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The
Two Faces of the People's Tribunals in Rural China I. Introduction In China's four-tiered system of courts, county-level courts occupy the lowest tier, hearing first instance criminal, civil, economic, and administrative cases. People's Tribunals are subdivisions of county courts, generally with their seats located in rural towns. According to the Organic Law of Court of the People's Republic of China, People's Tribunals hear simple civil and private-prosecution criminal cases for the convenience of local villagers to bring lawsuits and for ground-level courts to hear them.[1] Since 1996, as a member of the "Judicial System and Practice in China's Rural Area" Research Group, [2] I have conducted fieldwork with other group members in Anhui, Shaanxi, and Hubei provinces. The functioning of the People's Tribunals is one of my major concerns. People's Tribunals are the closest, formal legal institutions for Chinese villagers, both socially and geographically. For many village members, what the People's Tribunals demonstrate is what state law is and how it works. In turn, the people's vision of the law forms their basis for acceptance or rejection of the authority of state law. What I have found from my fieldwork is that the judges of the People's Tribunals have two faces, one with which they adjudicate or mediate disputes and the other with which they help the local Party and Government units in administrative, political and economic-but not necessarily judicial-tasks (e.g. collecting taxes, imposing birth control policy, and eliminating poverty). This article examines the two faces of the People's Tribunals. Part Two of this paper discusses two cases that I observed in 1996. Part Three of this paper explains how the network of power relations in which the People's Tribunals are embedded might account for the two faces of the People's Tribunals. In conclusion, I will briefly discuss what the current situation could mean for further legal reforms in China. II. Two Cases a. Case A Aug 14, 1996. K People's Tribunal, Qianyang County, Shaanxi Province. I went there with Mr. Z, the deputy president of Qianyang County Court, who was in charge of the civil tribunal at the county court and all the four People's Tribunals all over the county, and Mr. Q, the head of the civil tribunal at the county court, who was an expert in civil adjudication matters. K was the second People's Tribunal whose work vice president Z would examine. This was a mid-year routine examination. Since civil tribunals at county courts assume the supervision responsibility for the People's Tribunals, Mr. Q had to take part in that examination too. K tribunal was set up in 1982, with two associate judges and two clerks. Mr. M, the head of the tribunal, reported to Mr. Z that they had accepted fifty lawsuits from January through August, with forty-six concluded. The categorizations and outcomes of those suits were as follows: Divorce: twenty-six cases were accepted, and twenty-five were concluded, among which three were decided by judgment, twenty-one were settled by mediation, and one was withdrawn by one party. Compensation for property damage or personal harm: thirteen were accepted and eleven were concluded, among which five were decided by judgment (one was appealed to the intermediate court by one party), four were settled by mediation, and two were withdrawn by the parties. Delay of payment in sale contracts: four were accepted and three were concluded, among which two were decided by judgment, and one was settled by mediation. Property claim disputes: three were accepted and three were concluded, all of which were settled by mediation. Monetary obligation: four were accepted and three were concluded, among which two were decided by judgment, and one was settled by mediation; Dissolution of adoption: one was accepted and settled by mediation. The case being heard that afternoon was the yet undecided monetary obligation dispute mentioned above. That case seemed difficult and a collegiate bench was deemed necessary. According to the Article Forty of the Civil Procedure Code of 1991, a collegiate bench must be made up of three judges or people's assessors. So in K tribunal justice by a collegiate bench could not be carried out until the county court sent a judge. The arrival of Judge Q made a collegiate bench possible. At 12:30 pm, a collegiate bench was set up; Mr. M, the head of K People's Tribunal or Chief Judge, sat as the presiding judge, as the Article Forty-two of the Civil Procedure Law provided. There were no other visitors sitting in the courtroom except for me, for it was not a market day. The session lasted for two hours. The plaintiff, a farmer in his thirties, was the former son-in-law of the defendant. He claimed that the defendant owed him RMB 3,000 yuan ($360) and refused to repay. The defendant, a farmer in his sixties, denied the allegation. No lawyers represented them. In fact, the town had no lawyers. People had to hire lawyers from the county seat when they were needed. The only witness, a farmer in his sixties, was a remote relative of both parties. Having confirmed the identities of the parties and the witness, the bench told the witness to step out of the courtroom and began to interview the two parties. The clerk began to record by pen. The plaintiff told a detailed story, which is to be outlined as follows: The relationship between the plaintiff and his ex-wife was troubled. One day in November 1995 (Chinese lunar calendar), after a quarrel, his ex-wife went to her parents' home. The defendant asked him to lend RMB 3,000 yuan when the plaintiff went to ask his wife to come home. The plaintiff said he had no choice but to agree under those circumstances. On November 13, 1995, accompanied by the witness, who was then acting as a middleman, the plaintiff went to the defendant's home and handed over RMB 3,000 yuan to the defendant after the middleman counted the money. There were twenty-nine one-hundred-yuan bills and ten ten-yuan bills altogether. The plaintiff said the defendant was not his father-in-law anymore since he had divorced his wife and therefore there was no reason for him to keep the money. The bench had no interest in the plaintiff's resentment against his ex-wife and his former father-in-law and interrupted him several times. But the plaintiff's last account regarding the number of the bills seemed to grasp the attention of the Judge Q. He began to preside over the hearing after Judge M stepped out of the courtroom to order a lunch banquet (Judge M didn't come back until the end of the session). The witness was bought to court. What the witness said was almost identical to the account of the plaintiff. There were twenty-nine one-hundred-yuan bills and ten ten-yuan bills, and it was he who counted the bills and handed them over to the defendant. But Mr.Q quickly found that the witness's oral testimony conflicted with what he had said a week ago, when a clerk went to his home to collect evidence. At that time he said he had not counted the bills before the plaintiff handed them to the defendant. Asked again and again, the witness changed his words and claimed that what he had said a week ago was the truth. When being asked why he went back on his word, he explained that he heard the detailed number of the bills when he was standing outside the courtroom a moment earlier. The witness' change of his testimony made the case even more complicated, and the fact that the bench failed to place the witness far enough from the courtroom might have constituted some kind of procedural imperfection. The session had to be closed. At lunch, Judge Q said a judgment based on such an inconsistent testimony would surely be overturned by the appellate court for insufficient evidence and unclear facts. He advised the tribunal to check the records of the Credit Cooperative of the town and the local Agriculture Bank to determine whether the plaintiff had withdrawn money before November 13, 1995. He also suggested that the case be submitted to the Trial Committee of the County Court for further consideration. b. Case B November 18, 1996. B People's Tribunal, Hengshan County, Shaanxi Province. When we arrived at B town in the morning, Mr. G, the head of B People's Tribunal, was about to leave for a village fifteen kilometers away to handle a case, the first case in the campaign of "Collecting Bank Loans According to Law." In the winter of 1994, the first "Collecting Bank Loans According to Law" campaign was launched and achieved great success. Many farmers repaid their loans owed to the local state-owned Agriculture Bank and the collectively owned Rural Credit Cooperative, according to Mr. B, the director of the local Rural Credit Cooperative. Since both the Agriculture Bank and the Credit Cooperative are assets of the state, People's Tribunals must take part in the campaign and "use law as a weapon" to deal with those who refused to repay, supporting the "central task" of the Party and the Government with actions, said Mr. G. Mr. B also invited a policeman of the town police station and the director of the town business department of the Agriculture Bank to take part in his mission. He rented a van for transportation and paid everyone's breakfast bill. On
the way to the village, we asked Mr. G some standard questions.
Mr. G told us that B People's Tribunal was established in
1982 and had one associate judge (Mr. G) and two clerks. Mr.
G, in his forties, had been a railway policeman before he
came to B tribunal in 1986. The two clerks were young men
who had just graduated from the Judicial School of Shaanxi
Province. At the entrance of the village, the team met the secretary of the Communist Party branch of that village, who led their way to the debtor's home. The debtor was a fifty-nine years old farmer, living with his wife at the edge of the village. On November 28, 1987 and March 19,1988, he took two loans from the Credit Cooperative of the town in the amounts of RMB 150 yuan ($21) and RMB 100 yuan ($12) respectively. At that time, it was difficult for ordinary people to obtain loans from financial institutions. So it was the village government that obtained loans and then distributed them to those households who had needs. Nevertheless, the legal relation seemed clear enough. The debtor was the villager and not the village government. After nine years, the sum of the principle and interest had reached RMB 711.05 yuan ($86). However, the issue of limitation of action had never been raised by judge G or anyone else. The General Principles of the Civil Law of the People's Republic of China (1986) provides that the period within which limitation of action can be imposed by courts for protection of civil rights shall be two years. That means that the people's court shall not take actions that fall out of the specified time period. [3] It took the team half a day to use all means to threaten and persuade the debtor to borrow money from relatives and other villagers to repay the loans. Jiang Shigong and I made detailed analyses of that process in two separate articles. [4] At last, the team succeeded in collecting the RMB 711.05 yuan loan, and Judge G charged the debtor 50 yuan for case handling. On July 15,1997, when Jiang Shigong, a member of our fieldwork group, went to the B People's Tribunal for further investigation, he found that the case was later marked up by Judge G as a normal money obligation case in the case files: Bill of Mediation Time:
November 18, 1996 B: The defendant, W, borrowed from B Credit Cooperative RMB 150.00 yuan on November 28, 1987, and 100 yuan on March 19, 1988. The sum of the principle and interests are 250 yuan. The defendant has not repaid them ever since. Now the sum of the principal and interests has reached 711.05 yuan. What I request is that the defendant repay the principle and interests in lump sum. G: The defendant, please reply. W: What the plaintiff said is true. I took two loans from B Credit Cooperative, the sum of which was RMB 250 yuan. The reason why I have not repaid is that I am too poor to be able to do that. Now I've got some money and agree to repay some of it. G: Now that the plaintiff and defendant have presented their statements, the facts are clear. Do both of you agree to a mediation? B: I agree. W: I agree. Now the parties reach an agreement voluntarily through Judge's mediation: The principle and interests that the defendant owed to the plaintiff amount to RMB 711.05 yuan, and the defendant shall repay them in lump sum on the spot. The defendant will also be charged 50 yuan for handling the case. B (B's fingerprint) W (W's fingerprint) G (signature) As a participating observer, I observed that the bill of mediation was more a fiction than a record of fact. The policeman disappeared, recorder L was never seen by us on the spot, and Mr. G seemed to me more like a member of the creditor's team than an impartial judge. III. The Relational Network in Which the People's Tribunals Are Embedded The People's Tribunals are embedded in a complex power relationship. On the one hand, they are the county courts. On the other hand, they are parts of the Party and the Government of the towns where they are located. According to the Organic Law of the People's Courts, the People's Tribunals are components of the ground-level people's courts, and their judgments and rulings shall be considered having equal legal authorities. In the case A mentioned above, what we have seen is just a vision as the law says. In the later fieldwork investigations we got to know, as a dispatched organ of the county courts, the People's Tribunals must get the approvals from a vice president of the county court who is in charge of civil adjudication before they can issue formal ruling. All written decisions must be officiated as decisions of the county court, and any difficult or controversial cases must be submitted to the Trial Committee of the county court, whose decisions must be respected strictly. Due to needs for frequent communications with the county court, the transportation and phone expenses are always a large part of the running expenses of the People's Tribunals. In this respect, the behavioral pattern of people's tribunal as a judicial organ is not much different from that of the civil tribunal at the county court. According to our interview with more than two hundred ground-level judges at the Central-South Political Science and Law University, where a judicial education program was being held, most ground-level judges, whether they serve in county courts or in People's Tribunals, hardly see any contradiction or ambiguity in the laws. What they are concerned about the most is the facts of the cases, not the meanings of the laws. "Clear facts" refers to the situation where the vice president of the county court who was in charge of the People's Tribunal, the trial committee, and the upper-level courts could not find any inconsistency in testimony or insufficiency in evidence in the case files. They spend most of their time on investigating evidence, collecting testimonies, and arranging case files rather than on legal reasoning and argument. A qualified judge is one who knows how to prepare the case files correctly. In the bill of mediation of the case B, the name of the recorder was actually the name of a People's Assessor, who did not taken part in that case at all. But law required that the one who presides mediation do not do recording work, so Judge G had to make up an absent recorder. From the viewpoint of Judge G, the narrative of the bill of mediation did not need to tell the truth of what actually happened but must comply with what the law required. The People's Tribunals are at the lowest level in the Chinese hierarchy of judicial bureaucracy. For the judges of the People's Tribunals, law is merely the orders of those who hold higher positions, regardless of whether they are from legislative or administrative bodies or upper-level courts. They must execute these orders in doing their jobs. This is one characteristic of the judges of the People's Tribunals. On the other hand, the People's Tribunals judges are not only judges, but the enforcement officers of the town government, endowed with the option to use violence to help carry out the tasks of the town government. The Chinese Constitution and the Organic Law of Local People's Congresses require that people's courts must be subjected to the supervision of the People's Congress at the same and upper levels. The Organic Law of People's Courts provides that the People's Tribunals must supervise the People's Mediation Committees. These are the relationships between the People's Tribunals and other local governing bodies as formally defined by the law. But as far as our fieldwork investigations could show, there is no evidence that the People's Congresses and their Standing Committees at town level make any serious efforts in supervising the People's Tribunals. In the case A, the Chairman of the Standing Committee of the People's Congress of K town later appeared at the banquet table, playing host to all the officials including me. I was from Beijing, the capital of the county, although I was just a graduate student without any power. On the other hand, the People's Mediation Committees have long ceased to exist but in name in most rural areas. In other words, the local relation that the law established does not have significant effects in practice. For the People's Tribunals, the relationships with the Party Committee and the Government of the town are what really matter. Since the middle of the 1980s, due to the increasing shortage of funds available to county courts, more and more People's Tribunals must financially depend on the support of town governments. In return, they must provide help to fulfill the "central tasks" of the local government when they are being asked to do so. This is the case in B town. The wages of judges and clerks and most of the expenses are provided by the town government. In another People's Tribunal of the same county, we heard that the judges could not receive their wages on time because they failed to levy enough fines on those villagers who violated the birth-control policy. In K town, the wages of judges and clerks and the expenses were allocated by the county government, for the financial situation of the town government was even worse. When I was there, the judges and clerks had not received their wages for July, while the cadres of the town government, including the chairman of the Standing Committee of the town's People's Congress had not received their wages for two months. Roughly speaking, the financial dependence of the People's Tribunals on town governments began at the time when the "Construction of Courtrooms and People's Tribunals" policy was implemented in the 1980s. The basic infrastructure of a People's Tribunal includes a courtroom, an office, a dormitory, a reception room, and a storeroom, which were deemed as unnecessary from the traditional point of view of the "Ma Xiwu" adjudication mode. It was Ma Xiwu who in the 1940s invented the classical adjudication mode for the people's courts, i.e., dispatching itinerant tribunals to hear cases on the spot. A courtroom is not needed for this kind of justice, either; judges can summon a session anywhere. Ma Xiwu's methods were questioned and were subject to reforms in the 1980s. One critique was that Ma Xiwu's way sacrificed efficiency and fostered deviation from the law. The modernization of the judiciary seemed to mean that some infrastructure must be available in advance, and a courtroom is part of that infrastructure. Without courtrooms formal legal trial procedures could not be carried out. In K town and B town, there were well built courtrooms. However, the central government did not provide sufficient funds for the construction of courtrooms and People's Tribunals. In 1990, the National Tax Bureau exempted construction taxes for the construction of courtrooms and the People's Tribunals. In 1992, the National Planning Committee appropriated RMB 6 million yuan ($0.75 million) to construct more courtrooms and People's Tribunals. To date that is all that the central government has done. Local governments at all levels have shouldered the largest part of the construction bill. A new notion about courts' positions, which cannot be found in any organic law, developed during this period. This notion is that while the courts belong to the State, they also belong to the local governments. Since local governments support courts through providing infrastructure and funding for day-to-day operations, courts must in turn help local governments with their "central tasks." That means that courts and judges must sacrifice some of their neutrality. In the 1980s, what the ground-level courts-including People's Tribunals-did for local government was to undertake campaigns such as "Severely Cracking Down on Crimes" and "Comprehensive Treatment of Social Order." In the 1990s, the central tasks of the governments at all levels were economic development, so what courts should do is to "escort the economic development," within or beyond their responsibilities. "Collecting Bank Loans According to Law" is surely one example. In one word, the reason why People's Tribunals present us with two faces is that they are embedded in such a network of power relations between the county-level courts, which supervise their jobs, and the local Party Committees and governments, which support them financially. This is the dilemma of People's Tribunals. Under some circumstances, they must cover up some unlawful actions and do that by making up the case files, as did Judge G. IV. Concluding Remarks An Education and Rectification drive was initiated in China in the second half of 1998, as a result of the increasing complaints of the public and the continuing criticism by the media of the corruption and unlawfulness of the juridical branches. On July 15, 1999, the Supreme People's Court promulgated the Regulatory Measures Regarding Several Problems of People's Tribunals, which prohibited People's Tribunals from taking part in the law enforcement activities of local governments. According to our interviews with ground-level judges in 2000, some ground-level courts have changed their behaviors to adapt to the new environment. For example, courts may use orders-of-payment procedure in helping collect bank loans rather than directly taking part in the collecting effort. When a debtor fails to repay, courts and People's Tribunals may use coercive measures lawfully pursuant to the Civil Procedure Law. [5] We were shocked when we heard that a People's Tribunal judge issued more than three hundred orders of payment to the debtors of a village in an afternoon, and collected for himself hefty litigation fees. In one word, the specific acts of the courts and People's Tribunals may change and become more legitimate than before, but the ideology of "legal instrumentalism" behind their way of acting may remain unchanged. In China, law has long been regarded as a tool to implement the will of the ruling class, as the Marxist ideology taught, rather than as a mechanism to tame the arbitrary will of the ruling class. What the Chinese rulers have accepted ever since is the notion of rule by law, not that of rule of law. [6] Some twenty years ago, Chinese society was governed by the Party's policies and administrative orders. Now more and more legal procedures and legal devices are adopted besides the traditional strategy. Of course it makes a difference. But the most important value of rule of law must not be forgotten, that is, to tame the ruler. Law as a new art of ruling may contribute to the legality of the regime, but there is also the possibility that the law itself will be corrupted in the ruler's hands. Nevertheless, as Case A has shown to us, law has played a role in resolving private disputes in China, which is significant progress compared with the situation twenty years ago. But once the interests of the Party and the Government are involved in a case, it is difficult for judges to keep their independence. This is what case B tells us. We cannot expect that Chinese villagers will trust such a court system with a split personality. In reality, only a few people could tell the difference between the People's Tribunal and the police station. In the eyes of many villagers, the People's Tribunals and police stations are both organs of the government authorized to use violence. Courts and judges have long been seen as a symbol of violence, not a symbol of justice. This view is still popularly held in the Chinese countryside. It will be difficult for the concept of rule of law to take root in the midst of this deep distrust. I believe that what must come next for legal reforms in China is to discipline the governments at all levels by subjecting them to the rule of the law and to create an independent judiciary. This is a tough, if not impossible, task that lies ahead. Endnotes: [1] See The Organic Law of People's Court of PRC (1983), Article 20; Regulatory Measures Regarding Several Problems of People's Tribunals (1999), Supreme People's Court. [2] The group was led by Professor Suli Zhu of Peking University Law School and was financially supported by Ford Foundation. The most comprehensive product was Professor Suli Zhu' s new book, Bring Law to the Countryside (Song Fa Xia Xiang) published by Chinese Political Sciences and Law University Press, 2000. [3] The General Principles of the Civil Law of the People's Republic of China (1986), Article 135. Unless otherwise stipulated by law, the period within which limitation of action can be imposed by courts for protection of civil rights shall be two years. [4] Jiang Shigong (1997). "How Law is Practiced (Falv Shi Ruhe Shijiang de)?" Working Paper (in Chinese); Zhao Xiaoli (1997). "Relation/Event, Strategy of Actions, and the Narrative of Law (Guanxi/Shijian, Xingdong Celue, He Falv de Xushi). Working Paper (in Chinese). [5] There are some provisions of the Civil Procedure Law (1991) regarding the order of payment: Article 189. A creditor may request the people's court at the grassroots level to issue an order of payment to a debtor, ordering the latter to repay the money or negotiable securities owed to the creditor, provided that the following conditions are met: 1) There are no other disputes involving debts between the creditor and the debtor; and 2) the order of payment can reach the debtor. The letter of request shall specify the amount of money or negotiable securities to be paid and the facts and proof on which the request is based. Article 190. The people's court shall, within five days of the receipt of the request, notify the creditor whether it accepts the case or not. Article 191. Where the people's court finds the creditor's rights and the debtor's liabilities clear and legitimate after investigating the facts and proof provided by the creditor, it shall issue an order of payment to the debtor within 15 days of the acceptance of the request from the creditor; where the request is untenable, it shall render a ruling rejecting the request. The debtor shall pay off the debt within 15 days after the receipt of the order of payment or raise objections in writing to the people's court. Where the debtor fails to raise objections in writing and refuses to carry out the order of payment, the creditor may request the people's court to execute the order. Article 192. The people's court shall render a ruling to terminate the supervising and pressing procedure upon receipt of the objection raised by the debtor in writing, and, with it, the order of payment shall automatically cease to be in force and the creditor may bring a suit. [6] The Article 5 of the Constitution of the People's Republic of China stipulates that "the People's Republic of China is ruled in accordance with the law and with a view to building a socialist country of law." (The author is an Assistant Professor of Peking University Law School and a Visiting Fellow at the Graduate School of Arts and Sciences of Harvard University (2001-2002). This article was presented to "China Legal Reform" workshop at the China Law Center, Yale Law School, on October. 16 2001. The author would like to thank Prof. Paul Gewirtz, Mr. Jonathan Hecht, Prof. Donald Clarke, Prof. Shigong Jiang and other participants of the workshop for their valuable comments and discussions. All mistakes are solely the author's.) |