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China's Petitioning System. A Veritable Appellate Court For Foreigners?

By Dan Harris and Steve Dickinson

I am in a terrific China Law ListServ (yes those things do still exist), graciously run by Professor Donald Clarke of the Chinese Law Prof Blog. There are some seriously smart and knowledgeable people on the ListServe and much of the discussion is more geared toward China law academics than practitioners. I typically skim every email, but really read only around 25 percent. Over the last few days, there have been a number of emails regarding Julie Harms, an American and a Harvard graduate, who has been petitioning Beijing regarding trespassing charges her (Chinese?) boyfriend is facing. I skimmed the first email or two on this and quickly determined Ms. Harms' situation was of no relevance to my law firm, to our clients, or to this blog. I was wrong. Petitioning is a "system" in China where citizens (people?) dissatisfied with their local government officials or legal matters (or really, whatever) seek to voice their grievances with "Beijing." According to Carl Minzer describes it as follows:

"[P]etitioning? [is] a traditional means of seeking justice firmly rooted in Chinese history. Defined broadly as an effort to ?go past basic-level institutions to reach higher-level bodies, express problems and request their resolution,? petitioning includes a variety of practices that parallel, overlap, and in some cases replace formal legal channels. These practices have survived into the post-1949 People?s Republic of China in the form of citizen petitioning of numerous ?letters and visits? (xinfang) bureaus distributed throughout all Chinese government organs, including the courts. Development of a modern legal system over the past two decades has not eliminated these petitioning practices and institutions. Formal Chinese legal institutions have developed internal means of accommodating petitioning behavior. Since the 1990s, Chinese authorities have also passed a web of regulations to govern both petitioners? practices and the operation of national, provincial, and local xinfang bureaus.

Today, I read a really interesting post on the Law & Border Blog, entitled, "Would a Foreigner Complain about Chinese Visa Problems Through the ?Petitioning? System?" The Law & Border blog is written by a US lawyer, Gary Chodorow, whose practice focuses "focuses on representing companies and investors in U.S. visa matters." So, Chodorow naturally focuses on whether foreigners might start using China's petitioning system to seek resolution to their China visa issues and his post concludes by seeking "reader comments about whether it may be useful for a foreigner to make complaints about China visa issues through the petitioning system." Which got me to thinking. Might foreigners also use the petitioning system to complain about other Chinese legal matters as well? What about an employer who unfairly loses a lawsuit to an employee? What about the owner of a Wholly Foreign Owned Entity (WFOE) who is not allowed to leave China because a Chinese citizen is falsely claiming the WFOE owes him or her money? The possibilities are endless. I know almost nothing about the petitioning system but I think I know enough to know that it is not likely to be a viable option for foreign businesses. Right? What do you think? Ms. Harms' actions certainly do at least raise some new issues. Please don't forget to vote for China Law Blog.

Full post as published by China Law Blog on December 03, 2009 (boomark / email).