Judicial Independence in China Lessons for Global Rule of Law Promotion 1st edition by Randall Peerenboom ISBN 0521137349 978-0521137348

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ISBN 10: 0521137349
ISBN 13:  978-0521137348
Author: Randall Peerenboom

This volume challenges the conventional wisdom about judicial independence in China and its relationship to economic growth, rule of law, human rights protection, and democracy. The volume adopts an interdisciplinary approach that places China’s judicial reforms and the struggle to enhance the professionalism, authority, and independence of the judiciary within a broader comparative and developmental framework. Contributors debate the merits of international best practices and their applicability to China; provide new theoretical perspectives and empirical studies; and discuss civil, criminal, and administrative cases in urban and rural courts. This volume contributes to several fields, including law and development and the promotion of rule of law and good governance, globalization studies, neo-institutionalism and studies of the judiciary, the emerging literature on judicial reforms in authoritarian regimes, Asian legal studies, and comparative law more generally.

Judicial Independence in China Lessons for Global Rule of Law Promotion 1st Table of contents:

1 Introduction

Why study judicial independence in china?

Chapter synopses

Key issues and findings

From Substance to Process

Judicial Independence and Its Limits

Economic Growth

Judicial Independence, Corruption, and Good Governance

Whither china? recent debates over the role of the judiciary and the way forward

2 Halfway Home and a Long Way to Go: China’s Rule of Law Evolution and the Global Road to Judicial

Global judicial integrity principles and best practices

Key Implementation Challenges: A Methodology for Judicial Reforms

Implementation of the jip in china

Judicial corruption

Key policy recommendations

Conclusion

3 A New Approach for Promoting Judicial Independence

What is wrong with global standards? the denial of culture and politics

From an individual legal approach to a collective political approach

Conceptualizing the Independence of the Judiciary as a Political Struggle

Paying Attention to Power Relations within the Judiciary

A results-oriented approach rather than a formalistic approach

The Idea of Separation of Powers

Judicial Independence Grows with Individualism

Why Are Judges Willing to Be Independent?

Judges as Political Actors

The Ambiguity of Rule of Law and the Implications for Judging: Which Ends Do Independent Judges Serv

Analyzing local bad habits rather than praising global best practices

Visibility as a Political Task

A problem-sharing approach rather than a model approach

Remove Shame about the Miscarriage of Justice

There Is Not One Model but Several Ways to Translate Common Principles into Reality

Conclusion

4 The Party and the Courts

Locating the party

The problem of reference: from abstract ideals to pragmatic assessment of actual consequences

A new model for studying china

Conclusion

5 Judicial Independence in China: Common Myths and Unfounded Assumptions

Judicial independence

Collective, personal, internal, and decisional independence in china

Collective Independence

Personal Independence

Internal Independence

External independence in china

The Party’s Influence on the Judiciary

People’s Congresses and the Judiciary

Local Governments and the Judiciary

The Procuracy, Public Security, and Police

The Relation between Higher and Lower Level Courts

Social Pressures

Summary conclusions

Policy recommendations

6 A New Analytic Framework for Understanding and Promoting Judicial Independence in China

The analytical framework

Types of Cases

Sources of Interference

Impact of Interference

Some Qualifications and Caveats

Summary of Results

Detailed discussion of each type of case

Pure Political Cases

Politically Sensitive Socioeconomic Cases

Politically Sensitive Class-Action or Multiple-Plaintiff Suits

Politically Sensitive New Economic Cases

Criminal Cases

Civil Cases

Labor Cases

Administrative Cases

Conclusion

7 Judicial Independence and the Company Law in the Shanghai Courts

The new justiciability of the company law

Corporate law in the people’s courts: autonomy and independence

Implications of the 2006 Company Law

Competence, Autonomy, and Independence Differentiated

Judicial independence

Determining Political Background

Intimations of Judicial Independence

Failures to Demonstrate Judicial Independence

Judicial autonomy

Conclusion

8 Local Courts in Western China: The Quest for Independence and Dignity

Introduction

Outline of the Chapter

Fieldwork and Methodology

Grassroots judges between socialist collectivism and local protectionism

“What Is Judicial Independence?” (Shenme shi sifa duli?)

“Court Is Just Like a Swill Barrel!” (Ganshui Tong)

“Judges Are Those Who Eat at the Peoples Table!”

A New Judiciary for the Sake of Social Harmony

The judges’ political and professional condition at the grassroots level

The People’s Tribunal, an Institution that Binds Judges

How Can Ordinary Judges Establish a Profession?

Qualifications and prestige

Reforming the governance of the judiciary

The Iron Rice Bowl

Rural Justice as a Common Good?

Conclusion

9 The Judiciary Pushes Back: Law, Power, and Politics in Chinese Courts

Mow disputes

The courts’ resistance

Subsequent developments: assessing court resistance

Analysis

Conclusion: implications for judicial independence and human rights protection

10 Corruption in China’s Courts

Introduction

Analytical Framework

Data Sources

Data Configuration

Limitations

Corruption in china’s courts: scope and prevalence

Type a: extreme cases involving physical violence

Type b: corruption without exchange (nonbribery)

Type c: corruption through exchange

Brief Introduction to Litigation Procedure in China’s Courts

Adjudication Phase

Enforcement Phase

Case Registration Phase

General findings and interpretation

Conclusion

11 A Survey of Commercial Litigation in Shanghai Courts

Corporate litigants

The Decision to Litigate

Pretrial Maneuvering: Party Influence of Judges

The Trial Process

Outcomes and Enforcement

Private party litigants

The Decision to Litigate

Party Influence of Judges

The Trial Process

Outcomes and Enforcement

Conclusion

12 Judicial Independence in Authoritarian Regimes: Lessons from Continental Europe

Judicial independence in democratic regimes

Two Legal Traditions in a Process of Change

Judicial Independence in Totalitarian and Authoritarian Regimes

Summary

Application to china

Policy recommendations

13 Judicial Independence in East Asia: Lessons for China

The concept of independence

Judicial independence in authoritarian states

Northeast asian experience

Japan

Taiwan and Korea

Lessons for judicial independence in china

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Tags: Randall Peerenboom, Judicial Independence, Global Rule, Law Promotion