Inquisitorial Adjudication and Institutional Constraints in Chinese Civil Justice

Law & Policy, Forthcoming

40 Pages Posted: 11 Dec 2012

See all articles by Xin He

Xin He

City University of Hong Kong (CityUHK); University of Illinois at Urbana-Champaign, College of Law, Visiting

Kwai Hang Ng

University of California, San Diego (UCSD)

Date Written: December 11, 2012

Abstract

Based on participatory observations of trials and extensive interviews with judges, this article examines the operation patterns of the civil justice process in China and explores the underlying reasons behind. It finds that despite the reform efforts placing more responsibility on the litigants, the Chinese civil proceeding remains largely inquisitorial. The decline of out-court investigation is evident, yet judges rely on a limited form of cross-examination aimed to obtain oral testimony that can be used to justify a decision. This kind of judge-initiated questioning becomes an inexpensive substitute for the previously labor-intensive court investigation. The article further argues that the fact that the judges do not adjudicate based on whatever evidence presented by the litigation parties is mainly attributed to the institutional constraints to which the judges are subject. They respond to the incentives by handling cases efficiently with the minimum possibility of reversal and complaint. The article concludes by offering theoretical implications on the study of comparative legal process more generally.

Keywords: Chinese civil justice, adjudication, institutional constraints

Suggested Citation

He, Xin and Ng, Kwai Hang, Inquisitorial Adjudication and Institutional Constraints in Chinese Civil Justice (December 11, 2012). Law & Policy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2187860

Xin He (Contact Author)

City University of Hong Kong (CityUHK) ( email )

83 Tat Chee Avenue
Kowloon
Hong Kong

University of Illinois at Urbana-Champaign, College of Law, Visiting

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Kwai Hang Ng

University of California, San Diego (UCSD) ( email )

9500 Gilman Drive
Mail Code 0502
La Jolla, CA 92093-0112
United States

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