Academic

Zhang on Explaining the Preference for Administrative Procedures in China

By Lawrence Solum

Taisu Zhang (Yale University - Law School) has posted The Xinfang Phenomenon: Why the Chinese Prefer Administrative Petitioning Over Litigation on SSRN.  Here is the abstract:

China's rather peculiar system of Xinfang was established in the early 1950s as a general-governance tool. Official regulations demand that all kinds of government branches, including administrative, legislative and judicial organs at all levels, establish Xinfang offices that are open to the public. These offices then receive complaints, suggestions, and requests from the general population through either letters ("Xin") or in-person visits ("Fang"), hence their name. Since how they handle these petitions is not expressly regulated by any document or law, these offices are clearly distinct from judicial organs. To this day, the official Xinfang regulations issued by the State Council theoretically allow people to present petitions and comments on virtually any aspect of social life: wages, contracts, access to public services, and even weddings. In more recent years, however, Xinfang petitions have converged on two main categories: appeals of judicial decisions and administrative grievances against various government organs. As I will argue, available statistics suggest that the vast majority of petitions in the former category involve civil, not administrative, disputes. Existing studies also agree that the latter category, administrative grievances against the government, accounts for most other petitions, to the extent that one scholar habitually referred to the Xinfang system as an "administrative process[] for promoting administrative accountability." While many, probably most, administrative grievances filed with the Xinfang offices can also be resolved through judicial litigation, people very rarely go to court. Indeed, some estimates based on available statistics reasonably suggest that there were perhaps four or five million administrative Xinfang petitions a year during the 1996-2004 period, but only around one hundred thousand administrative complaints filed with the courts. Even a more conservative estimate would have to agree that the Xinfang system is used far more frequently. This paper attempts to explain why.

And a bit more from the conclusion:

This paper has argued that the best explanation for the Xinfang system?s superior popularity over administrative litigation is the latter?s inflexible and more adversarial procedure, which stems from its prohibitions against mediation and private trials. While I have not presented a direct proof of this theory, instead stopping at demonstrating its potential validity and the failures of alternative explanations, the construction of a direct proof would be fairly straightforward. Intuitively, it would take an extensive survey of Xinfang petitioners, at least as thorough as those conducted under government authorization in 2004, which asks them, in direct terms, why they chose the Xinfang system over litigation. The failure of previous researchers to ask this question has seriously limited the scope of current scholarship on the Xinfang phenomenon, including this paper. Assuming that my proposed explanation is ultimately proven as I expect, its ramifications would be very significant. Most importantly, it would demonstrate the power of China?s cultural affinity towards mediation-based law and thus providing an important case study for more general cultural comparisons between Chinese law and western legal systems. For policy-makers, it would also suggest that future attempts to increase the ALL?s popularity, if indeed they are normatively or practically desirable, should not necessarily focus on increasing the ?legal awareness? of the general population. The success of civil litigation and China?s own legal traditions suggest that a willingness to litigate is not lacking in Chinese culture, as long as the legal system satisfies certain requirements. Thus, the main thrust of the reforms should be changing the ALL, not the people who will potentially use it. Since reforming law is far easier than altering cultural habits or preferences, the future of administrative litigation in China may yet be brighter that many have assumed. Pulling it out of the shadow of Xinfang petitioning might not be such a Herculean task after all.

I found this persuasive & illuminating.  Don't be put off by what sounds like obscure subject matter.  This is a very interesting legal theory paper, which I highly recommend!

Full post as published by Legal Theory Blog on March 03, 2008 (boomark / email).