session 2: constitution, judiciary and public powers structure · session 2: constitution,...

Session 2: Constitution, Judiciary and Public Powers

Structure

2.1. The Judiciary as an Organ of Political Control

Call for Papers under the supervision of Prof. Hong-yup KIM (Korea)

Speaker

Prof. Ada Pellegrini GRINOVER, Full Professor at the University of São Paulo,

Brasil

Prof. Peter CHAN, City University of Hong Kong, Hong Kong

Prof. Viktória HARSÁ GI, Pázmány Péter Catholic University, Hungary

Prof. Laura ERVO, Professor of Law, University of Ö rebro, Sweden and

Adjunct Professor (Docent) the universities of Helsinki, Turku and Eastern

Finland, Finland

Prof. Kerstin NORDLOF, University of Ö rebro, Sweden

Prof. Margaret WOO, Northeastern University, USA

Ada Pellegrini GRINOVER (Brasil)

International Association of Procedural Law Seoul Conference 2014 97

Ada Pellegrini GRINOVER

The Jurisdictional Control of Public Policies.

Public Interest Actions.

1 Fundamental social rights, public policies and jurisdictional

control. A general view.

The fundamental social rights set forth by the Constitution and by the law, in all

countries, as well as the corresponding obligation of the government to provide the

citizens with services that they are entitled to, involve the necessity of positive benefits

to be given by the government, and, hence, are called fundamental social rights (rights

to have services provided).

In the constitutional theory, this field forms the so-called second generation of

fundamental rights, being a representative of the social rights which involve rights to a

positive action by the State as well as its duty to a “dare, facere, praestare”, offering

positive provision and not only a duty of absence that leaves the citizen free in their

action (as the first generation of fundamental rights).The fruition of social rights, such

as health, education, housing, work, a clean environment will, then, depend on the

governmental organization that shall rule and implement the public policies that

consist of the whole State activity to forward the fruition of those social rights. Public

policies (of an equalitarian and universal nature) consist of both the function of the

legislative branch (lawmaking), and the administrative function (steps for

implementation). However, the political powers (and mainly the Administration) often

stand by. They lay inert or evolve inadequate public policies that do not meet the

constitutional or legal provisions or the fundamental goals of the State.

At this moment, always a posteriori, the jurisdictional function may be brought

into action, as long as it is invoked, and carry out the control of the constitutionality and

legality over the public policy, even taking actions to implement or correct it.

For this purpose, the system of many States establishes specific constitutional or

legal procedural instruments, such as the constitutional actions. However, as it happens

in some countries (like the US and Brazil) the control of constitutionality is not carried

out in a direct way only, but also in a diffuse way. In these cases, the first instance courts

of law are also responsible for carrying out the control of constitutionality over the

public policies, implementing or correcting them, making use of collective actions,

which are of an equalitarian and universal nature, just like the public policies, leading to

the res judicata erga omnes.

It is worth having in mind that in the US and in Brazil the administrative

jurisdictional courts do not exist, and it is up to the judiciary branch to acknowledge and

judge all the disputes even if the state is one of the parties.

Session 2: Constitution, Judiciary and Public Powers Structure

98 International Association of Procedural Law Seoul Conference 2014

That point of view was rejected at first, but now it is totally accepted by the

jurisprudence and by most of the scholars.

There were two theories opposing the possibility of the judicial control of the

public policies: the theory of separation of powers and the principle of intangibility of

the discretionary activities of the Administration.

But the strict application of the theory of separation of powers, created by

Montesquieu, modeled by the principles of the liberal state, and according to which the

judge’s role was only to be the mouth of the law, cannot be accepted by the social state

any longer, and much less by the democratic rule-of-the-law state, to which the state is

one single unit, and so is its sovereignty. The so-called powers of government just

represent the state functions, whose exercise is originally awarded by the Constitution,

but whose performance may be submitted to the control of the judiciary branch, the last

guardian of the Constitution.

//Since the middle of the 19th

. century, Justice Marshall, in the famous case

Marbury vs. Madison, established in the United States the principle that awards the

constitutionality control to the judiciary branch, and may even undermine the law that

offends the Constitution. And the Brazilian republican Constitution has adopted that

principle, which is in force until today.//

The principle of intangibility of the discretionary activities of the Administration,

according to which the judiciary branch could only review the legality of the

administrative act, but not its grounds (that is, its opportunity or convenience), has also

been worn away along the time due to the broadening of the legality concept towards

the administrative activity. It ended up embracing not only the legal formal written texts,

but also matters regarding the finality, the cause and the reasoning of the administrative

act, as well as its real aim. Consequently, the concept of power misuse has arisen and

allowed the intervention of the judiciary branch. In Brazil, the last attempt, which

definitely put an end to the idea of intangibility of the discretionary act, was set forth by

the 1988 Constitution, since it allows a constitutional popular action to be filed against

an administrative act that may be, in some way, harmful to the administrative morality.

Morality shall not be mixed up with legality: the act may be both legal and immoral.

Following the same principles, the possibility of jurisdictional control of the public

policies has been adopted by several countries: the US, Germany and, more recently,

Brazil. India, South Africa, Argentina and Colombia, among others, have many lawsuits

to submit the public policies to the jurisdictional control (in the courts of law, or in the

Supreme or Constitutional Courts, depending on each system). It is not a coincidence

that the necessity of control appears now as being more urgent in emerging countries,

where the legislative and the executive branches often lay idle and the fundamental

social rights are less respected.



2 Limits to the jurisdictional performance over the control of

public policies.

Although the jurisdictional control of the public policies has received the approval of

the jurisprudence as well as of most of the scholars, the Constitutional Court of

Germany made clear that the control has to be seen as being exceptional and existing

within certain limits.

The first limit is the reasonableness of the intention to implement or to change some

specific public policy and the unreasonable idleness or choice of the administration.

Just in this case the judiciary branch is allowed to interfere, substituting its choice by the

one of the administrator. The theory of the reasonableness (originated in the US) is laid

to the German principle of proportionality.

The second limit is the contingency reserve fund (possible reserve), a concept originated

from the German constitutional jurisprudence: if a public policy is to be implemented or

even modified, it must have enough funds in the State’s budget.

//However, it is necessary more than the allegation of inexistence of funds. It has to be

proved. The impossibility to reallocate the budget has to be proved, too. And the judge

may sentence the executive and the legislative branches to make a specific budget

forecast for the following year.//

Finally, the last limit, also originated from the German constitutional jurisprudence, is

the existential minimum, which corresponds to the hard core of the fundamental rights,

without them the human being lacks dignity.

//It has been argued the nature of the existential minimum by the scholars: absolute or

relative, static or dynamic, external or internal. For us, each fundamental right has its

hard core, to be checked in the concrete situation, according to the circumstances.//

The existential minimum is also considered a limit to the limits, as its existence can

dismisse the obligation of the contingency reserve fund, according to the decisions of

many courts.

3 The public policies control in Brazil.

The fundamental social rights set forth by the Brazilian Constitution, and in accordance

with it, are to be immediately effective. However - as previously mentioned - the

political powers (and mainly the Administration) lay inert or evolve inadequate public

policies that do not meet the constitutional provisions (article 6 of the Brazilian

Constitution) or the fundamental goals of the Federative Republic of Brazil (article 3 of

the Brazilian Constitution). At this moment, always a posteriori – as previously

mentioned - the jurisdictional function may be brought into action and carry out the



control of constitutionality over the public policy, even taking actions to implement or

correct it.

For this purpose, the Brazilian legal system establishes specific constitutional

procedural instruments, such as the direct action of unconstitutionality, declaratory

action of unconstitutionality by omission, action of obedience to the fundamental

precept and the mandatory injunction. However the constitutionality control is not

carried out in a direct way only, but also in a diffuse way, as it happens in US. So, the

first instance courts of law are responsible for carrying out the control of

constitutionality over the public policies, implementing or correcting them, making use

of collective actions, which are of an equalitarian and universal nature, just like the

public policies, leading to the res judicata erga omnes.

Although the jurisdictional control of the public policies has received the approval of

the jurisprudence as well as of most of the Brazilian scholars, the Brazilian Supreme

Federal Court wanted to make clear that the control has to be seen as being exceptional

and existing within certain limits, following the international views.

//The leading vote of the Brazilian Supreme Court in this issue was from Justice Celso

de Mello, in the ADPF, number 45-9.//

About the reasonableness it is worth noticing that according to the terminology of the

Brazilian Supreme Federal Court, the principle of reasonableness mixes up with the

principle of proportionality. Although the doctrine points out some differences between

the two principles, it is possible to ascertain that the reasonableness is the subjective

sub-criteria of the proportionality, and, in a concrete situation, the judge is in charge of

choosing the value that seems to be worthwhile protecting, according to the criteria that

sensibly show the common sense.//

On the contingency reserve fund (possible reserve), the Brazilian Supreme Court

decided that this limit has no value in face of the existential minimum, regarding this as

the limit of the limits (leading vote of Justice Celso de Mello. RE 482.611/Santa

Catarina, 27/03/2010).

4 - Brazil: collective and individual actions.

It has already been said that the collective actions are the proper procedural way to the

jurisdictional control of the public policies. Due to their necessary equalitarian and

universal nature, they are the only ones that may give an equalitarian and universal

jurisdictional answer. However, the access to justice, guaranteed in the article 5, item

XXXV of the Brazilian Constitution, rules not only the collective protection, but also

the individual protection of the subjective rights.

Therefore, it is inevitable that together with the collective actions, whose specific aim is

to implement or correct public policies, several individual suits proliferate. They intend



to seek after compensation for personal subjective rights, and, indirectly, end up

influencing the public policies.

//Concerning the right to health, for example, the statistics show the great

preponderance of the individual actions: a request for an imported medicine, a surgery

abroad, the preference for a transplant or a hospital bed are some examples. If the judge

is not duly informed or does not have the proper assistance, he will often grant the

pleading, up to inaudita altera parte, fearing that the rejection may cause the plaintiff a

risk to life. It is the so-called justice of mercy, which prioritizes the inequality and

opposes the principle of universality of the public health.//

The influence of the individual actions over the public policies is most of the times

negative, as the judge’s injunction to grant the individual claims falls over the amount of

money to be shared among all, and, hence, it becomes significantly reduced, as already

shown by the statistics. Sometimes, however, the repetition of individual actions with

the same object may induce the administration to change the public policies, as it has

already happened with the cocktail anti-aids and, more recently, with a more modern,

effective, with few side effects medicine against diabetes, which was not in the list of

medications of the Single Health Care System (Sistema Ú nico de Saúde).

5 The critics of the judicial activism and the judge’s co-

participation in the political arena.

The judge’s co-participation in the political arena, with the possibility of intervention in

the legislative and administrative activities, mainly towards the public policies, is not

exempt from critics directed to the so-called judicial activism.

The most important critics refer both to the lack of the judge’s democratic legitimacy, as

he is not elected, as well as to the lack of the judge’s qualification, as he would not be

as prepared as the administrator to make political choices.

It is exactly the fact that the judge is not elected that makes him much more immune

against the political pressure that is exercised over the majority powers, and end up

influencing his choices. In a majority system, like ours, the minorities’ voice is

suffocated and can only be heard through the judiciary branch. It is clear that the judge

is obliged to hear complaints and direct them using a dialectic process, and to assume

personal responsibilities because of his decisions, as well as to justify them based on

reasons that are socially acceptable. The content of the jurisdictional function is

essentially public, and, besides solving disputes, gives meaning and concrete expression

to the public values that define a society and give it identity and coherence. On the other

hand, the democratic legitimacy of the judiciary branch comes either from the polls or,

more exactly, from the principles and guarantees that rule the exercise of the

jurisdictional function: the impartiality, the adversarial system, the ample defense, the

reasoning for the decisions, the publicity, the internal control and the political control.



Concerning the alleged judge’s lack of qualification because he is not acquainted with

technical matters, such as the budget or the administration plan regarding the public

policies of a specific area and its progressive implementation, whose aim is to have

coherent, balanced, fair and achievable decisions, we shall recognize that nowadays,

mainly in Brazil, the judge is not duly informed, is isolated, does not have specialized

assistance, is far from the administration or even from other judges or appellate courts

that face similar matters.

That is the reason why the next item will approach the institutionalization of a new

action, more adequate to solve the so-called conflicts of public interest, as being a

suitable technique to overcome the above mentioned problems.

6 The conflicts of public interest and its adequate

jurisdictional protection. Characteristics of a new action.

The conflicts of public interest, or also called strategic, are the ones designed to

implement the fundamental collective rights, which means to discuss the performance of

important institutions or public services, such as the school systems, the prison systems,

institutions or organizations that are responsible for protecting the public health, access

to transportation, housing, sewage treatment, and urban mobility. That was the origin of

the disputes of public interest that have happened since the decade of the ‘50s, in the

last century, in the North-American legal system.

// The landmark judgment “Brown vs. Board Education of Topeka” is widely known. It

was judged by the Warren Court together with other precedents that permitted the

development of the doctrine. Mauro Cappelletti was the great propagator of those ideas

among us in 1976.//

This way, the recognition of the existence of an important category of public right

disputes has been asserting itself, and should be differenced from both the procedural

protection aimed at solving private disputes, as well as from most of the collective

protection, because at this moment the dialogue that prevails in the action has an

institutional nature, involving other state “powers”. The decision is not about past

events anymore on which the law should be applied, but it will be reflected in the future

in a prospective dimension. The judge’s order must not say “pay” or “do” anymore,

but it has to be a mere indication of the steps to be taken in order to obtain the result

intended by the decision.

And that decision must be a result of the dialogue between the parties and mainly

among the powers of the government, opening the adversarial system also by having

public hearings and the intervention of third parties like the amicus curiae. The judge’s

knowledge must be widened with the help of specialized assistance and with the

information provided by the administration itself, so that if there is not any settlement,

the judge can be informed about the effects of his decision, which has to be fair,

balanced and enforceable. The enforcement of the decision, in turn, must be made



flexible, with the participation of the administration, by having plans approved by the

judge, who must follow up its enforcement, with the help of an independent third party

from public or private organs, who will be responsible for its enforcement, always in

close communication with the judge and on his command.

This new action, which requires great judicial activism, the widening of the judge’s

powers, as well as the dialogue method, including the dialogue among the powers of the

government, greater publicity, participation and transfer, does not exist yet. However,

the jurisprudence of several countries has been able to create it, modifying the classic

procedural methods.

A landmark judgment and an interesting example to be followed is the case of Beatriz

Mendoza, which was filed before the Supreme Court of Argentina, and whose plaintiffs

were some groups of individuals who suffered damages, several environmental

associations and the People’s Defender. The defendants were the national government,

the Buenos Aires Province and the autonomous city of Buenos Aires, as well as a group

of 44 companies that supposedly poured polluting chemicals into the river basin. The

court freely exercised its order power, used the principle of preclusion flexibly, and

required the states the peremptory presentation of an integrated and complete plan based

on the principle of progressivism, so that objectives could be gradually obtained, and

according to a chronogram. In July of 2008 the final decision definitely put an end to

the matter, pointing out that the effects of the decision will have reflections in the future.

It also determined general criteria to the decision enforcement, however respecting the

limits of the discretionary powers of the administration. Concerning its enforcement, the

decision set forth the citizen participation to monitor the accomplishment of both the

sanitation plan, as well of the action plan that was established. The People’s Defender

was required to monitor compliance with the judgment, by forming a collegiate body

comprised by non-governmental organizations involved in the litigation. The

enforcement of the decision is still in progress, in a gradual way, and following the

chronogram.

In Brazil, the courts have not been so careful, and after the judgment, which is stiff and

fixed, there have been many difficulties to enforce the decision. The dialogue with the

administration has turned out to be essential. Recently, in a collective action filed by the

Prosecution, whose aim was to request the necessary availability of thousands of

vacancies for children in day-care centers in São Paulo, at least there were public

hearings; but the injunction was to build day-care centers for 200 thousand children, in

3 years, based on the Plan of Goals presented by the mayor of São Paulo when he was a

candidate. The correct solution would be to make the administration present a

reasonableness plan that, once approved, should be followed in its enforcing by the

judge, helped by other public institutions.

However, the best solution would be to rule, through the legislative activity, a new

action to discipline the jurisdictional control of public policies, with the above

mentioned characteristics, which would balance the three powers of the government,

and the commitment to seek consensual solutions, and even to make the judge more



secure to issue decisions and solve litigations not based on the past anymore, but

looking at the future.

//A Bill on this matter has been prepared by Cebepej - Centro Brasileiro de Pesquisas e

Estudos Judiciais (Brazilian Center for Researches and Judicial Studies), founded by

Kazuo Watanabe and currently presided by Ada Pellegrini Grinover. It was submitted to

debates and will soon be presented to the National Congress.//

7 – Conclusions.

It is time to draw conclusions. From all that was said we can conclude that:

1 – The jurisdictional control of the public policies, exercised a posteriori and always

under request, does not hurt the principle of separation of powers; it just gives the

judiciary branch the power and duty to analyze the existence and the compatibility of

the public policies that have been created by the legislative and implemented by the

executive branches, respectively, with the Constitution or the law, as well as to ensure

that the rights to have the provision from the government are respected;

2 – Playing the role of a co-protagonist of the public policies, the judiciary branch is

able to approach the merit of the administrative branch performance, especially in the

case of omission, by assessing the purpose, the motivation, the reasons of the

administrative activity and the compliance with its morality, considering a broad sense

of legality which is not limited to formal imperfections;

3 - In such cases, the activism of the judge is fully justified but should be restricted so

that it does not cause the judge to completely substitute, with his activity, the very

exercise of other functions;

4 - One of those limits is in compliance with the criteria of reasonability, understood as

a fair balance between the assurance of values and goals, and the prohibition of what is

excessive;

5 – The jurisdictional protection that is adequate to the conflicts of the public law

involving the actions of the judiciary branch to control the public policies should make

use of a new proceeding, dialogue-based, and which extends judge’s cognition and

adversarial system. The judge needs to be helped by various experts and finally should

end up giving open orders to be fulfilled by the other branches, in accordance with some

planning to be provided by the administration, approved by the judge, and gradually

implemented under his or her supervision.



BIBLIOGRAPHY

Berizonce, Roberto, Los conflitos de interes público, pp 3/32, in

www.direitoprocessual.org.br

Cappelletti, Mauro, Vindicating the Public Interest through the Courts: A

Comparativist’s Contribution, 25 Buffalo L, Rev., 643, 1976.

Chayes, A., The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev, 1281,

1976.

Fiss, O, The forms of Justice, 93 Harv. L. Rev. I, 1979.

Grinover, Ada, O Controle Jurisdicional de Políticas Públicas, in O Controle

Jurisdicional de Políticas Públicas, coord. Ada Pellegrini Grinover e Kazuo Watanabe,

Gen-Forense, 2ª Ed, pp. 125/140

Exposição de Motivos do Projeto de Lei sobre Controle Jurisdicional de Políticas

Públicas, in O controle Jurisdicional de Políticas Públicas, coord. Ada Pellegrini

Grinover e Kazuo Watanabe, Gen-Forense, 2ª ed, Apêndice,

Peter C.H. CHAN (China)


Peter C.H. CHAN1

Procedural dangers of judicial mediation:

A policy-driven judiciary and its impact on access to justice

1. Introduction: Civil justice under a policy-driven judiciary

and the characteristics of the Wang Court

It is fair to say that civil justice in China is in a state of flux. On the one hand, the

leadership of China’s court system emphasized the need to achieve independence of the

adjudicative process and establish a culture of rendering correct judgments; on the other

hand, the established culture of preferring judicial mediation under the leadership of

Wang Shengjun, former President of the Supreme People’s Court (SPC), prevented

China from embracing a modern civil procedure that entrenches party autonomy,

procedural fairness and the fundamental right of access to justice (hereinafter, the

Chinese court system under the presidency of Wang Shengjun (2008-2013) is referred to

as the Wang Court).

In the Wang Court, the civil divisions of the Chinese judiciary turned into state-

sponsored mediation centres with the mandate to resolve disputes in such a way that

‘cases are closed and disputes are [truly] resolved’ (anjie shiliao). The concept of anjie

shiliao has social engineering in mind, i.e. the disposal of a lawsuit is insufficient unless

it is coupled with the eradication of discontent on the social level in relation to matters

arising from the dispute. The ultimate aim was the attainment of a ‘harmonious

society’ (hexie shehui), a central political theme of the immediate past administration

(under former President Hu Jintao). Other functions of the civil court, for instanc,e the

important function of declaring norms of civil law and enforcement of the law, are at

best secondary under the overarching policy that favoured mediation.

The paper seeks to explore two critical issues: (1) the position of judicial mediation in

Chinese civil justice under the overarching policy goal of anjie shiliao and (2) the

impact of such a policy on access to justice.

Section 2 of the paper (Chinese Courts and the Constitution) reviews the overall

position of the courts within China’s constitutional structure and the underlying reasons

for the inherent lack of judicial independence in China. Section 3 explores the unique

position of judicial mediation in the Wang Court as a policy tool and how it was used

for social engineering (i.e. the political project of creating a ‘harmonious society’).

Section 4 looks into the role of judicial mediation in Chinese civil justice and its impact

on access to justice.

1 Teaching Fellow, School of Law, City University of Hong Kong. This paper adopted a number of

points raised (and reproduced part of the content in) Chan, P.C.H., ‘Civil Appeals and Other Means of

Recourse Against Judgments in China’, in Uzelac, A. & van Rhee, C.H., Nobody’s Perfect: Comparative

Essays on Appeals and other Means of Recourse against Judicial Decisions in Civil Matters, Antwerp:

Intersentia, 2014, p. 161-210.



2. Chinese Courts and the Constitution

1.The Position of the Courts within the Chinese Constitutional

Structure and the Bureaucratic Hierarchy of the Chinese Judiciary

Article 128 of the PRC Constitution reads, ‘The Supreme People’s Court is responsible

to the National People’s Congress and its Standing Committee. Local people’s courts at

different levels are responsible to the organs of state power which created them’. The

President of the SPC is selected by the National People’s Congress.2 Presidents of all

other courts at various levels are selected by the people’s congresses at corresponding

levels.3 The direct subordination of the judiciary to the legislature means that there can

be no real judicial independence in China unless the constitutional structure is modified.

But Chinese constitutional theory specifically rejects the concept of separation of

powers.4 While the legislature has de jure control over the judiciary, real control over

the courts is exercised by the administrative organs. The local government still (in

principle) controls the court budget.5 This fiscal link between the local administration

and the courts entrenches local protectionism in civil adjudication.6

2. The Lack of Adjudicatory Independence

The individual Chinese judge is institutionally weak. There are certain features of the

Chinese court system that tend to weaken the adjudicatory independence of the

2 Art. 62(7) of the PRC Constitution. Also see Art. 17 of the Organic Law (courts at various levels must

report on their work to the people’s congresses at corresponding levels). 3 Art. 35 of the Organic Law. 4 Throughout China’s imperial history, the magistracy (which handled civil cases) had always been part

of the bureaucracy rather than a separate and autonomous judicial organ: see Chan 2012a, p. 322-323.

This tradition has, in principle, survived until today. The contemporary Chinese court system is structured

very much like any other government administrative body. Zhong and Yu provide a succinct overview of

the hierarchical arrangement of Chinese courts: ‘Like executive agencies, Chinese courts are internally

organized according to a strict hierarchy of administrative ranking. Each Chinese court has one president

who is at the top of the hierarchy. Next to the president are several vice-presidents, who are in charge of

the respective divisions of the court. Chief judges and associate chief judges supervise individual

divisions. Court presidents are elected by the People’s Congress at the same level, but vice presidents,

division chiefs, associate division chiefs and other senior judges are appointed by the corresponding

People’s Congress Standing Committee.’ See Zhong & Yu 2004, p. 396-397. 5 Zhong & Yu 2004, p. 432. But consider Chen 2011, p. 209: ‘Since 2004, the general direction of reform

in this regard has been to set minimum standards for the funding of courts and to arrange for the central

and provincial governments to contribute partially to the costs of operating local courts … The central

government will also provide more financial support for courts in the poorer central-western regions of

China.’ 6 Local protectionism remains an important concern for foreign enterprises litigating in China. This

problem is particularly acute at the enforcement stage. The government may intervene in favour of the

Chinese party (e.g. local businesses or significant state-owned enterprises) if local or national interests are

at stake. See Zhang 2002, p. 91.



individual judge.7 External interference with the adjudicatory process is the norm,

rather than the exception.8 Wang has warned that the ‘bureaucratization of the court’

would severely hinder the development of adjudicatory independence in China. Under

this bureaucratic culture, the collective decision of the court organization trumps the

decision of the individual judge, despite the individual judge having superior knowledge

and understanding of the case.9

The Chinese judiciary prizes discipline over adjudicatory independence of the

individual judge. Supervision by the court leadership and higher-level courts forms the

fabric of the Chinese adjudicatory system. It is therefore almost impossible to have a

truly independent appellate review system under this institutional reality. Minzner

offered an excellent observation in the context of advisory requests:

‘As Chinese judges themselves note, excessive resort to qingshi [advisory request]

practices has many negative effects. It undermines appellate review, because the

court or judge that reviews the case on appeal may have responded to the initial

qingshi request regarding how to decide the case in the first place. It creates a

relatively passive Chinese judiciary reliant on top-down direction.’10

The institutional weakness of the individual judge is further exacerbated by the fact that

the Chinese Judiciary is not independent. While reforms in the past have, to a certain

extent, transformed the court from a mere instrument of the ruling elite to a public

service that seeks to resolve civil disputes effectively, political forces still shape the

appointment of the court leadership, the adjudication of politically sensitive civil

lawsuits and other key areas of judicial practice.11

Having to navigate their way through the red tape of the judicial bureaucracy, most

judges see themselves as civil servants (not very different from a tax officer) rather than

vanguards of justice.12

For an average judge, accomplishing his or her assigned tasks

without making any mistakes is already a great achievement. Such is the unfortunate

reality of Chinese civil justice.

7 A noteworthy example is the existence of an adjudicative committee in every court in China: see Article

11 of the Organic Law. Consider the views of Chen 2011, p. 186: ‘Before judgment is delivered in certain

important and difficult cases heard by a collegiate bench, the cases must first be discussed by the

adjudicative committee, and in giving judgment the collegiate bench must implement the decision of the

committee.’ Also see Peerenboom 2003, p. 81. Another example is the system of advisory requests

(qingshi). Consider the views of Minzner 2011a, p. 58-59: ‘Court responsibility systems that discipline

judges for simple legal error also create a perverse set of incentives for Chinese judges. To avoid appellate

reversal, lower Chinese courts and judges rely on an ill-defined system of advisory requests (qingshi) to

solicit the views of higher courts and judges on how to decide pending cases.’ 8 Chan 2012b, p. 256. Also see Minzner 2011a, p. 58-59. 9 Wang 2011, p. 1. 10 Minzner 2011a, p. 59. 11 Liebman 2007, p. 18-21. 12 This description of the typical Chinese judge is consistently repeated in a number of interviews with

judges and litigation practitioners conducted by the author, e.g. the interview in June 2012 with an

experienced litigation lawyer based in a leading commercial city in China. Interviews are conducted

either by telephone or through face-to-face meetings. Interviews are recorded by way of attendance notes

produced by the author right after the interviews, e.g. based on notes taken during the interview. All

interviewees referred to in this article would like to remain anonymous. In this connection, only the

month and year of the interview are identified.



3. Judicial mediation in the Wang Court: the judicial

responsibility system, case management and social harmony

3.1 Introduction

Judicial mediation in the Wang Court is not just about alternative dispute resolution

(ADR). Charged with the responsibility to manage caseload and to meet various other

institutional expectations, leaders of Chinese courts would give administrative

directions to individual judges to mediate as much as possible, at times disregarding the

wishes of the parties or the appropriateness of the case for mediation. The impetus to

resort to mediation is not lacking for individual judges, chiefly the result of a perverse

assessment system that champions settlement and penalizes reversals of court decisions.

With the overarching policy objective of the central government to promote social

harmony, the Chinese Judiciary responded by making judicial mediation the preferred

form of dispute resolution, so much so that parties are directed to undergo mediation at

all stages of proceedings (even before the docketing of a case). As a result of such

policy preference, judicial mediation has become the norm of civil dispute resolution.

Leaders of the Chinese Judiciary seem to think that the current problems in judicial

mediation are not the product of institutional defect but the result of poor execution. It

was pointed out by the Vice-President of the Supreme People’s Court (SPC) one way to

improve execution is to ‘gain a correct understanding of the position and function of

mediation, ensure that the work of mediation covers the whole civil litigation

process…and avoid oversimplifying [the court’s work on] mediation. If a case can be

disposed of by mediation, [the court] should not render a judgment that easily’.13

According to an authoritative annotation of the Civil Procedure Law of the People’s

Republic of China (Code),14

judicial mediation serves three main purposes: (1)

achieving ‘social stability’ and ‘unity’ by ‘completely resolving’ the disputes between

litigants, reaching a mutual understanding and settlement through mediation (this

purpose embraces the court’s didactic function of ‘educating’ the litigants and directing

them to a amicable settlement consistent with the principle of ‘social harmony’)15

; (2)

reducing the case volume of the courts, minimizing overall litigation costs, and

enhancing efficiency in case-processing (the benefit of mediation has two levels from an

efficiency perspective: as mediation is usually much quicker than adjudication, parties

13

Speech by Tang Dehua, Vice-President of the Supreme People’s Court at the National Civil

Adjudication Working Conference (chuan guo min shi shen pan gong zuo hui yi), titled ‘geng xin guan

nian shen hua gai ge wei jian li he wan shan xian dai min shi shen pan zhi du er fen dou’ [Renewing

Thinking, Deepening Reform in Constructing and Perfecting the Modern Civil Litigation

System](excerpt), in Zhong Guo Shen Pan Zhi Dao Cong Shu: Min Shi Shen Pan Zhi Dao Yu Can Kao

[China Trial Guide: Reference and Guide to Civil Trial], Vol. 4, 2000, Beijing: Law Press China, 2000,

quoted in Wu, Q.B. (ed.), Zuigao Renmin Fayuan Sifa Zhengce Yu Zhidao Anli, 7: Minshi Susong Juan

[Judicial Policy and Guiding Cases of the Supreme People’s Court, Volume 7, Civil Litigation Volume],

Beijing: Law Press China, 2011, p. 155. 14

Effective since 1991. Revised in 2012 (effective 1 January 2013). Earlier revision in 2007. 15

It is argued that usually it is more likely that parties will voluntarily enforce a mediated settlement (as

compared with a judgment).



are able to have their disputes resolved in an expedited fashion; and given that mediated

settlements are not subject to appeal, it saves overall judicial costs and enhances

efficiency in case-processing by courts); and (3) enhancing the parties’ awareness of the

law (through mediation, judges ‘educate’ the parties on the civil rights and obligations

under the law such that the parties will voluntarily enforce whatever the outcome of the

lawsuit is).16

3.2 Procedural stages of judicial mediation

Mediation can happen at any stage of civil proceedings: from commencement to

enforcement (including appeal and re-adjudication).17

For want of a better system of

categorization, court mediation can be divided into docketing mediation (lian tiaojie),

pre-hearing mediation (kaiting qian de tiaojie) and judicial conciliation (tingshen zhong

de tiaojie). Docketing mediation happens when a case is docketed at the docketing

division and before the case is transferred to the trial division (also known as the

‘judicature division’). A judge or judicial officer of the docketing division acts as the

mediator. Pre-hearing mediation takes place at the trial division after the filing of the

defence (i.e. similar to the stage right after the close of pleadings) and before the

hearing. It is usually conducted by a judge or judicial officer in the trial division, but

rarely by the trial judge himself. Judicial conciliation takes place in the course of the

hearing itself by the trial judge. There are usually four convenient stages during trial to

commence judicial conciliation: (1) before the start of the substantive hearing before the

bench; (2) after court investigation (fayuan diaocha) (i.e. before party debate); (3) after

party debate (and before final submissions; and (4) after the court hearing (before the

rendering of judgment).18

3.3 Policy Preference for Court Mediation in China: A Cause for

Concern

The Chinese Government’s promotion of a harmonious society since the turn of the

century had immense influence over China’s civil justice reform. In recent years

(particularly under the presidency of Wang Shengjun), judicial mediation has been

identified by the Chinese Judiciary as the preferred method for civil dispute resolution.

This is a clear shift away from the old policy of promoting and formalizing civil

adjudication in the 1990s. Pressing social circumstances are responsible for the change

of policy. Minzner observed, ‘Chinese leaders face increasing social unrest generated by

civil conflicts between citizens, and between citizens and the state’.19

In response to

mounting social tension, the state has turned to court mediation as the ‘artificial panacea

16

NPCSC Publication 2012, p. 144-145. 17

Technically speaking, enforcement settlement (zhixing hejie) is not part of judicial mediation.

However, in practice, the judge overseeing an enforcement settlement process performs very similar

functions to the mediating judge in court mediation. 18

NPCSC Publication 2012, p. 146. 19 Minzner 2011b, p. 938.



for social stability’.20

Furthermore, the way in which the performance of the judge is

assessed encourages the judge to resort to court mediation and avoid adjudication.

Judicial mediation can be an effective alternative dispute resolution method if the

decisions to mediate and to settle are made out of the independent will of the parties.

But when there is a strong policy preference for judicial mediation, it will no longer be a

genuine ‘alternative’ dispute resolution method.21

Judicial mediation then loses its

original ADR function and creates serious problems for fact-finding. The policy

preference creates an artificial settlement culture in the courts. From the judge’s

perspective, the primary goal in a civil lawsuit is dispute resolution, rather than the

enforcement of rights. The need to fairly enforce the rights of the parties necessitates a

thorough fact-finding process that assists the judge in ascertaining the truth.

Overemphasizing mediation would inevitably result in the lax of the fact-finding

process as the focus shifts from the enforcement of rights to pure dispute resolution.

The official position is that it is no longer the policy of the civil court to prefer judicial

mediation. But as will be explained below, the so-called policy change (assuming it is a

genuine attempt to re-establish the importance of adjudicative certainty and formalism)

cannot be practically implemented in the lower levels of courts (basic-level courts and

intermediate courts).

3.4 Legislative scheme and judicial interpretations

Article 93 of the Code stipulates that judicial mediation must be conducted on three

important bases: (a) parties voluntarily agree to mediate and enter into any settlement

reached from the mediation process (voluntary basis);22

(b) on the basis of clearly

discerned facts (shishi qingchu)(clear factual basis); and (c) on the basis of correct

ascertainment of liability (in Chinese, the phrase ‘distinguishing right from wrong’

(fenqing shifei) is used) (liability basis).23

An obvious problem arises from this legislative design with the emphasis on factual and

legal correctness of the mediated outcome. The need for a clear factual basis and

liability basis of Article 93 of the Code reinforces the overarching goal of Chinese civil

procedure to achieve substantive justice. Judicial mediation while being a conciliatory

process, must not compromise the principle that an outcome cannot be ‘incorrect’.

This concept is difficult to rationalize from a European procedural perspective given the

clear distinction of adjudication and mediation in general.

20 Minzner 2011b, p. 963. 21 Ibidem. 22

For further discussion on the principle of voluntariness in court mediation, refer to Article 9 of the

Code. Also see NPCSC Publication 2012, p. 10-11, which discusses the theoretical dimension of the

principle (although in practice the situation is very different from theory). 23

While Article 93 of the Code is not explicit in spelling out the need of determining (and if necessary

apportioning) liability, the provision must be read in connection with Article 9 of the Code, which

requires that any court mediation must abide by the legality principle. Interpreting the two provisions,

the phrase ‘distinguishing right from wrong’ in fact refers to requirement that the mediation must be

conducted in a way that the parties understand their respective liability and obligations in the dispute. It

is said that only by correctly discerning liability could the parties be able to voluntarily enforce the

mediated settlement: see NPCSC 2012 Publication, p. 145.



The law sought to achieve this by requiring mediation to be conducted in a way where

there is clear (and correct) finding of facts and where ‘the right is distinguished from the

wrong’. This statutory requirement (which was also present in the 2007 amendment

version of the Code) came under fire during the consultative stage of the revision of the

Code (which culminated in the 2012 version of the Code). Among other critics, Zhang

made the following recommendation (Zhang’s Recommended Revision Draft)24

to

the amendment of Article 93 of the Code:

‘The conduct of mediation in the People’s Courts must abide by the principle of

voluntariness. The content of a mediation agreement must not violate the law,

mandatory administrative rules and must not harm national interests, collective interests

and the interests of third parties.’25

Zhang raised three reasons for recommending this amendment. First, the ultimate goal

of mediation is to reach an amicable settlement of the dispute, which inevitably requires

a degree of ‘fudging’. It is therefore unnecessary to base a settlement on clearly

discerned facts. Zhang’s recommended amendment effectively eliminates the need of

the clear factual basis of court mediation. Second, the emphasis on ‘voluntariness’

must not be limited only to substantive voluntariness (i.e. that parties voluntarily agreed

to the terms of the settlement) but should encompass the concept of procedural

voluntariness. The distinction between procedural and substantive voluntariness has

not been thoroughly understood by judges in practice.26

Third, Zhang proposes the

elimination of the liability basis of judicial mediation. A settlement agreement may not

be consistent with the substantive law of the subject matter in dispute, but could be fully

consistent with the ‘law’. For instance, assuming the dispute concerns personal injuries

sustained in a traffic accident and that a statutory minimum compensation is payable by

the defendant should liability be established. The terms of the settlement agreement

may not fully reflect the substantive law of the tort of negligence (e.g. the payment by

the defendant to the claimant under the settlement is much lower than the statutory

minimum compensation should liability be established). While clearly the settlement is

clearly inconsistent with the substantive law of the tort of negligence (in this case

inconsistent with the hypothetical statutory minimum compensation), the settlement is

not contrary to the law in the sense that it is not illegal. Requiring a settlement to be

consistent with the substantive law robs the liberty by which the parties could reach an

agreement that best reflects their respective interests. It should be enough for the court

to recognize and enforce a settlement agreement if it is not illegal. The replacement of

the ‘liability basis’ by this ‘illegality test’ places court mediation in the right position as

an ADR method.

24

Zhang’s Recommended Revision Draft (containing article by article revision recommendations) was

published in 2011 with the aim to aid the amendment exercise of the Code: see Zhang 2011. 25

Zhang 2011, p. 238 (Article 198 of Zhang’s Recommended Revision Draft). 26

The principle of voluntariness is already in the relevant provision in the 2007 amendment version of

the Code. Yet Zhang’s annotation reinforces the need to address the pressing problem of coerced

mediation, which could take the form of coercing parties to commence mediation, coercing parties to

concede certain points during mediation and coercing parties into a settlement.



It is with much regret that Zhang’s recommendation was not accepted in the 2012

amendment exercise of the Code. In any event, the recommendation represents a

timely academic challenge to the underlying principles of Chinese judicial mediation

that tend to skew the intended purpose of mediation itself.

Mediation is supposed to be an interests-based conciliatory process that seeks to reach

common ground between the parties. The requirements under Article 93 of the Code

distorts this process and injects an element of uncertainty in that the judicial mediator is

in a position to shape the course of mediation and the terms of settlement against the

will of parties in the name of upholding Article 93 of the Code. This is one of the

reasons why the author argues that court mediation in China is in fact not modern

mediation but a summary judicial process that provides a ‘way out’ when formal

procedure cannot deliver the result desired.

3.5 Judicial policy documents and policy development trend Provisions of the Supreme People's Court about Several Issues Concerning the Civil Mediation Work of the

People's Court (SPC 2004 Provisions)27

provides some structure for judges in mediating

civil cases. Article 2 of the SPC 2004 Provisions provides that the court should

mediate cases that could possibly be resolved through mediation (although the court

should not mediate for certain cases, e.g. winding-up proceedings). The choice of word,

‘should’, suggests that the court has an obligation to mediate provided there is an

opportunity that the case could be settled. In theory, it is obvious that Article 2 should

be read in the context of the principle of voluntariness under the Code. However, in

practice, given the institutional orientation of China’s justice system, it is not

uncommon for the court to push for mediation as a matter of administrative obligation

in such a way that infringe voluntariness of parties.

Among other important judicial policy instruments, a key instrument that set the tone

for reforms in favour of mediation is the Several Opinions of the Supreme People’s

Court on Further Implementing the Work Principle of ‘Giving Priority to Mediation and

Combining Mediation with Judgment (2010) (2010 Mediation Opinions). The 2010

Mediation Opinions reinforces, among other things, the overarching theme of the

judiciary’s task of maintaining social harmony with the efficient deployment of

mediation tools within its disposal (that court mediation is an ‘efficient and effective’

mode of civil dispute resolution) and the need for court mediation to coordinate with

other modes of mediation (e.g. people’s mediation and administrative mediation) within

the ‘Grand Mediation’ scheme (da tiaojie).28

Despite confirmation from a number of sources that the policies enshrined in the 2007

Opinions and other relevant policy instruments are no longer followed by courts (though

27 Effective since 1 November 2004. 28

Articles 1 and 2 of the 2010 Mediation Opinions. Article 6 specifically deals with mediation in

administrative actions, a topic beyond the scope of this book.



the opinion is still technically effective),29

the question remains as to whether this

alleged policy change is implemented in practice. On a grand scale, a sceptic would

say that the policy-makers are only saying that they want to establish the rule of law,

while in fact the real objective is to preserve stability of the state (weiwen).

4. The Role of Judicial Mediation in Chinese Civil Justice and

Its Impact on Access to Justice

4.1 Judicial conciliation? Court settlement? Or facilitative judging?

- the Chinese spectrum of JDR

Judicial mediation is an integral part of contemporary Chinese civil procedure.30

Two

basic principles underscore court mediation in China: legality and voluntariness (of the

parties).31

Respecting voluntariness of the parties in mediation is an observance of the

principle of party disposition. It also promotes the enforcement of a mediated

settlement.32

Unfortunately, as a result of the policy of giving priority to mediation,

voluntariness is hanging by the thread.

Judicial mediation may be conducted at various stages of a civil lawsuit (first instance

proceedings, appeal or retrial). The procedural rules for judicial mediation are set out in

the SPC 2004 Provisions. Reference should also be made to the Several Opinions of the Supreme People’s Court on Establishing a Sound Conflict and Dispute Resolution Mechanism that Connects

Litigation and Non-litigation (SPC 2009 Opinion). The court may invite other entities (or

individuals) that have a special relationship with the parties or are connected with the

case to assist in court mediation.33

The parties as well as the ‘presiding staff over the

mediation’ (i.e. the mediator) may present a settlement proposal.34

When a settlement is

reached through judicial mediation, the court shall draw up a written ‘mediation

agreement’. A mediation agreement shall clearly set out the claims of the action, the

facts of the case, and the result of the mediation. The mediation agreement shall then be

signed by the judge and the court clerk, sealed by the court and served on both parties.

Once the mediation agreement is signed and exchanged by both parties, it becomes

legally binding.35

If either party fails to perform the mediation agreement, the other

party can apply to the court to enforce the mediation agreement.36

For want of a better dichotomy, judicial mediation includes two distinct processes:

judicial conciliation (which takes place during court hearing by the trial judge) and pre-

29 Based on an interview with a court assistant of a basic-level court (11 November 2013). 30 Alexander 2009, p. 139. 31 Art. 9 of the Code. Also see Arts. 85 and 88 of the Code. 32 NPCSC Publication 2007, p. 155. 33 Art. 3 of the SPC 2004 Provisions. Also see Art. 87 of the Code. 34 Art. 8 of the SPC 2004 Provisions. Indeed, this particular rule carries an element of conciliation given

its directive and interventionist nature (i.e. the mediator may present a settlement proposal). 35 Art. 89 of the Code. 36 Art. 13 of the SPC 2004 Provisions.



hearing mediation procedures (conducted by court personnel other than the trial judge).

In judicial conciliation, the trial judge acts as the conciliator. If conciliation fails, the

same judge will continue with the adjudication of the case. This practice is likely to

threaten the without prejudice nature of the conciliation process (particularly given the

judge is allowed to meet ex parte with parties).37

It also affects the judge’s impartiality in

the adjudication that follows. Judicial conciliation may occur at the closing phase of the

trial right before the rendering of a judgment so long as parties consent to mediation.38

While party autonomy is emphasized under the law,39

the judge (or judicial officer)

sometimes dominates the mediation process and steers the settlement negotiation along

its adjudicative agenda.40

As a result of the policy of giving priority to court mediation, parties of a civil dispute

are sometimes forced to mediate their case and become ‘victims’ of a compelled

settlement.41

When a party enters into a settlement against its will, it is more likely that

it will not honour the settlement agreement. This leads to enforcement problems. It will

be fallacious to conclude that court mediation of civil disputes in China has been

successful by simply looking at the rising judicial mediation settlement rate. If mediated

settlements are frequently subject to court enforcement, the necessary conclusion must

be that the mediation in the first place was not effective.42

The enforcement of

settlement agreements reached by judicial mediation has been increasingly

problematic.43

While the judicial mediation settlement rate has arisen during the period

between 2002 and 2009, court enforcement rate of the same period also skyrocketed.44

This suggests that a considerable number of mediated settlements did not conclusively

resolve disputes and parties had to resort to the court for enforcement. The situation is

particularly serious in basic-level people’s courts.45

Conflict of interest arises inevitably when the judge acts as both the conciliator and the

adjudicator (in the case of judicial conciliation). The question of mediation

confidentiality was a subject widely discussed in international academia. China is

underdeveloped in the area of mediation confidentiality.

37 Art. 7 of the SPC 2004 Provisions. 38 Art. 1 of the SPC 2004 Provisions. 39 The question of party autonomy must be addressed not simply from the perspective of whether party

consent to mediate had been obtained. Party autonomy is a core principle of ADR that should permeate

the whole mediation process ranging from the definition of issues to the methods employed for reaching

settlement. 40 Fu & Cullen 2011, p. 51. 41 Wang 2009, p. 71-73. 42 Pan & Liu 2010, p. 75. 43 Peerenboom & He 2009, p. 25-26. 44 Pan & Liu 2010, p. 75. 45 Pan & Liu 2010, p. 76.



The civil court performs important public functions, namely the enforcement of rights

and the declaration of norms.46

Judicial mediation is designed to settle disputes only

and not to enforce rights and declare norms. Overemphasizing judicial mediation risks

the civil court losing its public functions.47

4.2 Judicial Mediation at the Appellate Stage

A special feature of the Chinese appellate system is the active encouragement of court

mediation at the appellate stage. If a settlement is reached through court mediation, a

mediation agreement shall be made.48

The mediation agreement must then be signed by

the adjudicating judges and the court clerk, and affixed with the seal of the appellate

court. When the mediation agreement is served on both parties, the first instance

judgment is deemed to have been set aside and the mediation agreement becomes

directly enforceable (just like any civil judgment).49

The role of the appellate court is to review the lower court’s decision, not to mediate.

The appellate court performs an important function of declaring what it sees to be the

correct norms through the various possible outcomes of appellate review. This function

promotes consistency in adjudication and uniformity in statutory interpretation.

Promoting court mediation at the appellate stage as a matter of policy weakens this

function and distorts the real purpose of an appeal.50

4.3 Why is Judicial Mediation Popular among Judges?

Judicial mediation has many attractions for judges.

First, the performance of a judge is partly assessed on the basis of his ability to avoid

mistakes (including the ability to minimise reversals of judgments on appeal).

Adjudication is therefore a ‘risky business’ for a judge from a career perspective given

the possibility of appellate reversal.51

Judicial mediation becomes a very attractive

option for judges as parties cannot appeal against a mediation agreement.52

46 Zuckerman observed, ‘The civil court provides a law enforcement service. The role of the civil court is

not merely to mediate disputes but to give effect to our rights and enforce them’. See Zuckerman 2009, p.

53. 47 Overemphasizing court mediation will result in the deterioration of the adjudicatory function of the

court (especially in fact-finding) as the focus is shifted from the enforcement of rights to pure dispute

resolution. See Wang 2009, p. 72. 48 Art. 172 of the Code. 49 Ibidem. For an explanation of the deeming provision (i.e. the first instance judgment is deemed to have

been set aside upon service of the mediation agreement), see Zhang & Li 2012, p. 324. 50 For a summary of the policy reasons behind the promotion of court mediation in China, see Chan

2012b, p. 250-252. 51 Peerenboom & Scanlon 2005, p. 40. 52 But it is possible to re-open a mediation agreement for re-adjudication: see Arts. 198, 201 and 208 of

the Code.



Second, with ever-increasing caseloads, some courts have turned to mediation as a case

management tool.53

A mediation agreement is a relatively simple document.54

Settling

a case through court mediation avoids the need of writing a judgment, which can be

very time consuming.55

A basic court judge observed that parties tend to be more satisfied with a mediated

settlement, given its voluntary nature.56

Another basic court judge noted that very

rarely would mediation agreements be subject to citizen petitions provided that both

parties voluntarily agreed to settle.57

4.4 Distorted Judicial Mediation: Subtle Coercion

The policy preference for judicial mediation sometimes leads to the use of coercive

practices by mediating judges where parties are forced to mediate their case or become

‘victims’ of a compelled settlement. This is particularly true for judicial conciliation

when the judge plays the fused role of adjudicator-conciliator.

It is against the well-established principle of voluntariness for judges to use coercion in

mediation (yatiao).58

Given the possibility of petition and revocation of the mediation

agreement,59

judges are generally careful not to violate the principle of voluntariness in

a blatant way.60

However, some judges are fairly comfortable with the idea of hinting to

parties what their preliminary judgments are as a tactic to secure settlements. A senior

judge, based on his extensive experience, described a hypothetical case that illustrates

this practice. A simple breach of contract case went to judicial conciliation:

The responsible judge of the collegiate bench (Judge X) was the sole mediator.61

The

plaintiff offered to settle the case if the defendant were to pay him RMB500,000. When

mediating the case, Judge X already made up his mind that the defendant should lose if

the mediation fails (with damages amounting to RMB800,000). He met with the

defendant at a back-to-back session and hinted that the judgment would be against the

53 In a basic court of a medium-sized coastal city in China, a judge (on average) handles approximately

280 cases per year. This is reflective of the common saying in China that ‘there are too many cases and

too few people [judges]’ (anduo renshao). Based on an interview with a judge at a basic court in a medium-

sized coastal city in China (in May 2012). 54 Art. 97 of the Code. 55 Based on an interview (in May 2012) with a basic court judge who specializes in intellectual property

adjudication in a leading commercial city in China. 56 Based on an interview with a judge at a basic court in a medium-sized coastal city in China (May 2012). 57 Based on an interview (in May 2012) with a basic court judge who specializes in intellectual property

adjudication in a leading commercial city in China. 58 Art. 93 of the Code. 59 Art. 201 of the Code. 60 A basic court judge noted that blatant violation of the principle of voluntariness by the judge in court

mediations is less likely to occur in the economically advanced regions. The overt use of coercion in court

mediation is generally seen in less developed inland regions. Based on an interview with a judge at a

basic court in a medium-sized coastal city in China (May 2012). 61 Under Art. 94 of the Code, a single judge or the whole collegiate bench may conduct the mediation.



defendant. Judge X further hinted that the defendant is likely to pay more if the case is

not settled. As a result, the defendant agreed to settle.62

The senior judge was of the view that Judge X’s practice (which according to him is

very common) does not amount to coerced mediation. He noted that this method is very

effective in that it allows parties to appreciate what the consequences are should

mediation fail. The art of this method, he said, is how to communicate the preliminary

judgment in a subtle manner.63

Another judge commented that this method helps the

parties understand the legal positions they are in. As many litigants are unrepresented,

the judge plays a didactic function in judicial mediation.64

Violation of the principle of voluntariness also occurs when parties are pressured into

choosing judicial mediation. Even where a party succeeds in resisting mediation, it is

possible that any refusal to mediate without good cause would be viewed unfavourably

by the court.65

A settlement under the pressure of the court is not a genuine settlement. As any

mediation agreement reached at second instance trumps the first instance judgment,

coerced settlements at the appellate level threaten the normative effect of first instance

decisions. Obviously, such practices also infringe the party’s right of appeal.

Unfortunately, with the policy incentive to settle civil disputes, it is very difficult to

eradicate this kind of ‘subtle’ coercive mediation practices by judges. Enforcement

statistics show that a rising number of settlements fail to conclusively resolve disputes.

This may be an indicator that at least some settlements are affected by this kind of

coercive practices.66

4.5 Circumstances under which the mediating judge would

communicate to the parties the outcome of the case should mediation

fails

A basic-level court judge from a leading commercial city in northern China explained

two common situations under which the judge would have to communicate to the

parties the possible outcome of the case should mediation fails (either by hinting what

62 Based on an interview with a deputy division head of the high court of an inland province in China (in

May 2012). The senior judge specialises in handling foreign-related civil and commercial disputes. 63 Ibidem. 64 Based on an interview with a judge at a basic court in a medium-sized coastal city in China (May 2012). 65 Based on an interview with a deputy division head of the high court of an inland province in China (in

May 2012). The senior judge specialises in handling foreign-related civil and commercial disputes. A

basic court judge observed that where the court believes that a claimant has a better case but the evidence

available does not support a ruling in the claimant’s favour, the court migh push for mediation so that the

claimant may recover some compensation. Obviously, the mediation will be steered towards this

adjudicative agenda: based on an interview (in May 2012) with a basic court judge who specializes in

intellectual property adjudication in a leading commercial city in China. 66 While court mediation settlement rate has arisen during the period between 2002 and 2009, court

enforcement rate of mediation agreements during the same period also skyrocketed. This suggests that a

considerable number of mediated settlements did not conclusively resolve disputes and parties had to

resort to the court for enforcement. The situation is particularly serious in basic-level courts: see Pan &

Liu 2010, p. 75-76.



the judgment is likely to be or simply by informing the parties the outcome in an

explicit manner).

First situation: Where the law imposes an obligation on the court to provide

clarification (Richterliche Aufklarung) 67

, the mediating judge must explain to the party in

question the legal consequences of failure to produce certain evidence. Technically

speaking, this can be seen as disclosure of the possible outcome to the parties (assuming

mediation should fail). For instance, under Article 76 of the Code, if a case concerns

factual issues of a specialist nature, the party may apply to the court for a forensic

analysis (sifa jianding). For instance, in a medical negligence case, given the specialist

nature of the matter, the judge needs to explain to the claimant (as per the obligation of

judicial clarification) that the claimant bears the risk of failing to establish the facts of

his case (and hence the risk of losing the lawsuit) if a forensic analysis is not requested.

The judge is obligated to do this even where the parties are in mediation/ conciliation.

This is effectively informing the claimant the possible outcome of the case.68

Second situation: Where the mediating judge is of the view that disclosure of the

possible outcome of the case could help the parties make an informed decision while

deciding on the terms of settlement (and where such disclosure could limit the negative

effects of parties being taken by surprise with the outcome when mediation fails), the

judge should not hesitate to hint the outcome by sharing his thoughts with the parties on

the merits of the case, the decision on possible quantum and his interpretation of the

law.69

The problem with disclosure of outcome to parties in mediation is that the disclosure

itself would constitute a pivotal factor in the parties’ consideration for settlement. It

therefore obscures the voluntary nature of the process and derails what is supposed to be

an interest-based negotiation between the parties. In the first situation, despite clear

requirement under the law for judicial clarification, the mediating judge could have

refrained from discussing the issue of evidence during mediation, and only address any

evidential difficulties when the parties cannot continue with the mediation. Using the

same example above, the clarification of the consequences of not obtaining a forensic

analysis (which is almost the same as telling the claimant that his case would definitely

fail without the forensic analysis) seems to suggest that the claimant is at fault for not

producing vital evidence. But the production of evidence should not be a consideration

at all in mediation. Interpreting the statutory provision that there is the need to provide

clarification during mediation would turn what is supposed to be an interest-based

facilitative process into a fact-finding mission with the mediating judge as the arbiter,

not the mediator.

67

Article 3 of the Civil Evidence Rules provides, ‘The People’s court shall inform the parties concerned

of the requirements for producing evidences and of the corresponding legal liabilities so that the parties

concerned may produce evidence actively, completely, correctly and honestly within the reasonable time

period’. 68

Based on an interview with a civil judge at a basic-level court in a leading commercial city in northern

China (6 Feb 2014). 69

Ibidem.



The reasoning behind the second situation where the judge would feel obligated to

disclose the possible outcome of the case is even more puzzling. Assume a party is

taken by surprise by procedural ambushes from the other side. This can be fully

prevented by drafting clear and comprehensive procedural rules on due notice (and

enforcing those rules). The court has no duty to ensure that a party is given due notice

with regards to the outcome of the case. On the other hand, disclosure of the outcome

does not necessarily cause the parties to make an informed decision on settlement, as

mediation should be about striking an agreement based on common interests. If a party

need to know what his legal liabilities are (so to effectively assess their Best Alternative

to a Negotiated Agreement (BATNA)), the best person to turn to is his lawyer and not

the judge. It appears that the so-called need to manage expectation of the litigation

outcome or to help parties make an informed settlement decision could be a handy

excuse for the court to interfere with the mediation process and result, in such a way

that best suits the agenda of the court (whether the agenda is policy-driven, efficiency-

drive or of another nature). This tendency to disclose the potential outcome with the

view of ‘advising’ (or ‘mentoring’) the parties is also rooted in the judicial culture that

in-court mediation is not just about parties reaching an amicable resolution but also

about the delivery of substantive justice in the sense that the settlement cannot be too far

off the standards and remedies under the substantive law.

4.6 The virtues of synthesizing adjudication and judicial mediation: a

Chinese perspective (based on an interview with an intermediate court

judge)70

Judicial mediation is said to be at the “centre” of “Grand Mediation” (da tiao jie). An

intermediate court judge commented on the virtues of combing judicial conciliation and

adjudication. First and foremost, parties tend to respect a judge by virtue of the judge’s

authority to decide on the outcome of the case. Unlike a facilitative mediator, the

Chinese judge-conciliator is empowered to sanction a settlement. By the time of the

mediation, the judge usually would have had a rough idea on liability and quantum. As

such, it is much easier for the judge-mediator to ‘push for a settlement’. Parties are

‘scared’ of the judge and ‘have to listen’. Also, a fused role also ensures that the

conciliator knows everything about the case.71

The judge is sceptical about the idea of separating mediation from adjudication in

judicial mediation this idea envisage a total abolition of judicial conciliation and replace

it with a pre-hearing mediation by a mediator who does not hear the case. Among

other reasons, such a separation would make mediation very inefficient, as such type of

70

Based on an interview (on 2 September 2012) with an intermediate court judge in a leading city in

northern China. 71

Judicial conciliation can occur on a rolling basis, which is more in line with the development of the

dispute. It is only until the middle of the trial would the parties really appreciate the merits of the case as

the facts reveal themselves.



mediator knows very little about the case and the judiciary has insufficient resources to

sustain a standalone team of mediators.

4.7 Mediation agreement may be reopened under the adjudication

supervision procedure: supervising for better or for worse?

A glaring shortcoming of the 2012 revision to Article 198 of the Code is the extension

of the court’s ex officio power to re-open a case settled by judicial mediation. If a

mediation agreement is found to contain any ‘definite error’, it should be re-opened like

any legally effective judgment or ruling. ‘Definite error’ in the context of mediation

agreements is not defined in the Code, although some guidance is provided in Article

201 of the Code:72

‘A party may apply for retrial against a legally effective mediation agreement if he can

adduce any evidence that the mediation violated the principle of voluntariness or any

content of the mediated settlement violated the law. If the people’s court finds the

evidence to be true upon examination, it shall conduct a retrial.’

Allowing the court to set aside a private settlement arrangement ex officio and to order a

retrial of the case opens the door for unwarranted judicial intervention of private justice.

While it may be a panacea for the problem of coercive practices in court mediation, its

remedial effect fails to outweigh the harm it creates. The problem of coercive

mediation practices should be tackled not by giving more power to the court to

intervene, but by reforming the crippled court mediation system in China.73

If the

mediation agreement violated the law, the most straightforward remedy is to disallow

enforcement.74

It would be much more consistent with the principle of party

disposition to leave the parties themselves to decide what to do next if enforcement is

refused,75

rather than to allow the court to re-open an otherwise settled dispute. Of

course, proponents of this amendment would argue that a mediation agreement is not

purely a private settlement under Chinese procedural theory, as the court’s authority to

sanction the settlement is a manifestation of its adjudicatory power.76

Some academics in Mainland China have questioned the need to retain the court’s ex

officio power of adjudication supervision. Tang, for instance, calls for the abolition of

such a system. By removing its ex officio power to re-open final judgments, the

judiciary would be able to focus on improving the quality of its adjudicatory work (and

72

NPCSC Publication 2012, p. 321 73

Chan 2012b, p. 249-256. 74

As a mediation agreement must be sanctioned by the court before it becomes binding, the judge should

reject a mediation agreement that contains illegal terms in the first place, rather than waiting until the

enforcement stage to rectify the problem. 75

For instance, the parties may decide to apply to re-open the mediation agreement under Article 201 of

the Code. 76

Zhang W.P. 2012, p. 21.



would thereby become more confident with its own decisions), instead of having to rely

on the re-adjudication mechanism to correct errors.77

Another troubling issue relating to the finality of a court-sanctioned settlement is the

extension of procuratorial power to re-open a mediation agreement if it causes any

damage to ‘national interest’ or ‘public interest’.78

The procuratorate did not have this

power until the 2012 amendment of the Code. Neither ‘national interest’ nor ‘public

interest’ was defined in the Code, leaving the procuratorates ample discretion to

determine their meaning.79

Given the private nature of a mediated settlement, it is

questionable whether the best way to deal with irregularities in a mediation agreement is

through a non-judicial public body, especially when power can possibly be exercised by

that body arbitrarily. Under Chinese civil procedure, parties are entitled to settle a

lawsuit voluntarily and free from any form of intervention. The principle of

voluntariness in court mediation, which is a core principle in Chinese civil procedure, is

enshrined in Article 9 of the Code. The extension of procuratorial power to re-open

mediation agreements contradicts the spirit of Article 9. A better option is to simply

refuse enforcement of a mediation agreement if it is found to be contrary to the law.

The proposed ‘illegality’ test is superior to the current ‘national interest/public interest’

test as the proposed test is far more precise and predictable. The proposed test also

echoes the principle of legality in court mediation under Article 9 of the Code.80

Treating irregular mediation agreements at the enforcement stage allows the court to

deal with the matter within its own domain, without the need for an intruding

procurator.81

4.8 The Pre-eminence of Substantive Justice in Chinese procedural

culture

Article 63 of the Civil Evidence Rules is said to have abandoned the doctrine of

factuality.82

However, the obsession with material truth lives on in the Chinese Judiciary.

The habit of leaving no stones unturned in fact-finding stems from the pre-eminence of

substantive justice in the Chinese legal tradition. The extent to which the Chinese judge

is willing to sacrifice procedural justice in achieving substantive justice is quite startling.

77

Tang, W.J., ‘Minsu Fa Xiugai Zhong Jiancha Jiandu Quan De Wanshan’ [Perfecting the Supervisory

Powers of the Procuratorate in the Revision of the Civil Procedure Law], Procuratorial Daily, 23 May

2011. However, Tang is in favour of retaining the supervisory power of the procuratorate over civil

adjudication. 78

Ibidem. 79

Some academics in Mainland China have called for clearer guidance from the SPC and SPP on the test

of ‘national/ public interest’ through the issuance of a judicial interpretation that regulates the re-opening

of mediation agreements by procuratorates: for instance, see Zhang W.P. 2012, p. 22. 80

Under Article 9 of the Code, the procedure and method for court mediation must be legal, and so must

the content of the mediation agreement: see NPCSC Publication 2012, p. 11. 81

In fact, the judges should be entrusted with the duty to ensure that any mediated settlement sanctioned

by the court should not be illegal and hence avoid as much as possible the need to deal with this matter at

the enforcement stage. 82 Zhang & Zwier 2003, p. 451. The doctrine of factuality concerns the judicial pursuit of the material

truth.



A senior judge at a high court expressed that he is willing to bend (or even completely

ignore) procedural rules in order to achieve substantive justice.83

A basic court judge

suggested that the principle of finality hinders the court’s ability to deliver substantive

justice. In his view, if the legally effective judgment is clearly wrong, it is the moral

obligation of the judge to rectify the error.84

There is a populist level to the notion of achieving substantive justice at all cost. The

real policy objective underlying the judicial pursuit of substantive justice is to ensure

that (as per the Chinese slogan) ‘the case is closed and the dispute is [truly] resolved’

(anjie shiliao), which means that the disposal of a lawsuit is insufficient unless it is

coupled with the eradication of discontent on the social level in relation to matters

arising from the dispute.85

China’s obsession with material truth is not unique. In fact,

it is a common trait of the Socialist legality.86

Under the lingering influence of the

doctrine of factuality and the policy need to supervise judicial behaviour, it is unlikely

that the ex officio powers of adjudication supervision of courts and procuratorates would

be abolished in the near future.

5. Concluding remarks: Prospective Judicial Reform and Its

Impact on Mediation in China [see power-point presentation]

83 Based on an interview with a deputy division head of the high court of an inland province in China (in

May 2012). The senior judge specialises in handling foreign-related civil and commercial disputes. 84 Based on an interview (in May 2012) with a basic court judge who specializes in intellectual property

adjudication in a leading commercial city in China. 85 Adjudication supervision is premised on the principle that ‘an error must be corrected where

appropriate’ (dangjiu zejiu). Policy-makers are overtly against the idea that ‘a final judgment should be

upheld where possible’ (nengwei zewei): see Zhou 2010, p. 174. The policy objective of closing a case as

well as truly resolving the dispute on the social level (anjie shiliao) is usually followed by the phrase,

‘maintaining harmony among the people [i.e. the parties and other stakeholders]’ (renhe). The emphasis on

social harmony underlies the policy bias in favour of court mediation over adjudication. For an overview

of the policy preference for court mediation in China, see Chan 2012b, p. 250-256. 86 Uzelac 2010, p. 390.



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Viktoria HARSAGI (Hungary)


habil. Viktória HARSÁ GI

Judiciary and Political Control – National Report, Hungary

As far as the historical development of Hungarian procedural law is concerned, one

cannot speak of organic development similar to that of Western-European legal systems,

the line of development has broken at several points;Hungarian civil procedural law has

gone through numerous changes in model. The process lacks evenness and continuity.

Started processes of development have often been discontinued so as to give way to the

influence of another trend.1 Onthe whole it may be stated that the foundation was

constituted by Western cultural influence, all other influences have become layered on

this including, for example, the ideology of the socialist era and the effects of present-

day globalisation. Therefore, one has to do with a strange multi-layer culture and,

through it, legal culture, which is born on the border of legal cultures. It is a civil

procedural system based on the civil law system, and more specifically, on German-

Austrian civil procedural law, which still bears on it some marks of the socialist heritage.

The code of civil procedure of German-Austrian roots hallmarked by the name of

SándorPlósz from 1911 was replaced in 1952 by an Act of “socialist spirit” based on

the Soviet-Russian Code of Civil Procedure of 1923. Act III of 1952 (Hungarian Code

of Civil Procedure – hereinafter: HCCP) is still effective, although it has gone through

11 greater amendments and more than 60 other modifications in the past almost 60

years. Since the democratic political transformation, it has repeatedly become

characterised by Western orientation; the approximation of the legal system to Western

cultures (in a lot of cases to European Community law) began as early as the 1990s.2

Therefore, for someone wishing to learn about, interpret and apply the Hungarian CCP

it is important to bear in mind that its text being in effect today contains numerous

norms having developed in the most varied time planes. Thus, the effective text of the

HCCP cannot be regarded truly homogeneous either ideologically or linguistically.

In the 1990s the legislator made an attempt at renewing the Code of Civil Procedure of

1952 – through repeated amendments – in accordance with new objectives and

principles. It is still raised as an unanswered question whether by this method (in other

words, by “filling the old bag with new wine”) one succeeded or could possibly succeed

in adjusting to the frames of the rule of law a code of civil procedure, the original

conception and text of which (although modified several times) had been formulated

within the frames of a dictatorial system and in accordance with the ideology of that

system. The codification of a new code of civil procedure started in the summer of 2013,

setting as one of its aims the creation of an Act based on a unified conception that would

Associate Professor, Head of Department, PázmányPéterCatholicUniversity (Budapest), Department of

Civil Procedure Law. E-mail: [email protected] 1 Magyary, Géza: Magyar perjogi reformmozgalmak. In: Összegyűjtött dolgozatai, Magyar Tudományos

Akadémia, Budapest, 1942, 15. p. 2 For more detail, see: Harsági, Viktória: "DownstreamorUptheStream" − Influence of

DifferentLegalCulturesonHungarian Civil Procedure Law.In: Maleshin, Dmitry (ed.): Civil

ProcedureinCross-culturalDialogue: EurasiaContext, Statut Publishing House, Moscow, 2012, 278. p.



meet the requirements of the era. The codification process is expected to take three to

four years.

I. Historical background

I.1. The birth of the modern Hungarian Code of Civil Procedure (1911)

At the beginning of the 20th century there was a turning point in the history of the

Hungarian Code of Civil Procedure. The outdated and anachronistic Code of Civil

Judicial Procedure of 1868 still based on the written form, the indirect method and a

prescribed system of proof was replaced by the Code of Civil Procedure of 1911. The

preparatory work for codification lasted almost 25 years. The prolonged work resulted

in a “Code of Civil Procedure recognized Europe-wide, which, due to SándorPlósz,

combined with a lasting impact the elements of German civil procedure having liberal-

capitalist foundations and those of the Austrian civil procedure of 1895 implementing

the ideal of social civil action.”3

The Code of Civil Procedure of 1911 undebatably turned out to be one of the best

European products of European legal development in the era. Its creators probably set it

as their objective to ensure, through the implementation of modern principles, the

possibility of rights enforcement within the framework of an effective and relatively

short action, and at the same time, to prevent the protraction of lawsuits by mala fide

litigants. For this purpose a concentrated action structure was developed. It gave effect

to the basic principles that had evolved during legal development in the 19th century

(oral hearing, publicity, immediacy, free evaluation of evidence), on the other hand, it

established a modern cooperation between the court and parties, it respected the parties’

right to disposition, but put the management of the lawsuit into the hands of the court,

so as to avoid the protraction of proceedings by increasing the activity of the judge.

With regard to supplying facts and evidence the adversarial principle prevailed basically,

but the Act also allowed a relatively wide possibility for the taking of evidence ex

officio. In district court proceedings the Act laid down the court’s obligation to brief the

party acting without legal representation about the process. This was not required

elsewhere since legal representation was compulsory before higher courts of law,

regional courts of appeal and the Curia. The essential new rules of the Code of Civil

Procedure of 1911 included the obligation of the parties and their representatives to tell

the truth, more precisely, the prohibition of claiming untrue facts.4

The prolonged codification had the advantage that legislators were able to get more

acquainted with the main Acts on civil procedure of the last third of the 19th century

and even their reception. The work was characterised by the rather strong influence of

German and Austriancivil procedure,5but during its creation not only these codes but,

3 Kengyel, Miklós: A polgári eljárásjog jelene és jövője. In: Benisné, Győrffy Ilona (ed.): Ötödik magyar

jogászgyűlés. Magyar Jogász Egylet, Budapest, 2000, 233. p. 4 Kengyel: op. cit. (seefn. 3.) 234. p.

5 Németh, János: DasdeutscheZivilprozessrecht und seineAusstrahlungauf die Rechtsordnungen der

osteuropäischenLänder. InHabscheid, Walther J. (ed.): DasdeutscheZivilprozessrecht und



apart from them, primarily French and English institutions were also carefully utilized.6

In the lengthy reasoningrelating to the Code of Civil Procedure of 1911, approximately

120 references were made mainly to the German, Austrian, French as well as Italian,

Geneva and Belgian civil codes of procedure.7The bill was published as the resultant of

modern European codes of civil procedure, “which endeavoured to incorporate the most

important institutions and most successful solutions”.8

The codification of Hungarian civil procedure which started in the 1880s was founded

onthe German Code of Civil Procedure of 1877 and the French Act of 1806 on civil

procedure. SándorPlósz prepared his first draft based onthe German Code of Civil

Procedure, the influence of Austrian codification,which became accelerated at the

beginning of the 1990s, was first reflected inthe reasoning attached to the draft of

1902.9Everything that on the application of strong criticism was found the most

valuable in the German and Austrian codes of civil procedure was adopted by the

legislator. Nevertheless, it would be erroneous to believe that the Act was limited to the

simple transposition of the achievements of German and Austrian civil procedures. In

many parts it reveals an original conception; it solves a great many questions

independently.10

Keeping a distance from German dogmatics was justified also for the

reason that the professional public would have preferred the embodiment of the ideals

of French or English civil procedure. The practical implementation of modern civil

procedural principles was transmitted to Hungary primarily by the codes of civil

procedure of German states realizing French ideals. In spite of the fact that the basic

civil procedural principles of the French bourgeois revolution were adopted by

Hungarian law through German transmission, it may be stated that they were elaborated

by Hungarian law within the framework ofan independent system, and the greatly

flexible attitude of the Code de procédurecivile toward the basic principles had a

noticeable impact on Hungarian legal development too. The Austrian Code of Civil

Procedure of 1895 exerted a substantial influence on Hungarian codification at the turn

of the century and reshaped the original aspects of the bill significantly. Apart from the

general effect of the adoption of individual rules and legal institutions (the active role of

the judge, the extent of ex officio judicial acts, the obligation to tell the truth etc.), it

seineAusstrahlungaufandereRechtsordnungen. Gieseking, Bielefeld, 1991, 254−281. p.; Kengyel, Miklós:

Der Einfluss der österreichischenZivilprozessordnungauf die ungarischeKodifikation. In: Bittner / Klicka

/ Kodek / Oberhammer (eds.): Festschriftfür Walter H. Rechbergerzum 60. Geburtstag. Springer, Wien,

246−249. p. 6 Magyary, Géza / Nizsalovszky, Endre: Magyar polgári perjog. Franklin Társulat Kiadása, Budapest,

1942, 23−24. p. 7 The frequency of referencestells a lotabouttheintensity of foreigninfluences: 45

referencestotheGermanCode of Civil Procedure of 1877, 40 referencestotheAustrianCode of Civil

Procedure of 1855, 22 referencestotheFrenchActon Civil Procedure, 8 referencestothe Italian Acton Civil

Procedure, 4 referencestotheCode of Civil Procedure of Geneva of 1812, 3 referencestotheBelgianActon

Civil Procedure of 1876.Source:Kengyel, Miklós: A bírói hatalom és a felek rendelkezési joga a polgári

perben. Osiris, Budapest, 2003, 153. p. 8 Kengyel: op. cit. (seefn. 7.) 158. p.

9 Kengyel, Miklós: Külföldi hatások a 20. század magyar polgári eljárásjogában.In: Kiss Daisy / Varga

István (eds.): Magisterartis et aequi. Studiainhonorem Németh János. ELTE Eötvös Kiadó, Budapest,

2003, 419. p. 10

Magyary: op. cit. (seefn. 1.) 14−15. p.



also projected the social ideal of Austrian civil action on the Hungarian Code of Civil

Procedure.11

I.2.The influence of the Soviet Code of Civil Procedure in the socialist

era

However, the code of civil procedure of German-Austrian roots hallmarked by the name

of SándorPlósz was replaced in 1952 by an Act of “socialist spirit” based on the Soviet-

Russian Code of Civil Procedure of 1923.12

The Act was passed following a

surprisingly short preparation paradoxically five years before the codification of the

substantive law. Act III of 1952 is still effective, although it has gone through 11 greater

amendmentand more than 60 other modifications in the past almost 60 years.

In Hungary between 1945 and 1949 large-scale organizational changes took place in the

fields of economy, politics and justice. Market elements were eliminated from the

relations between nationalized companies – “socialist organizations”, disputes between

legal persons pursuing economic activity were resolved by arbitration committees

proceeding in accordance with special procedural rules, and later by so-called economic

arbitration committees.13

The scope of private law became extremely limited within a

few years. On the one hand, due to the elimination of private property and market

economy, the number of possible private law cases decreased significantly and only

disputes between citizens involving a small value remained within the frames of civil

law.14

Administrative justice was eliminated; legal disputes arising within the frames of

branches of law relating to labour organizations were channelled outside the courts. It

was on this strongly reduced area that still remained for the civil justice that the Code of

Civil Procedure was built.15

Hungarian legislation inthe field of civil procedure was saved from the sheer copying of

Soviet law by its remarkable legal traditions.16

Based on several sources of academic

literature what happened– by force – in 1952 was but the drastic shortening,

abridgement of the Code of Civil Procedure of 1911, but the core concept on which it

had been built was preserved.17

As a matter of fact, the new Act excerpted certain parts

from the 792 sections of the old Code of Civil Procedure, to which specific parts of the

Soviet Code of Civil Procedure of 1923 and the Soviet Act of 1938 on the Courts were

11

Kengyel: op. cit. (seefn. 7.)157, 164−165. p.; cpr:Plósz Sándor: Die Prozeßleitung des Gerichtsnachder

neuenZivilprozeßordnung. Recht und Wirtschaft, 1912, 392−398. p. 12

See more detailed: Kengyel, Miklós: Die Zukunft des ungarischenZivilprozeßrechtsnach der

Zivilverfahrens-Novelle 1999. ZZPInt 5 (2000) 361. p. 13

A magyar polgári perjog története. In: Wopera, Zsuzsa (ed.): Polgári perjog − Általános rész, Complex,

Budapest, 2008, 52−53. p. 14

Horváth, Attila / Kabódi, Csaba / Mezey, Barna / Pomogyi László: A perjogok története. In: Mezey,

Barna (ed.): Magyar jogtörténet. Osiris, Budapest, 2003, 408. p. 15

Gáspárdy László: Quo vadis Hungarian Civil Procedure Law? In:Studi di diritto processuale civile in

onore di Giuseppe Tarzia. Giuffrè Editore, Milano, 2005, 2671. p. 16

Horváth/ Kabódi / Mezey / Pomogyi: op. cit. (seefn. 14.) 407. p. 17

Németh János: Polgári perjogunk a XX. század végén. In: Máthé Gábor (ed.): Negyedik magyar

jogászgyűlés. Budapest, 1998, 69. p.



added.18

IstvánVarga describes the situation as follows: “breaking tradition without

abandoning it”19

.

The Code of Civil Procedure of 1952 was linked with many ties to the old Code of Civil

Procedure: it followed the old one to a great extent in its structure and slightly in its

contents (e.g. the regulation of the conduct of lawsuits). According to Kengyel,

“structural changes executed under the Soviet influence (two-level system of justice,

one-level appeal etc.) could be fitted into the old structure”. The basic principles were

placed at the beginning of the Act. Mainly special procedures fell victim to the

“shrinking” of the HCCP of 1911. Despite the structural similarity between the old and

the new Acts, rather essential changes were made to the structure of civil action. The

Act of 1911 divided civil action in two stages: the pre-trial hearing and trial on the

merits. As opposed to this, the new HCCP regarded the legal action to constitute an

integral process.20

The main innovations of the Act of 1952 may be summed up as follows: the prevalence

of substantive truth, the redefinition of the principle of party control, restriction of the

activity of attornies, turning district courts into first instance courts of general

jurisdiction, a two-level justice system with one level of appeal, unification of the

appeal system by abolishing direct appeal to the Supreme Court against court orders, the

elimination of the review system and instead, laying the foundations for protest on legal

grounds. The Act created in the era of dictatorship reflects the transformation of the

court and prosecution organization based on the Soviet pattern and the elimination of

courts of special jurisdiction. The prosecutor’s role in civil action increased and a

system of lay assessors was introduced.

The Soviet influence was most strongly manifested inthe basic principles of the Act, the

legislator adopted the text of the Soviet CCP almost word for word. The approach of

Soviet civil procedure was characterised by the “cult of basic principles”, therefore, the

importance of basic principles increased greatly because they conveyed the dominant

ideology of the era. The court’s monopoly of justice was implementedparadoxically, the

notion of judicial independence was reinterpreted. The court was not bound by the claim

submitted by the parties; the predominance of the judge could be seen. The principle of

party control was also implemented restrictedly: the court, the prosecution and state

authorities had a strong right of initiative, the principle of adversarial hearing was

pushed to the background in favour of ex officio proceedings, the aim of the Soviet

action was the revelation of “objective truth”. “The typically paternalistic formulation

of the Act made it obvious that it was solely the authority of the court to decide about

the equitable interests of the parties. […] they included the social interest (e.g. the

18

Horváth/ Kabódi / Mezey / Pomogyi: op. cit. (seefn. 27.) 409. p. 19

Varga, István: ForeignInfluencesontheHungarian Civil Procedure Law. In: Deguchi, Masahisa / Storme,

Marcel (eds.): The Reception and Transmission of Procedural Law inthe Global Society.Maklu,

Antwerpen, 2008,278. p. 20

Kengyel, Miklós: Die Entstehungsgeschichte der fünfzigjährigenungarischenZivilprozeßordnung. In:

Nakamura/Fasching/Gaul/Georgiades (eds.): FestschriftfürKostas E.

BeysdemRechtdenkerinattischerDialektik. Ant. N. SakkoulasVerlag, EunomiaVerlag, Athen 2003, 715. p.;

Kengyel, Miklós: Az ötvenéves Polgári perrendtartás – a törvény keletkezésétől a rendszerváltásig. In:

Kengyel, Miklós (ed.): 50 éves a Polgári perrendtartás, Dialóg Campus, Pécs, 2003, 100−101. p.;

Szilbereky, Jenő: Bevezető. In: Szilbereky, Jenő / Névai, László (eds.): A polgári perrendtartás

magyarázata. Közgazdasági és Jogi Könyvkiadó, Budapest, 1976, 20. p.



protection of collective property) as well.”21

The regulation required that the court

should not be satisfied with the facts and evidence presented by the parties but should

take all measures laid down by the Act in order to reveal the true circumstances of the

case. Basically, in the HCCP of 1952 one may observe a large increase in the power of

the judge at the expense of the parties’ right to disposition. The Act divided the right of

disposition over the lawsuit between the parties, the court and the prosecutor. As a result

of this, the traditional principle of party control became illusory, since all procedural

acts of the parties came under the control of the court (and the prosecutor).22

I.3. Democratic political transformation, facing the challenges of

globalization

Market economy and the rule of law building up continuously beginning from the 1990s

meant for the legislator and applier of law challenges that had previously been unknown

to them both from the aspect of quality and quantity. Within a short period of time, the

number of litigious and non-litigious cases became multiplied. New types of lawsuits

came into being or little-known case types acquired special significance, (e.g. company

law actions, administrative actions). The organizational system of courts was also

radically transformed, after a long period of gestation the four-level court system was

set up: courts of appeal deeply rooted in legal history started functioning.23

In the 1990s

the legislator made an attempt at renewing the Code of Civil Procedure of 1952 –

through repeated amendments – in accordance with new objectives and principles.24

It

is still raised as an unanswered question whether by this method (in other words, by

“filling the old bag with new wine”) one succeeded or could possibly succeed in

adjusting to the frames of the rule of law a code of civil procedure, the original

conception and text of which (although modified several times) had been formulated

within the frames of a dictatorial system and in accordance with the ideology of that

system. The codification of a new code of civil procedure started in summer 2013.

I.4. Modifications made following the decisions of the Constitutional

Court

“In the stormily changing legal environment, the courts themselves as underground

streams have shaped the contents of civil procedural rules significantly through

permanent work.”25

Apart from this, mention should also be made of theConstitutional

Court, which has taken a great number of important decisions essentially affecting civil

procedure. Out of them, the most important ones will be mentioned.

21

Kengyel: op. cit. (seefn. 7.) 277−278. p. 22

Kengyel, Miklós: ChangesintheModel of Hugarian Civil Procedure Law. In: Jakab, András / Takács,

Péter / Tatham, Allan F.: The Transformation of ungarianLegalOrder 1985−2005. Kluwer, Alphenaan den

Rijn, 2007, 353−354. p. 23

Szabó, Imre: Előszó. In: Szabó, Imre (ed.): A Polgári perrendtartásról szóló 1952. évi III. törvény

magyarázata. I. kötet. Magyar Hivatalos Közlönykiadó, Budapest, 2006, 5. p. 24

Kengyel: op. cit. (seefn. 7.) 20. p. 25

Szabó: op. cit. (seefn. 23.) 6−7. p.



Under the influence of Decision № 32/1990 (XII. 22.) AB of the Constitutional Court,

the Act on the extension of the judicial review of administrative decisions was created in

1991. Decision №9/1992. (I.30.) AB of the Constitutional Courtdeclared protest on

legal grounds to be unconstitutional. The institution of review was introduced in 1993

instead of the protest on legal grounds annulled by the above-mentioned decision of the

Constitutional Court. The first breach in the socialist principle of disposition over the

lawsuit was made by the Constitutional Court. Decision № 1/1994. (I.7.) AB of the

Constitutional Courtsharply delimited the parties’ right to disposition and confined the

role of the prosecutor within frames corresponding to the rule of law. The Constitutional

Court stated that in civil procedure the prosecutor’s general right to institute

proceedings, intervene, appeal and motion for the review of final judgments is

unconstitutional.

II. The reinterpretation of basic principles By the modification of the principle of party control and the principle of adversarial

hearing, the sixth Amendment Act (1995) changed the relationship between the court

and the parties essentially. In accordance with Decision № 1/1994 (I.7.) AB of the

Constitutional Court, it has become a general principle that the court is bound by the

petitions and statements presented by the parties; deviation from them is permitted only

in cases defined by the Act. Besides the change inthe purpose of civil action,“the

dimming of the judge’s role” was considered by academic literature as the other

essential element of the change in model between 1995 and 2000. One of the main

achievements of the reform of 1995 was constituted by the reformulation of the

principle of party control.26

The Act also provided the obligation to supply facts and

evidence with a new basis. It restricted the possibility to take evidence ex officio to the

narrow range defined by the Act. By this it endeavoured to ensure the full

implementation of the principle of adversarial hearing, which did not constitute a return

to the regulation followed by the HCCP of 1911, but to the model followed by the

liberal codes of civil procedure of the 19th

century, defines it as the exclusive task of the

parties to prove the facts required for deciding the lawsuit. However, the legislator made

no modification to the regulation relating to the purpose of the lawsuit, therefore, the

obligation of the court to endeavour to reveal the truth remained. This task cannot be

carried out without the possibility of ordering the taking of evidence ex officio. This

conflict was eventually resolved by the legislator as a result of the re-regulation of the

purpose of the lawsuit in 1999. Following the modification of § 1 of the HCCP, the

purpose of the lawsuit is no longer to reveal the truth but to ensure the impartial

resolution of legal disputes in court proceedings (basically in accordance with the

requirement of due process laid down by Article 6 of the European Convention on

Human Rights).

26

Kengyel: op. cit. (seefn. 22.) 358−360. p.



III. Due process

Pursuant to § 2 of the HCCP, the court shall seek to ensure the parties’ right to the

adjudication of their legal dispute, to the fair conduct of the lawsuit and its conclusion

within a reasonable time. A reasonable time-frame for the conclusion of litigation shall

be determined in due consideration of the subject matter and nature of the dispute, as

well as the unique circumstances of the proceedings. Where a party is found to have

contributed to the prolongation of the proceedings through his actions and/or omissions,

such party cannot rely on the closure of the proceedings within a reasonable time-frame.

In the event of non-compliance with the above mentioned obligation of the court, the

party affected may seek reasonable compensation for damages – maintaining the

violation of his fundamental rights -, provided that such impairment of a right cannot be

remedied by way of redress procedures. The court shall hear such cases in priority

proceedings. If the said impairment of a right cannot be directly attributed to any person

acting on the court’s behalf, it shall not preclude the award of damages.

With regard to the court’s tasks, § 2 (1) emphasizes fair trial and the conclusion of the

legal action within a reasonable time. Both principles may be traced back to the same

international document, the Convention for the Protection of Human Rights and

Fundamental Freedoms signed in Rome on 4 November 1950 (Article 6, point 1).The

European Court of Human Rights has dealt with the interpretation of the notions laid

down in the above paragraph numerous times. In its judgments, the court has,

understandably, refrained from “setting any norm with regard to the optimal duration of

the individual procedures”, but a common characteristic of its decisions is that “they

apply a rigorous standard when considering the conduct of authorities, their failure to

take or their delaying with taking the necessary measures to ensure the fast resolution of

proceedings”.27

It may also be concluded from the relevant judgments of the European

Court of Human Rights that “it is never the duration of proceedings alone, but also the

carrying out of the individual procedural acts at the appropriate time and the need for

these acts, based on which it may be decided whether the duration of the lawsuit has

exceeded the reasonable time frames, and naturally, the Court also has regard to the

parties’ conduct during the proceedings”. The above judgments regard those situations

hardly acceptable where the prolongation of the lawsuit is caused by the excessive

workload of the courts. In this case they consider it a task of the individual states to

build up their regulation relating to the administration of justice in such a way so as to

enable the courts to conclude even the increased number of cases within a “reasonable

time”.28

Enforcing a claim for damages with reference to the court’s liability for damages caused

within its jurisdiction has been possible in cases initiated following 1 January 2003.

This liability for damage is not a special type of liability for non-pecuniary damage, in

other words, it is not a variant form of § 349 (3) of the Civil Code, but a possibility

created by § 349 (3), namely, the creation of a type of sui generis liability. In this type of

27

Kőrös András: A polgári per „ésszerű időn belüli” elbírálásának követelménye az Európai Emberi Jogi

Bíróság gyakorlatában. Bírósági Határozatok 1992/6, 479. p. 28

Bán Tamás: Az európai emberi jogi egyezmény várható hatása a magyar bíróságok ítélkezésére

(Prognózisok) Bírósági Határozatok, 1992/3, 226-227. p.



liability obligation, the obligee is the party and the obligor is the “court”. The cause of

the damage is the violation of any one (or several) of the three obligations contained in

§2 (1) of the HCCP, while the subject-matter of the claim is constituted by “damages

providing equitable compensation”.It seems that the legislator – although his idea found

a complicated expression – envisaged strict liability, being independent of fault.

However, the court is not strictly liable for the wrong if it could have been remedied in

the appeal procedure. It is also considered the injured party’s own fault if he himself has

contributed to the prolongation of the lawsuit.

“Reasonable time” as a professional term in civil procedure was introduced into the text

of the Hungarian Code of Civil Procedure in 1993. During the specification of the

court’s tasks, §2 (1) emphasises fair trial and the resolution of the lawsuit within a

reasonable time. Both principles can be traced back to the same international document,

to Article 6 of the Convention for the Protection of Human Rights and Fundamental

Freedoms signed in Rome on 4 November 1950, which declares the “right to due

process”. The European Court of Human Rights has held in several cases that the case

of the applicant was not adjudicated by the Hungarian Courts within a reasonable period

of time.

The Hungarian legislator has made several attempts at increasing the efficiency of

lawsuits inthe past twenty years. Out of them mention should be made of the

Amendment Act of 1999, which laid down numerous time limits binding on courts. It

was also during this period that the provision was made that enables parties to claim

compensation from the court if their right to the fair conduct of the lawsuit and its

resolution within a reasonable time has been violated, provided that this injury cannot

be remedied within the framework of the appeal procedure. Act XIX of 2006 has

introduced a new legal institution: the exception against the delaying of court

proceedings. During the elaboration of the Hungarian regulation mainly the Austrian

solution served as the model.

IV. Conclusion The Hungarian Code of Civil Procedure, which has been modified many times since its

entry into force, does not follow a uniform concept. After the political transformation,

the Hungarian Code of Civil Procedure struggled with the problem of “belonging” and

“finding its proper place”. In this period of its development one may experience some

kind of return to German-Austrian roots as well as some independence. One part of the

modifications was triggered off by international conventions and European Union law.

Laura ERVO (Finland)


Laura ERVO

Constitution, Judiciary and Public Powers Structure

1. Introduction

1.1. The new Constitution and its main contents

The new Constitution entered into force on 1 March 2000. In Finland sovereign power

lies with the people represented by the Parliament in session. The Constitution is the

cornerstone of all legislation and exercise of public power. It contains provisions on

state organisation, checks and balances and on civil rights. No other enactment may

contradict the Constitution. To amend or change the constitution, the majority in two

consecutive Parliaments must adopt the changes. Even the new Constitution has been

amended after its entry into force.

According to the Constitution sovereign power rests with the people. Democracy

includes the individual right to influence decisions that affect us all. The Constitution

guarantees civil rights and liberties. The Constitution is the basis of all legislation and

exercise of government power. It details the fundamental rules, values and principles of

Finnish democracy. The Constitution specifies the foundations of the relationship

between the individual and government. It also contains provisions about the principles

of the exercise of power by government, government organization and the relationships

between the highest organs of government.

The Constitution emphasizes the parliamentary traits of the Finnish political system and

the status of the Parliament as the supreme state organ: the Government must enjoy its

confidence. The President of the Republic takes decisions on the basis of proposals

drawn up and presented by the Government. The Parliament elects the Prime Minister

who is appointed by the President. The other ministers the President appoints on a

nomination by the Prime Minister. The President of the Republic directs the foreign

policy of Finland in conjunction with the Government. Also in foreign policy,

presidential acts are based on preparations by and cooperation with the Government.

Finland is a Member State of the European Union. According to the Constitution,

Finland participates in international cooperation in order to promote peace and to

safeguard human rights.

1.2. Judicial power and its control

In Finland everyone can have his or her case heard appropriately and without undue

delay by a court or other public authority and everyone also has the right to have a

decision affecting his or her rights and duties reviewed by a court or other independent

organ for the administration of justice. Provisions dealing with the publicity of

proceedings, the right to be heard, the right to receive a decision containing the grounds,

the right to appeal and other guarantees of a fair trial and good governance shall be

regulated by an Act.



The judicial powers are According to the Constitution judicial power lies with

independent courts of law. The courts exercise judicial power. The courts are

independent: They are bound only by the law in force. No outside party can intervene in

the decision-making of the courts. The independence of the courts is guaranteed by the

Constitution. The President of the Republic appoints the judges. The first instance is the

district court. Its decisions may be appealed against to a court of appeal. The Supreme

Court wields supreme judicial power in civil and criminal cases. Administrative courts

and the Supreme Administrative Court hear cases within that field. In addition, there is a

Court of Impeachment and some special courts.

The Chancellor of Justice and the Parliamentary Ombudsman supervise the President,

the Government and the courts, and the legality of state and municipal acts. They also

oversee that civil and human rights are respected and carried out. The institution of the

ombudsman originated in Sweden. In 1809 the parliament created the post of a

parliamentary ombudsman. Following the Swedish model, Finland created the post of a

Parliamentary Ombudsman in 1920. The Ombudsman is a supreme overseer of legality

elected by the parliament. S/he exercises oversight to ensure that those who perform

public tasks obey the law, fulfill their duties and implement fundamental and human

rights in their activities. The scope of the Ombudsman’s oversight includes courts,

authorities and public servants as well as other persons and bodies that perform public

tasks. By contrast, private instances and individuals who are not entrusted with public

tasks are not subject to the Ombudsman’s oversight of legality. Nor may the

Ombudsman examine the Parliament’s legislative work, the activities of

parliamentarians or the official actions of the Chancellor of Justice.

Everyone may file a complaint with the Ombudsman and there is no fee for

investigating a complaint. A complaint in a matter within the ombudsman’s remit may

be filed by anyone who thinks a subject has acted unlawfully or neglected a duty in the

performance of their task. Therefore it is possible to complain in a matter concerning

oneself, but a complaint can also be made on behalf of someone else or together with

others. The complaint shall be filed in writing. It shall contain the name and contact

particulars of the complainant, as well as the necessary information on the matter to

which the complaint relates. The Ombudsman then investigates a complaint if it gives

ground for the suspicion that an authority or official has acted unlawfully.

Investigating complaints is the Ombudsman’s central task and activity. The Ombudsman

investigates those complaints that are within the scope of his oversight of legality and

with respect to which there is a reason to suspect an unlawful action or neglect of duty,

or if he takes the view that this is warranted for any other reason. Arising from a

complaint, he takes measures that he deems justified from the perspective of observance

of the law, legal protection or implementation of fundamental and human rights. In

addition to matters specified in complaints, the Ombudsman can also choose on his or

her own initiative to investigate shortcomings that manifest themselves. The

Ombudsman is required by law to conduct inspections of official agencies and

institutions. If the Ombudsman concludes that a subject has acted unlawfully or

neglected a duty, but considers that a criminal charge or disciplinary proceedings are

nonetheless unwarranted in this case, the Ombudsman may issue a reprimand to the

subject for future guidance. If necessary, the Ombudsman may express to the subject his



or her opinion concerning what constitutes proper observance of the law, or draw the

attention of the subject to the requirements of good administration or to considerations

of fundamental and human rights. In a matter within the Ombudsman’s remit, s/he may

issue a recommendation to the competent authority that an error be redressed or a

shortcoming rectified. In the performance of his or her duties, the Ombudsman may

draw the attention of the Government or another body responsible for legislative

drafting to defects in legislation or official regulations, as well as make

recommendations concerning the development of these and the elimination of the

defects.

According to the freshest statistics, the amount of initiated cases was 4543 in 2011 in

Finland, whereas the amount of inhabitants is about 5 million just now. There were 4147

complaints to the Ombudsman, 38 complaints were transferred from the Chancellor of

Justice. 82 cases were taken up on the Ombudsman’s own initiative. In addition, there

were 37 submissions and attendances at hearings and 239 other kinds of written

communications. A total amount of resolved cases was 4728. 233 cases regarding courts,

and in 203 cases the question concerned civil and criminal courts whereas there were 30

cases concerning administrative courts. If we look at the measures taken by the

Ombudsman in Finland, a number of decisions leading to measures on the part of the

Ombudsman were 780 in 2011. This amount covers only complaints but not the cases

taken up by his/her own initiative, a number of complaints behind these statistics are

4385. There were no prosecution cases, 37 reprimands, 604 opinions, 340 rebukes, 264

for future guidance, 32 recommendations, in 1 case the Ombudsman redressed an error

or rectified a shortcoming, in 17 cases s/he made an initiative to develop legislation or

regulations, 10 cases concerned the provision of compensation for a violation, there

were 40 matters redressed in the course of investigation and in 67 cases s/he still used

other measures.

2. Historical background

Finland was a part of the Kingdom of Sweden from the 13th century to 1809, when the

vast majority of the Finnish-speaking areas of Sweden were ceded to the Russian

Empire (excluding the Finnish-speaking areas of the modern-day Northern Sweden),

making this area the autonomous Grand Duchy of Finland. Swedish legal order was

based on the continental system, and it was accepted in Finland as well. In the 1200

century the centralised power started to develop, which was a good start for the

development of the procedural law too. The adjudication and the administration of

justice started to move from parties and their families to the societal organs. In the

beginning of the 1300 century the western legal order started to take root in Finland

together with the Christianity and by time Sweden-Finland started to get even national

legislation – though the provincial ruling was still typical in medieval Sweden-Finland.

Those provincial laws, they included still lot of ancient common law and originally they

existed only in an oral form. Later on in the 1200 and the 1300 centuries, they were also

written down by the Catholic Church and by the more powerful king. The provincial

laws also included family justice, canon law and king’s orders. The family justice

effected, for instance, in the way that the victim and his/her relatives they played the

http://en.wikipedia.org/wiki/Sweden

http://en.wikipedia.org/wiki/Russian_Empire

http://en.wikipedia.org/wiki/Russian_Empire

http://en.wikipedia.org/wiki/Me%C3%A4nkieli

http://en.wikipedia.org/wiki/Grand_Duchy_of_Finland



central role and lot of decision power in the procedure. In addition, they had a wide

choice of procedural conduct. However, the state adjudication did not take the fully

place before the 1600 century.

Despite of the fact that Finland was from 1809 on the autonomous part of Russia,

Swedish laws were still valid in Finland and they were valid through the whole Russian

period. From 1890 on, the Russification was the prevailing policy and that era is

therefore called period of oppression. The aim was to make Finland more Russian style

and some exceptions were made even in the field of legislation with the result that the

Finnish service protested widely and new system were not fully followed. However,

these exceptions made in the field of legislation covered only some parts in legal order

and the other part was still, even officially and formally, legislated by the Finnish laws

only. For instance, the Code for Juridical Procedure has been valid without any breaks

from 1734 on until today and still, despite of the different historical eras as a part of

Sweden, autonomous part of Russia or an independent state. Therefore the Russian

adjudication did not affect much in Finland but the Swedish model was followed even

later in the independent country from 1917 onward.

When the Finnish Parliament adopted the Declaration of the Independence of Finland

on 6 December 1917, the new state already had a rich national culture and centuries of

experience in managing its own affairs. The makings of an independent nation derived

partly from the times of Swedish rule (from the 12th Century until 1809) and especially

from the period when Finland was an autonomous Grand Duchy of the Russian Empire

(from 1809 until 1917).

3. Judiciary

3.1. Bodies

The district courts deal with criminal and civil cases. The decision of a district court can

normally be appealed in a court of appeal. The decisions of the courts of appeal, then,

can be appealed in the Supreme Court, provided that the Supreme Court grants leave to

appeal. The administrative courts review the decisions of the authorities. The decisions

of the administrative courts can be appealed in the Supreme Administrative Court.

There are also certain special courts. These are the Market Court, the Labour Court, the

Insurance Court and the High Court of Impeachment.

To ensure the functioning judicial system, it is important that the courts are independent

and autonomous in relation to the Parliament, the Government and other government

agencies. This is guaranteed, among other things, not only in the Constitution but also

through the provisions of Article 6 of the European Convention for the Protection of

Human Rights and Fundamental Freedoms and through provisions in the constitution.

To guarantee the independent courts, a judge shall not be suspended from office except

by a judgment of a court of law and a judge shall not be transferred to another office

without his or her consent except when the transfer concerns reorganization of the

judiciary.



Publicity is one of the main tools to control the courts in the Finland. The public has

access to hearings and other meetings of the court and that they have the right to access

documents pertaining to a specific case or matter. To protect individuals and the public

this insight may in some cases be restricted by secrecy. These restrictions must be

explicitly defined in acts.

It has been typical for the Scandinavian countries that there have existed different types

of boards for solving disputes especially between consumers and entrepreneurs. Beside

the arbitration, in more wide and complicated matters of civil litigation - like business

matters - the boards have been original tools of ADR in minor cases, especially in

consumer cases. These boards deal with complaints from consumers concerning goods

and services provided by business. The boards can give recommendations on how the

case should be solved. However, the decisions are not binding. The recommendation is

given by the board, which is working more or less like a court. Therefore the procedure

can be seen as one kind of conciliation.

The Ministry of Justice drafts the provisions which aim to ensure fair trials and good

governance. The Ministry also prepares the laws relating to enforcement, bankruptcy

and debt adjustment. The independent courts are responsible for the actual realization of

legal protection. Other judicial authorities are the prosecutors and the enforcement

authorities. Also legal aid has an important role in the legal protection. The Ministry of

Justice is responsible for sustaining and developing the operation of courts and other

judicial authorities. It ensures that the courts and the legal aid can, with respect to

service ability, costs for the parties and processing times, guarantee the factual

realization of legal protection according to the Finnish legislation and the international

treaties binding Finland.

3.2. Professional judges

Tenured judges are appointed by the President of the Republic. A person who is

appointed to a position of a judge must be Finnish citizen who has a Master of law

degree and who, by virtue of previous activity in a court or somewhere else, has shown

both professional competence and the personal characteristics needed for successful

performance of the judicial role. The President and the justices of the Supreme Court

and the Supreme Administrative Court must be distinguished legal experts. Moreover

the President of the Supreme Court and the Supreme Administrative Court and also the

head judges of other courts of law must have leadership skills. The independent Judicial

Appointment Board prepares and makes a reasoned proposal on an appointment to a

tenured position in the judiciary and delivers it to the Government to be presented to the

President of the Republic. The Judicial Appointment Board is determined by the

Government for five years. The Board consists of 12 members who are representing the

judiciary, the public prosecution service, the advocacy and the research and teaching of

law. The Chairman of the Judicial Appointment Board is a member nominated by the

Supreme Court and the Vice-Chairman is a member nominated by the Supreme

Administrative Court.



The Judicial Appointment Board makes proposals on an appointment for example to the

following positions: President of a Court of Appeal, Senior Justice of a Court of Appeal,

Justice of a Court of Appeal, Chief Judge of an Administrative Court, Administrative

Court Judge, Chief Judge of a District Court and District Judge. The Supreme Court

makes a reasoned proposal concerning an appointment as a Justice of the Supreme

Court and the Supreme Administrative Court makes a proposal concerning Justice of the

Supreme Administrative Court.

3.3. Lay judges

There are also lay judges in Finland and serving as a lay judge in a court is an honorary

task. It is said that it helps to maintain public confidence in judicial administration and

is a way for the public to gain insight into the operations of the courts. The varying

background and experiences of lay judges give the courts a broad picture of the general

conception of justice in society. It is said that this is particularly valuable for

assessment issues, for example, for evaluation of evidence, reasonability issues and

choice of sentence. These are the official and traditional reasons to use lay judges in the

judiciary. However, the legislation has been changed and the using of lay judges has

become rarer in Finland. They are nowadays used only in the more serious criminal

cases only and no longer in civil cases at all. Earlier they were used more in criminal

cases and it was possible to have lay judges in the composition of the court in some

family cases as well even if in practice those cases were decided mostly by one

professional judge even before the reform. The reason to reduce the cases where lay

judges belong into the composition of the court is the economic crisis and the lack of

state money. Still, the other reason might be that the general audience does not

appreciate lay members that much any longer and quite often - based on interviews –

people trust more on professionals even in legal matters. This is the reason of the more

complicated society including the legal system where the knowledge plays a bigger role

than the pure fairness based on the common sense.

So, in the district courts lay judges are used in criminal cases. In Finland, there are no

lay judges in the Court of Appeal, Supreme Court, Administrative Courts or Supreme

Administrative Court. Lay judges are elected to our courts in the municipal council or

county borough council after nomination by political parties. If a person wishes to be a

lay judge, he or she contacts a political party and puts forward their interest. The

municipal councils appoint the lay judges for four years. The lay judge should represent

the age, sex, occupation and language structure of the municipality as closely as

possible. A lay judge must be a citizen and resident within the judicial district of the

district court. A lay judge must not be bankrupt or under guardianship. A lay judge must

be suitable for the position and when appointed a lay judge must be 25 - 63 years old.

Persons working in the courts or penal institutions or prosecutors, advocates or police

officers cannot be a lay judge.

The general audience might be suspicious also because lay judges have political

background. They are locally active politicians and their election is based on the

proposals made by parties as explained above which is rather strange starting point for

one s legal carrier as an independent and impartial lay judge. From American point of



view this type of election is hardly understandable and it has been criticized even here

despite of the fact that the majority still thinks that lay judges are the tool to control the

judiciary. However, especially when active they might be more risks than guarantees to

legal protection because as lay members they have no idea about the contents of law and

if they understand that risk by themselves and stay as passive court members, in that

case, their role is to be as unnecessary relics.

A lay judge also has the right to ask additional questions during the presentation and

hearing. After the hearing, possible decisions and views are discussed and viewpoints

are expressed, for or against. Normally the discussion results in an agreement on the

outcome. If during the deliberations there are different opinions that cannot be resolved,

a vote is taken in which the lay judge’s vote carries the same weight as that of the

professional judge. The lay judges have individual votes.

The court must dismiss a lay judge who has committed an offence or in another manner

has proven to be clearly unsuitable for the commission. If a lay judge is permanently

incapable of performing his or her tasks, the municipal council shall without delay elect

a replacement. A lay judge takes a judge’s oath or gives the corresponding solemn

affirmation before he or she begins to serve as lay judge. The aim both is that each lay

judge serves in a hearing approximately once a month or 10- 15 times a year. The lay

judge gets a per diem payable remuneration from state funds and compensation for loss

of income and travel expenses. In Finland, there are now approximately 2,202 lay

judges.

4. Peoples trust on courts and the court-control

In Finland, people at large trust courts quite considerably, more than other authorities;

however, there is an amount of people who do not trust courts at all. According to the

surveys, in Finland, 2/3 of people trust much or quite a lot, whereas 1/3 trust only little

or not at all. The same result covers not only courts but also the Chancellor of Justice,

the Parliamentary Ombudsman and prosecutors. However, advocates and legal aid given

by legal aid counsels are not trusted that much. Fewer than 50 % of inhabitants trust

civil servants, the government and the parliament as well as European Union much or

quite much. Less than 1/5 trusts political parties much or quite much. In Finland,

however, 1/3 - ¼ out of the respondents thought that civil servants with a high position,

politicians and economic life can affect court decisions considerably. Still, the

respondents very rarely believed that the media could affect judgments. According to

the survey, the general public thought that a distorting effect of these kinds of external

distractions was higher than the one concerning internal distractions. However, 1/5

replied they believe that judges’ friendships can affect much a decision-making process.

Every seventh or eighth respondent thought that judges values, attitudes and the

impression they have on the parties can affect much a decision-making process.

Finland’s legal culture, which leans heavily on the legalistic tradition, has long

guaranteed the functioning of the legal system and the legal handling of matters. In

accordance with this tradition, Finnish society is said to be functioning in a formal



rational manner. For the integrity system, this means that if there is legislation on a

subject, it usually also works in practice. However, from the viewpoint of the integrity

system, one weakness of the legalistic tradition is that modern society needs matters to

be handled flexibly and often also quickly. It is vital to react dynamically, since later

corrective measures are not equally effective. As active citizenship and participation

increase, so does the importance of following, first and foremost, the spirit of the law as

the citizens understand and experience it. In addition, legislation cannot completely

replace ethical codes.

As far as the courts are concerned, the legislation on publicity legally guarantees

transparency at courts. The practice is, however, more problematic. Information is

available, but it is a different matter just how accessible the information is in practice, in

other words, how well the information reaches citizens and interested parties. Matters

are handled and decisions are made within processes that are not understandable to

ordinary citizens and decisions are justified by referencing legislation. Intelligibility is

not always equal for citizens and for administrative experts.

In addition, especially in Finland, the judiciary is strained by a lack of resources, which

has led to some unreasonably long processing times in the courts. Longer processing

times frequently break the principles of fair trial. Lack of resources causes problems

usually in special cases or suddenly arising situations. For example, the budget of the

National Audit Office seems insufficient in relation to the workload. Merely obeying the

law is not enough to guarantee morally acceptable operations. Similarly, so many

complaints are filed with the Parliamentary Ombudsman institution that the adequacy of

resources comes into question. New legislation gives the Ombudsman more authority to

decide which cases to pursue. This in turn undermines the tradition that anyone can file

a complaint and always have their complaint handled.

I would say that social control is the most important control measure in the Nordic

countries. The relationship between citizens and judiciary is, on the one hand, about the

values that are important to the citizens, and, on the other hand, about the importance of

civil society as a protector of integrity. From the citizens’ point of view, the realization

of justice and equality creates a strong foundation for a national integrity system.

Honesty, openness, and responsible action are emphasized in a political‐administrative

system. The cornerstones of fair trial and good administration include transparency,

responsibility, accountability and integrity. It is important to citizens that they can, to

some extent, oversee integrity. Civil society has long held a role of a “watchdog” of the

state and municipalities, and the media play a central role in revealing corruption cases.

Despite the fact that media can function freely in Finland, it is said there is very little

investigative journalism. Due to lack of resources, small local newspapers, for example,

have very limited abilities to support investigative journalism. Another problem is that

in small municipalities everybody knows one another. This can make it quite difficult

for reporters of local newspapers to write impartially and critically about local issues.

Regional newspapers also put very little into developing investigative journalism. As for

large newspaper houses, unilateral ownership and in some cases excessive pursuit of

scandals poses some difficulties.



5. Trends and peculiarities

It is said that the Finnish procedural law has been internationalized and

constitutionalized since 90 s. This means that international norms, like the European

Convention on Human Rights and the constitutional norms like fundamental freedoms

play a more significant role in the Finnish procedural law and judiciary than earlier.

Based not only the case- law and legal literature but even on my personal experience

this seems to be very true. All actors, both judges, prosecutors and attorneys as well as

legislator do their best to follow the human and fundamental rights in judiciary and

when drafting new acts and for instance the case of the European Court for Human

Rights is very important in the Finnish judiciary in its all details. It is very typical in the

Finnish judiciary that the procedural human and fundamental rights are the most

important issue when applying and interpreting norms. This means, that the legal

protection has been taken seriously even in the grass-root level.

It is also typical in recent Finland that the legislator has delegated its power to actors in

practice and the judge has a lot of discretion power to find the best and the most

reasonable solution in the case in the form of more or less open norms with open terms

like fair, reasonable and so on, where the decision, application and interpretation in

single cases depends on the judge s discretion. Therefore proceedings can even be seen

as micro politics and the place for moral discussions. However, this delegation of

legislative power to judges in the form of open norms has even caused the critical

discussion and doubts if this is a risk to the democracy and if this trend will lead to too

powerful judges which can risk the parliamentary system.

However, recently there have been many cases in Finland which have societal meaning

even outside the court room and where the discussion and argumentation during the

proceedings is more interesting from the general point of view than as the result in one

single case. Some examples can be mentioned: The cases against tobacco industry, cases

concerning the bank crises in the beginning of 1990 s and for instance cases concerning

bullying. In these situations, with the help of media, the public procedure is a new place

for moral discussions. In multicultural procedures - which are nowadays daily life at

Finnish courts- where different ethical and cultural codes easily come up or even

collide this challenge for moral discussions is even higher. The current multicultural

societal challenges are namely challenges also for law and courts. It has even been

asked if the fact of globalization means not only the duty to be attentive to the

differences between cultures or if culture becomes a genuine source of law. In its best,

moral discussion means that the legal discourse in trials becomes more transparent and

democratic.

At the same time also the parties may choose - more often than earlier - the most

suitable way of proceedings to solve their conflict as well as to some extent even the

substantive basis for the final decision. The main function of the civil proceedings is

namely nowadays to be conflict resolution instead of the traditional dispute resolution

(sanction mechanism) or legal protection. Therefore both the procedural and substantive

party autonomy plays a significant role. That is why there has been a radical change

from adjudication, ideals of material law and a substantively correct judgment towards



the ideal of negotiated law and pragmatically acceptable compromise. The most

important function in adjudication is that contextual decisions, which the parties are

satisfied with, are produced through fair proceedings. Therefore two main goals exist,

namely procedural fairness and even substantial satisfaction. There has even been a

change from formal justice towards perceived procedural justice and from judicial

power towards court service, which means that it is not enough to follow normative

fairness but the actors should additionally feel that the procedure was pleasant and even

this kind of experimental or perceived fairness is nowadays a significant factor in due

procedure. Adjudication can now be called court service.

In the current post-modern and more global procedural world the result of the

proceedings plays a more significant role for the parties, especially in civil litigation,

than before. The parties prefer controlling the outcome and they do not want to take

risks of surprising decisions made by judges. This is due to the societal changes. People

are more aware of their individuality and human dignity. They are aware of their rights.

In their relation to the authorities they demand service instead of obeying. The institutes

have lost their intrinsic value. This change covers not only the society as such, as a

whole, but the courts, the procedure and the judges too. Nowadays, legitimacy has to be

deserved. It has to be deserved in each and every single case and every time once again.

The tool to legitimate itself and to get the certification is to make the procedure fair and

of high quality. The good and social behavior of a judge is one sub tools in this process.

The other thing is to give comprehensive grounds in the judgment which convince the

parties and also the general audience. The public is looking for help and service in their

cases. They are no longer satisfied with distant and formal judges whose authority is

based on the law and the institution as such. They are no longer looking for authoritative

and final decisions made by power. They are seeking co-operative skills to help to solve

a conflict and to go on in their lives.

There is even discussion in the East-Scandinavian countries if the parties should be

delegated more power to chose the procedural frames for their conflict resolution and at

the same time to open their possibilities to decide even the issues of the material law to

serve them better in their conflict resolution. This kind of a delegation model can be the

futuristic view of the courts and their role. In that world the court house is more like a

shop where the client can choose the most suitable clothes for his or her purposes served

and assisted by professional shopkeepers instead of the house of a sovereign full of

coercion and authority. This kind of the change in the paradigm means also changes in

democracy. In the traditional model the power to adjudicate has been generally and until

further notice delegated from the people to the administrator of justice, that is to the

courts, but in the current model democracy means that the courts have to meet the needs

of the democracy incessantly and in casu. They are expected to meet the expectations of

the people and the parties in each and every single case. The courts have to meet the

needs of legitimacy via current parties and with the help of them by making decisions

which help the parties to go on.

To sum up, since the court proceedings have also be seen as micro politics and as a

forum for moral discussions, and since the function of proceedings is now more to

resolve conflicts, to serve parties as clients and to look forward to guarantee a better

life in the future for the parties than to find legally correct solutions for events that

happened in the past, more discretion has been delegated from the legislator to judges



and therefore their liability is no longer only legal and but also moral and societal. At

the same time this can even be seen as a risk and we have to keep in mind that courts

cannot make decisions based on public opinions or the most vocal voices of the public.

Judges may not seek the popularity of the public or fulfill their own valuations or goals.

But again the judgments have to follow general moral and political values in the society.

In the case they have been receded too far away from the current society, it will weaken

the binding of the decisions and the norms to which they are based. Judges are

nowadays societal and moral actors who need social and ethical competence. Modern

judges cannot hide behind law books but they are responsible for their decisions not

only formally and legally but also materially and morally.

Kerstin NORDLOF


Margaret Woo


Margaret Woo

Procedure, Constitution, and the Nation-State

Introduction

Familiar to scholars worldwide, the U.S. Constitution defines its public powers

according to the principle of separation of powers between the legislature, executive,

and the judiciary. Article III of the Constitution establishes the Supreme Court as the

highest court of the United States with the power to be the final interpreter of federal

law, including the Constitution. Most significantly, the U.S. Supreme Court, as

authorized by Marbury v. Madison, even has the power to void federal and state statutes

as unconstitutional. Other important constitutional provisions relating to public powers

includes the “due process” clause which limits state authority when it is exercised

without providing due process of law; and the “full faith and credit” clause which

ensures that lawful judgments of one court is respected and upheld by another and

thereby, ensuring the legitimacy of the court system.

What is lesser known and more controversial is the use of private right of action

in the U.S. – that is, individual civil actions brought by private citizens -- to enforce

public norms. This important “arm of enforcement” was expanded with the issuance of

the federal rules from

1938 to the recent 1990’s. This idea of “private attorney generals” renders

courts a safety net in instances of executive branch and bureaucracy resistance to

enforce legislative mandate. The battle in the procedure rules in recent years to limit

such private right of action is then nothing less than a battle for a nation’s political

identity as to the proper form of governance. Indeed, procedural rules, beneath its

technicalities, are often less about efficiency and economy but more

about the nature of court authority.

Procedural Rules and the Nation State

While civil procedure reforms are often said to be based on concerns of

efficiency and economy, I would argue that civil justice reforms are also part of any

nation’s project of national identity and state building. A robust civil justice system is a

statement of national progress and reforms to the system are less a reflection of a “civil

justice crisis,” and more a result of political bartering 1

and debates about a nation’s

identity. This can be seen in European countries’ recent

efforts to coordinate procedural systems even as they are called to define

themselves as member

1 Of course, the fact that the rule making process is one of political bartering has been documented by

Steve Subrin and Paul D. Carrington in Politics and Civil Procedure Rulemaking, [cite?]



states of the European Union. 2 Like a constitution, civil procedure rules have

matched steps with political contestations in defining the appropriate role of

governmental institutions and the relationship between individuals and the state.

In the case of U.S. courts, courts can limit governmental powers and at the same

time, the use of courts legitimizes governments. 3 Courts funnel disputes back to the

state and in the process validate the state’s assertion of power. Consistent with this idea,

challenges to court judgments are addressed internally through a hierarchical appeals

process, which reaffirms successive applications of state authority. Challenged

judgments get reviewed by the state and are processed upwards through the court

system. Social discontent is contained within the legal system and without resort to

disturbances on the streets. 4 Even challenges to governmental action are channeled

into courts which by limiting governmental actions, reaffirms the “rule of law” and the

legitimacy of the state.

In the common law world, courts even have the opportunity to interpret and

change laws with judicial published opinions that serve as legal authority applicable to

the next new set of facts. In the constant reapplication and reinterpretation of law to

new facts as brought and argued before the court by private litigants, voices of ordinary

citizens are incorporated into the enforcement and application of statutory law. Across

the board and top down, social norms are adjusted to a more nuanced populist parameter.

In the U.S., private right of action entrusts

ordinary citizens with enforcement of social policy. Within the separation of

powers framework, courts and private citizens are the safety net in cases of executive

and agency reluctance in

implementing legislative mandates.

And so, the growth of courts is often synonymous with the assertion and growth

of governmental powers. What varies in different legal systems is the extent to which

ordinary citizens can shape and control their disputes in court. In other words, in the

courthouse, the delicate balance between state authority and private citizens is played

out over and over again. Such a balance requires the mediation of civil procedure rules,

which distribute power between the trinity of judges, lawyers and litigants, and the rules

vary depending on the particular polity.

2 Japan’s 2003 reforms, which focused on reducing delays and increasing participation, resulted in more

case management and the introduction of lay jurors to important criminal cases. These reforms also

coincided with Japan’s economic crisis, and their combined psychological effect on Japanese citizens

resulted in the birth of a new nationalism. See Eugene A. Matthews, Japan’s New Nationalism, in

FOREIGN AFFAIRS, November/December 2003. 3 According to Shapiro, it is a reciprocal dependency in which courts derive legitimacy from the political

system (rather than from some abstract prototype model of courts) and the political system in turn derives

some of its legitimacy from the courts. Martin Shapiro, COURTS: A COMPARATIVE AND

POLITICAL ANALYSIS (University of Chicago Press 1986). 4 See Charles Epps’ argument that the ascendancy of civil rights and liberties has rested on the

democratization of access to the courts. See Charles Epps, THE RIGHTS REVOLUTION (University of

Chicago Press, 1998). In China, the language of rights has lent support to peaceful resistance even as

access to courts is often denied. See Kevin O’Brien & Li Lianjiang, RIGHTFUL RESISTANCE IN

RURAL CHINA (Cambridge University Press, 2006).

Margaret Woo


In critical periods of U.S. federalization and national state building, the

jurisdiction of U.S. courts has been expanded to empower the courts. The 20th

century

saw the growth of federal courts both jurisprudentially as well as physically (by sheer

numbers) in the assertion of U.S. legality domestically and globally. This was done

through enlarging subject matter jurisdiction to empower judicial authority over a

panoply of subject matter disputes as well as easing personal jurisdiction requirements

to empower judicial authority over defendants based on “minimum contacts” with the

forum state.

Such expansions occurred after the critical periods of the Civil War, and even

more so,

the New Deal, and the civil rights era of the 1960’s. 5 Thus, for example, in the

1860’s and

1870’s after the Civil War, the U.S. Congress deployed the federal courts as an

instrument of central control over state authorities by authorizing the federal judiciary to

hear cases that included civil rights, habeas corpus and other claims arising under

general “federal question” jurisdiction. The growth of the federal judiciary’s docket

continued on through the New Deal as Congress used the federal courts to craft and

implement national agendas in response to the economic crisis posed by the Great

Depression. 6 This was true again after the height of the Civil Rights movement,

between 1974 and 1998, when 474 jurisdictional grants expanded the

workload and jurisdiction of the federal courts. 7

Importantly, these

jurisdictional statutes granted private right of actions to individuals, to ensure

enforcement of these rights by private citizens in

the courts. Courts became a sort of “insurance against the President’s failure to

use the bureaucracy to carry out Congress’ will.” 8 Hand in hand with this generous

grant of jurisdiction to the federal courts was the distribution of power to party litigants

through liberal pleadings and greater party autonomy as authorized by the federal rules

of civil procedure. In the U.S., liberal pleading requirements were maintained because

of the belief in a procedural system in which “the preferred disposition is on the merits,

by jury trial, after full disclosure through discovery.” 9 And so, all complaints

are accepted so long as they provide fair notice to the other side, and will only

be dismissed if plaintiff can prove “no set of facts” to support the claim. Notice

pleading was premised on the philosophy that pleadings requirements should act as

guides to the litigation and should be doors to the courthouse, not barriers. Pleadings

5 The beginnings of the twentieth century brought widespread interests in professionalization, nationalization, and

reorganization. Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113

HARV.L.REV. 924 (2000). 6 Id. at 958.

7 Id. at 956, citing to Administrative Office of the U.S. Courts, revision of List of Statutes Enlarging Federal Court

Workload

(Sept. 18, 1998)(memorandum) (on file with the Harvard Law School Library). 8 Stepehn B. Burbank & Sean Farhang, Litigation Reform: An Institutional Approach, 162 U.PENN.L.REV.1543,

1549 (2014). 9 Charles Clark, The Handmaid of Justice, 23 Wash. U. L. Q. 297, 318-19 (1939).



were not expected to further the development of the case any more than merely giving

general notice to the defendant of the nature of the suit against her.

In the U.S., then, the gatekeeping mechanism to weed out frivolous claims was

relegated to a point in time later in the litigation when litigants used discovery to

unearth the evidence. Except in the most egregious cases that did not survive a motion

to dismiss, a judge’s dispositive role did not enter the picture until both parties had had a

chance to pursue their version of events beyond the pleadings phase. 10

The result was

that, in the American system, it was the lawyers and clients, and not judges, who

controlled the pace and tenor of litigation. Judges often had little presence in the

lawsuit until well after litigation had begun.

Liberal pleadings and the private right of action balanced the power of litigants

against the broad jurisdiction and powers of federal courts to satisfy democratic

concerns about participation and fears of abuse of government authority. Liberal

pleading gave litigants great access to the courts to seek enforcement of legal norms and

to rein in unbridled state powers. Broad discovery gave power to the ordinary litigant to

shape, develop and prove his case. It was this combination of broad jurisdictional

authority for the courts but liberal pleadings and discovery for litigants that transformed

the U.S. federal courts into a site for social norm contentions and federal judges into

adjudicators “rendering justice” 11

rather than simply

gatekeepers.

But recent years saw changes in the political philosophy of the role of

government, and also, the role of courts. Varying Supreme Court doctrines have

restricted access to courts. 12

As of 2010, federal judges manage dockets of

approximately 300 cases per year, with less than 1 percent going to 13

trial. The other

95 percent of disputes are diverted to mandatory arbitration, settlement conferences with

a magistrate judge or district judge who work to settle cases, summary bench trials,

directed pre-trial verdicts, and dismissal of complaints for insufficiency or implausibility.

Despite the seemingly benign focus on efficiency and conserving judicial resources,

scholars are finding that the increase in pre-trial dispositions with earlier and steeper

procedural hurdles often results in negative consequences for plaintiffs.

While the years after the promulgation of the federal rules were years of

expansion of federal rights and rights enforcement through private litigation, the 80’s

and 90’s by contrast saw major efforts to retrench such private enforcement of public

10

Estimates of the percentage of cases decided during the pleadings phase in the 1990’s ranged from 2% to 6% of all

federal civil cases. Charles Alan Wright, Law of Federal Courts § 66, at 456, § 68, at 467-68 (5th ed. 1994), cited in

Marcus (1998) at

1754. 11

An example is the work and activism of federal judge Jack Weinstein, see Jeffrey B. Morris, Leadership on the

Federal Bench: The Craft and Activism of Jack Weinstein, (New York 2011). 12

See Helen Hershkoff, Lonny Hoffman, Alexander A. Reinert, Elizabeth M. Schneider, David L. Shapiro & Adam

N. Steinman, Joint Comments on Proposed Amendments to Federal Rules of Civil Procedure (Feb.

5, 2014), http://www.afj.org/wp - content/uploads/2014/02/Professors-Joint-Comment.pdfpdf . See also

Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil

Rights and Employment Discrimination Cases, 158 U. PA. L. REV. 517 (2010). 13

http://www.afj.org/wp-

Margaret Woo


rights. In a careful study of bills introduced between the Reagan to the Bush

administrations, 14

Professors Stephen Burbank & Sean Farhang traced a conservative

legislative agenda as Republicans introduced successive bills

to curtail litigation through proposed caps on attorney’s fees and monetary

damages. Other bills focused even more directly on procedure rules such as rule 11

which punishes lawyers for frivolous filings and rule 23, class actions. By and large

such bill efforts were unsuccessful, and the alternative pathways of Supreme Court

interpretation of federal procedure became the route of choice for these reforms efforts.

To my mind, there have been numerous procedural reforms, but none more

problematic than narrowing pleadings requirements. 15

Through a series of Supreme

Court cases, the highest court in the U.S. has curtailed the ability of plaintiffs to bring

suit by requiring that plaintiff’s complaints must be “plausible” or else face dismissal.

While in the past under the liberal “notice” pleadings standard, the gatekeeping function

of district judges was limited to an initial

determination of “jurisdiction, ripeness, mootness, political questions, immunity,

abstention,” and a determination of whether the complainant has articulated “any”

grounds for relief, the Supreme Court has now turned district judges into gatekeepers,

with heightened pleading standards in a variety of settings. The Supreme Court’s Iqbal,

Twombly and Dukes decisions

have dismissed cases with an early initial assessment of the “plausibility” of the

plaintiff’s claims and requests for class certification. 16

Federal district courts are now

told by the Supreme Court to become more aggressive gatekeepers, clearing dockets

without the opportunity for discovery or trials. 17

This changing pleading standard is

but latest reiteration in the latest battle for the identity of the U.S. legal system.

Pleading rules distribute power between litigants and judges, individuals and the state.

Pleading rules serve as a bulwark between bench and litigants by their limitations on

state authority; and admittedly, also as a bulwark against anarchy by their limitations on

private parties. First and foremost, however, liberal pleading rules trust private litigants

and invite their voices into the legal system. Liberal “notice” pleadings empower private

citizens to invoke state mechanisms in their disputes, and allow judges to block

arbitrary assertions of state powers.

While the effort to close the courthouse gates may be viewed as a self-limiting

effort on the part of the courts, it in fact can be counter-democratic and self-empowering.

14

Stepehn B. Burbank & Sean Farhang, Litigation Reform: An Institutional Approach, 162 U.PENN.L.REV.1543

(2014). 15

In the procedure war, a focus on everything might mean a focus on nothing and a focus on pleadings is where we

should concentrate our attention. While trials in the open are constitutive of democracy (because of the participation

of juries, and the transparency they generate), I find equally important the participatory democracy generated by

access to the courts and the deprivation of that participation by the “plausibility” pleadings requirement 16

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009); Wal-Mart Stores, Inc., v.

Dukes, 131

S. Ct. 2541 (2011). 17

17 See Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 IOWA L. REV.

821, 823 (2010) (discussing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007) and Ashcroft v. Iqbal, 556 U.S.

662, 679, (2009)). See also Stephen Burbank & Stephen Subrin, Litigation and Democracy: Restoring A Realistic

Prospect of Trial, 46 HARV. C.R.-C.L. L. REV. 399 (2011).



Unlike the “notice” pleadings standard, which was clear in deeming all complaints

sufficient so long as they provided notice to the defendant of the underlying disputes,

the new standard of “plausibility” is highly discretionary and places broader authority

in the hands of federal judges. The present pleading standard of “plausibility” gives

judges greater discretion in deciding what goes in and what goes out, discretion based

simply on a judge’s “common sense and experience.” As such, it enables dismissals of

plaintiff’s complaint based simply on personal conceptions of the plausibility of

plaintiff’s version of the facts and, more problematically, can be tainted by judges’ political orientations and agendas. Rather than limiting the power of the

court, the new

“plausibility” pleading standard expands the power of judges. 18

Given the

context of broad federal court jurisdiction, empowering judges to assess the complaint

under such a discretionary standard could mean greater state control in deciding what

comes in and what stays out of court. 19

While seemingly to reign in judicial powers by

setting entry to the courts at a higher level, courts are now actually receiving broader

power by seizing the authority to assess cases at an early stage through the more

technical pleadings plausibility standard. Important to note, rather than reigning in

courts and judicial powers, this latest “plausibility” pleading standard reigns in private

litigants and lawyers. As such, this latest pleading standard has the effect of

encouraging greater judicial discretion and powers, and can be anti-democratic as it

prevents litigants from participating in how legal norms are to be

applied.

Expansive jurisdiction and resting greater authority on judges to decide the

sufficiency of a complaint fosters top heavy state control of litigation. Discretion in

retaining or rejecting the case lies largely with the court’s subjective sense of what is

18

According to some observers, the “plausibility” standard casts the judge into the fact-finding role of the civil jury.

See Paul

Carrington, Politics and Civil Procedure Rulemaking, 60 DUKE L.J. 597, (2010). 19

By contrast, both Germany and Austria focus on case management as their strategy for combating delays and

inefficiencies. In both countries, a civil case starts with the filing of a lawsuit and an examination by the court as to

whether all the procedural prerequisites are fulfilled. While the German model adheres to the motto ne eat iudex

ultra petita partium (the parties control the subject matter) in civil proceedings, and a plaintiff must state specific

relief based on particular facts, and must disclose relevant facts, it is only at a later preparatory hearing in open court,

at which the attorneys orally present their clients’ allegations, arguments and prayers for relief, that the court will

review the complaint. But even in Germany, the trend has been towards greater judicial control and greater specificity.

In Germany, at an adjourned hearing, judges may require that parties clarify their demands, allegations and offers of

proof. At that time, the defendant may make a motion to dismiss the claim, but the court can dismiss by judgment

only after an oral hearing. If the dismissal is not conclusive (and this might be because the plaintiff has made an

error), the court has to advise the claimant and give him the opportunity to correct the defect (sec. 139 CCP). If the

statement of defense itself is insufficient or too late, the court may again decide the case only after an oral hearing.

When it was first created in 1877, the German Code of Civil Procedure was based on a purely liberal model, which

followed the principle of freedom of the parties,. But ever increasing caseloads and delays led to amendments to

increase judicial management. Beginning with the 1909 amendments, German local courts were given the

responsibility to discuss the facts and

the disputed relationship with the parties, to prepare the inquiry into the facts, to obtain official information, to

summon witnesses

and experts and parties to appear. The Emergency Order of 1924 further ended party participation in hearings by

referring to all previous exchanged pleadings and documents in the hearings. Finally, an amendment in 1977 to

simplify proceedings required judges to prepare proceedings either in writing or in one preparatory hearing so that in

one main hearing the case can be brought to a stage where it is ready for adjudication. [Need to insert source here]

Margaret Woo


“plausible.” Of course, under the adversary system, the judge cannot sua sponte

dismiss a claim, but the reality of the

“plausibility” standard is that dismissal will depend on the judge’s discretion

even before a plaintiff has a chance to develop his claim. It undermines the concept of

civil litigation as democratic when ordinary citizens have less opportunity to debate and

discuss the application of disputed norms.

Conclusion

Legal procedure is not simply the practical way of securing the rule of law and

ensuring the enforcement of substantive rights. Legal procedure also reflects our

collective sense of justice. As enactments of the state, procedural requirements are also

symbolic messages from the state. How the courthouse gates are manned, in the

instance of the U.S., reflects a larger national debate about the role of courts and

governmental powers.

As the first threshold in the legal process, pleading rules restrict or empower

courts in determining how a dispute is to be framed and what goes in and what stays out.

As such, these rules inherently carry with them decisions about power distribution. In

determining who has the obligation to do what in a litigation, procedural rules and

statutes distribute power among parties, lawyers, judges as well as among different

branches of government, state and national governments, rich and poor, corporations

and individuals. Understanding the role of courts then must also mean understanding

the effect (intended or otherwise) of the procedural rules and statutes on power

distribution. In the U.S., the power of litigation has shifted toward judges and away

from litigants.

Until recently, the U.S. legal system was characterized by “soft, pluralized,

participative and expansive law, with more lawyers who play a more central and

expansive role.” 20

Today, however, rather than participatory justice as through the

private right of action, today’s American court system is less tolerant It may be said

that the American legal system would prefer the

doors be open to ordinary litigants because that’s who should set and enforce the

social norms. If civil litigation is expected to enable the participatory voices of "private

attorney generals,"

then there may be greater tolerance for allowing broad pleadings and in waiting

for evidence to

come out later.

However, today’s retrenchment means a diminution of participatory justice. In

contrast, the requirement of “plausibility” places authority and discretion on American

judges which along with broad jurisdiction, means that federal judges now have an

unusually expansive reach to decide which cases and whose cases are heard. The

20

Marc Galanter, Predators and Parasites: Lawyer-Bashing and Civil Justice, 28 Ga. L. Rev. 633, 680 (1994)

(citations omitted).



resultant limits on access to courts and reduced control over lawsuits by litigants can

cause a reduction of democracy in the U.S. as litigants’ voices are filtered out in the

restructuring and application of public norms. Thus, this fourth era of civil procedure

as termed by my colleague Stephen Subrin may, in the end, entail

the unintended undermining of democracy in the American legal system.

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