Is the Chinese party-state too responsive to public opinion? In the case of the courts, this may be the case. Western literature has devoted extensive attention to the problems in the Chinese legal system, in particular in the courts, describing a system that continues to be undermined by a range of problems, from corruption to lack of competence to continued Communist Party intervention. Likewise, existing literature describes a legal system that often is unresponsive to individual demands for justice. In this chapter, I examine another possibility: that one impediment to the development of courts that are able to protect individual rights is that courts are too responsive to protests, petitions, and public opinion.

This chapter presents evidence that protesting, petitioning, or simply threatening to do either often is a successful means for litigants to pressure courts to rule in their favor or to alter decided cases. The ability of individuals to influence court decisions through petitioning is linked to other better-known problems in the Chinese legal system. Courts' sensitivity to the threat of unrest reflects the facts that party officials continue to interfere in court decisions and that individual judges and court leaders are dependent on party officials for their positions. Sensitivities to popular opinion and to individual protesters also reflect a political system that has placed tremendous emphasis on maintaining social stability.

INTRODUCTION

Local Chinese courts commonly use responsibility systems (mubiao guanli zeren zhi, zeren zhuijiu zhi) to evaluate and discipline judges. Judges receive sanctions under these systems for a wide range of behavior, such as illegal or unethical dealings with parties and lawyers, inappropriate courtroom behavior, and neglect of duty.

Many local court Chinese responsibility systems also discipline judges for simple legal error. Judges may face sanctions linked to the number of cases that are reversed on appeal simply because the interpretation of law made by a higher court differs from that of the original trial judge. Sanctions include monetary fines and negative notations in a judge's career file. Such practices violate Chinese Supreme People's Court (SPC) judicial directives specifically barring the use of responsibility systems to sanction judges for simple legal error. Local Chinese courts, however, have continued to promulgate such systems.

Court responsibility systems that discipline judges for simple legal error also create a perverse set of incentives for Chinese judges. To avoid appellate reversal, lower Chinese courts and judges rely on an ill-defined system of advisory requests (qingshi) to solicit the views of higher courts and judges on how to decide pending cases. As Chinese judges themselves note, excessive resort to qingshi practices has many negative effects. It undermines appellate review, because the court or judge that reviews the case on appeal may have responded to the initial qingshi request regarding how to decide the case in the first place.

The development of the legal profession in China since 1978 has been largely a modernization story of economic development. The transition to a market economy stimulated the demand for lawyers. Conversely, lawyers contributed to economic growth, both directly through their work on commercial transactions and protecting property rights, and indirectly by promoting, along with other legal professionals, legal reforms aimed at implementing rule of law and establishing the institutions necessary for a market economy. As such, the development of the legal profession and its relationship to the market in China is broadly consistent with experiences in other countries.

However, whereas China and other East Asian countries lend support to modernization theories, they have also diverged from the more classical straight-line versions whereby all states end up with Euro-American liberal democracy. Hong Kong, Singapore, Japan, South Korea, and Taiwan are all economically wealthy countries with legal systems that rank high on rule of law indices and protect both property and non-property rights reasonably well. Yet some of them continue to be nondemocratic, or somewhat dysfunctional democracies, and on the whole less liberal than their economically advanced Western counterparts. Moreover, these East Asian states have not always followed the prescribed path with respect to political reforms, economic policy, or institutional development, including the development of the legal profession.

Much of the concern of Western scholarship on the legal profession in China, and East Asia more broadly, has been on the role of the legal profession in political reforms.

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.

If how a society decides its disputes is “a ritual of extreme social significance,” then China's thirty years of legal reform can inform our understanding of how the Chinese state relates to its society and how Chinese citizens relate to one another. Since 1978, China has embarked on legal reforms to promote law as a main mode of dispute resolution. But critics argue that China is establishing legal institutions more to promote economic development and coalesce state power and less to empower ordinary citizens. It is said that ordinary citizens shy away from formal legal mechanisms to resolve disputes because of an historical distrust of the law that is reinforced by recent experiences with Chinese courts. At the same time, the state's distrust of civil society institutions renders bottom-up initiatives unpromising.

This volume takes an on-the ground look at how civil disputes of ordinary citizens are being resolved in China today. In identifying what is going on at the ground level, this volume “disaggregates the Chinese state and society” to focus on the hows and whys – that is, the process of “law in action.”

In 2004, the ethnic-minority musician and prominent local artist Xuan Ke brought suit in Lijiang City Intermediate Court in southwestern Yunnan Province, claiming that his right of reputation had been infringed by an article in the Beijing-based Arts Criticism magazine. The author of the article, the scholar Wu Xueyuan, argued that Xuan's music was, in fact, not a product of the local ethnic minority culture and that Xuan's misrepresentation of his music amounted to fraud.

Arts Criticism is a scholarly journal, and Wu's critique was based on academic research. Nonetheless, his language was sharp. Wu claimed that selling Naxi music was the equivalent of “selling dog meat as steak.” He referred to Naxi music as “fake culture” and declared that “these falsehoods are patently absurd, and a fraud on the public.” All of these phrases would later be cited by Xuan Ke as specific examples of personal attack. Wu and the magazine's editors defended against Xuan's charges by both pointing to their constitutional rights to scholarly enquiry and by attempting to demonstrate the factual veracity of the article's assertions, specifically that Naxi music was, indeed, a commercial creation of Xuan Ke.

In a verdict delivered in December 2004, the intermediate court included a reference to Chinese constitutional rights protections; it also concluded that

Until 1979, China had never been a country with a highly differentiated legal system. From the Law Classics (Fa jing) in the Warring State period (480–221 b.c.) to the Great Qing Criminal Code (Da Qing lü li, effective during 1740–1910), the two-millennium history of codification in imperial China had always been characterized by a strong emphasis on criminal law; most noncriminal disputes were adjudicated according to the Confucian ethics (li) and social customs, without referring to any legal code. Meanwhile, in the Chinese political system there was no separate judiciary from the government, and the local magistrate was both the administrative leader and the judge for crimes and social disputes. Accordingly, no formal legal profession was found in imperial China. In certain periods, there were “litigation masters” (song shi) who provided help to the people in litigation, but they were neither organized into a legal profession in the Western sense nor recognized by the state. Ordinary social order largely was maintained in a harmonious and unified way through non-legal means. However, in the twentieth century, this social order was almost completely broken down because of the incessant revolutions, culminating in the Cultural Revolution during 1966–76.

Since the late 1970s, the Chinese legal system has experienced a series of fundamental changes. Tens of thousands of laws, regulations, judicial interpretations, ministry regulations, and local regulations have been promulgated, starting with the Criminal Law and Criminal Procedure Law in 1979.

The law relating to family property in Europe is at a key stage in its development. Unified conflict of law rules were adopted in December 2010 implementing enhanced cooperation for 14 Member States in relation to divorce, further proposals for the unification of private international law relating to matrimonial property and succession are being developed, and interest is growing in harmonisation of the substantive law itself.

The fourth conference of the Commission on European Family Law (CEFL) held in Cambridge in early April 2010 brought together around 180 participants from 32 jurisdictions in Europe and beyond to address a wide range of issues relating to the future of family property in Europe. This large and diverse group generated a stimulating discussion across the three days of the conference, prompted by the contributions of our conference speakers, most of which are produced in this volume.

The volume consists of eight parts. Part 1 contains the keynote address which began the conference proceedings given by Lord Justice Thorpe, Head of International Family Justice for England & Wales. As was fitting for a European conference taking place in the UK, Sir Mathew Thorpe's address provoked important debate about the challenges inherent in common law and civil law jurisdictions co-operating in this sphere, a theme taken up again in Part 8, the closing remarks from the local conference organisers Jo Miles and Jens M. Scherpe. Part 2 of the book examines in greater depth the issue of matrimonial property law in Europe, Professor Pintens’ chapter providing an examination of the variety of regimes currently operating in Europe, while Professors Boele- Woelki and Jantera-Jareborg preview the Commission on European Family Law’s own attempts to develop Principles on which the harmonisation of domestic laws in this field might be based. Part 3 takes us on to the question of party autonomy, both within and without marriage, in the marital context examining the extent to which parties are free by agreement to contract out of the default regime or remedies. Professor Dethloff's paper surveys the treatment of marital agreements across Europe, while Professor Cooke discusses the issues from the perspective of a law reformer in England & Wales.

SUMMARY

One of the major challenges that contemporary family law faces is how to ascertain proper maintenance for the child in the case of his or her parents’ divorce or separation and how to ensure that this obligation will be carried out by the obliged parent. A variety of approaches to these problems are identifiable in Western countries. Although the shift towards maintenance based on obligatory or recommended mathematical formulas is discernible, there are still countries whose legislation contains only very vague rules in this field.

This article focuses on these questions in the light of the relevant laws in the Czech Republic, Slovakia and Poland. All the above-mentioned countries have much in common as far as contemporary family law is concerned. This is primarily the effect of previously similar family law legislation adopted in 1949 and 1950 and, secondly, the effect of the long-lasting socialist era. Thus, the legal regulation of the maintenance obligation by parents towards their children has remained almost unchanged since those times in Poland and the Czech Republic. The determination of maintenance is still based on very simple rules and wide discretion by the courts is preferred. In Slovakia, on the other hand, new and progressive legislation was adopted in 2005. Nowadays, a minimum amount of maintenance is laid down and if the non-residential parent does not fulfil his/her obligation the state guarantees maintenance for the child to some extent.

In this article, the development of legal regulation is explained and, furthermore, the practical impact of changes on the rights of parents and their children is explored. Such an exploration proves that contemporary vague and discretionary rules, which are effective in Poland and the Czech Republic, are problematical and are an inheritance from the socialist era. These kinds of rules could have possibly worked in times when the state was inclined to greatly interfere in the lives of families and children, and, furthermore, the divorce rate was then lower. However, nowadays such an approach impairs the best interests of the child and calls for change.

INTRODUCTION

One of the major challenges which contemporary family law faces is how to ascertain proper maintenance for a child in the case of his or her parents’ divorce or separation and how to ensure that this obligation will be carried out by the obliged parent.

INTRODUCTION

Europe is getting older. Due to increased life expectancy but also to a decreased birth rate, the proportion of seniors in the overall population is constantly rising. Seniors may no longer be seen as forming a homogeneous group. Distinctions have been proposed between the “young old”, the “old”, and the “oldest old” or between persons of the third and of the fourth age. The definitions of the people who fall within these groups may vary. In any case, there is little doubt that the seniors belonging in the last of these categories, meaning the “oldest old” or the “fourth age”, constitute the fastest growing segment of the population. This increase is coupled with a rise in the number of people with declining health, be it their physical, psychological and/or mental state.

Under these conditions, elder law is evolving as a new area of law. Apart from issues regarding inheritance, legal ability to enter contracts and legal representation in cases of incapability, health insurance and pension schemes, which have been discussed at length in the traditional legal literature, elder law also pertains to questions of everyday care of older people. This last issue gains more relevance, the less the family are able to assume elder care responsibilities, as is nowadays the case. Due to increased life expectancy, the children of older seniors are often seniors themselves. Moreover, because of the decreased birth rate, the responsibility of caring for older relatives rests upon the shoulders of fewer family members, while an increase in female employment has led to a further reduction of care resources within the family. Finally, given the increased mobility of persons within a country, or even internationally, children often no longer live in the vicinity of their parents.

For many decades, the common response to the inability of an older person to live independently was his admission to a care or nursing home. Thus, the provision of care and services came together with a significant compromise of his autonomy. This unsatisfactory trade-off of independence for care, on the one hand, and the realisation that the scarce supply of places in nursing homes could not cope with the expected increase in demand in the near future, on the other hand, made evident the need to seek other creative and cost-efficient solutions.

THE EUROPEAN SUCCESSION PROJECT

When I told Adrian Briggs, Professor of private international law at Oxford, that the European Union was planning to tackle cross-border successions, he was not very impressed. He was rather surprised that, after the free movement of goods, persons, services and capital, the “free movement of the dead, previously only seen in cinema and by those who believe in zombies”, had also become one of the policies of the European Union. Indeed at first sight it is surprising that the European Union has discovered succession law – an area of law which has been constantly neglected by the European legislator. Following the 1968 Brussels Convention on jurisdiction and enforcement in civil and commercial matters most European private international law instruments expressly exclude “wills and succession” from their material scope. However, since the Vienna Action Plan of 1998, the rules for international successions are officially on the European agenda. Based on a detailed comparative study by the German Notary Institute, in 2005 the Commission published a Green Paper on wills and succession identifying “a clear need for the adoption of harmonised European rules”. After further consultations and negotiations the Commission submitted, in October 2009, a formal Proposal for a Succession Regulation. It is currently unclear whether and when the Succession Regulation will be adopted by the European Parliament and the Council; the only interesting news is that the United Kingdom and Ireland, which together with Denmark enjoy a special status in the European cooperation in the area of freedom, security and justice, have so far not exercised their right to opt into the succession project.

The Succession Proposal reveals ambitious legislative plans. The rules proposed by the European Commission go far beyond the classic areas of private international law, ie choice of law (Article 16 et seq of the Proposal), jurisdiction (Article 3 et seq of the Proposal) and recognition and enforcement of foreign decisions (Article 29 et seq of the Proposal). The Succession Proposal also aims to improve the cross-border administration and devolution of estates.

INTRODUCTION

In the past few years, there has been considerable reform within Europe of how child maintenance claims are handled both at the regional and international level. Until 2007, the recovery of international child maintenance was regulated by dated and largely ineffective international conventions. This all changed when the Hague Conference on Private International Law adopted a Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and an additional Protocol on the Law Applicable to Maintenance Obligations. The main objective of this new Convention is to facilitate the enforcement of international child maintenance claims. This is achieved by building on the strengths of supranational measures previously adopted in other areas to establish a strong system of administrative cooperation in dealing with international child maintenance claims. At the same time as the Child Maintenance Convention was being developed in The Hague, parallel negotiations were being conducted within the EU on the Maintenance Regulation. This sought to achieve similar goals as the Convention but also to go a step further and take advantage of closer regional integration to abolish exequatur, or the requirement for formal recognition of foreign maintenance decisions, within the EU.

Somewhat unusually, however, it was action at the international level that prompted closer cooperation at the regional level. This is illustrated by the key innovation achieved in The Hague, namely free legal assistance for child maintenance claims, which was later mirrored in the EU. This demonstrates the advantages of coordination between developments at the international and regional level because without such progress being made in The Hague, it is unlikely that there would have been such extensive legal aid provisions within the EU.

From a British perspective, it was most welcome that negotiations with the EU were able to take account of developments in The Hague, which resulted in reference to the Hague Protocol on Applicable Law in the EU's Maintenance Regulation. Initially, the European Commission had envisaged a mandatory, autonomous applicable law regime,7 which would have been unpalatable for the United Kingdom, which does not apply foreign law in child maintenance cases, given the disproportionate costs involved. Therefore, it was integral to the success of the EU's Maintenance Regulation that it adopted the optional applicable law regime that had been developed in The Hague.

INTRODUCTION

Child maintenance and contact concerning the child are the most important parts of the legal relationship between the child and the non-resident parent. However, these legal aspects of parentage are, in principle, regulated separately. The issue of maintenance as a child's right has been treated as an independent legal consequence of parentage, viewed from the fact that child maintenance should always be a duty of parents, regardless of whether parents perform their parental responsibilities or not. Thus, child maintenance tends to be regulated separately from the issue of parental responsibility in both national and international instruments. On the other hand, the issue of the personal relationship between the non-resident parent and the child has been treated as a part of parental responsibilities. It is viewed in two distinct ways both as a parental right to contact and as a parental duty securing the child's right to maintain contact. If anyone has a duty, ironically it is the resident parent who has the responsibility to enable and support the non-resident parent's right to maintain contact with the child. Accordingly, international as well as national instruments regulate the issue of contact separately from child maintenance, without making any connection between the two.

Frequently, the borderline between extended contact and alternative residence is not completely clear. It is possible to decide that the child shall reside with one parent but shall have contact with the non-resident parent comprising up to 50% of its time. Alternatively the same arrangement can be viewed as one of shared or joint residence. In either case, in practice, the child lives equally with each parent but in the first case the arrangement is described as extended contact, while the second case is regarded as one of alternative residence. If a maintenance regime takes account of the amount of time a child lives with a parent, it implicitly makes a link between contact and maintenance. Whether one calls a 50/50 arrangement “residence” or “contact” obviously is a semantic game. Yet, it is a game with important consequences for maintenance, which is likely to be owed under one label but perhaps not under the other. The tension, it seems, is to preserve the theoretical separation of contact and maintenance, while acknowledging their linkage in practice (at least in some national legal systems).