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From Dispute to Decision: Suing Polluters in China*

Published online by Cambridge University Press:  20 June 2011

Rachel E. Stern
Rachel E. Stern
Affiliation:
Society of Fellows, Harvard University. Email: [email protected]
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Abstract

This article traces a civil environmental lawsuit from dispute to decision to explore how environmental law works, as well as how lawyers and litigants try to work the law. Detailing ground-level encounters with a legal system promoted and carefully watched by political elites offers a fresh perspective on the ways the past 30 years of legal reforms have affected the experience of China's court users. Amid accounts of financial stress, lawyer–client tensions and the hunt for elite allies, what emerges is a story of variation. Although plaintiffs and lawyers agree that environmental cases are hard and wringing concessions out of polluters requires remarkable persistence, the process sometimes creaks forward so that appraisals are conducted on time, help is solicited and compensation won. How Chinese courts work (and how well they work) depends on local circumstances, an insight that suggests that disaggregating expansive concepts like rule of law is a helpful way to explore complexity instead of glossing over it.

Type
Special Section on Law and Enforcement in China
Information
The China Quarterly , Volume 206 , June 2011 , pp. 294 - 312
Copyright
Copyright © The China Quarterly 2011

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References

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8 By way of comparison, federal American courts issued opinions in an average of 110 civil environmental cases a year from 1992 to 2002. See May, James R., “Now more than ever: trends in environmental citizen suits at 30,” Widener Law Review Vol. 10, No. 1 (2003), p. 8Google Scholar.

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11 For a list of personal communication citations, see the Appendix.

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13 Basic level courts also frequently turn away disputes that have previously been through administrative mediation (xingzheng tiaojie) although there is no legal basis for this. See Sida Liu, “The logic of fragmentation: an ecological analysis of the Chinese legal services market,” PhD dissertation, University of Chicago, 2009, p. 75 and O'Brien and Li, “Suing the local state,” pp. 80–82.

14 Document on file with the author.

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18 Plaintiffs are allowed to represent themselves in a civil lawsuit and it is an open question how often lawsuits move forward without legal representation.

19 For more on how Chinese lawyers screen cases, see Michelson, “The practice of law as an obstacle to justice.”

20 Wen Jiabao, 2008 Guowuyuan zhengfu gongzuo baogao (2008 State Council Government Work Report), available at http://tinyurl.com/ygwfzbv.

21 Litigants must individually opt in to a lawsuit and providing a copy of an identity card is one way to indicate support. In the US, in contrast, civil actions cover an entire class of people (e.g. those who bought a certain brand of laptop between 2000 and 2002). While individuals in the class must be notified of pending litigation and can opt out, they do not need to opt in individually.

22 See Fürst, “Access to justice,” pp. 90–91 for an example of a case that was turned down by local lawyers before plaintiffs found legal representation in Beijing.

23 Quoted in Liu, “The logic of fragmentation”, p. 222.

24 Wendra Liang, “From protesters to plaintiffs: pollution lawsuits and the tradition of protest in the People's Republic of China,” MA dissertation, Stanford University, 2006, p. 64.

25 Ibid. p. 27.

26 Ibid. p. 46.

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28 Proof of poverty can come from the local Party committee, the neighbourhood committee, the civil affairs department of the local government or the local labour bureau and is accepted at the court's discretion.

29 See also O'Brien and Li, “Suing the local state,” pp. 85–86.

30 The intermediate court re-decided in favour of the plaintiffs. Hebei High Court (2004), Liu Honggui et al. v. Tangshan jiaohuachang youxian zeren gongsi, decision on file with the author.

31 Supreme People's Court, “Notice regarding problems with the acceptance of class action lawsuits by the People's Courts,” effective 1 January 2006.

32 See also Kathinka Fürst, “Access to justice in environmental disputes: opportunities and obstacles for Chinese pollution victims,” MA dissertation, University of Oslo, 2008, pp. 95–96.

33 Document on file with the author.

34 Zhang Pengguo and Li Yuping v. Shengli youtian gongyi xinjishu shiyou kaifa youxian zeren gongsi, Shandong Dongyang Intermediate Court, Civil Division No. 27 (2004).

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39 For more on how judges make decisions, see Stern, Rachel E., “On the frontlines: making decisions in Chinese civil environmental lawsuits,” Law & Policy, Vol. 32, No. 1 (2010), pp. 79–103Google Scholar.

40 Guangdong Foshan Intermediate Court (2005), Ping Zao v. Zhongnan Shiyouju, Civil Division No. 3, decision on file with the author.

41 Appraisers must have five years of relevant work experience and one of the following: a high-level technical title, equivalent professional qualifications, or a related undergraduate or graduate major. See Ministry of Justice, “Sifa jiandingren dengji guanli banfa” (“Regulations governing the registration of appraisers”), effective 30 September 2005.

42 “Pingnanxian qianyu cunmin suanbao songan shimo” (“The whole story of an environmental lawsuit involving over 1,000 villagers from Pingnan county”), Caijing, 15 July 2006, available at http://tinyurl.com/yzj9qdb.

43 Fürst, “Access to justice in environmental disputes,” p. 53.

44 Weak and disadvantaged groups are usually defined as including the handicapped, women, juveniles, the elderly, the poor, and laid-off, unemployed and migrant workers. For more on official tolerance for moral economy claims, see Perry, Elizabeth, “Challenging the mandate of heaven: popular protest in modern China,” Critical Asian Studies, Vol. 33, No. 2 (2001), p. 168CrossRefGoogle Scholar.

45 All closing statements are on file with the author.

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51 The term “political embeddedness” is borrowed from Michelson, “Lawyers, political embeddedness and institutional continuity,” p. 356.

52 Lora-Wainwright, Anna, “Of farming chemicals and cancer deaths: the politics of health in contemporary rural China,” Social Anthropology, Vol. 17, No. 1 (2009), p. 63CrossRefGoogle Scholar.

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55 This was a reasonable possibility as the client's traveling companion, another potential plaintiff, had been taken into custody the previous night. The client was not arrested, however, but had got lost between the law office and the restaurant.

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57 Quoted in Sha, Lin, “Jishiyu: Wang Canfa” (“A timely rain: Wang Canfa), Zhongguo qingnian bao (China Youth Daily), 10 September 2003Google Scholar, available at http://tinyurl.com/6admatb.

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