Abstract

“Procedure mirrors our most basic notions of fairness and about the meaning of justice. Procedure tries to capture our ideas about the acceptable forms of settling disputes—about whether we most desire peace or truth, efficiency or justice. Procedure in this aspect embodies not just the rules governing “the way we do things here” but the reasons we do them that way.”

“The purposes of the Civil Procedure Law of the People’s Republic of China are to protect the litigation rights exercised by the parties, to ensure that the people’s courts find facts, to distinguish right from wrong, to apply the law correctly, to try civil cases promptly, to affirm the rights and obligations in civil affairs, to impose sanctions for civil wrongdoings, to protect the lawful rights and interests of the parties, to educate citizens to voluntarily abide by the law, to maintain social and economic order, and to guarantee the smooth progress of the socialist construction.”  


I. Introduction

The first quote offers a contextual understanding of the purpose of civil procedure in the American justice system. Civil Procedure is not an objective tool of democratic governance, but rather reflects values and compromises of how a nation desires its legal system to function, while it acknowledges that no set of rules is ideal. Thus, when critiquing the function of civil procedure in The People’s Republic of China (PRC), the discussion should focus on the PRC’s notions of fairness, judicial efficiency, and justice. A nation’s legal development is intertwined with its history. In a historical comparison between colonial India and dynastic China, Ocko found that although dynastic China had established complex codes for criminal procedure, the equivalent in civil law was often lacking. Ocko also found that Chinese historical notions of fairness focused on substantive justice rather than emphasizing the importance of procedure: “the fusing of procedure and substance in defining the law in China had equally significant long-term effects.”

While a complex analysis of the historical role of procedural due process in China is beyond the scope of this paper, it is important to keep in mind that the codification of civil procedure law is part of China’s larger legal reform process that has borrowed heavily from Western practices and texts. Similarly, the creation of legally protected individual “rights” is still in the early stages of development, with an emphasis on contractual rights rather than fundamental rights. This paper assumes that the Chinese Communist Party (CCP) views procedural due process rights as subordinate to substantive due process. Where the issue at stake is perceived to be politically sensitive, the CCP does not trust the courts to handle its affairs. Therefore, procedural due process can be suspended, depending on political interests. Although procedural due process’ “flexibility” can lead to arbitrary results and political interference in the courts, it can also create opportunities for parties who would otherwise struggle to meet the formal procedural and substantive litigation requirements. Thus, the analytical framework of this paper attempts to consider legal expectations and notions of fairness from various Chinese, rather than Western perspectives of justice.

China’s rapid economic modernization has increased international attention and scholarship with respect to China’s legal reform process, especially within the context of supporting a legal framework to protect economic activity. International and domestic human rights activists have largely focused their attention on revealing due process and fairness issues in criminal cases. Other scholars have researched the judiciary’s institutional reforms and cultivation of competent judges. In civil cases, debate has mainly discussed legal developments of new laws and their interpretations, in addition to persisting ambiguities. International scholarship has also analyzed institutional corruption in the legal system, the role of the petition system, and the failures of regulatory agencies. However, little scholarship has been granted to exploring the interrelationship between procedural due process, substantive laws and political interests in the context of consumer class actions. This paper attempts to fill that void.

The Chinese Civil Procedure Law (CPL) provides for “joint litigation” rather than “class action.” While some scholars believe that the two terms are interchangeable, other Chinese scholars believe that China’s representative joint litigation system is distinct from American class action suits. Since class action litigation is not widely used in China, few scholars have discussed formal and practical barriers to safeguarding procedural due process in consumer class actions.