From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China

doi:10.1017/CBO9780511977008.003

1 - From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China

Published online by Cambridge University Press: 05 July 2011

Fu Hualing and

Richard Cullen

Edited by

Margaret Y. K. Woo and

Mary E. Gallagher

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Fu Hualing: Affiliation:
University of Hong Kong
Richard Cullen: Affiliation:
University of Hong Kong
Margaret Y. K. Woo: Affiliation:
Northeastern University, Boston
Mary E. Gallagher: Affiliation:
University of Michigan, Ann Arbor

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Summary

INTRODUCTION

One of the most conspicuous changes in judicial policy toward the end of Xiao Yang's two terms (1999–2008) as president of the Supreme People's Court (SPC) was the retreat from a concerted period of civil justice reform, the origins of which can be traced back to 1979 and which was at its most intense during the decade prior to 2006. The hallmark of this recent change in approach has been a shift of priority from adjudicatory to mediatory justice.

By 2006, the SPC had openly conceded the failure of judicial reform programs aimed at enhancing judicial professionalism. The SPC had also issued a series of judicial interpretations to steer the judiciary toward settlement of disputes through court-based mediation. Because of this policy change, local courts are revising their incentive mechanisms to encourage judges to privilege mediation in resolving disputes and to reward them for doing so. Judges and legal scholars are rediscovering the virtues of court-based mediation, including its efficiency, cost-effectiveness, and humanity.

This chapter, in seven parts, studies this transition by examining the rise, demise, and partial resurgence of court mediation in Chinese justice. Section I details the development of the civil justice system of the People's Republic of China (PRC) and explains how its political marginalization helped create the space for its subsequent reform. Section II analyzes what might be termed phase one of the reform process, including the factors driving the striking shift from mediatory toward adjudicatory justice.

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Type: Chapter
Information: Chinese Justice
Civil Dispute Resolution in Contemporary China
, pp. 25 - 57

DOI: https://doi.org/10.1017/CBO9780511977008.003 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2011

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