Abstract
In previous chapters we have studied the initial motivation for grass root leaders in legal confrontations, as well as the continued motivation for organized grassroots movements. Those chapters focused on the social participants as well as the leaders of those movements. In this chapter, our analysis will turn to the action strategies behind legal contentions, that is, the social activities. We are going to examine the social activities from the perspectives of legal discourse, the choice of action path, and the intertwinement of emotion, reason, and law. Through such an analysis, we can better appreciate the unique implication of “vigor” in Chinese contentious politics.
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Notes
- 1.
Zhanren, a local saying, means the asylum by the relation network.
- 2.
The intermediate court and the superior court refer to the Municipal Intermediate People’s Court, the Provincial Higher People’s Court, and the Supreme People’s Court.
- 3.
Wan, Jing China’s First “Soil Lawyer,” Legal Daily October 28, 2002.
- 4.
First Instance Administrative Cases in All Levels of People’s Court from 1989 to 2002, Administrative Law Enforcement and Administrative Trial (first series in 2003, with a total of five series), Law Press, 2003.
- 5.
Wan, Jing China’s First “Soil Lawyer,” Legal Daily October 28, 2002.
- 6.
Luo, Xuhui I fight for Farmers’ Rights, China Youth Daily, September 6, 1999.
- 7.
Due to the limited subjects, we will not discuss Zhang’s administrative reconsiderations. From our interview with Zhang, we learned that there is no big difference for him between administrative proceedings and administrative reconsideration to legally protect rights. The major difference between the two is that they have to pay litigation fee for administrative proceedings while administrative reconsideration is free. Zhang always sought administrative reconsideration and only when the problem cannot be solved by administrative reconsideration, would he go to the court. His major concern here is the cost.
- 8.
Liguang Zhang said in the interview that when the Wugu Town first learned about the farmers’ lawsuit, the town head invited the farmers to have dinner at his house. During the dinner, the town head kindly persuaded them: “Mr. Zhang, there are a number of such cases in the town that the court cannot or do not dare to register. If the court registered the case, they would become so tired (because other farmers would file lawsuits as well).” He also said: “Do you know who the court listen to? Let me tell you, they listen to the county government, the county party…… I hope you do not act as an agent for the farmers, or involve in their business.” Zhang did not say anything at that time but thought: “whether the court registers the case or not is not determined by you.” But he soon found out who was actually in charge. A few days later, the County Security Bureau summoned Zhang which frightened Zhang. He was so scared that he hid out of town for 3 months and this case was ended here.
- 9.
For local governments’ usual means to attack petitioners, please refer to Ying (2001: pp. 324–325).
- 10.
Water City and County Joint Investigation Team, A Survey Report about “Zhang Phenomenon,” 2000.
- 11.
500–5,000 Yuan is just the attorney’s fee for administrative litigations that do not involve property disputes. Cases involving property disputes have a higher attorney’s fee.
- 12.
For the division of administrative relief into unlawful administrative act reliefs, misconduct reliefs, and legal administrative act relief, please see Lin (1999: p. 44).
- 13.
Because the contentions in Qingshan Village also utilized administrative reconsiderations, we will briefly compare petition relief and administrative reconsideration relief. These two methods are both internal government relief. But administrative reconsideration relief has stricter procedures than petition relief and it in some degree overcome the cumbersome procedures of judicial relief. So, administrative reconsideration is a quasi-judicial relief with both procedures and simplicity. At the same time, administrative reconsideration has joint relation with administrative litigation since if people are not satisfied with the reconsideration results, they can file a proceeding to the court except when there are other rules by the law. In other words, the administrative reconsideration in our country is in the position of administrative litigation in most cases and the court has the ultimate right of judicial review. But petition relief does not have a formal bridge to judicial relief built up by the system. Therefore, if we viewed the rule of law only from the perspective of rules and measured the various reliefs by rules, reconsideration relief has a clear advantage over petition relief; but if we were to consider the problem from the perspective of disputes resolution and obtaining relief, we can find advantages of petition relief over reconsideration relief (for disputes resolution and the rules of governance, please see Su 2000). The former argument is easily known while the latter is rarely discussed. Due to space limitation, we will focus the analysis on the latter argument.
Administrative reconsideration in most cases implements one-time reconsideration. That is, the decision by the reconsideration department is the final decision in the administrative procedure. If people are not satisfied with the results, they can only file a proceeding to the (local) court. Even with the small number of exceptions provided by the law, people can at most file two reconsiderations, and it is impossible for them to file leapfrog reconsiderations or extend their reconsiderations to two levels out. Most of the reconsiderations take place in the county or town level. For example, in 2000, among all the various types of applicants to administrative reconsiderations, the town governments accounted for 10 %, county government departments accounted for 48 %, county governments accounted for 9 %, and the local government accounted for 18 % (Xie 2001). Hence, administrative reconsiderations are mainly done at county and local levels, especially by county government reconsideration departments. And we have already discussed the important effects of the informal relation network in Chinese social lives. Thus, whether it is a one-time reconsideration or two-level reconsideration, whether the relation between administrative reconsideration and administrative litigation is preposition or free choice, they are not favorable for people getting rid of the fetters of local network or to access effective reliefs. Petition relief shows its advantage and flexibility in leapfrog petition. Though the repeated leapfrog petitions have quite a few problems, such as high costs, contingency, randomness, and negative impacts to the building of legal system, they have a special significance when people are harmed by the relation network, especially the thick government network.
Another advantage for petition relief relative to administrative reconsideration is its wide use of mediation. The Administrative Reconsideration Law explicitly says that administrative reconsideration is not appropriate in the principle of mediation. The reason is because the two parties of disputes do not have equal legal status and the administrative departments do not have responsibilities to conduct random punishment. But if the following three situations were considered, this reason will not be as sufficient: first, the degree of administrative legalization in our country is still quite low so the responsibilities for administrative departments in most cases lack a clear legal definition. Second, reconsideration cases not only require a specific legality for the administrative acts but also review its reasonability, and in the reasonability review, administrative departments enjoy a large discretion. Third, when accepting the civil rights administrative reconsideration cases between the applicants and the third persons, the reconsideration departments have to review whether the administrative litigation acts are reasonable in mediations (Liu 1998: pp. 107–108). In these cases, administrative reconsiderations not allowing mediation bring about two results: first is not to mediate and either maintain or revoke the governments’ specific administrative acts. Due to the unequal status of both parties in the administrative disputes, since most governments pursue a low losing rate as their achievements in their official career and since the reconsideration departments have close relationship with the applicants, the ruling mode of “either all or nothing” and “either black or white” always cause the public to gain nothing. In 2000, the total number of reconsideration cases in the whole country was 62,693 and 32,748 were retained the original specific administrative acts, accounting for 52 % of the total cases. The second result is to conduct mediation with the name of “coordination” and cause the applicants to withdraw the case. We can observe the effects of mediation from the 17 % high rate of administrative reconsideration withdrawal in 2000 (Xie 2001). The first result is clearly not conducive to the public, while the second result is mediation under the evasion of law which greatly reduces the scope and effectiveness of mediation.
Petition relief is usually realized through mediation. Clarke suggested that mediation is generally considered a type of dispute resolution that is opposed to arbitration and trial. Mediation includes a third party that does not have any special relationship with the two parties in the disputes and tries to make the two parties reach an agreement. And either party of the dispute does not have to accept the proposal by the facilitators. But in the Chinese society, mediation has a very special nature: the dispute solvers have authority, not due to the special role of dispute resolution, but their special relations with the two parties of the dispute. Moreover, both parties’ interests directly impact the dispute solver’s interest. Thus, the dispute solver pays more attention to maximize the benefits for the parties in the dispute – the dispute mediator facilitates rather than determining the “winner.” In the process, the boundaries between mediation and arbitration, mediation and trial are ambiguous. Since dispute solvers have special relationships with both parties of the dispute, they are located at a position that they can impose a result on both parties. Clarke called this Western dispute resolution “external resolution” and called the dispute resolution in the Chinese society “internal resolution” (Clarke 1991). Because of the internal solution in the petition relief (similar to reconsideration relief and litigation relief), petition relief is often a balanced result of people’s right relief and the government’s pursuit of social order. This “common-sense balance of justice” (Shiga Shuzo 1998a: p. 13) can certainly not achieve the full right for people, under the current institutional barriers, it can help people to obtain partial effective relief.
- 14.
This is consistent with Sending the Law to the Countryside by Su (2000) in that the grassroots courts in China focus on dispute resolution rather than ruling regulations. Our goal lies not only in revealing the operating mechanism in Chinese grassroots courts in solving administrative cases but also in the effect of this mechanism in people’s selection of relief. We believe that since the dual-track right relief system has become a one-dimensional mechanism in reality which loses a restriction on the circumstantiality/internality from normalization/externality making people have limited space of relief selection. Thus, the one-dimensional right relief system has strengthened the pragmatic orientation in people’s right seeking process.
- 15.
Please see Ying and Wang (2006) for the analysis on the Tiegang Gao case.
- 16.
On one hand, petition is a right relief mechanism in the weak sense and the perfection of administrative litigation system will play a role of alternative; on the other hand, petition is a channel of expressing the lower class’ ideas to the senior authority in the strong sense while this is a function that the administrative litigation system will ever have. Expressing the lower class’ will to the senior authority is essential to a country with unbalanced political, economic, and cultural development. Considering the Chinese democratization still requires a long process, this channel of expressing people’s wills is of great importance in the period of social transition. While for administrative litigation system, due to the existence of second trial, the information might not be properly sent to the senior authority. For the discussion on the functions of petition system, please refer to Cai (2004).
- 17.
In fact, the survey data from Yu (2010: p. 221) illustrates this argument: among the interviewed 632 farmers that went to Beijing for petition, 63.4 % went to the court before they petitioned. 172 of them were refused to be registered, accounting for 42.9 %; 220 of them believed that the court did not judge according to the law and lost the lawsuit, accounting for 54.9 %; the rest 9 farmers suggested that though they won the lawsuit but the judgments were not implemented, accounting for 2.2 %.
- 18.
It is worth noting that fighting for one’s vigor does not belong to the emotional action suggested by Weber. Though emotional actions and value-rational actions have some subtle relations, they differ in that value- rational actions have clear self-conscious in their ultimate values governing the action rather than subconscious and their standard of value is consistent rather than impulsive (Weber 1978: p. 25).
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Ying, X. (2013). The Action Strategies of Legal Contentions: The Guidance by Vigor. In: A Study of the Stability of Contemporary Rural Chinese Society. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-36400-6_7
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