Suing the Leviathan—An Empirical Analysis of the Changing Rate of Administrative Litigation in China

Abstract

This article analyzes the changing rate of administrative litigation in China. Using a set of provincial-level data over seven years (2003)(2004)(2005)(2006)(2007)(2008)(2009), the article evaluates a number of hypotheses derived from extant theories of social litigiousness, state-society relations in authoritarian regimes, Chinese elite politics, and Chinese administrative law. It finds evidence that the rate of administrative litigation varies according to different levels of lawyer density and urbanization. It also finds preliminary evidence that casts doubt on the effects of top-down legal and policy changes in China.

The Leviathan's Rule by Law

“…Third, the study offers new evidence to a growing body of empirical research evaluating the practical effect of formal legal changes in China (Burell & Svensson ; Cooney et al ; Cui et al ; Li ; Rooij ). Given the characteristics of the Statute and the context of the upgrade, the finding of noneffect highlights the inadequacy of the theories that treat law making and law enforcement in isolation.…”

“…The Chinese judiciary is pyramid‐shaped in the sense that the SPC nominally functions as the ultimate adjudicatory body and exercises professional leadership over lower courts (Minzner ). Contrary to the apparent uniformity of the structure, the Chinese judiciary is in reality highly fragmentary and subordinate to regional and local governments (Li ; Liebman ). It is therefore uncertain to what extent formal opinions and interpretations issued by the SPC will be effectively implemented.…”

“…To a certain extent, the functional objectives of preserving regime legitimacy and improving governance also explain the multiplication of formal law in nondemocracies. In China, the legislation of a comprehensive set of administrative laws and regulations aimed at reigning in abusive government agents and legitimizing the party's rule (Ginsburg ; Li ; Peerenboom ; Pei ). Once pollution caused serious social discontent, the Chinese government promulgated a series of formal rules and initiated institutional experiments for environmental protection (Stern ; Van Rooij ; Wang & Gao ), and to quench massive labor protests that threatened political stability, the Chinese government reformed its labor law system to a level of sophistication and protection exceeding, at least on paper, most OECD countries (Cooney et al )…”

Why Are There So Few Investor-State Arbitrations in China? A Comparison with Other East Asian Economies

“…Even now, taking local officials to court is still like "throwing an egg against a stone" for victims because administrative malfeasance would not be easily found to be illegal in Chinese courts. 41 Considering that China is still dominated by a single party, it is no surprise that Chinese courts play a complementary role in political-administrative mechanisms for dispute resolution and an even more limited role in the making of key policies, particularly with respect to politically sensitive cases. 42 Traditionally, in Japan, the administration has been more active than the court, 43 so that it is difficult for plaintiffs to prevail in administrative litigation in Japan.…”

Mass Digitization of Chinese Court Decisions: How to Use Text as Data in the Field of Chinese Law

“…33 For example, a leading Chinese scholar of administrative law writes that "without administrative litigation, many of the plaintiffs would still be running on the road to petition, and many of the officials would not have heard of terms such as 'excess of power' or 'due process'" (He 2018, 141). Along similar lines, Li's (2013) examination of what determines variation in administrative litigation across provinces frames administrative litigation as "the first time in Chinese history [that] victims of official malfeasances may "routinely" sue the state for remedy" (815)…”