. 481, 490 n.33 and
sources cited therein; Nicholas Kristof, Leaders in Beijing Bar Their Kin from Using Family
Ties for Profit, N.Y. TIMEs, July 29, 1989, § 1, at 1, col. 1; Julia Leung, Greased Palms
Lubricate Wheels in China, WALL ST. J., July 20, 1989, § 1, at 10, col. 1; Chief Procurator[:]
Anti-Corruption Struggle Will Be "Long" and "Arduous", Xinhua News Agency, in SWBJF,
Nov. 28, 1989, at B2/1. "What can you do - it's the kids," Chinese officials reportedly said
(more or less) to remonstrating officials of the Reagan administration when explaining that thy
were powerless to stop freelancing children of high officials from selling missiles to Iran and
Saudi Arabia. See Fox Butterfield, Under Deng, Running China Has Become a Family Affair,
N.Y. Tes, July 2, 1989, § 1, at 1, col. 4.

49. See. Sheryl WuDunn, 150,000 Lift Their Voices for Change, N.Y. TMEs, May 16,
1989, at A12. In a survey of 2,348 residents of 33 cities conducted in 1987 by a branch of the
Chinese Academy of Social Sciences, respondents expressed a very high degree of dissatisfction
with official corruption. See Burns, supra note 48, at 489.

50. See, e.g., Ren, supra note 20, at 120; Zheng Tianxiang, 7igao Renmin Fayuan
Gongzuo Baogao [Supreme People's Court Work Report], ZHONGGUO FAZHI BAO [CHMESE
LEGAL SYSTEM NEws], Apr. 23, 1986, at 2, 3 (report delivered to 4th Session of 6th National
People's Congress, April 8, 1996); Heilongjiang People's Court Work Report, HEwON'WIAG
RIBAO [HELONGIANG DAILY], Mar. 19, 1990, at 7, translated in FBIS-CHU4A, May 10, 1990,
at 80, 81; KYODO NEws AGENCY, Bribery Attempts on Court Officials Increase, translated in
FBIS-CNA, July 28, 1989, at 27; Law Officials Trample on Law, CHA DAILY, July 21, 1989,
at 3.

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JOURNAL OF CHINESE LAW

that would provide meaningful comparative perspective. The number
of news stories is a function of the government's wish to publicize the
problem, not necessarily of its magnitude. In the absence of reliable
data, it is possible only to note the existence of this obstacle to law
implementation, but not to specify its degree.

Third, even if judges are able and willing to render a correct
judgment, their decision may be overridden by higher authorities within
the court. Courts at all levels have as part of their structure an
Adjudication Committee headed by the president of the court.51 It is
the highest decision-making body within the court as an institution.52

It is official policy that "judicial independence" means not that the
particular judge or judges hearing the case should be independent from
outside pressures (i.e., senior judges in the same court), but at most
that the court as an institution should be free from outside pres-
sures.53 The Adjudication Committee has the power, among other
things, to override the decision of the judges who actually heard the
case and conducted the trial and to order them to enter a different
decision.54 Reports in the legal press indicate that in many courts it
is routine for the Adjudication Committee to decide cases, with the
result that "those who try the case do not decide it, and those who
decide the case do not try it" (shenzhe bu pan, panzhe bu shen).55

51. See Court Organization Law, supra note 17, Art. 11.
52. Although Article 8 of the Court Organization Law does not actually say this in so

many words, it is quite clear from other Chinese sources that this is so. See infra notes 54 and
55 and sources cited therein.

53. "The view that the collegiate bench [heyi ting] and the trial judge [shenpan yuan] can
independently adjudicate and that the chamber president and the court president can have no
say in the matter [bu neng guowen] is in opposition to the principle of independent adjudication
by courts mandated by the laws of our country." Zuigao Renmin Fayuan Yuanzhang Jiang Hua
Tan Renmin Fayuan Duli Shenpan Wenti [Supreme People's Court President Jiang Hua
Discusses the Issue of Independent Adjudication by the People's Courts], ZHONGGUo FAZEI
BAO, May 29, 1981, at 1. For a study of the theory and practice of judicial independence in
the first decade of the People's Republic, see Jerome A. Cohen, The Chinese Communist Party
and "Judicial Independence": 1949-1959, 82 HARV. L REv. 967 (1969).

54. The relationship between the local Party authorities, the Adjudication Committee, and
the individual judge(s) hearing a case can be expressed as follows. The Party committee has
the tight, and even the duty, to concern itself with the work of the court and to make
suggestions. It has the actual power, but not the right, to order the court to make a particular
decision. (If it did not have the actual power to do so, China would be a very different place.)
The Adjudication Committee has both the right and the actual power to order individual judges
hearing a case to make a particular decision.

55. Sun Jiebing, Dangqian Fayuan Shishi Duli Shenpan de Zuli ji Duice [Obstacles and
Solutions to the Implementation of Independent Adjudication by Courts Today], 1989 XIANDAI
FAXUE [MODERN JURISPRUDENCE] No. 1, at 44, 45. For other criticisms of the current role of
the Adjudication Committee, see Li Shaoping, Gai "Xian Ding Hou Shen" Wei "Xian Shen Hou
Ding" [Change "Decision Before Trial" to "Trial Before Decision"], 1990 FAXUE YANIu No.

[5:245



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Fourth, the court as a whole is subject to numerous outside
pressures and is particularly vulnerable to local government direction.
Judges can be threatened with various unpleasant consequences if they
do not decide as the threatener wishes. I shall look here at only one
kind of vulnerability with a specific institutional basis, that is, the
power of the local Party and government to dictate to courts how to
decide cases.

The local Party handles judicial matters through its Political-Legal
Committee (zheng-fa weiyuanhui),56 which has traditionally been in
charge of the police, the procuracy, the courts, other aspects of judicial
administration, and civil affairs. The Political-Legal Committee is often
headed by the leader of the local police or of the local Party and
government.5 7

It has long been the practice in China for local Party secretaries
or Party committees to review and approve the disposition of cases by
courts 8 This was the concrete manifestation of the principle of Party

2, at 39 and Wang Xinru, Shenpan We iuanhui Dingan ing yu Gaibian [The System of the
Adjudication Committee Deciding Cases Shoudd Be Changed], 1989 ZHENGZHI YU FALO
[PoLmcs AND LAW] No. 1, at 24.

56. According to the Notice of the Central Committee of the Chinese Communist Party
on the Establishment of Political-Legal Committees [Zhonggong Zhongyang Guanyu Chengli
Zheng-Fa Weiyuanhui de Tongzhi] (Central Committee Doe. No. 5, 1980), the Political-Legal
Committee, inter alia, "guides [zhidao] the work of the various politicl-legal departments" (this
would include courts) and "properly disposes of important and difficult cases." This document,
not to my knowledge publicly available, is cited in Zhonggong Zhongyang Guanyu Jiaqiang
Zheng-Fa Gongzuo de Tongzhi [Chinese Communist Party Central Committee Notice on
Strengthening Political-Legal Work] (Jan. 13, 1982) [hereinafter 1982 Political-Legal Notice],
reprinted in ZHONGGONG NIANBAO 1983-84 [YEARBOOK OF CHINESE COMMUNIS. 1983--84]
8-3, 8-6 (raipei 1984).

The central CCP Political-Legal Committee was renamed the Political-Legal Leading
Group in 1988 as part of a move to reduce its influence. Following the crisis of May and June,
1989, it has been revived. See WMy Lain, Legal, Security Apparatus to Be Strengthened, Soiieii
CHINA MORMI G POST, Apr. 4, 1990, at 10, reprinted in FBIS-CHNA, Apr. 4, 1990, at 22.
Similar changes in status occurred at the local level. See Change in Status of Legal Organs in
Sichuan, in SWB/FE, Feb. 13, 1990, at B2/2 (announcing retransformaion of county- and
provincial-level Political-Legal Leading Groups back into Committees and associated rise in
status).

57. See Zhao Zhenjiang et al., Lan Fala Shixiao [On the Effectiveness of Laws], 1989
ZroxG-WAi FAX=E [CHwEsE AND FOREGN LEGAL StuDiEs] No. 2, at 1, 5. One knovedgeable
public security cadre from a large city informed me that the head of the Political-Legal
Committee in that city was also the head of the procuracy, but added that it made little
difference from which branch of the judicial apparatus the head came.

58. In 1959, a model judge wrote:
When cases I have handled required arresting and sentencing, had a relatively strong
policy nature, or involved village or cooperative cadres, I asked instructions from th-
Party committee both before and during the process of handling the cases, and aftrmard
I reported to the Party committee.... Whenever the Party committee gave me

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JOURNAL OF CHINESE LAW

leadership. The official theory now is that Party leadership is to be
exercised at the level of legislation or general policy-making, not in
the adjudication of specific cases.59 But it has proved difficult to
break old habits.

Judges may find themselves out of a job if they do not do as
they are told by the Political-Legal Committee or by some other local
power-holder.6 ' The formal power of appointment and dismissal of
court personnel is lodged in the local People's Congresses. In practice,

instructions, I conscientiously studied and thoroughly implemented them.
Liu Zejun, Realizations from my Adjudication Work, 1959 ZHENGFA YANIU [PoLniCAL-LEOAL
STUDIES] No. 1, at 48, 48, quoted in JEROME A. COHEN, THE CRIMINAL PROCESS IN THE
PEOPLE'S REPUBLIC OF CHINA: 1949-1963, at 501 (1968). The practice described above, far
from being irregular, has in fact been given a name: "shuji pi'an" (approval of cases by the
[local Party] secretary). See generally Hungdah Chiu, Structural Changes in the Organization
and Operation of China's Criminal Justice System, 7 REv. SOCIALIST L. 53, 59-61 (1981)
(discussing the persistence of the "shuji pi'an" system). The system was officially approved by
the Supreme People's Court in a 1979 set of instructions issued to lower courts: "Imporrtant
cases and cases involving foreigners should be reorted to the Party committee at the same level
for examination and approval (shenpO." Renmin Fayuan Shenpam Minshi Anjian Chengxu Zhidu
de Guiding (Shi Xing) [Rules on the System of Procedure for the Adjudication of Civil Cases
by People's Courts (for Trial Implementation)] (Supreme People's Court, Feb. 2, 1979), Part 6,
§ 2, in ZHIXNG GONGZUO SHOUCE [HANDBOOK ON IMPLEMENTAION WORK] 73, 81
(SunChangli ed. 1988) [hereinafter 1979 Rules on Civil Procedure].

59. See Zhang Zhidong, Quxiao Dangwei Shenpi Anjian [The Abolition of the Examination
and Approval of Cases by the Party Committee], in ZHONGGUo BAIKE NIANJIAN [CHINA
ENCYCLOPEDIC YEARBOOK] 189 (1981). One Chinese writer stated the theory as follows:

As everyone knows, our country's constitution was drafted and discussed by the drafting
committee formed by responsible comrades of the Party center and personages from all
walks of life. In addition, it was passed by the organ of supreme state power, the
National People's Congress, embodies the will of the entire Party and people, and repre-
sents the common interests of all the people. If state laws are subject to the decisions
of any level of the Party, then in truth the collective interests of the entire Party and all
the people are subject to the interests of a locality or a small group. This is an absurd
theory and a dangerous practice.

Dong Likun, Shei Ye Bu Neng J yu Fala zhi Shang [Nobody Can Be Above the Law], 1980
SHEHUI KEXUE [SOCIAL SCIENCE] No. 1, at 7, 10. In 1980, President of the Supreme People's
Court Jiang Hua was quoted as saying: "When the Party committee strengthens its leadership
over political-legal departments, it is mainly in the area of line, principles, and policy. It is not
necessary to examine and approve specific cases." Baozheng Fayuan Yi Fa Duli Shenpan,
Feichu Dangwei Shenpi Anjian Zuofa [Guarantee the Independent Adjudication of Cases by the
Courts in Accordance with the Law; Abolish the Practice of the Party Committee Examining
and Approving [Decisions in] Cases], RENMIN RIBAO [PEOPLE'S DAILY], Aug. 25, 1980, at 1.
But see 1979 Rules on Civil Procedure, supra note 58 at 81. Mr. Jiang also referred to a 1979
CCP Central Committee document instructing Party committees not to override the rules of the
Criminal Law and the Criminal Procedure Law. Id.

60. Just how much of a threat this is will, of course, depend on the desirability and
availability of other jobs. Because Chinese writers appear to believe that the power to appoint
and dismiss carries with it the power to influence decisions, I am assuming that the threat is
real and that the job to which an uncooperative judge is reassigned would be in effect a
demotion.

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DISPUTE RESOLUTION

however, they act as rubber stamps for the local Party organizational
department.61 The real power is in the hands of the local Party
leadership.62 "This personnel power exercised by a small group of
leaders hangs like the sword of Damocles over those who would do
things according to law. ,6 3 "If the court insists on handling things
according to law and disposes of certain cases in ways not satisfactory
to these leaders, some of them will use their power to arbitrarily
reassign the court's leadership."''

Fifth, any judgment needs to be enforced, yet the courts are short
on autonomous enforcement powers.65 It is frequently difficult to get
court judgments enforced against any determined defendant, to say
nothing of a well-connected and politically powerful defendant. Indeed,
in 1988 a former President of the Supreme People's Court described
the failure to enforce court decisions as "the most outstanding problem
in the administration of justice in the economic sphere."'

61. See Zhao et al., supra note 57, at 3, 5.
62. See Gaishan Zhifa de Keguan Tiaojian [Improve the Objective Conditions for the

Implementation of Law], FAZHI RIBAO, Apr. 13, 1989, at 1. One county Party secretary is
reported to have expressed this view at a meeting of political-legal cadres:

All of you sitting here, I ask you - you, the court president: if I hadn't put your name
up, could you serve? You, the chief procurator if I hadn't put your name up, could you
serve? You, the public security chief: if I hadn't put your name up, could you serve? If
you ask me, none of you could servel

Fang Chengzhi, Renmin Fayuan Zai Guojia Jigou Zhong de Diwei [ie Position of the People's
Courts in the Structure of the State], 1985 FAXuE ZAZHI [JURISPRUDENCE MAGAZINE) No. 4,
at 15, 16.

63. Zhao et al., supra note 57, at 5.
64. Shi Youyong, Shenpan Zhong Difang Baohu Ziuryi de Chengyin fi Duce [Local

Protectionism in Adjudication: Causes and Countermeasures], 1989 FAXUE (Shanghai) No. 6,
at 15, 15.

65. This problem is, of course, hardly unique to China. For a classic American case, see
Ex parre Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9,487). In that case, Chief Justice
Roger Taney was confronted by the simple refusal of military authorities, acting under orders
from President Lincoln, to obey a writ of habeas corpus: 'I have exercised all the power which
the constitution and laws confer upon me, but that powver has been resisted by a force too
strong for me to overcome." I& at 153.

66. See Zheng, supra note 25, at 29. Complaints about problems in implementing
judgments are a regular feature of the annual Supreme People's Court work reports. For th-.
latest, see Ren, supra note 23, at 2.

Other articles addressing the problem of implementation include: Ding Conghan, Dui 42-
Jian wei 2uxing de Jingji Anjian Diaocha Pouxi [Investigation and Analysis of Forty.Two
Cases of Economic Disputes Where the Judgment Was Not Implemented], 1989 FAXUE ZAZU
[JURISPRUDENCE MAGAZINE] No. 3, at 42; Shi, supra note 64; Wang Qinglin, Backang Fayuan
Anjian 2hixing Bu Tuo Bu Ya [Baok.ng Court Implements Judgments Without Delay and
Without Backlogs], FAZHI RIBAO, Aug. 3, 1988, at 2; Failure to Enforce Laws "Grave
Problem", Xinhua News Agency, in FBIS-CHINA, Mar. 28, 1989, at 15; Xu Fang & Liu Ran,
Songilang Xian Fayuan "Shen 2hi Jian Gu" [The Songiiang County Court Pays Attention to
Both Adjudication and Execution], FAZHI RIBAO, Mar. 4, 1989, at 1; Zhang Jianxin, Ju Bu

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JOURNAL OF CHINESE LAW

Why is it so difficult to execute judgments? First, there are few
penalties for refusing to obey a court order.67 Chinese courts have no
contempt power, and it is not a crime to refuse to obey a court order.
Article 157 of the Criminal Law6" makes it a crime to refuse to carry
out a judgment if the refusal is by means of threats or violence. This
covers the person who interferes with the actions of others carrying out
a judgment, but does not cover the person who is ordered to do
something and simply does not do it.69 There is one report of a man
sentenced under the Criminal Law to one year's imprisonment for
refusing to carry out a judgment, but no details are provided as to
whether he used threats or violence.7"

Article 77 of the 1982 Civil Procedure Law7' empowered the
court to fine or detain those who "have a duty to assist in execution"
of civil judgments and refuse to do so, but this probably did not refer
to the actual subject of the judgment, who is usually called "the
executee" (bei zhixing ren). Evidently this lacuna was noted, for the
1991 revision71 provides in Article 102 that parties themselves (as
well as others) may be fined or detained if they refuse to carry out a

Zhixing Fayuan Panjue Yao Fu Fali Zeren; Anyang Xian Fayuan Panchu Li Tiansheng Tuxing
Yi Nian [Those Who Refuse to Implement Court Judgments Must Bear Legal Responsibility:
Anyang County Court Sentences Li Tiansheng to One Year's Penal Servitude], FAZEI RIEAO,
Aug. 3, 1988, at 1.

67. See Ding Haihu & Chen Xiuyan, Shilun Qiangzhi Zhixing Lifa [A Tentative Discussion
on Legislation Regarding Compulsory Execution], 1989 FAXuE ZAzHI No. 5, at 38, 39.

68. Zhonghua Renmin Gongheguo Xing Fa [Criminal Law of the People's Republic of
China], 1979 FGHB 48 [hereinafter Criminal Law].

69. One writer has proposed that the crime of contempt of court (mieshi fating zui) be
added to the Criminal Law. Even this proposal, however, does not appear to cover all deliberate
refusals to carry out court judgments and orders. It suggests punishing refusal to carry out court
judgments "in a way that shows contempt for the court (yi mieshi fating de fangshi)." Zhao
Yongchen, Zai Xing Fa Thong Ying Zengshe Mieshi Fating Zui de Tiaokuan [A Provision
Should Be Added to the Criminal Law Criminalizing Contempt of Court], 1989 XIANDAI FAXU1B
[MODERN JURISPRUDENcE] No. 1, at 56, 56. Why Chinese law shows such a reluctance to
punish for the mere fact of deliberately refusing to obey a court order is an intriguing question,
but one beyond the scope of this paper.

70. See Zhang, supra note 66, at 1. Another case involved the continued commission by
the defendant of a forbidden act - the taking of property adjudged not his - which was then
defined as theft. The defendant also made threats to court officials. See i Zhouxin, Anhua Xian
Liangming Minshi Susong Dangshiren Ju Bu Zhixing Fayuan Caiding Daitou Hongqiang Jiti
Chachang [Two Parties to a Civil Suit in Anhua County Refuse to Cany out Court Ruling, Take
the Lead in Seizing Collective Tea Field], FAZIU RIBAO, Aug. 26, 1988, at 1. I have found no
case where the defendant was punished for refusing to perform a required act.

71. Supra note 32.
72 Civil Procedure Law, supra note 32.

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legally effective court judgment or ruling.' It remains to be seen,
however, how well this provision will be enforced.

Second, courts often lack sufficient bureaucratic clout to enforce
their judgments against administrative units. Any clout they have
comes from the bureaucratic rank of individual judges. Although courts
and governments at any given level are supposed to be equal, court
presidents generally have a lower bureaucratic rank than the chief
executive of the government at the same level. 4 This means, for
example, that the latter has access to some documents from the center
that the former cannot see. It is simply alien to the way China
functions that a lower-level official from one bureaucracy should be
able to give orders to a higher-level official from another!' A low-
status judge does not have the prerogative to disobey, much less to
command, a higher-status official. As one county Party secretary is
reported to have said, "Tell me what matters more: official rank or the
law? I can definitely tell you, rank matters more. Law is made by
man; without man, how could there be law? Without man, how could
law matter at all? That's why I say that rank matters more.: 76

Third, the cooperation of local authorities is needed. Judicial
independence is not of much use if it results in nothing more than the
issuance of a piece of paper. The enforcement of local court judgments
may be supported by local authorities, if only because a judgment they
opposed would probably not be issued in the first place. Nevertheless,
courts are reluctant to move with force and authority against the truly
recalcitrant defendant. In one case, an old man and his wife transferred
their house to a third party, and then wanted it back so they could
give it to their son. To accomplish their purpose, they simply
reoccupied the original house. The new owner took them to court and
won at both the first trial and on appeal. The defendants, however,
refused to move out on the grounds that they were old. Fearing they
would commit suicide, the court eventually ruled that they could stay
in the house until they died, at which time the court's judgment would

73. Refusal to carry out judgments is one of a list of acts in Article 102 that are said to
subject the actor to criminal liability if they violate the Criminal Law. Aside from the fact that
it is hardly necessarily to put this truism in the Civil Procedure Law, we have already seen that
the mere refusal to carry out a court order does not appear to violate the Criminal Law. Several
Chinese judges with whom I have spoken confirm this view.

74. See Fang, supra note 62, at 15; Tao-tai Hsia, The Concept of Judicial Indep-.ndznce
9 & n.23 (1986) (unpublished paper).

75. See generally KENNETH LEBERTHAL & MICHAEL OYSENBERG, POLICY MAMING IN
CHINA: LEADERS, STRUcTURES, AND PROCESSES oh. 4 (1988) (discussing characteristics of the
structure of state power).

76. See Fang, supra note 62, at 16.

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JOURNAL OF CHINESE LAW

take effect. The writer reporting this case criticizes the court, but
demonstrates the identical attitude when he says that where execution
would "genuinely cause difficulty," one should consider an "appropriate
postponement.

'"77

The greater enforcement problem occurs with the execution of
judgments from courts outside the jurisdiction of the local government.
The enforcement of such judgments is essentially a voluntary matter
for the local authorities.

Local courts in China are considered in fact, although not in law,
to be simply arms of local government. Courts are dependent on local
government for their financing, and their personnel serve de jure at the
pleasure of the local People's Congress and de facto at the pleasure of
the local Party organization. 8 This sets the stage for the conflict of
two principles. A court, wherever located, is by law empowered to
issue a judgment binding on anyone, provided it has proper jurisdic-
tion. In the Chinese political system, however, County A in Province
X cannot tell County B in Province Y what to do any more than the
citizens of Del Mar, California can declare Groton, Connecticut a
nuclear-free zone.79 Because of the identification of courts with local
governments, their judgments are subject to the latter principle, not the
former.

Local authorities often oppose the enforcement of outside
judgments."0 Under economic reform, localities are more dependent
than before on their own resources. Local enterprises form the revenue
base for local governments. 81 Thus, it is important to protect their

77. Su Nan, Fayuan de Panjue Zai Mouxie Difang Nanyi Zhixing [Court Judgments Are
Difficult to Implement in Certain Places], FAZHI RIBAO, Jan. 3, 1989, at 4. The issue of
principle versus pragmatism was faced by the United States Supreme Court perhaps most
poignantly in Brown v. Board of Education, 349 U.S. 294 (1955), where it ordered the
desegregation of public schools "with all deliberate speed[.]" Id at 301. The author of the
formula himself conceded that as a matter of constitutional law, the idea that the Court could
recognize a violation of personal rights yet not provide an immediate remedy was "entirely
unprincipled," "simply indefensible," and 'Just plain wrong." See Philip Elman, The Solicitor
General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History,
100 HARv. L. REv. 817, 827, 828 (1987). For criticism of the Court's formulation, see, inter
alia, Robert L. Carter, The Warren Court and Desegregation, 67 MICH. L. REV. 237, 243
(1968) and Louis Lusky, Racial Discrimination and the Federal Law: A Problem in
Nullification, 63 COLUM. L. REv. 1163 (1963).

78. See supra note 26.
79. See John Glionna, No Issue Is Too Big or Too Small for Del Mar, LA. TIMES, Juno

24, 1990, at B1 (reporting decision of Del Mar City Council in 1989 to declare town a nuclear-
free zone).

80. See Mu Xiaoqian & Liu Jian, Shei Zai Wei Beigao Chongdang Houtai? [Who Is
Backing Up the Defendant?], FAZHI RIBAO, Apr. 5, 1988, at 3.

81. See Ding & Chen, supra note 67, at 38; Shi, supra note 64, at 16.

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DISPUTE RESOLUTION

financial health. The President of the Supreme People's Court
complained about this phenomenon:

Some localities - mainly Party and government leaders at
the basic level - demand that when the court passes
judgment, it be favorable to the party from the locality. If it
is not, they accuse the court of "embracing outsiders"
(gebozhou wang ivai guai). If a court from outside the
locality rules against a local party in a suit, requiring that
party to bear economic liability, to pay a debt, or to
compensate for economic loss, certain leaders of the locality
will obstruct the implementation of the court's judgment.8

The financial contract system, under which localities are obliged
to turn over a fixed amount of revenues to the center each year and
may keep the remaining revenues,83 has made it even less likely that
local authorities will permit resources to flow out of the jurisdiction.
Since local governments are usually the primary claimants on the
enterprise's income, they bear the loss when their enterprise pays out
to an outside party."

If it is common for local courts to rule against outsiders, it is
easy to see why even the most upright local authorities would have
good reason to be suspicious of the impartiality of an outside judgment
against a local enterprise. They would naturally be reluctant to help
enforce it. Sometimes outside court personnel will actually make a trip
(at the winner's expense) to the loser's district to execute the
judgment. But without the cooperation of local authorities, outside
court personnel are simply strangers in a strange land. They have no
connections, no authoritative letters of introduction, no influence, and
no power.8

It can be very difficult to obtain local court cooperation if the
local authorities are dead set against it. Contracts across jurisdictions

82. Shi, supra note 64, at 15 (citing a speech made by Supreme People's Court presidant
Ren Jianxin in October, 1988). Ren's predecessor made the same complaint in almost identical
terms (and using the same colloquial expression) in April of 1986. See Zheng, supra note 50,
at 3.

83. See LuBER THAL & OKSENERG, supra note 75, at 139.
84. See Ding & Chen, supra note 67, at 38.
85. See Henan Sheng Xinxiang Shi Zhongji Reamin Fayuan [Henan Province Xinxiang

City Intermediate Level People's Court], Shuli Quanguo Fayuan Yipanqi Si iang, Jiji XrehAu
Waidi Fayuan Gaohao Zkixing Gongzuo [Take the Courts of the Whole Country as a Single
Chessboard; Actively Assist Courts from Other Areas to Do Implementation Work Well], FAZHI
RIBAo, Apr. 5, 1988, at 3.

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JOURNAL OF CHINESE LAW

can be unenforceable.86 In one case, a local court refused to help
enforce an outside judgment despite two specific orders from the
Supreme People's Court to do so. 7

In the face of this protectionism, local governments have begun
to make treaties pledging to protect each other's enterprises as their
own. Shanghai, for example, is reported to have signed agreements "on
the protection of the legitimate rights and interests of enterprises" with
nine provinces.8 8 These treaties can play a useful role so long as the
parties have an interest in continued cooperation, and are more
practical than the usual pious exhortations to local authorities. 9 They
are, however, essentially unenforceable.

B. Dispute Resolution Out of Court

Because of the weakness - indeed, often the irrelevance - of
courts, institutions other than courts are extremely important in dispute
resolution in China.

1. Informal

Few disputes and disagreements generated by the everyday
frictions of social life ever make it to the level of formal resolution
institutions. In this respect, China is no different from other societies.
The particular ways in which third-party dispute resolution can be
carried out, however, are different simply because of China's different
history, culture, and politico-economic system.

Among informal third-party dispute resolvers, the most obvious
candidates are neighbors, relatives, and friends. Beyond this immediate
circle, disputes may be handled by the Chinese version of local
notables. In areas where clans are strong, such as south China, these

86. See Yao Jianchun, Bingchu Difang Baohu Zlyi, Yi Fa Weihu Qiye Quanyi [Get Rid
of Local Protectionism; Uphold the Rights and Interests of Enterprises According to Law],
FAZHI RIBAO, Apr. 14, 1989, at 3.

87. See Chen Shibin, Dawu Xian Fayuan Jianchi Difang Baohu 7luyi, Tuoyan San Nian
Ju Bu Xiezhu Zhixing Waidi Panjue [Dawu County Court Persists in Local Protectionism; After
Delaying Three Years, Still Refuses to Assist in the Execution of an Outside Judgment], FAZIII
RIBAo, June 4, 1988, at 1.

88. See Yang Jisheng, "East-West Dialogue" in China - the Strategy of Unbalanced
Economic Development on the Mainland in Perspective, 1989 LIAOWANG [OUTLOOK] (Overseas
Edition) No. 9, at 5, reprinted in FBIS-CHINA, Apr. 10, 1989, at 37, 39.

89. See, for example, the "solution" proposed by one writer:. 'lhe best way of solving
the problem [of court judgments not being implemented] is for the relevant units and personnel
to truly do things according to law." Su, supra note 77, at 4.

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DISPUTE RESOLUTION

could be clan leaders.90

Another important type of notable is the locally powerful
Communist Party or public security official. A 1967 study of mediation
in China found that despite the existence of formal mediation
committees in rural communes, "the bulk of civil disputes are handled
by [production] team and brigade leaders or by security defense
activists. ' Nor was their role confined simply to facilitating volun-
tary agreements. The power and prestige of local officials such as the
public security chief was such that they could often impose a solution
against the will of one or more parties, with no effective appeal to any
other body such as a court.92

Despite the dismantling of the people's communes, it is likely that
local officials with no formal judicial powers still play a prominent
role in rural dispute resolution. A 1989 study described the role of a
Party secretary in a Fujian village in the following way:

As the de facto ruler of Lin Village, Party Secretary Ye
behaves like a benevolent county magistrate, the so-called
father-mother official, of imperial China. In that capacity he
literally wrote the laws and ordinances for villagers, presided
over their litigations, and dispensed justice in whatever way
he saw fit?3

In such an informal system, it makes little sense to attempt to
distinguish between mediation, arbitration, and litigation. The degree
to which the local cadre can impose a decision will depend on a
myriad of factors: whether economic reform has made the villagers
more independent of officials, whether the cadre or a party to the
dispute belongs to a powerful family, and the distance to the nearest
court, to name just a few. More likely than not, the cadre and the

90. On clans, guilds, and other non-state institutions of dispute resolution in traditional
Chinese society, see, inter alia, ILC. LIu, THE TRADmONAL CHINESE CLAN RULES (1959);
SYBI.LE VAN DER SPRENKEL, LEGAL INsnrrONS IN MANCHU CHINA: A SOCIOLOGICAL
ANALYSIS 80-111 (1966); KUNG-CHuAN HSAO, COMPROMISE IN IMPERIAL CHINA (1979);
Cohen, supra note 14.

91. Lubman, supra note 14, at 1336; see also sources cited in id., n.181. Another study
found that in one commune in 1964, 'the top Party and public security officials tended to
monopolize [the] role [of mediator] .... In Brigade B, all the brigade's cadres were, in a
sense, regarded as potential mediators...." A. DOAK BARNMrr, CADRES, BUREAUCRACY AND
POLTICAL POWER IN COMMUNIST CHINA 403 (1967).

92. See Lubman, supra note 14, at 1337 & n.182.
93. HUANG SfHU-mN, TH SPIRAL ROAD: CHANGE IN A CHINESE VtrAGs THROUGH TIH

EYES OF A COMMUNIST PARTY LEADER 107 (1989).

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JOURNAL OF CHINESE LAW

parties to the dispute will all be involved in a complex bargaining
relationship with each other, where willingness to make trouble for
others can give significant leverage. In short, while Party Secretary Ye
may dispense justice in whatever way he sees fit, his view of what is
fit is powerfully influenced by his perception of what will be deemed
acceptable. He is a politician and cannot afford to alienate the entire
village.

In urban areas, mediation can be conducted by the police in
minor criminal matters by virtue of their power to impose punishments
under the Security Administration Punishment Regulations. 4 If the
offender makes proper amends to the satisfaction of the injured party,
the police can decide not to pursue the matter further.

2. People's Mediation Committees

a. Introduction

People's Mediation Committees (PMCs) are, with courts, the most
widely known institutions for dispute resolution in China. It is difficult
to determine from Chinese sources just how important PMCs are
relative to other institutions for dispute resolution. For every civil
dispute that goes to court, probably five to ten are resolved by
PMCs. 5 While statistics on the recourse to various fora for dispute

94. Supra note 46.
95. According to one source, from 1981 to 1984 inclusive, PMCs mediated approximately

ten times as many civil disputes as were accepted for hearing by people's courts. See Chai
Fabang & Li Chunlin, Gaige yu Wanshan Renmin Tiaojie Zhidu (Reform and Perfect the System
of People's Mediation), 1986 ZHENGFA LUNTAN No. 1, at 50, 50. The same proportion was
reported for 1981 to 1986. See Han Yue, Wang Yan & Yang Xiaobing, People's Mediation
Unique to China, BEiiNG REv., Nov. 30-Dec. 6, 1987, at 15, 17.

Another source reports that from 1981 to the end of 1988, PMCs mediated a total of
57.6 million disputes among the people (minjian jiufen), an average of 7.2 million per year. This
average is 7.6 times the number of civil cases accepted in the first instance by people's courts
every year. See Si Qi, Zai Gaige Zhong Fazhan, Chuangxin, Wanshan de Renmin Tiaojie Zhid
[The People's Mediation System: Development, Innovation, and Perfection in the Course of
Reform], FAZHI RIBAO, July 15, 1989, at 3.

Still another source reports that 50 million civil cases were settled by mediation
committees from 1982 to 1988, "five to ten times" the number of cases (presumably civil cases)
that went to court during the same period. See Gao Aming, China's Mediation System Unique,
CHINA DAILY, Oct. 10, 1989, at 4.

A report from Changde County in Hunan Province indicated that PMCs there handled
twenty-two times the number of civil and minor criminal cases dealt with by local people's
courts. See Wo Xian Shi Zenyang Jiaqiang Renmin Tiaojie Gongzuo [How Our County
Strengthened People's Mediation Work], in GUO XIANG Er AL, Re4MIN TIAoIIE zAi ZtiONGGuO
[PEOPLE'S MEDIATION IN CHINA] 230 (1986). In the city of Nanchang in Jiangxi Province,

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DISPUTE RESOLUTION

settlement must be used with care - the statistical sample includes
only those disputes that end up being handled by an institution that
keeps records - it is clear that mediation by official and quasi-official
organizations such as PMCs occupies a major place among techniques
for dispute resolution. While PMCs are not the sole institution for
mediation, they are clearly the dominant one.

With the exception of a brief period during the Cultural Revolu-
tion, PMCs have traditionally been the subjects of unstinting and
unanimous encomia in the legal press. A typical statement of the
virtues of "people's mediation" in China can be found in a recently
published handbook:

The current system of people's mediation . . is a great
creation in the construction of our country's socialist legal
system, it is a legal system with Chinese characteristics, and
it is an important component of our country's judicial
system .... [Ilt plays an immense role in resolving contra-
dictions among the people, strengthening unity and friendship
among the people, and promoting socialist material and
spiritual civilization .... [I]t has received praise in
international jurisprudential circles and has been called "the
most distinctive system of the Chinese judicial system." S

Another article provides a specific list of the virtues of mediation:
It embodies the traditional Chinese virtues of harmony and yielding,
it softens social contradictions97 and enhances unity, it has the
flexibility needed to deal with cases where there are gaps in the law,
it simplifies judicial procedure for the masses and decreases the
backlog of cases in the courts, it gives the greatest possible control to
the parties over their own rights and interests, and it provides a
settlement that is relatively easy to implement because it is based on
the agreement of the parties9 8

Recently, however, Chinese legal scholars have begun to question

PMCs dealt with sixteen times the number of civil cases that went to the local courts. See
Women Shi Zenyang Ziwahao Chengshi Renmin 7iaojie Gongzuo de [How We Improved Urban
People's Mediation Work], in id.

96. MEDIATION COMPENDIUM, supra note 31, at 11.
97. It was on these grounds that mediation vas criticized during the Cultural Revolution.
98. See Zheng Qixiang et al., "Zwhozhong Tiaojie" de Tifa Tng Yu Xiugai [The

Expression "Stress Mediation" Should Be Amended], 1990 FAXU (Shanghai) No. 2, at 26,
26-28. For a presentation in English of the orthodox Chinese view of mediation, see CHINA'S
LEGAL SYsrEM: A GENERAL SURVEY 200--212 (Du Xichuan & Zhang Lingyuan eds., 1990).

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JOURNAL OF CHINESE LAW

this rosy view of mediation. Their objections can be summarized as
follows.

First, it is argued that the emphasis on mediation has led to a
denial of proper remedies to those whose rights have been infringed.
Courts spend an inordinate amount of time attempting to mediate cases
that should simply be adjudicated and dispensed with. Thus, it may not
even be true that mediation reduces the load on courts.99

Second, mediators are criticized for often failing to make clear the
rights and wrongs of a case and coming up with muddled settlements
not based on a clear understanding of the facts and the law."° This
type of mediation, which looks merely to the agreement of the parties,
is criticized as "unprincipled" mediation.

Somewhat contradictory to the second objection is a third: that
mediators ignore the principle of voluntariness and attempt to impose
decisions on the parties through illegitimate pressure tactics.101 That
coercive mediation does in fact occur can be seen from references in
the legal literature to "appeals" from mediated settlements.

This section will introduce mediation and people's mediation
committees and then explore their role in China today in order to
provide a basis for assessing the validity of these claims and counter-
claims.

b. Historical background and current regulatory regime

Mediation committees in the PRC first received a national
statutory basis in 1954 with the promulgation of the Provisional
Organizational Principles for People's Mediation Committees (Media-
tion Principles)."° This was not, however, the beginning of mediation
committees: mediation organizations had existed for years in the areas
under Chinese Communist Party (CCP) control, and by the time the
Mediation Principles were promulgated, a number of local governments
at the level of city, province, and military region had already issued
their own regulations or directives."° By 1953, for example, the East

99. See Ji Weidong, Fazhi yu Tiaojie de Beilun [A Contrary View of Legality and
Mediation], 1989 FAXUE YANniu No. 5, at 21, 22; Zheng et al., supra note 98, at 26.

100. See Zheng et al., supra note 98, at 26.
101. See id.
102. Renmin Tiaojie Weiyuanhui Zanxing Zuzhi Tongze, 1954 [Jan.-Sept.] ZEONOYANO

RENMIN ZHENGFU FAING HUmiAN [COLLECTED LAWS AND DECREES OF THE CENTRAL
PEOPLE'S GOvERNMENT] 55.

103. See Han Yanlong, Woguo Renmin Tiaojie Gongzuo de Sanshi Nian [Thirty Years of
People's Mediation Work in Our Country], 1981 FAXUE YANJIU No. 2, at 44, 44.

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DISPUTE RESOLUTION

China region already had 46,000 mediation committees covering 80%
of its townships.'" 4

Article 3 of the Mediation Principles set forth the jurisdiction and
tasks of PMCs in terms that remained unchanged for 35 years: to
mediate ordinary civil disputes among the people and minor criminal
cases and to conduct propaganda and education in state law and
policy' 5 PMCs were to operate under the leadership and supervision
of local governments and basic-level People's Courts.1' The decision
to mediate was to be entirely voluntary on the part of the disputants,
and failure to mediate could not be raised as a bar to court proceed-
ings."° On the other hand, mediation proceedings and settlements
had to be in line with state policies and laws.'

Mediation was fundamentally designed to address disputes among
the people,"t 9 who are defined to include those classes allied with the
workers and peasants and to exclude those classes deemed fundamen-
tally hostile to socialism."0 Thus, mediation was associated with such
principles as voluntariness, persuasion, education, and democracy.

With the onset of heightened political repression accompanying
the Anti-Rightist Campaign in the latter half of 1957, the role of
PMCs was downgraded in favor of tiaochu, a local government
institution that seems to have combined elements of mediation,
arbitration, and adjudication. The Chinese word is probably best left
umtranslated, in view of the paucity of information about the institu-
tion,"' but "settlement" will be used throughout this discussion for
lack of a better term. It is not clear whether settlement organs formally
replaced PMCs, and I have found no evidence that PMCs were ever
formally abolished. They did, however, become less prominent. It does
seem clear that unlike PMCs, settlement organs were able to impose
judgments on the parties and were more concerned with criminal than
with civil matters."' Their main job was to "restrain, dispose of, and
reform" those who "often broke minor laws but did not break major
laws" (da fa bu fan, xiao fa chang fan). Following communization in

104. See id at 44.
105. For more on jurisdiction, see infra text accompanying notes 137-142.
106. Mediation Principles, supra note 102, Arts. 2, 10.
107. Id., Art. 6.
108. Id., Art. 6.
109. Id., Art 1.
110. On the "people" versus the "enemy' see infra text accompanying note 170.
111. Neither the Jurisprudence volume of the Great Encyclopedia of China (zhonguo Da

BaIce Quanshu) nor any number of legal dictionaries contain any entries under tiaochu.
112. See Han, supra note 103, at 46 (distinguishing mediation (tiaojie) from tiaochu);

MEDIATION COMPENDIrUM, supra note 31, at 30.

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JOURNAL OF CHINESE LAW

1958, a number of settlement organs were simply merged with local
security defense committees, an indication of their coercive authority.
They were responsible for enforcing "pacts"(gongyue)-the local rules
formulated at the level of the work unit or village. Their role can
perhaps be seen best from a report of settlement activities in Ding
County, Hebei Province in 1960: a total of almost 5,300 disputes were
handled, and among them were 542 cases of "making trouble and not
obeying the leadership" and 124 cases of "lazy persons unwilling to
labor."'

1 3

The most complete picture that is publicly available of the power
of settlement organs comes from a 1944 set of regulations for the
Shanxi-Chahar-Hebei Border Region, u 4 which gave settlement powers
to the district (qu) office under the county. These powers included the
right to detain criminals (this class probably included suspects) for up
to two days and to impose punishments of hard labor and fines.
Settlement decisions, like court judgments, became legally effective and
enforceable if not appealed within a certain time. While the author has
seen no documents relating to settlement from the 1950s, it is
reasonable to suppose that the model from the 1940s shaped the
common understanding of the term and its significance when it was
revived. A 1981 article quotes a set of 1958 regulations to the effect
that "settlement committees" (tiaochu weiyuanhui) could impose
punishments of re-education through labor,115 a form of detention

113. HEBEI SHENG Wu DIQU SHEHui ZHUYI AiGuo GONOYUE HE RENMIN TIAOCHU

GONGZUO DE JIANCHA BAOGAO [REPORT OF AN INVESTIGATION INTO SOCIAUST PATRIOTIC
PACrS AND PEOPLE'S SErTLEMENT WORK IN FIVE REGIONS OF HEBEI PROVINCE] (May 1961),
quoted in Han, supra note 103, at 46.

114. Jin-Cha-Ji Bianqu Xingzheng Weiyuanhui Guanyu Qu Gongsuo Tiaochu Anjian do
Jueding [Decision of the Administrative Committee for the Shanxi-Chahar-Hebei Border Region
Regarding the Settlement of Cases by District Offices] (June 1, 1944), reprinted in 3 ZHONGGUO
XIN MINZI{u ZHtuYI SHIQI GENJuDI FAZHI WENXIAN XUANBIAN [SELECrED DOCUMENTS ON
THE LEGAL SYSTEM OF THE BASE AREAS DURING THE PERIOD OF NEw DIMOCRIACY IN CHINA]
643 (Han Yanlong & Chang Zhaoru eds., 1981). The Decision is introduced by another
document of the same date: Jin-Cha-Ji Bianqu Xingzheng Weiyuanhui Guanyu Jiaqiang Cun
Tiaojie Gongzuo yu Jianli Qu Tiaochu Gongzuo de Zhishi [Directive of the Administrative
Committee for the Shanxi-Chahar-Hebei Border Region Regarding the Strengthening of Village
Mediation Work and the Establishment of District Settlement Work], reprinted in id. at 640.

115. See Zhong-Gong Hebei Sheng Weiyuanhui Guanyu Zhiding Aiguo Gongyue, Jianli
Tiaochu Weiyuanhui Zanxing Banfa (Cao'an) [Chinese Communist Party Hebei Provincial
Committee Provisional Measures on Formulating Patriotic Pacts and Establishing Settlement
Committees (Draft)] (Sept. 12, 1958), cited in Han, supra note 103, at 47.

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DISPUTE RESOLUTION

which at that time had no maximum tern.i 6 Moreover, the article
asserts that there was no difference in principle between settlement in
the 1950s and settlement in the 1940s." 7

The displacement of mediation by settlement in the late 1950s
proved to be temporary. In the early 1960s mediation once again
dominated, displacing settlement."1 That the two institutions could
not long co-exist suggests that although the ideals of mediation were
far from the reality of settlement, the reality of mediation, with its
emphasis on conformity to law and policy, its jurisdiction over minor
criminal matters, and its educative function, was much closer.

With the coming of the Cultural Revolution in 1966, people's
mediation again suffered a setback as it was labeled an instrument for
class reconciliation." 9 Dictatorship over class enemies had become
the dominant paradigm in the analysis of conflict, and ominous
political undertones were read into the most trivial events.120

Mediation committees recovered in the late 1970s and early
1980s. A spate of articles appeared in the press praising the institution
of mediation, and the numbers of mediation committees and mediators
began a steady rise that continues to the present. The statutory basis
remained the same, however, until the passage in 1989 of the
Regulations on the Organization of People's Mediation Committees
(Mediation Regulations).' The Mediation Regulations did not greatly
change the institution of PMCs. Their work continues to be under the
leadership of local governments and basic-level courts, although it is
now specified that their daily work is under the guidance of a locally-
appointed judicial assistant (sifa zhuli yuan).m The principles of
voluntariness and fidelity to law and policy have been maintainedY2

Bureaucratic authority over PMCs is in the hands of organs of

116. See Guowuyuan Guanyu Laodong Jiaoyang Wend de Jueding [Decision of the State
Council on the Question of Re-education Through Labor] (Aug. 1, 1957), reprinted in
ZHONGHUA RENMIN GONGHEGUO FALD QUANSHU [CoMPENDIUM OF THE LAWS OF THE
PEOPLE'S REPUBLIC OF CHINA] [hereinafter CoMPENDIUm 0' PRC LAWS] 1573 (1989).

117. See Han, supra note 103, at 47.
118. See id.
119. See id.
120. See, for example, CHEN JO-HSI, "Chairman Mao Is a Rotten Egg," in THE

EXECUmON OF MAYOR YIN AND OTHER STORiES PIOM THE GREAT PROLErARIAN CULTURAL
REvoLuTIoN 37 (1978), where a small child causes panic in his household by shouting a
"reactionary slogan" in play.

121. Renmin Tiaojie Weiyuanhui Zuzhi Tiaoli, 1989 STATS COUNCIL GAz ME 515
[hereinafter Mediation Regulations].

122. See Mediation Regulations, supra note 121, Art. 2.
123. See id., Art. 6.

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judicial administration (sifa xingzheng jiguan) (that is, local versions
of the central Ministry of Justice, not the police or the courts), while
they are to receive "professional guidance" from the Basic-Level
People's Court in their area.1'24 The local organs of judicial adminis-
tration are responsible for providing mediators with some legal
education and practical training and checking on their work. Authority
over the day-to-day work of PMCs is in the hands of the locally-
appointed judicial assistants,125 who assist in the formation of
mediation committees and the training of mediators in addition to their
other duties of publicizing laws and regulations. Judicial assistants may
also be called upon to mediate cases that local PMCs for some reason
cannot handle. Mediation presided over by a judicial assistant is
considered a species of administrative mediation.

c. Neighborhood PMCs

Under the Mediation Regulations, PMCs, which have the authority
to mediate disputes occurring within their geographical jurisdiction, are
established by Residents' Committees (jumin weiyuanhui) in urban
areas and by Villagers' Committees (cunmin weiyuanhui) in rural
areas. 6 They are supposed to have three to nine members. 27

Although committee members are supposed to be elected, there is no
doubt a large degree of governmental control in this as in other
electoral processes. The Mediation Regulations stipulate, for example,
that in minority nationality areas some of the mediators should be
members of the local minority nationalities."

Not mentioned in the Mediation Regulations but apparently
sanctioned is the existence of mediation institutions below the level of
the PMC. Mediation groups (tiaojie xiaozu) can exist at the workshop
level within the enterprise or at the level of groups within a village or
residential area. Below that, one mediator may be appointed for every
ten or so households in the village or in the urban courtyard or

124. See MEDIATION COMPENDIUM, supra note 31, at 12.
125. See Mediation Regulations, supra note 122, Art. 2.
126. See MEDIATION COMPENDIUM, supra note 31, at 12. The Constitution also contains

a provision to this effect See ZHONGHuA REN M N GONGHEGUO XIANFA (1982) [CoNsmTrtflON
OF THE PEOPLE'S REPUBLIC OF CHINA], Art. 111, reprinted in COMPENDIUM OF PRC LAws,
supra note 116, at 3.

127. See Mediation Regulations, supra note 121, Art. 3.
128. See id., Art. 3.

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DISPUTE RESOLUTION

apartment block. 9 This system is known as the "three-level media-
tion network" (sanji tiaojie wang)."'

d Workplace PMCs

Although neither the Constitution nor any of the regulations
establishing mediation committees provided for their presence in urban
enterprises, mediation was in fact carried out within enterprises since
the 1950s."' The number of intra-enterprise mediation committees
was reported to have reached 133,000 by the end of 1987, with a staff
of over one million enterprise employees who conducted mediation in
their spare time."' A single enterprise in Baotou, Inner Mongolia,
was reported in the mid-1980s to have had over 2,000 mediators with
jurisdiction over more than 75,000 employees and dependents."

The current Mediation Regulations permit but do not require the
establishment of PMCs within the work unit.' 34 This recognizes the
large number of such PMCs already existing, but at the same time
represents a concession to the policies of economic reform, which aim
to make the work unit more a purely economic entity and less a
branch of local government.

Enterprise mediation committees no doubt arose and continue to
exist despite their lack of legal basis because of the importance of the
workplace in Chinese urban society. The urban population receives,
through the work unit, various welfare benefits such as cheap housing,
special wage subsidies, ration coupons, theater tickets, vacations, health

129. Palmer, noting the resemblance of the ten-household group to the Imperial and
Republican baojia systems of administrative control, writes that "Jilt is hard to escape the
conclusion that the ten household and courtyard mediators have been introduced not only to
mediate disputes but also to serve as instruments of admixistratve and political controL" Palmer,
Extra-Judicial Mediation, supra note 14, at 269. On the baojia system in Qing (Ch'ing) China,
see KUNG-CHUAN HsIAo, RURAL CHNA: IPERIAL CONmOL IN Time NiNmEENHI Cet%7uRY
2,5-83 (1960).

130. See Xao Sheng, Renmin Tiaojie Weiyuanhui Jianshe he Weiuan de Xuanren [The
Establishment of People's Mediation Committees and the Election of Committee Members],
FAZHi RIBAo, Sept. 8, 1989, at 3.

131. See Ra Jingping, Jianlun Janquan Woguo Renmin 7iaojie Fazhi [A Brief Discusmion
on Strengthening Our Country's System of People's Mediation], 1986 FAXUB (Shanghai) No.
10, at 58, 59.

132. See Renmin Tiaojie Weiuanhui Fahui le Jiji Zuoyong [People's Mediation
Committees Have Played a Positive Role], FA2zH RIBAO, May 6, 1989, at 1. An article written
in 1986 stated that there were 170,000 intra-enterprise mediation committees but gave the same
figure for the number of mediators. See Jia, supra note 131, at 59.

133. See Palmer, Extra-Judicial Mediation, supra note 14, at 257.
134. See Mediation Regulations, supra note 121, Art. 15.

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care, child care, and old age pensions. There is no effective way to
distribute these benefits save through the work unit.1 35 In addition,
the government depends on the work unit for social control. The work
unit holds the personal dossiers (dang'an) of its members. These
dossiers follow citizens through life and contain all the information the
state wishes to know. Letters of introduction from the work unit are
often needed for travel or access to all but the most public facilities.
Family planning policy is enforced through the work unit, whose
permission is needed to marry (even though the Marriage Law says
nothing about this).'36

Because the social life of many urban Chinese revolves around
the workplace, the parties to many disputes will be members of the
same work unit. Thus, it is the natural forum for the resolution of
disputes because of the power of the work unit leadership to bring
sanctions to bear on recalcitrant parties.'37

e. Jurisdiction of PMCs

PMCs generally mediate minor disputes of a civil nature, although
they may also be called upon to handle matters that would not be
cognizable by a court, such as discord between a daughter-in-law and
the husband's parents.'38 Under the original enabling legislation of
1954, PMCs also had the authority to mediate minor criminal matters.
There is some confusion over how far this authority goes.

The usual understanding has been that PMCs may mediate any

135. Cf. Deborah Davis, Chinese Social Welfare: Policies and Outcomes, 1989 CHINA Q.
577, 581 (noting that Chinese welfare policy "defines most social welfare goods as rewards to
job statuses").

136. See, for example, the letter from a 24-year-old worker to the Legal Adviser column
of the Legal System Daily, where he complains that although the Marriage Law says he may
marry at twenty-two, his factory says he must wait until he is twenty-five. Violation of the
factory rule can lead to a fine or dismissal. The Legal Adviser's reply is that although
technically he has the right to marry immediately, the factory's rule is reasonable and
understandable and he should wait. See Letter to the Editor, Changgui yu Guofa Xiang Dichu,
Gai Ziixing Nei Yige? [When There Is a Conflict Between Factory Rules and State Law, Which
Should Be Implemented?], FAZmI RIBAO, Sept. 27, 1988, at 4.

137. For more on the power of the Chinese work unit over the lives of employees, see
generally Andrew G. Walder, Organized Dependency and Cultures of Authority in Chinese
Industry, 43 J. ASrAN STUD. 51 (1983) and his fuller treatment in ANDREW GEORGE WALDER,
CommuNw NEo-TRADrIONAuSM (1986).

138. Such disputes are a staple of the Chinese literature on mediation. See, e.g.,
MEDIATION COMPENDIUM, supra note 31, at 391; Wen Jia, Community Mediators Heal Family
Discord, CHINA DAILY, Mar. 18, 1989, at 1.

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DISPUTE RESOLUTION

criminal cases that may in effect be privately prosecuted.139 The 1954
Mediation Principles specifically included "minor criminal cases" within
the scope of disputes subject to mediation. This provision probably
stemmed from the great lacunae in criminal law in China prior to the
promulgation of the Criminal Law in 1979. Various statutes were
passed criminalizing serious acts such as counterrevolution and
corruption, but there was little if any national legislation criminalizing
acts such as minor battery or theft. Only in 1957 were the Security
Administration Punishment Regulations (SAPR) t' passed, which
allowed the police to penalize persons who committed what could be
characterized as minor crimes. 1 '

"Minor crimes" includes certain cases of injury, theft, maltreat-
ment of family members, swindling, and defamation, to name a
few. 4 However, the 1989 Mediation Regulations, which replaced the
1954 Mediation Principles, omitted "minor criminal cases" from the
scope of disputes subject to mediation. Nevertheless, academic
commentary on mediation since the promulgation of the Mediation
Regulations continues to assert, for reasons that are unclear, that
"minor criminal disputes" are subject to mediation by PMCs.143

139. "Private prosecution' in China may be briefly and inadequately summarized as
follows. The Criminal Law provides for three types of cases that courts vll hear only upon
complaint: defamation in non-serious circumstances (Art. 145), violent interference with the
freedom of marriage where death does not result (Art. 179), and abuse of family members
where serious injury or death do not result (Art. 182). Courts may also, however, "directly
accept" without procuratorial participation a number of other "minor criminal cases... that do
not require the conducting of an investigation" such as intentional injury, refusal to implement
court judgments, and abandonment of dependents. Criminal Procedure Law, supra note 18, Art.
13; Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan, Gonganbu Guanyu Zhixing Xingshi
Susong Fa Guiding de Anjian Guanxia Fanwei de Tongzhi [Supreme People's Court, Supreme
People's Procuracy, and Ministry of Public Security Notice on Implementing the Scope of
Jurisdiction over Cases Provided for in the Criminal Procedure Law] (Dec. 15, 1979)
[hereinafter 1979 Jurisdiction Notice], reprinted in COmp tDIUM Op PRC LAWS, supra note 116,
at 228. Although no statute stipulates who is to act as plaintiff and bear evidentiary burdens in
the latter class of cases, it is customary for the injured party to do so.

Giving to the injured party or his legal representative the right to bring suit and the
responsibility for presenting evidence rui minor criminal cases that do not require
investigation] not only effectively deals blows at crime and protects the plople, but can
also reduce the burden on the procuracy and simplify the litigation process.

Yang Shi, Laelun Zisu Anjian de Fanwei [A General Discussion of the Scope of Self-Prosecuted
Cases], 1990 FAXUE YANJIU No. 5, at 37, 38.

140. Supra note 46.
141. The 1957 SAPR are discussed in detail in COHm, supra note 58, at 200-37 (1963).
142. See Li Chunlin & Pan Xiaming, Rennin Tiaojie Wenti Zhengyi Z7J Wo Jian [Our

View of the Debate Over Issues in People's Mediation], 1990 ZHENGFA LUNTAN No. 2, at 16,
18.

143. See, e.g., id. at 18.

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3. Administrative Organs

Administrative mediation (xingzheng tiaojie) is a Chinese legal
category referring to mediation carried out by officials in government
organs other than courts or PMCs (the latter are not deemed govern-
ment organs in Chinese mediation theory).

a. Organs of Judicial Administration and Judicial Assistants

One type of administrative mediation is carried out by the organs
of judicial administration,'" whose tasks include publicizing the law
and educating citizens as well as supervising the work of lawyers,
notaries, and people's mediation committees. The local level organ of
judicial administration is the judicial assistant.

Judicial assistants are officially under the "leadership" (lingdao)
of the local judicial bureau and under the "guidance" (zhidao) of the
local court. 45 Their duties are, inter alia,

(1) to manage the work of People's Mediation Commit-
tees; and

(2) to guide and investigate the work of mediation
among the people, to participate in the mediation of difficult
disputes, and to accept and to handle letters and visits
concerning people's mediation work ... .

144. The term denotes the Ministry of Justice at the central level and its counterparts at
the local level.

145. See Sifa Zhuliyuan Gongzuo Zanxing Guiding [Provisional Rules on the Work of
Judicial Assistants] [hereinafter Rules on Judicial Assistants], Art. 2, reprinted in MEDIATION
COMPENDIUM, supra note 31, at 819, translated in T. CHIU, CHINA TRADE DOCUMEmN 163
(rev. 2d ed., 1988); see also Zou Qiuhua, Sifa Zhuliyuan Tizhi Gaige Po Zai Mei Jie [It Is
Urgent to Reform the System of Judicial Assistants], 1986 FAXUE (Shanghai) No. 9, at 62, 63.
The Rules on Judicial Assistants were promulgated in November, 1981 by the Ministry of
Justice, but to my knowledge have not yet been officially published.

146. See Rules on Judicial Assistants, supra note 145, Art. 3; Zou, supra note 145, at 63;
see generally Zhang Dacheng, Wo Dui Sifa ahuliyuan Gongzuo de Jidian Yijian [Some Ideas
of Mine Regarding the Work of Judicial Assistants], 1986 FAXUE (Shanghai) No. 5, at 47. The
other duties listed are:

(3) to integrate practical needs and carry out relevant propaganda and education
in policies, laws, decrees, and morals;

(4) To investigate and study the causes, special characteristics, and regular features
of disputes occurring in the jurisdiction and to suggest methods of preventing disputes;

(5) To find out and report to superiors the opinions and demands of the masses
regarding current laws and decrees and judicial work.

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DISPUTE RESOLUTION

Thus, in addition to overseeing the work of PMCs, judicial assistants
can conduct mediation themselves. Because judicial assistants are
government officials, this kind of mediation is considered administra-
tive in nature. However, judicial assistants are not supposed to usurp
the functions of the PMCs they supervise; they are to mediate only
especially difficult cases. Neither are they supposed to usurp the role
of courts and issue summonses to the parties or coercively enforce
their settlements. Apparently, though, both practices are fairly
common. 147 According to one report, when a farmer in Hebei lost
hundreds of kilograms of wheat, the judicial assistant, who was merely
supposed to advise the village mediation committee, instead ordered a
search of all the villagers' houses.' 4

Other problems include the generally low level of legal training
among judicial assistants and their paucity in number - probably
around fifty thousand.149 Each judicial assistant supervises about
twenty PMCs. Thus, they often have insufficient time to deal with the
cases referred to them."

In practice, the judicial assistant stands somewhere between the
mediation committee and the court. Theoretically, he or she has no
more power to impose a settlement in a dispute than does a mediation
committee. However, reality is more complex. Articles in the Chinese
legal press reflect two viewpoints. Some writers complain that judicial
assistants, in imposing settlements in the cases they handle, have
usurped the role of courts.' 5' Others hold that judicial assistants
should have the power to impose settlements - to make a judgment
- in disputes where the parties refuse to come to a mediated
agreement. 52

According to one writer, the organs of judicial administration are

147. See MEDIATION COmPENDIUM, supra note 31, at 21.
148. See Zhong Hun, People's Mediation Needs Improvement, CHINA DAILY, Dc. 22,

1986, at 2.
149. The number of judicial assistants grew considerably during the 1980g. It was

estimated at over 16,000 as of the end of 1981. See Justice Minister on Judicial Adrninistratian,
in SWBIFE, Aug. 5, 1982, at Bil8. One source reported about 50,000 judicial assistants in Lie
1988, see Yang Xiaobing, Mediation: A Defense Line Against Crime, BEIWNG REV., Oct
24-30, 1988, at 24, 24, while another put the figure at 43,618 as of July, 1989, see Si, supra
note 95, at 3.

150. See Zhang, supra note 146, at 47. The figure of twenty PMCs ptr judicial assistant
is consistent with figures for the number of PMCs (about one million) and judicial asistants
(about 50,000) as of 1989 provided by other sources.

151. See, e.g., MEDIATION COMPENDIUM, supra note 31, at 21.
152. See Yao Zixiu, Sifa X'mgzheng Tiaojie Caiuequan Chuyi [A Preliminary Discussion

of the Power to Make Decisions in Judicial Administrative Mediation], 1986 FAXUE (Shanghai)
No. 2, at 38; Zhang, supra note 146; Zou, supra note 145.

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anomalous in the Chinese legal system because of all government
administrative organs, they alone lack the power to enforce law
through administrative decisions (caijue).5' The writer proposes that
in certain cases where mediation is unsuccessful, the organ of judicial
administration (usually the judicial assistant for the jurisdiction) should
have the power to make an authoritative ruling on the issue that will
have the effect of an administrative decision.

Giving judicial assistants the power to make administrative
decisions over a dispute, even if those decisions could be appealed to
a court, would substantially change the current regime for dispute
resolution. Under current doctrine, only courts (or arbitration organs,
if the parties have agreed to arbitration) can impose a settlement on
disputing parties against their will. A court decision is to be based on
the substantive merits of each party's case. If a case comes before a
court on administrative appeal, however, the court may be unwilling
or unable to consider the merits. No longer is one citizen asking for
relief against another. Instead, a citizen is asking the court to rule that
an administrative organ - one which is probably at the same
administrative level as the court - acted illegally and erroneously.
Moreover, because the defendant in an administrative action is not the
party with whom the plaintiff is actually disputing, judicial mediation
is out of the question."

Administrative decisions do not, by themselves, carry what
Chinese legal theory calls "coercive" effect. Where the losing party
does not appeal but simply refuses to carry out the administrative
decision, the administrative organ that issued the decision must apply
to a court for a coercive enforcement order. While the Chinese legal
literature is not very clear on this point, it is probably difficult at that
stage for defendants to mount a substantial defense on the merits."55

Thus, the effect of proposals to give the organs of judicial

153. See Yao, supra note 152, at 38, 39. One judicial assistant complained in an article
that judicial assistants were called the "four unlikes": having no power to adjudicate, they were
unlike judges; having no power to impose security administration sanctions, they were unlike
police; having no power to bring suits, they were unlike procurators; and they were unlike the
mediation committees. See Zhang, supra note 146, at 47.

154. See Administrative Litigation Law, supra note 30, Arts. 50, 67 (providing that
mediation shall not be conducted in administrative cases heard by people's courts except where
damages am concerned).

155. Article 168 of the Civil Procedure Law provides, for example, that courts should
refuse to grant coercive execution to a notarial document in favor of a creditor only when the
document is "definitely wrong," thus seeming to preclude a full re-examination on the merits.
On the other hand, Chinese courts may in practice not make fine distinctions between 'definitely
wrong' and 'more likely than not wrong.'

[5:245



DISPUTE RESOLUTION

administration the power to make administrative decisions in disputes
is to entrast the decision on the merits to persons who may have even
less legal training than judges and to bypass the provisions of the Civil
Procedure Law intended to ensure that parties have their fair day in
court. Nevertheless, this appears to be the effect of a set of regulations
recently promulgated by the Ministry of Justice.S56

b. Common Administrative Superior

A favored technique of dispute resolution is through the common
administrative superior of the disputing parties. Because this is
essentially a form of internal dispute resolution, the common superior
has a number of means at its disposal for enforcing the decision,
whether or not it is formally reached through a process labeled
"mediation."

The mediation of commercial disputes, for example, is governed
by the 1989 Trial Procedures for the Resolution of Commercial
Economic Disputes."5' The Trial Procedures cover disputes where
both parties are state or collective entities - entities with a govern-
mental administrative superior - involved in trade, and apply "by
reference" to economic disputes between such entities and non-
commercial economic organizations or individual businesses."'

The Trial Procedures call for government departments at all levels
in charge of commerce to establish mediation organs. 59 Jurisdiction
to mediate disputes is allocated in accordance with the principle of
preference for a common superior: where a common administrative
superior for both parties can be found, that organ has jurisdiction to
carry out mediation.' 6 In short, the Trial Procedures evince a clear
preference for internal dispute resolution where possible. Article 19
provides that where both parties belong to the same administrative

156. Minjian Jiufen Chuli Banfa [Procedures for Handling Disputes Among Citizens] (Apr.
19, 1990), 1990 STATE COUNCIL GAzErTE 597 [hereinafter Dispute Procedures]. I have
translated minjian as "among citizens" instead of "among the people" bcure the latter term
has a specific, limited meaning in Maoist terminology. Aiticle 3 defines minjion disputes a3
"disputes among citizens (gongrmin) relating to status or property interests or othervise arising
out of daily life." The Dispute Procedures are discussed more fully infra at text accompanying
notes 183-84.

157. Shangye Jingji Jiufen Tiaojie Shixing Banfa [Trial Procedures for the Resolution of
Commercial Economic Disputes] (Mnistry of Commerce, Nov. 23, 1989), 1989 STATE COUNCIL
GAzEE 1014 [hereinafter 1989 Trial Procedures].

158. Id., Art. 5.
159. Id., Art. 2.
160. Id., Art. 10.

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"system" (xitong) and one party does not carry out the mediation
agreement, its leadership may be subjected to disciplinary sanctions.
Where the parties are from different systems, the aggrieved party may
request that the administrative superiors of the recalcitrant party impose
disciplinary sanctions. Those superiors, however, may find few benefits
in pleasing outsiders at the expense of subordinates whom they
themselves may have appointed. Moreover, given the often autarkic
nature of Chinese bureaucratic finance, anything that hurts a subordi-
nate organ financially can hurt the superior as well.

c. Industrial-Commercial Bureau

When parties to business contracts, for example state-owned
enterprises, have a dispute they cannot resolve between themselves,
mediation can be carried out by the Industrial and Commercial
Administration Bureau (ICAB)'6' at the central or local level,
depending upon the importance of the case and the amount in
controversy. 6 2 Parties have the choice of seeking mediation through
the ICAB, seeking arbitration through the ICAB (which will be
preceded by an attempt to mediate), or bringing suit directly in
court.' 6 Neither mediation nor arbitration is a prerequisite to a
lawsuit. Settlements mediated by ICAB share an important characteris-
tic with court-mediated settlements: they are legally enforceable upon
delivery to the parties.6

A noteworthy feature of dispute resolution by the ICAB at any
level is that, like a court, the ICAB is an external dispute resolver. In

161. For more on the ICAB(or SCIAB), see Spanogle & Baranski, supra note 11.
162. See Zhonghua Remnin Gongheguo Jingji Hetong Zhongcai Tiaoli [People's Republic

of China Regulations on Arbitration in Economic Contracts], 1983 FGHB 527, Art. 10
[hereinafter Arbitration Regulations].

163. Article 48 of the 1981 Economic Contract Law provides that either party to a dispute
"may apply to the contract administration authorities specified by the state for mediation or
arbitration[.]" These "authorities" were subsequently specified to be the ICAB. See Guowuyuan
Pizhuan Guojia Jingwei, Guojia Gong-Shang Xingzheng Guanli Ju, Guowuyuan Jingji Fagu
Yanjiu Zhongxin Guanyu Zhixing Jingji Hetong Fa Ruogan Wenti de Yijian de Qingshi de
Tongzhi [Notice of the State Council Approving and Transmitting the Request of the State
Economic Commission, the State Industrial and Commercial Administration Bureau, and the
State Council Research Center on Economic Laws and Regulations Concerning Suggestions on
Several Problems in the Implementation of the Economic Contract Law] (May 4, 1982),
reprinted in JINGIn HETONG FA SItYONG ZHISH[ SHOUCE [PRACTICAL HANDBOOK OF

KNOWLEDGE ON THE LAW OF ECONOMIC CONTRACTS] 393, 4 (Zhou Dewu ed., 1988).
164. See Zhonghua Renmin Gongheguo Jingji Hetong Fa [Economic Contract Law of the

People's Republic of China], 1981 FGHB 1, Art. 52 [hereinafter Economic Contract Law];
MEDIATION COMPENDIUM, supra note 31, at 19.

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DISPUTE RESOLUTION

the traditional system, contract disputes between two enterprises
controlled by the same ministry would be resolved internally by the
minitry.65 In 1983, however, regulations were promulgated making
the ICAB the proper body with jurisdiction to resolve economic
disputes between enterprises." The State ICAB is a body directly
under the State Council and not subordinate to any ministry. Addition-
ally, since it does not own any enterprises or engage in commercial
activity itself, ICAB can function something like a court.

Many disputes could be subject to resolution by both ICAB and
a common administrative superior under the 1989 Trial Procedures.6'
Although the relationship between the two modes is unclear, neither
appears to be a prerequisite for the other. If the parties are engaged in
industry, agriculture, or services, for example, as opposed to commerce,
then the 1989 Trial Procedures would not apply and ICAB would
appear to be the favored forum. Similarly, the Trial Procedures would
not apply where both parties were private businesses. Interestingly, the
granting to ICAB in 1983 of jurisdiction to resolve disputes shows a
preference for external resolution, yet the promulgation of the Trial
Procedures six years later, when reform was supposed to be much
more advanced, seems to be a reversion to the internal resolution
model. This suggests a number of intriguing possibilities. Perhaps
ICAB has been unable to make or enforce judgments against many
state-owned enterprises and internal resolution by a common superior
is the only resolution with clout. The promulgation of the Trial
Procedures may also reflect a view that disputes between government-
run enterprises should be treated in a fundamentally different way from
disputes between privately-owned businesses.

ii Other Bureaux

The Chinese legal and administrative landscape is dotted with any
number of other administrative agencies that have various powers to
enforce their decisions in matters within their purview. Neighbors
disputing the upkeep of a party wall might take their case to the local
housing bureau. Farmers worried about pollution from a nearby factory
might complain to the local Environmental Protection Office. In all
such cases, the administrative agency concerned would probably try to
reach a mediated solution before coming down in favor of one party

165. See Spanogle & Baransld, supra note 11, at 777.
166. See Arbitration Regulations, supra note 162.
167. 1989 Trial Procedures, supra note 157.

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or the other. 6 '

IV. VOLUNTARINESS AND COMPULSION IN DISPUTE RESOLUTION

A. Dictatorship, Democracy, and the Role of Law

Chinese legal theory has traditionally been ambivalent about the
proper way to resolve ordinary civil disputes among citizens and the
role of law in such proceedings. This ambivalence stems from Mao
Zedong's famous distinction between "antagonistic" and "non-antago-
nistic" contradictions1 69

Antagonistic contradictions are those between parties with
fundamentally opposed interests: "the people" and "the enemy." The
people are "all classes, strata, and social groups that approve of,
support, and work for the cause of socialist construction," while the
enemy are all those who "oppose the socialist revolution and are
hostile to and sabotage socialist construction.' 170 Such contradictions
can be resolved only through victory for one side or the other.

Non-antagonistic contradictions are those that occur between
parties with fundamentally identical interests: the people. They are
resolved not through the defeat of one party or the other, but by the
movement of both to a new plane of unity higher than the one out of
which the contradiction originally developed. For example, a son
contesting his sister's right to any share in their father's estate would
be educated in the provisions of the Inheritance Law calling for
equality between the sexes, while the daughter might be persuaded to
accept less than half on the grounds that her brother had contributed
more to their father's care during his old age. In this way, not only

168. For more on dispute resolution by administrative agencies of various kinds, see
Lester Ross, The Changing Profde of Dispute Resolution in Rural China: The Case of Zouping
County, Shandong, 26 STAN. J. INT'L L. 15, 55--60 (1989).

169. For the most commonly cited source for this theory, see MAO ZEDONG, Guanyu
Zhengque Chuli Renmin Neibu Maodun de Wenti [On the Correct Handling of Contradictions
Among the People], in 5 MAO ZEDONG XUANJI [SELECTED WORKS OF MAO ZEDONG] 363
(1977), translated in 5 SELECTED WORKS OF MAO TSETUNG 384 (1977). The version published
in the Selected Works is a considerably edited version of the original 1957 speech.

The origins of Mao's theory of contradictions have been the subject of much debate. See
STUART R. SCHRAM, THE POLITICAL THOUGHT OF MAO TSE-TUNG 43-46 (1963); ARTHUR

COHEN, THE COMMUNISM OF MAO TSE-TUNG 14-28 (1964); FREDERIC E. WAKEMAN, JR.,
HISTORY AND WILL: PHILOSOPHICAL PERSPECTIVES OF MAO TSE-TUNG'S THOUGHT 295--301
(1973); STUART R. SCHRAM, THE THOUGHT OF MAO TSE-TUNG 61-67 (1989).

170. MAO, supra note 169, at 364; see also YEE-FUI LAU, WAN-YEE HO & SAI-CEUNO
YEUNG, GLOSSARY OF CHINESE POLITICAL PHRASES 301, 465-66 (1977) (definitions of
"people" and "enemy").

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DISPUTE RESOLUTION

would the dispute be resolved, but both parties would have a higher
consciousness than before of their social obligations and of state law.

Closely tied to the theory of contradictions are Mao's notions of
dictatorship and democracy. Dictatorship is that which is exercised over
the enemy and is identified with compulsion. Democracy is that which
is practiced among the people and is identified with persuasion and
education.

[Two different methods, one dictatorial and the other
democratic, should be used to resolve the two types of
contradictions which differ in nature - those between
ourselves and the enemy and those among the people....
[I]n order to settle problems within the ranks of the people,
"the method we employ is democratic, the method of
persuasion, and not the method of compulsion.""'

The picture is completed by the frequent identification of law with
dictatorship and compulsion. To be sure, Mao occasionally spoke as
if there were a role for law and courts in the resolution of non-
antagonistic contradictions among the people:

Our state organs are state organs of the proletarian dictator-
ship. Take courts, for example - they are directed at
counterrevolution but they are not completely directed at
counterrevolution. They have to handle many problems
involving disputes among the people. From the look of
things, we'll need courts for another 10,000 years. That's
because after the extinction of classes, there will still be a
contradiction between the advanced and the backward, there
will still be struggles between people, there will still be
fights, all sorts of disorders might arise - if you didn't
have a court what would you do?172

The primary thrust of his speech on contradictions, however, and its
subsequent interpretation, is that law, compulsion, and dictatorship over

171. 1IAO, supra note 169, at 371. Mao is here quoting his 1949 speech On the People's
Democratic Dictatorship.

172. MAO ZEDONG, Zai Zongguo Gongchandang Diba-Jie Mongyang Vleiyzjanui Di'er-
Ci Quanti Huiyi Shang de Jianghua [Speech at the Second Plenum of the Eighth Central
Committee of the Chinese Communist Party] (Nov. 15, 1956), in 5 MAo ZEnONG XUANII, Supra
note 169, 312, 319.

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JOURNAL OF CHINESE LAW

enemies go together, whereas "the people" are regulated by "adminis-
trative orders issued for the purpose of maintaining social order...
accompanied by persuasion and education ...."" This was made
quite clear during the anti-crime campaigns of the early 1980s: "[T]he
primary function of [law] . . . is to suppress enemies."'74 "Political-
legal organs . . . are organs of dictatorship .... If they deviated from
striking blows and punishing, [they] would not be organs of dictator-
ship any more."'75 "Using the weapon of law to exercise dictatorship
over enemies is an inherent part of strengthening socialist democracy
and legality."'

176

There is no doubt that ordinary civil disputes belong to the
category of non-antagonistic contradictions among the people. The
traditional identification of law and compulsion with dictatorship and
enemy classes, however, has made it difficult to accept the notion that
courts and law are the proper institutions for handling such disputes.
This is one way of understanding the widespread resort to non-court
dispute resolution institutions in civil disputes and the reluctance of
institutions handling ordinary civil disputes to impose and enforce truly
coercive sanctions. At the same time, it is a way of understanding how
it is that processes labeled "mediation" can exhibit features normally
associated with coercive adjudication. To call a process "mediation"
may be no more than to identify it as a proper forum for the
resolution of contradictions among the people. As has been shown,
even traditional Chinese Communist legal theory recognizes that
occasionally compulsion is necessary among the people, although such
compulsion is "different in principle" from dictatorial compulsion."

B. Legal Effect of Mediated Agreements

The question of the legal effect of mediated settlements has been
a vexing one for Chinese mediation theory and practice. The general
rule is said to be that court-mediated agreements, once delivered to the

173. MAO, supra note 169, at 369. See also Lubman, supra note 14, at 1302 & n.67;
Palmer, Extra-Judicial Mediation, supra note 14, at 229-30.

174. Cui Min, Xuehui Shiyong he Yonghao Fala Wuqi [Learn How to Use and Use Well
the Weapon of Law], 1983 FAXUE ZAZH No. 5, at 13, 14.

175. Song Tao, Dui Zuifan de Daji Chengfa Shi "Zonghe Zhili" de Zhongyao Cuoshi
[Striking at and Punishing Criminals Is an Important Measure of "Comprehensive Control"],
1983 FAXUE ZAZHI No. 5, at 10, 12.

176. Sun Guohua, Yunyong Fala Wuqi Fahui Zhuanzheng Zhineng [Use the Weapon of
Law to Give Full Play to the Function of Dictatorship], 1983 FAxUE ZAzHI No. 6, at 10, 10.

177. See MAO, supra note 169, at 366.

[5:245



DISPUTE RESOLUTION

parties, are "legally binding" in the sense that they have the same
effect as a court judgment. Similar practices are common in the United
States, and indeed, consent decrees may operate to convert into court
orders agreements which have been reached before the complaint is
even filed.' Parties in China may repudiate a court-mediated
settlement any time before delivery (songda).'

It is important to note here that court judgments in China do not
have the same effect as court judgments in a common-law system.
Chinese law does not generally make punishable the mere failure to
comply with a judgment."tu Instead, the aggrieved party must make
a separate application to the court for coercive enforcement (qiangzhi
zhixing). Coercive enforcement allows measures such as the garnish-
ment of wages or freezing of bank accounts.

Settlements reached through other mediation institutions are said
to have no binding legal effect. The concrete implications of this
general proposition, however, are unclear. It may simply mean that
mediated agreements are like any contract between two parties; they
are "legally binding" only to the extent that a subsequent court
judgment makes them so, whereas agreements mediated and approved
by courts are precisely that subsequent court judgment. On the other
hand, it could also mean that a party can at any time repudiate a
mediated agreement and take his case to court for a hearing on the
merits as if the mediated agreement never existed. This would give a
mediated agreement even less effect than an ordinary contract.
Moreover, it is not clear what the effect of partial or complete
performance of the mediated agreement by one or both parties would
be.

Evidence from Chinese sources is mixed and unclear. Let us
consider people's mediation (mediation conducted by PMCs) alone.
Article 9 of the Mediation Regulations reads in its entirety:

178. See Judith Resnick, Judging Consent, 1987 U. CHL LEGAL F. 43, 47.
179. The importance of the requirement of delivery is illustrated in a debate over whether

a man who had had forcible sexual intercourse with his wife after they had reached a mediated
divorce agreement but before the agreement had been delivered was guilty of the crime of rape.

One side held that because the agreement had not been delivered, the patties were still married,
and hence the act could not constitute the crime of rape under Article 139 of the Criminal Law.

(Article 139, which does not define rape, does not compel this conclusion.) It could, howtvcr,
constitute the crime of abuse of family members under Article 182. The other side leaned more
toward the idea that forcible sexual intercourse under any circumstances was rape, but stressed
that it had occurred after the divorce settlement had been agreed upon. See Liu Defa, Lihun
Ziong de "Zhangfl" Neng Fou Chengwei Qiangiian Ziuti? [Can a "Husband" in the Process
of Divorce Be the Subject of the Crime of Rape?], 1990 FAXtE (Shanghai) No. 9, at 49.

180. See supra text accompanying notes 67-73.

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The parties should (yingdang) carry out mediation
agreements reached under the auspices of People's Mediation
Committees.

Where after mediation the parties have not reached an
agreement or after reaching an agreement then repudiate it,
any party may request the basic-level people's government
to handle the matter (chuli), and may also bring suit in the
People's Court.

The relevant part of Article 16 of the new Civil Procedure Law is
similar but not identical:

The parties should (yingdang) carry out an agreement
achieved through mediation; where the parties are unwilling
to mediate, where mediation is unsuccessful, or where a
party goes back on the agreement, suit may be brought in
the People's Court.

These apparently simple provisions raise a host of questions. First,
the meaning of yingdang (provisionally translated here as "should") is,
despite its very wide use in Chinese legislation, still unsettled in
Chinese legal theory. According to one writer, " 'Yingdang' is an
ordinary behest [yibanxing de yaoqiu] and has no coercive force [bu
juyou qiangzhixing]." 181 Article 9 of the Mediation Regulations,
quoted above, certainly appears to contemplate the possibility of
repudiating a mediated agreement.

Other writers, however, hold that yingdang is synonymous with
bixu (must), and moreover make this claim specifically with respect to
Article 9 of the Mediation Regulations and Article 14 of the Civil
Procedure Law. They assert that if mediation agreements are not
carried out, they may (like court judgments) be coercively en-
forced. 82

181. Pan Jianfeng, Tantan Lihun Susong de Jige Wenti [A Discussion of Some Issues in
Divorce Litigation], FAZHI RIBAO, Aug. 26, 1988, at 3. The yingdang with which the writer is
concerned appears in Article 25 of the Marriage Law, supra note 36, concerning mediation prior
to the granting of a divorce. The writer argues that mediation should not be understood to be
required where one party, for example, has married abroad, has committed treason, or has been
sentenced to death.

182. See Li & Pan, supra note 142, at 20. Certainly yingdang at times appears to mean
"must." The duty of citizens to obtain identity cards upon reaching sixteen years of age is
described using yingdang, see Zhonghua Renmin Gongheguo Jumin Shenfenzheng Tiaoli
[People's Republic of China Regulations on Residents' Identity Cards], 1985 FGHB 35, Art. 2,

[5:245



DISPUTE RESOLUTION

The problem with this view is that it makes non-court-mediated
settlements (settlements reached through mediation outside of court) the
equivalent of court-mediated settlements. Every other Chinese source,
whether academic or legislative, insists that there is a distinction.

It remains to be seen, however, how much of a distinction there
is. Suppose one party repudiates a non-court-mediated settlement and
the other party, in accordance with the second paragraph of Article 9
of the Mediation Regulations, requests the basic-level government to
"handle" the matter or brings suit in court. What exactly is the nature
of the complaint to the government or the court, and what standard
should the government or court use in deciding the matter?

Government handling of complaints is governed by the Proce-
dures for Handling Disputes Among Citizens" (Dispute Procedures)
promulgated in 1990 by the Ministry of Justice. The Dispute Proce-
dures first of all give concrete authority over disputes referred to
government to the local judicial assistant. Any disputes that have not
yet been through mediation are to be referred first to a PMC for
attempted mediation. The government may not handle a dispute where
one party has already instituted an action in court, but the produced
consequences are unclear where one party institutes an action in court
after the government dispute-handling process has begun.

The government, in the person of the judicial assistant, decides a
dispute in two cases. First, where mediation has not produced a
settlement, the case is to be decided "taking the facts as the basis and
law, rules, administrative regulations, and policies as criteria.'' The
language is similar in form to that of Article 7 of the Civil Procedure
Law, 5 which provides the standard for courts to use in deciding
cases. In short, the judicial assistant should decide the case as a judge
would, although with reference to a broader base of normative material
(Article 7 of the Civil Procedure Law does not mention rules,
administrative regulations, or policy).

Where mediation has produced a settlement that is later repudiated
by one party, the settlement should be upheld if it is in accord with
law, rules, administrative regulations, and policy; otherwise, the
settlement should be voided and a different resolution reached.1 s

yet it cannot be supposed that the government intended to make it optional
183. See supra note 156.
184. Dispute Procedures, supra note 156, Art. 4.
185. "In trying civil cases, the people's courts shall take facts as the basis and law as th-

criterion" Civil Procedure Law, supra note 32, Art 7.
186. Id., Art. 18.

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This provision is of key importance because in effect it requires the
judicial assistant to give considerable deference to the original mediated
agreement. Chinese law has always required mediated agreements to
be in accord with law and policy, yet this has never been interpreted
to mean that any dispute has a unique mediated solution in the same
way that any dispute has a single legally required adjudicated solution.
A wide range of mediated solutions can therefore all be considered to
accord with law and policy. Any agreement that falls within this
permissible range should therefore be upheld by the judicial assistant.

In contrast to mediated agreements, which "should" (yingdang) be
carried out by the parties, the government decision "must" (bixu) be
carried out. There are, however, some distinctions that remain between
the judicial assistant's decision and a court judgment. First, a party has
fifteen days following the judicial assistant's decision to take the
original dispute to court.' This language would appear to mean that
the court would hear the dispute de novo and would not simply be
reviewing the decision of the judicial assistant, although it is hard to
be confident that this would never happen in practice. Second, even
where a party does not appeal, the enforcement powers of the local
government are limited to necessary measures "within the scope of its
[official] powers [zhiquan].'' 8

The standard to be used by courts in handling repudiated
mediation settlements is less clear. Article 16 of the Civil Procedure
Law provides only that "[i]f the People's Mediation Committee violates
law in mediating a dispute among the people, the People's Court
should rectify the violation."' 9 This may or may not imply that a
mediation agreement not in violation of policy or law should be
upheld. Such is certainly the view taken by some writers, who hold
that a party in court proceedings can raise the mediation agreement as
an argument in its favor. The court should uphold the agreement if it
is "correct" or "basically correct."'" Once again, this implies defer-
ence to the mediated settlement.

C. Coerced Mediation

Whether non-court-mediated settlements receive deference in court
proceedings is important because there is considerable evidence that

187. Id., Art. 21.
188. Id.
189. Id., Art. 16.
190. See Li & Pan, supra note 142, at 20-21.

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DISPUTE RESOLUTION

mediation "settlements" are sometimes imposed upon an unwilling
party.'9' One article speaks not only of parties who "repudiate"
(fanhui) an agreement, but also of parties who "do not accept" (bu i)
the agreement. This language would make no sense if the agreement
were truly voluntary.

Furthermore, coerced mediation settlements should not be seen as
merely an aberration. The phenomenon is closely tied to the logic of
the system as a whole.

Mediation institutions in general and PMCs in particular should
perhaps most appropriately be viewed as a kind of small claims court.
Like the decisions of a small claims court, their decisions can be
reviewed by a higher court, whether de novo or subject to some
standard of deference.

There are a number of reasons for taking this view. Chinese
courts simply will not accept minor cases for adjudication,"9 yet at
the same time China has no small claims court system. The only
available substitutes are PMCs or judicial assistants. Because it would
be unjust even in minor cases to allow stubborn wrongdoers to get
away with their misdeeds, the principle of voluntariness tends to yield
in favor of the principle of fidelity to law and policy.

We have seen that Chinese mediation theory places a great
emphasis on the fidelity of mediation settlements to law and policy. It
is not sufficient merely that the parties agree; a one-sided emphasis on
simply making the parties happy is criticized as "unprincipled
mediation." Mediation is supposed to clarify right and wrong and
protect the rights of the participants. Some effort is put into providing
mediators with some legal training in order to meet the goal of fidelity
to law and policy.

It is plausible to suppose that an element of compulsion has come
to be seen as acceptable by mediators and others involved in non-court
dispute resolution - although not, it should be said, by most Chinese
legal scholars - because of the very obvious inadequacies of the court
system. Indeed, because of the ambivalence over the use of law and
compulsion to resolve disputes among "the people," the procedures
used by courts and PMCs to resolve civil disputes have tended to

191. See Chai & Li, supra note 95, at 53; Ji, supra note 99, at 22; Zheng et al., supra
note 98, at 26; Fe fa Tiaojie de Eguo [The Evil Consequences of Illegal Mediation], ZHONGCUO
FAZH BAO, Sept 30, 1985, at 2.

192. See Wu Mali, Dui Xin Shiqi Renmin Tiaojie Gongzuo de Chubu Tantao [A
Preliminary Inquiry Into the Work of People's Mediation in the New Period], 1937 FAXUB
(Shanghai) No. 4, at 50, 50; Zou, supra note 145, at 63.

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JOURNAL OF CHINESE LAW

converge.
Many scholars have noted the similarity between dispute

resolution by courts and by PMCs. 193 Courts have a number of
incentives to dispose of cases by mediation. Not only are they often
statutorily encouraged or even required to attempt mediation before
adjudication," but in many courts the proportion of cases settled
through mediation is an important criterion for evaluating the job
performance of judges. 95 In addition, given the lack of strong
enforcement powers by courts, judges may believe quite correctly that
a mediated settlement which gives both parties at least something has
a much better chance of being implemented than a judgment.196

V. CONCLUSION

It is clear that the set of institutions and practices going generally
under the name of "mediation" (tiaojie) in China is of great impor-
tance in the field of dispute resolution. It is equally clear, however,
that what is called mediation in China is very different from what is
called mediation in the ADR literature, to the point where it would be
seriously misleading simply to use the English word without further
explanation. Throughout this article, "mediation" has been used as a
convenient translation of tiaojie, but is not intended to convey much
in the way of substantive meaning.

As mediation in China has become institutionalized, it has come
more and more to resemble adjudication. This is both because of the
coercive features of mediation and because of the weakness of
adjudicatory institutions such as courts. But the coercive features of

193. See, e.g., Lubman, supra note 14, at 1357-58; Palmer, Judicial Mediation, supra
note 14, at 158-59.

194. See, e.g., Civil Procedure Law, supra note 32, Art. 6; Marriage Law, supra note 37,
Art. 25 (mediation required prior to granting of divorce).

195. See Han Shuzhi, Renmin Fating Shezhi fi Gongzuo de Jige Wenti [Several Problems
in the Establishment and Work of People's Tribunals], 1990 FAXUE (Shanghai) No. 10, at 18,
19; Huang Shangheng, Minshi Susong Nei "Zhuozhong Tiaojie" Yi Gai Wei Zhuozhong Caipan
[The "Stress on Mediation" in Civil Litigation Should Be Changed to a Stress on Adjudication],
1988 ZHENGztu Yu FAU) [PoLMcs AND LAW] No. 5, at 58, 59; Zheng et al., supra note 98,
at 27. This may explain why many cases where one party appears to win everything it asked
for are still described as voluntary or mediated settlements. See, e.g., David Zweig, Kathy
Hartford, James Feinerman & Deng Jianxu, Law, Contracts, and Economic Modernization:
Lessons from the Recent Chinese Rural Reforms, 23 STAN. J. INr'L L. 319, 340-42 (1987)
(Case 1).

196. This was the finding of a study of a small claims court in Maine. See Craig A.
McEwen & Richard J. Maiman, Mediation in Small Claims Court: Achieving Compliance
Through Consent, 18 LAw & Soc'Y REv 11 (1984).

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DISPUTE RESOLUTION

mediation do not stem solely from its role as a small-claims court.
Perhaps equally important is the fact that as mediation becomes
institutionalized, it becomes an arm of the state, and the Chinese state
is generally uncomfortable with the idea of letting individuals make
their own deals, whether in dispute resolution or in the marketplace.

Why should institutionalization lead to state control? In principle,
the Chinese state permits the existence of no organization - not stamp
clubs, not alumni associations - not subject to government direc-
tion."9 Thus, any mediation institutions operating at a level where
they are visible to the state must be under state direction.198

Once it is accepted that an institution is under state direction, it
follows (in the logic of the prevailing ideology) that it should act
according to and enforce state norms. There is little room in this logic
for "private law": rules that parties to a dispute can invoke in their
favor or decide not to invoke, but to the invocation of which the state
is indifferent. Chinese law, traditionally and today, is almost all "public
law" in the sense that it is designed to regulate behavior and the
parties cannot decide on their own to opt in or out. Because this is the
kind of law that mediation institutions have to work with, it is hardly
surprising that they are not allowed to let parties come to an agree-
ment without reference to the values embodied in state norms.

Yet, just as non-state mediation institutions in traditional China
grew from the desire of individuals to avoid the loss of control
associated with complaints to the magistrate, so we may expect that
there will continue to be a demand in China for the kind of mediation
that can be found only beyond the horizon of official "mediation"
institutions. Thus, there are reports of more and more persons turning
to lawyers as mediators. This is a trend worth watching, for lawyers
in China are themselves an arm of the state. The state may eventually
move to insist that they too, apply state norms and not engage in
"unprincipled mediation." In that case, lawyers will have now become
official mediation institutions, and those who want to escape the

197. Even the leaders of the non-communist political parties that the government allows
to exist are paid a state salary and appointed by the Communist Party. See JOmhN P. BURNs, TIlE
CHINESE CommuNisr PARTY's NoMNNKLATURA SYStEm: A DoCMEamNARY STUDY OF PARTY
CONTROL OF LEADERSHIP SELEOrON, 1979-1984, 36-40 (1989); JAMES D. SMY,0ICR, CIA'S
SATEELxrE PARTIES 80 (1987).

198. The Chinese state is not, of course, unique in its desire to dominate the dispute
resolution process. See Merry, supra note 6, at 2069-71 (discussing the interest of governments
in controlling dispute resolution). Where it differs from many other states is in its ambition to
prohibit the existence of organizations not under its leadership, and not simply put them at a
competitive disadvantage by refusing to provide funds or other forms of cooperation.

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296 JOURNAL OF CHINESE LAW [5:245

imposition of state norms will have to look elsewhere once more.