'No Malicious Incidents': The Concern for Stability in China's Divorce Law Practice

23 Pages Posted: 10 Feb 2017

See all articles by Xin He

Xin He

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

Date Written: January 2017

Abstract

Based on participant observation and in-depth interviews with judges, this article demonstrates the significant role of concern for social stability in China’s divorce law practice in highly contested and potentially explosive cases. This is evident in the current use of mediation procedures. Since the judge is held responsible for keeping the parties in check, the concern for social stability dominates proceedings. The legal criterion of ‘the breakdown of mutual affection’ is eclipsed by the political principle of ‘no malicious incidents’. This emphasis on maintaining stability, however, paradoxically reproduces social instability because it incentivises violence in the domestic sphere. It also reinforces gender inequality. This study suggests the need to reflect upon the appropriate role of the judiciary in divorce proceedings and the tenuous boundary between law and politics in contemporary China.

Keywords: divorce, court, China, judges, social stability, mediation, malicious incidents, gender inequality, politics, protest, violence

JEL Classification: K00, K10, K36, K4, K40, K41, K42

Suggested Citation

He, Xin and He, Xin, 'No Malicious Incidents': The Concern for Stability in China's Divorce Law Practice (January 2017). Centre for Chinese & Comparative Law Research Paper No. 2017/006, Available at SSRN: https://ssrn.com/abstract=2914856 or http://dx.doi.org/10.2139/ssrn.2914856

Xin He (Contact Author)

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

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

City University of Hong Kong (CityU) ( email )

83 Tat Chee Avenue
Kowloon
Hong Kong

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