Dispute Resolution in the People’s Republic of China

The Evolving Institutions and Mechanisms

Dispute resolution reforms in China in the last decade or so have all centred around the strategy of establishing an integrated dispute resolution system as part of China’s modern governance system. This new integrated system, referred to as the ‘Mechanism for Pluralist Dispute Resolution (PDR)’ in China, serves as a dispute resolution system as well as a comprehensive social control mechanism. This book is the first academic attempt to explain the methods of civil and commercial dispute resolution in China from the perspective of PDR. It systematically and critically examines the development of China’s dispute resolution system, with each chapter analysing in detail the development and transformation of the different institutions, mechanisms and processes in their historical, politico-economic and comparative context.

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Zhiqiong June Wang, Ph.D. (UNSW), is Associate Professor of Law, Western Sydney University, Australia. She specialises in commercial law, comparative law and Chinese law. Prior to her joining academia, she was a practising lawyer in China. She has published widely on Chinese law, as well as on law, technology and legal education.

Jianfu Chen, Ph.D. (Sydney), is Professor of Law, La Trobe University, Australia. He is also an arbitrator with the China International Economic and Trade Arbitration Commission. He has published widely on Chinese law and international trade law.
Preface and Acknowledgements
Abbreviations
Introduction
1 Legal Culture and Historical Development of Law
 1 Introduction
 2 History as Legacy and Legacies of History
 2.1 History and Tradition in Context
 2.2 Confucianism
 2.3 Legalism
 2.4 Practical Politics—Confucianisation of Law
 2.5 The Legacies of History
 3 Evolution and Revolution
 3.1 Efforts towards Westernisation of Law
 3.2 Efforts Tilted towards Modernisation of Law
 4 Socialist Legality and Socialist Legacies
 4.1 From Socialist Legality to Legal Nihilism
 4.2 From Legal Instrumentalism to the Rule of Law
 4.3 The Return of Legal Instrumentalism
 4.4 Chinese Law at a Crossroads
 5 Concluding Remarks
2 Legal Institutions: The Political and Constitutional Setting
 1 Introduction
 2 Separation of Powers and the Integration of Party and State
 3 Party Control over Institutional Setup and Personnel: The Chinese NomenklaturaSystem
 4 Party Control over Legal Institutions: The Politico-legal Committees
 5 Legal Institutions under the Chinese Constitution
 6 Administrative Responsibilities for Justice and Law
 6.1 An Overview
 6.2 The Ministry of Justice and Its Evolving Functionality
 6.3 Judicial Examination/Qualification Examination for Legal Professions
 7 Concluding Remarks
3 Judicial Institutions
 1 Introduction
 2 Judicial Development and Reforms: The struggle for status, prestige and identity
 2.1 Judicial Development and Reforms in Context
 2.2 The New Round of Reforms
 2.3 The Consolidation of Reform Results
 3 Organisation and Structure
 4 Judges and Other Personnel of the People’s Courts
 5 The People’s Procuratorates and Civil Dispute Settlement
 6 Concluding Remarks
4 The Legal Profession
 1 Introduction
 2 Lawyers and Legal Practice
 2.1 The (Incomplete and Hesitant) Transformation of Lawyering as a Profession in China
 2.2 Lawyers: Qualification, Business Scope and Limitations
 2.3 Law Firms
 2.4 Lawyers’ Associations and the Ministry of Justice
 2.5 Foreign Lawyers and Foreign Law Firms in China
 3 Notary System and Authentication
 3.1 The Transformation has Just Started
 3.2 Qualifications, Establishment and Scope of Business
 4 Concluding Remarks
5 Negotiation and Mediation
 1 Introduction
 2 Negotiation/Consultation
 2.1 Overview
 2.2 Cultural Context and the Limit of Cultural Influence
 2.3 The Essence of Negotiation: Trade-off and Due Diligence
 3 Mediation/Conciliation ( Tiaojie/Hejie)
 3.1 Historical Development of Mediation in China
 3.2 An Ever-Expanding Scope and Increasing Importance of Application
 3.3 People’s Mediation
 3.4 Administrative Mediation
 3.5 Mediation in Arbitration
 3.6 Institutional Mediation/Conciliation
 3.7 Court Mediation
 4 Concluding Remarks
6 Arbitration
 1 Introduction
 2 The Historical Development of Arbitration in China
 2.1 The Introduction of Arbitration to China
 2.2 The Resumption of Domestic Arbitration in Post-Mao China
 2.3 Rapid Development and the New Regime of Arbitration in China
 3 A National Arbitration Framework
 3.1 The Legal Framework and Underlying Principles
 3.2 Arbitration Commissions and Ad Hoc Arbitration
 3.3 The China Arbitration Association, and Arbitrators
 3.4 Arbitration Processes
 3.5 Arbitration Awards, Judicial Review and Enforcement
 3.6 Foreign-Related Arbitration and the Internationalisation of Arbitration
 4 The CIETAC and Arbitration by CIETAC
 4.1 The CIETAC as an Arbitration Commission
 4.2 The Main Features of CIETAC Arbitration
 4.3 Specialised Arbitration
 5 Administrative Arbitration
 6 Concluding Remarks
7 Civil Litigation
 1 Introduction
 2 Historical Development of Civil Litigation in China
 3 Civil Procedure Law and Rules
 3.1 Overall Legal Framework and General Features
 3.2 Jurisdiction
 3.3 Commencement and Pre-trial Preparations
 3.4 Evidence
 3.5 Trial Process
 3.6 Damages, Preservation Measures and Statutory Limitations
 3.7 Special Rules on Foreign-Related Litigation
 3.8 Execution of Judgments and Rulings
 4 False Litigation
 5 Concluding Remarks
8 Enforcement of Judgments
 1 Introduction
 2 ‘ Zhixing Nan’—A Political, Economic, Socio-legal Phenomenon
 3 Evolving Legal Mechanisms for Enforcement
 4 Execution of Judgments, Rulings and Decisions
 5 Enforcement of Foreign Judgments
 6 Concluding Remarks
Conclusion
Select Bibliography
Legislation and Policy Documents
Index
Academics and students interested in Chinese law and society, and legal practitioners and business persons involved in Chinese law and international trade and investment law.