e-magazine
Quake Shocks Sichuan
Nation demonstrates progress in dealing with severe disaster
Current Issue
· Table of Contents
· Editor's Desk
· Previous Issues
· Subscribe to Mag
Subscribe Now >>
Expert's View
World
Nation
Business
Finance
Market Watch
Legal-Ease
North American Report
Forum
Government Documents
Expat's Eye
Health
Science/Technology
Lifestyle
Books
Movies
Backgrounders
Special
Photo Gallery
Blogs
Reader's Service
Learning with
'Beijing Review'
E-mail us
RSS Feeds
PDF Edition
Web-magazine
Reader's Letters
Make Beijing Review your homepage
Hot Links

cheap eyeglasses
Market Avenue
eBeijing

Nation
Print Edition> Nation
UPDATED: November 28, 2011 NO. 48 DECEMBER 1, 2011
Straightening out Legal Procedures
China's top legislature mulls giving the green light to class action litigations
By YIN PUMIN
Share

POSSIBLE TARGET: Heavy smoke from a factory in Yulin, Shaanxi Province, on January 15, 2010. The draft amendment to the Civil Procedure Law gives civil organizations the right to file litigation against violators of the public interest (TAO MING)

On October 19, the intermediate court in Qujing, Yunnan accepted a class suit filed by Friends of Nature and the local environmental protection bureau against a chemical plant that is said to have illegally dumped more than 5,000 tons of highly toxic heavy metal in three townships in the city.

"Allowing civil organizations to initiate class action litigation may cause a rush of lawsuits, so a judicial interpretation providing details on how this article should be applied is necessary," Wang said.

Litigants' rights

"The draft amendment has expanded litigants' rights, in the hope of reducing the difficulties in filing a suit, collecting evidence and appealing," said Tang Weijian, a professor at the Law School of Beijing-based Renmin University of China.

According to Tang, the procedural demands of China's legal system make it difficult for litigants to proceed successfully.

In order to solve the problem, the draft amendment stipulates that "courts shall ensure litigants' rights to sue according to the law and shall make a written order within seven days to inform the litigants if their complaints are rejected. The litigants, if not satisfied with the order, may file an appeal."

"The stipulation sets out rules to protect the litigant's right to sue. It is big progress for the Civil Procedure Law," said Hong Daode, a professor at the Criminal Justice College of China University of Political Science and Law in Beijing. "It will further standardize courts' filing procedures and raise their prestige."

Despite this, Tang said that many of the other rights of litigants, such as the right to appeal and to access to judicial assistance, should also be protected.

Collecting evidence has long been a challenge for claimants in China. The current Civil Procedure Law stipulates a party shall have the responsibility to provide evidence in support of its own propositions, but it is often difficult for litigants to gather enough evidence.

"Hence the right to judicial assistance should be consistent," he said, also proposing the enactment of a civil evidence law as a possible solution.

Concerning the right to appeal, Tang suggested the establishment of a system that allows people to appeal to procuratorates instead of courts. "If the procuratorate considers a court ruling wrong and decides to lodge a protest, the court must retry the case and prosecutors will oversee the process," he said.

Small claims

Another highlight of the draft amendment is a new article about small claims cases. The article reads that when a primary-level court or a circuit tribunal sent by a primary-level court hear a civil case involving less than 5,000 yuan ($732.06), its ruling shall be considered final and cannot be appealed to a higher-level court.

Currently, China adopts the system where the second instance is the final instance when dealing with civil lawsuits. If a party refuses to accept the ruling of first instance at a local court, he or she can file an appeal with the court at the next higher level to start the second instance. Hence, the implementation of the small claims procedures will mean a change of judicial hierarchy.

In recent years, with the number of civil lawsuits rising quickly, local courts have struggled to deal effectively with the volume of cases.

"Although the current Civil Procedure Law contains provisions on summary procedures, it remains too complicated to resolve small disputes efficiently in practice," said Xiao Jianguo, a professor at the Law School of Renmin University of China.

Supporters of the proposed reform hope it will help simplify litigation procedures and save judicial resources.

However, Xiao warned, a simple provision cannot solve all the problems concerning small claims cases and may have negative effects.

Small claims cases are often traffic accidents, medical torts and personal injury claims. In these cases, both parties are usually ordinary citizens.

According to the current law, both parties of a civil lawsuit can reach a settlement if they accept the conciliation plan proposed by the court. As a result, small claims cases were solved by conciliation or on-scene investigations.

"Once the system of first instance being final is brought into operation, courts may not be willing to push both parties to reconcile," Xiao said.

In addition, according to the proposed small claims procedures, a party who raises an action is obliged to provide evidence in support of his allegations. But Xiao believes it is hard for an ordinary individual to collect enough evidence, so the stipulation may intensify conflicts between involved parties.

"The law should give litigants of small claims lawsuits the right to appeal. It is a necessary judicial right for them," he said.

   Previous   1   2  



 
Top Story
-Too Much Money?
-Special Coverage: Economic Shift Underway
-Quake Shocks Sichuan
-Special Coverage: 7.0-Magnitude Earthquake Hits Sichuan
-A New Crop of Farmers
Related Stories
-Democracy Is the Way
-Refining the Laws on Procedure
-Rule of Law
-Disputes Solved Differently
 
Most Popular
在线翻译
About BEIJINGREVIEW | About beijingreview.com | Rss Feeds | Contact us | Advertising | Subscribe & Service | Make Beijing Review your homepage
Copyright Beijing Review All right reserved