China's Trapped Transition_ The Limits of Developmental Autocracy - Minxin Pei [40]
Specifically, the most important progress that China has made in legal reform is threefold: “law has been made a major instrument of governance, a legal framework for a marketizing economy has been created, and a judicial system has been constructed.”76 As a result, legal reform has greatly increased the role of courts in adjudicating civil, commercial, and administrative disputes. As indicated by the data on the rapid growth of commercial, civil, and administrative litigation, Chinese courts have assumed an indispensable role in resolving economic, social, and, to a limited extent, political conflicts (Table 2.2). A number of empirical studies on commercial and administrative litigation show that, despite its flaws, China’s legal system is capable of providing limited protection of property and personal rights.77 In addition, China’s legal profession, including judges and lawyers, has expanded rapidly during the reform era. The number of lawyers rose from a few thousand in the early 1980s to more than 100,000 in 2002. The number of judges nearly doubled from the late 1980s to the late 1990s. As measured by educational attainment, the qualifications of the legal profession have risen dramatically as well. The percentage of judges with a college or associate degree rose from seventeen in 1987 to forty in 2003.78 Of the 100,000 lawyers in 2002, 70 percent had undergraduate degrees and higher and 30 percent had only dazhuan (equivalent to an associate degree) or lower. The overall level of professional legal qualifications remains relatively low, however, especially when measured by Western standards.79
But behind these numbers lies a dilferent political reality. For all the progress in reform, China’s legal system remains politically hobbled by the ruling party’s restrictions. Legal reform was apparently losing momentum in the late 1990s. For example, the growth of civil and administrative litigation slowed in the late 1990s, peaked by 1999, and began to decrease afterward (Table 2.2). The total number of civil and commercial cases fell from more than 5 million in 1999 to about 4.4 million in 2002, a 12 percent decline in three years. Administrative litigation cases registered even more dramatic declines. After peaking in 2001, with 100,921 cases filed, the number of administrative lawsuits fell to about 80,000 in 2002, back to the level of 1996. Such broad and large declines in litigation may be indicative of the poor performance of the court system and the consequent erosion of the public’s confidence in the courts’ ability to adjudicate justly.
Table 2.2. Growth of Litigation, 1986-2002 (cases accepted by courts of first instance)
Sources:Zhongguo falü nianjian,various years.
Although there are no data available about the trial outcomes of civil cases, the trend of administrative litigation suggests that the decline in the number of lawsuits filed against the government maybe directly related to the increasing difficulty with which plaintiffs were winning these cases in courts, which in turn reflects the courts’ progovernment bias. For example, plaintiffs suing the government had an effective winning rate of 38.3 percent in 1993 (including favorable court judgments and settlements). This rate rose to 41 percent in 1996, but fell to 32 percent in 1999. By 2002, the rate plummeted to 20.6 percent, half the level reached in 1996.80 It is likely that the decreasing probability of receiving judicial relief through the administrative litigation process has discouraged many citizens from taking their cases to the courts.
The rapid growth of the legal profession has not led to the emergence of a genuinely independent bar or a well-trained judiciary.