Pub Date : 2022-07-28DOI: 10.1163/25427466-07010003
Y. Mou
The judicial accountability reform in China introduced the concept of lifelong accountability, which requires prosecutors to be responsible for the cases they handle by tying their reputation and career prospects to the quality of the cases, regardless of whether they still hold those positions. To explain this lifelong accountability, this article analyzes key issues surrounding prosecutorial accountability in the Chinese context, critically examining the accountability system before the reform and the transformations brought about by the new accountability regime. It argues that although lifelong accountability is expected to be a deterrent to prosecutorial misconduct, the feasibility of the accountability mechanism is subject to doubt. The reform tries to form collective responsibility, enabling frontline prosecutors to exercise greater autonomy. However, it has not led to a paradigm shift from the predominantly bureaucratic model to prosecutorial professionalism, which demonstrates profound distrust in the prosecutor’s judgment at a fundamental level.
{"title":"Accountable for a Lifetime: Reforms in Prosecutorial Accountability in China","authors":"Y. Mou","doi":"10.1163/25427466-07010003","DOIUrl":"https://doi.org/10.1163/25427466-07010003","url":null,"abstract":"\u0000The judicial accountability reform in China introduced the concept of lifelong accountability, which requires prosecutors to be responsible for the cases they handle by tying their reputation and career prospects to the quality of the cases, regardless of whether they still hold those positions. To explain this lifelong accountability, this article analyzes key issues surrounding prosecutorial accountability in the Chinese context, critically examining the accountability system before the reform and the transformations brought about by the new accountability regime. It argues that although lifelong accountability is expected to be a deterrent to prosecutorial misconduct, the feasibility of the accountability mechanism is subject to doubt. The reform tries to form collective responsibility, enabling frontline prosecutors to exercise greater autonomy. However, it has not led to a paradigm shift from the predominantly bureaucratic model to prosecutorial professionalism, which demonstrates profound distrust in the prosecutor’s judgment at a fundamental level.","PeriodicalId":135002,"journal":{"name":"China Law and Society Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117078055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-28DOI: 10.1163/25427466-07010001
Michael Thompson-Brusstar
This article interrogates the main events in procuratorial development from 1949 to 1961. Its aim is to better understand the procuracy during the Maoist era by reframing debates about its development along a spectrum: from primarily internal debates that challenged the development of the institution to external debates that challenged the role of the institution. These two dimensions also clarify how the procuracy reflected the politics of the time, especially issues of state construction and building legal knowledge, both within the state and among the “people.” The article shows that “internal” debates stemmed from the largely elite-centered and technocratic concerns of internal organization; “external” debates connected, instead, to broader concerns about the socialist legal project and the procuracy’s place in it. Reframing the institution’s history in this way enables us to understand the concepts and issues shaping the procuracy that crossed “period” boundaries and how responses to those challenges changed over time. Internal limitations (due to lack of resources) and external challenges (to develop flexible methods for accomplishing institutional goals while appearing to serve national objectives) are entwined, making the procuracy from 1949 to 1961 a site of tension between law and policy as well as a locus of contestation about the role of law in Maoist China.
{"title":"Supreme Supervisors? Building the People’s Procuracy, 1949–1961","authors":"Michael Thompson-Brusstar","doi":"10.1163/25427466-07010001","DOIUrl":"https://doi.org/10.1163/25427466-07010001","url":null,"abstract":"\u0000This article interrogates the main events in procuratorial development from 1949 to 1961. Its aim is to better understand the procuracy during the Maoist era by reframing debates about its development along a spectrum: from primarily internal debates that challenged the development of the institution to external debates that challenged the role of the institution. These two dimensions also clarify how the procuracy reflected the politics of the time, especially issues of state construction and building legal knowledge, both within the state and among the “people.” The article shows that “internal” debates stemmed from the largely elite-centered and technocratic concerns of internal organization; “external” debates connected, instead, to broader concerns about the socialist legal project and the procuracy’s place in it. Reframing the institution’s history in this way enables us to understand the concepts and issues shaping the procuracy that crossed “period” boundaries and how responses to those challenges changed over time. Internal limitations (due to lack of resources) and external challenges (to develop flexible methods for accomplishing institutional goals while appearing to serve national objectives) are entwined, making the procuracy from 1949 to 1961 a site of tension between law and policy as well as a locus of contestation about the role of law in Maoist China.","PeriodicalId":135002,"journal":{"name":"China Law and Society Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123027457","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-28DOI: 10.1163/25427466-07010002
Xifen Lin, Wanqiang Wu
China’s significant reform of the national supervision system in 2016 eliminated the general power to investigate professional misconduct by the members of the procuratorate. It resulted in serious challenges to the performance of China’s procuratorial functions in terms of criminal litigation and the ability to supervise criminal litigation. To counter the potential impact and strengthen the procuratorate’s procuratorial functions, in response the Supreme People’s Procuratorate carried out three main reforms: (1) it restructured the procuratorate’s internal institutions and established four specialized criminal procuratorial departments; (2) it empowered one prosecutor with the authority to arrest and prosecute suspected criminals; and (3) it encouraged a system of detailed procuratorial sentencing recommendations. At the same time, the procuratorate developed internal and external supporting measures to ensure steady progress in procuratorial reform. To protect against potential external interference, the procuratorate promotes a more centralized management system. Internally, it has engaged in personnel reforms and made procuratorial recommendations.
{"title":"Something Lost, Something Gained: Changes in China’s Procuratorate in Response to the Reform of the National Supervision System","authors":"Xifen Lin, Wanqiang Wu","doi":"10.1163/25427466-07010002","DOIUrl":"https://doi.org/10.1163/25427466-07010002","url":null,"abstract":"\u0000China’s significant reform of the national supervision system in 2016 eliminated the general power to investigate professional misconduct by the members of the procuratorate. It resulted in serious challenges to the performance of China’s procuratorial functions in terms of criminal litigation and the ability to supervise criminal litigation. To counter the potential impact and strengthen the procuratorate’s procuratorial functions, in response the Supreme People’s Procuratorate carried out three main reforms: (1) it restructured the procuratorate’s internal institutions and established four specialized criminal procuratorial departments; (2) it empowered one prosecutor with the authority to arrest and prosecute suspected criminals; and (3) it encouraged a system of detailed procuratorial sentencing recommendations. At the same time, the procuratorate developed internal and external supporting measures to ensure steady progress in procuratorial reform. To protect against potential external interference, the procuratorate promotes a more centralized management system. Internally, it has engaged in personnel reforms and made procuratorial recommendations.","PeriodicalId":135002,"journal":{"name":"China Law and Society Review","volume":"51 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116253267","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-02DOI: 10.1163/25427466-20220001
Aaron Halegua
For over two decades, China has implemented a “legal preemption” strategy of encouraging workers to enforce their legal rights through litigation in order to preempt their tendency toward collective action. During most of this period, there was some space for unlicensed “barefoot lawyers” and labor nongovernmental organizations (ngo s) to provide meaningful assistance to workers by representing them in this litigation process. This article argues that even those limited openings for civil society participation in this area have narrowed as China’s legal preemption strategy has deepened: the government has sought not only to steer workers into the litigation process but also to control who represents them in that process and which tactics they may use. Specifically, the government ramped up its own legal aid programs, in which licensed lawyers beholden to the state represent workers, in order to squeeze out unregulated barefoot lawyers and labor ngo s. The article describes how and why this was done. The article then considers the implications of this transition for workers seeking legal representation and the future of China’s labor ngo s.
{"title":"The Deepening of Legal Preemption in China: Using Government Legal Aid to Demobilize Workers and their Advocates","authors":"Aaron Halegua","doi":"10.1163/25427466-20220001","DOIUrl":"https://doi.org/10.1163/25427466-20220001","url":null,"abstract":"\u0000For over two decades, China has implemented a “legal preemption” strategy of encouraging workers to enforce their legal rights through litigation in order to preempt their tendency toward collective action. During most of this period, there was some space for unlicensed “barefoot lawyers” and labor nongovernmental organizations (ngo s) to provide meaningful assistance to workers by representing them in this litigation process. This article argues that even those limited openings for civil society participation in this area have narrowed as China’s legal preemption strategy has deepened: the government has sought not only to steer workers into the litigation process but also to control who represents them in that process and which tactics they may use. Specifically, the government ramped up its own legal aid programs, in which licensed lawyers beholden to the state represent workers, in order to squeeze out unregulated barefoot lawyers and labor ngo s. The article describes how and why this was done. The article then considers the implications of this transition for workers seeking legal representation and the future of China’s labor ngo s.","PeriodicalId":135002,"journal":{"name":"China Law and Society Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130110210","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-30DOI: 10.1163/25427466-00302002
B. Rooij, Lian Na, Qi-liang Wang
Scholars and politicians often complain about how weak administrative law enforcement is in China. To better understand the challenges in law enforcement, as well as variation in actual practices and influences on such practices, the current paper analyzes Chinese pollution law enforcement data from the last two decades as well as in depth qualitative case studies of everyday enforcement practices. It finds that recently enforcement has become much more frequent and stricter. It finds that recent changes in national legislation, centralization reforms, increased citizen complaints, as well as enforcement campaigns all played a role in this. While this has helped strengthen enforcement, and maybe has played a part in recent pollution reductions, it has not fundamentally overcome structural enforcement impediments. The increased authority, independence, and pressure on environmental authorities for stricter enforcement, does not seem to be matched with sufficient investment in resource capacity and support for regular procedural enforcement practices. In addition, the ad-hoc pressure on enforcement has undermined regular legal procedure and stimulated greater socio-economic inequality. These findings about pollution enforcement force us to question simplistic static generalizations of administrative law enforcement and instead develop both large-scale studies that map change over time as well as in-depth case studies that provide a thorough picture of actual practices on the ground. Moreover, the paper concludes that a true picture of administrative enforcement must move beyond looking at the enforcement itself, to looking at how it arrives at the regulated companies and shapes their compliance.
{"title":"Punishing Polluters: Trends, Local Practice, and Influences, and Their Implications for Administrative Law Enforcement in China","authors":"B. Rooij, Lian Na, Qi-liang Wang","doi":"10.1163/25427466-00302002","DOIUrl":"https://doi.org/10.1163/25427466-00302002","url":null,"abstract":"Scholars and politicians often complain about how weak administrative law enforcement is in China. To better understand the challenges in law enforcement, as well as variation in actual practices and influences on such practices, the current paper analyzes Chinese pollution law enforcement data from the last two decades as well as in depth qualitative case studies of everyday enforcement practices. It finds that recently enforcement has become much more frequent and stricter. It finds that recent changes in national legislation, centralization reforms, increased citizen complaints, as well as enforcement campaigns all played a role in this. While this has helped strengthen enforcement, and maybe has played a part in recent pollution reductions, it has not fundamentally overcome structural enforcement impediments. The increased authority, independence, and pressure on environmental authorities for stricter enforcement, does not seem to be matched with sufficient investment in resource capacity and support for regular procedural enforcement practices. In addition, the ad-hoc pressure on enforcement has undermined regular legal procedure and stimulated greater socio-economic inequality. These findings about pollution enforcement force us to question simplistic static generalizations of administrative law enforcement and instead develop both large-scale studies that map change over time as well as in-depth case studies that provide a thorough picture of actual practices on the ground. Moreover, the paper concludes that a true picture of administrative enforcement must move beyond looking at the enforcement itself, to looking at how it arrives at the regulated companies and shapes their compliance.\u0000","PeriodicalId":135002,"journal":{"name":"China Law and Society Review","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125898140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-30DOI: 10.1163/25427466-00302001
Suzanne E. Scoggins
The study of policing in China is a small but growing subfield with critical insights for law and society scholars. This article examines the fundamentals of policing, tracing the organization’s history and institutional basics before turning to a review of the emerging literature. Scholars have made headway analyzing topics like policing practices, social control, public relations, and police perspectives, but there is still much work to be done. Partly because research on the police faces methodological challenges, the literature is uneven, leaving gaps in our knowledge about key issues such as police corruption, regional variation, and the relationship between police and private security groups. By outlining what we do and do not know about policing in China, this article parses the field’s best answers to questions of how police officers and the Public Security Bureau enforce state mandates and respond to challenges on the ground.
{"title":"Policing Modern China","authors":"Suzanne E. Scoggins","doi":"10.1163/25427466-00302001","DOIUrl":"https://doi.org/10.1163/25427466-00302001","url":null,"abstract":"The study of policing in China is a small but growing subfield with critical insights for law and society scholars. This article examines the fundamentals of policing, tracing the organization’s history and institutional basics before turning to a review of the emerging literature. Scholars have made headway analyzing topics like policing practices, social control, public relations, and police perspectives, but there is still much work to be done. Partly because research on the police faces methodological challenges, the literature is uneven, leaving gaps in our knowledge about key issues such as police corruption, regional variation, and the relationship between police and private security groups. By outlining what we do and do not know about policing in China, this article parses the field’s best answers to questions of how police officers and the Public Security Bureau enforce state mandates and respond to challenges on the ground.","PeriodicalId":135002,"journal":{"name":"China Law and Society Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122071544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-08-17DOI: 10.1163/25427466-00301002
Zhizhou Wang
Although the rise of China as an economic powerhouse has attracted considerable academic attention, until recently, the role of Chinese corporate lawyers in this age of economic prosperity and the growth of the Chinese corporate bar have been under-explored in the field. Over the last few years, a small but growing academic literature on Chinese corporate lawyers has started to appear and has shed valuable light on our understanding of the Chinese corporate bar in the era of globalization. Inspired by both U.S. theoretical paradigms and local practice patterns, this literature mainly focuses on the global-local dynamics of the Chinese legal profession and the Chinese corporate legal services market, investigating the relationship between the global diffusion of corporate lawyering and the local logics of the corporate law market. This article reviews this increasingly significant line of research and develops new inquiries about Chinese corporate lawyers.
{"title":"Global-Local Dynamics and the Rise of Chinese Corporate Lawyers","authors":"Zhizhou Wang","doi":"10.1163/25427466-00301002","DOIUrl":"https://doi.org/10.1163/25427466-00301002","url":null,"abstract":"Although the rise of China as an economic powerhouse has attracted considerable academic attention, until recently, the role of Chinese corporate lawyers in this age of economic prosperity and the growth of the Chinese corporate bar have been under-explored in the field. Over the last few years, a small but growing academic literature on Chinese corporate lawyers has started to appear and has shed valuable light on our understanding of the Chinese corporate bar in the era of globalization. Inspired by both U.S. theoretical paradigms and local practice patterns, this literature mainly focuses on the global-local dynamics of the Chinese legal profession and the Chinese corporate legal services market, investigating the relationship between the global diffusion of corporate lawyering and the local logics of the corporate law market. This article reviews this increasingly significant line of research and develops new inquiries about Chinese corporate lawyers.","PeriodicalId":135002,"journal":{"name":"China Law and Society Review","volume":"532 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123450813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-08-17DOI: 10.1163/25427466-00301001
E. Pils
The intensified and more public repression of civil society in China is part of a global shift toward deepened and technologically smarter dictatorship. This article uses the example of the ‘709’ government campaign against Chinese human rights lawyers to discuss this shift. It argues that the Party-State adopted more public and sophisticated forms of repression in reaction to smarter forms and techniques of human rights advocacy. In contrast to liberal legal advocacy, however, the Party-State’s authoritarian (or neo-totalitarian) propaganda is not bounded by rational argument. It can more fully exploit the potential of the political emotions it creates. Along with other forms of public repression, the crackdown indicates a rise of anti-liberal and anti-rationalist conceptions of law and governance and a return to the romanticisation of power.
{"title":"The Party’s Turn to Public Repression: An Analysis of the ‘709’ Crackdown on Human Rights Lawyers in China","authors":"E. Pils","doi":"10.1163/25427466-00301001","DOIUrl":"https://doi.org/10.1163/25427466-00301001","url":null,"abstract":"The intensified and more public repression of civil society in China is part of a global shift toward deepened and technologically smarter dictatorship. This article uses the example of the ‘709’ government campaign against Chinese human rights lawyers to discuss this shift. It argues that the Party-State adopted more public and sophisticated forms of repression in reaction to smarter forms and techniques of human rights advocacy. In contrast to liberal legal advocacy, however, the Party-State’s authoritarian (or neo-totalitarian) propaganda is not bounded by rational argument. It can more fully exploit the potential of the political emotions it creates. Along with other forms of public repression, the crackdown indicates a rise of anti-liberal and anti-rationalist conceptions of law and governance and a return to the romanticisation of power.","PeriodicalId":135002,"journal":{"name":"China Law and Society Review","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122016430","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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