Transcript Law, Development, and Transition in East Asia POLS/SISEA/LSJ 469

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GOVERNMENT AND POLITICS OF CHINA
POLS 442/SISEA 449
Susan Whiting, Ph.D.
Associate Professor, University of Washington, Seattle
Introduction
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Introducing my current research
(“What I did on my summer vacation”)
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
When Does Law Matter?
 Perspectives
on “Rule of Law” in China
Two Motivating Questions
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Why has an authoritarian regime led by the
Chinese Communist Party promoted the “rule of
law”?
 When an authoritarian regime does promote
the “rule-of-law,” are citizens empowered?

1: Why promote “rule of law”?
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




Political legitimacy
 Provide rationale for supporting the regime based on predictable,
transparent rules and procedures to govern society
Social stability
 Channel and control expression of citizen grievances
Policy implementation
 Better monitor the state’s own officials to elicit compliance with central
policy
Economic growth
 Promote investment by securing property rights and enforcing contracts
International engagement
 Facilitate international engagement by aligning more closely with
international discourse, norms and practices
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Why Promote “Rule of Law”?
Social stability, among other reasons
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A protester is dragged away from an
industrial park, the site of a 2006 land
dispute. (AP photo)
Why Promote “Rule of Law”?
Social stability, among other reasons
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Promoting the “Rule of Law”
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
Major investments by
 World
Bank, United Nations, International NGOs
 Billions
 Chinese
$ in the developing world, including China
state
China’s “Rule of Law” Initiative:
Promoted at the Highest Levels
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9

1996 CCP General
Secretary Jiang Zemin


China is “building a socialist
rule of law state”
1999 Constitutional
amendment

“The People’s Republic of
China exercises the rule of
law, building a socialist
country governed according
to law”
China’s “Rule of Law” Initiative:
Explosion of new legislation
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
Passage of laws by
National People’s Congress

Across issue areas
 Land law, for example



Land Management Law
(1998, revised 2004)
Rural Land Contracting
Law (2002)
Property Law (2007)
Labor
 Environment

China’s “Rule of Law” Initiative:
Training of legal professionals expanded
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China’s “Rule of Law” Initiative:
Training of legal professionals expanded
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Average Annual Growth Rate of Graduates at the Master's and Doctoral Levels, 1994-2006 (%)
25
23.1
22.8
21.4
20
18.9
16.9
16.8
15
10
5
0
Economics
Law
Education
Engineering
Medicine
Administration
China’s “Rule of Law” Initiative:
Training of legal professionals expanded
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
Law graduates as of 2006
 186,000/year (5% of all graduates)
 Master’s and Doctoral  19,000/year (9% of all)
 Bachelor’s

Law schools increased from 2 in 1978 to 640 now
China’s “Rule of Law” Initiative:
Growing legal profession
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
Lawyers
 Licensed,
working in law firms full time
1983
8,600
2005
103,000
2009
150,000 licensed lawyers
Note—very low pass rate on bar
 Highly
concentrated in major cities
China’s “Rule of Law” Initiative:
Legal profession in comparative context
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

Speed of China’s legal development impressive
China vs. Korea
 Income
per capita, 2002
China
 Korea

 Lawyers
 China


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US $ 960
US $11,280
per 10 thousand population, 2002
1: 9,510
 Korea
1: 9,383
Shanghai alone had more than 6,000 lawyers in 592 law firms
Nationwide, Korea had 6,273 lawyers in 258 law firms
China’s “Rule of Law” Initiative:
Legal professionals push boundaries
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
Ideological tug-of-war

Emerging cadre of public
interest lawyers
 Push the boundaries of
acceptable advocacy



Farmers who lose their land
Victims of pollution…
State-controlled bar
 Ministry of Justice
administers bar exam,
certifies lawyers, licenses
firms annually
China’s “Rule of Law” Initiative:
Judges and courts improving
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


Better trained judges
New court houses
But, courts subordinate to
local party-state
No tenure for judges
 Local governments control
funding
 Local party committee and
party political-legal
committee have influence
over




Court personnel
Acceptance of cases
Handling of cases
China’s “Rule of Law” Initiative:
Citizen legal consciousness promoted
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
Active government promotion of laws through public media
Two Motivating Questions
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
Why promote “rule of law”?
 Multiple
motivations for China’s “rule of law” initiative
 Major investment in “rule of law” initiative by Chinese
state

Next, are citizens empowered by the “rule of law”?
2: Are Citizens Empowered?
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
To answer this question, case study of cotton-growing community in
central China
Population
Rural population
590,540 people
75 %
GDP
Agriculture
Industry
Services
5 billion yuan
39 %
21 %
40 %
GDP per capita
9,000 yuan
Are Citizens Empowered?
What kind of legal issues do they face?
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
Land
 Most valuable asset of farm households
 Land disputes—“focal problem of rural China”
 Background
 Land
in urban areas: owned by state
 Land in rural areas: owned by village collectives


Rural land is used exclusively for agriculture and rural housing
To develop industry or commercial real estate, land must be
converted to state land first
Are Citizens Empowered?
What kind of legal issues do they face?
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

14% of households in case study experienced land
disputes
Multiple types of land disputes
Most recent land dispute, by type
Compensation for land taking
Land readjustment
Abandoned/transferred land
Boundary/other
Total
Frequency
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23
12
28
89
Percent
29.2
25.8
13.5
31.5
100.0
Are Citizens Empowered?
Land rights are established in law
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Rights to 30-year land-use tenure for farmers
Equal land rights for rural men and women
No rights for farmers to sell land for non-agricultural uses
Procedural guarantees in government land takings for nonagricultural uses



Development of arable land for industrial parks, real estate
subject to higher-level approval and urban planning processes
Compensation standards set by state
Rights for farmers to sue in court to enforce laws, with legal
aid—if needed
Are Citizens Empowered?
Citizens do learn about their rights
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Through What Channels
Do You Obtain Legal Information
Television
Talking with friends, colleagues
Government propaganda activities
Books
Village/school activities promoting law
Newspaper
Internet
Other (residual)
Total
Primary
Channel
%
67
9
5
5
5
5
0
4
100
Are Citizens Empowered?
Citizens do learn about their rights
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Would you seek legal aid in a land dispute?
Percent
N= 628 (2007), 621 (2008)
Before
government
propaganda
activity
2.1
After
government
propaganda
activity
10.3
Are Citizens Empowered?
Obstacles to protecting their rights
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

Local officials have powerful incentives to violate farmers’ rights
 Rights to land
 Rights to compensation for land in context of government land takings
Fiscal incentives
 Government sales of “requisitioned” farmland—biggest source of
government “off-budget” revenue




615 billion rmb, 3-4% of GDP (2004 estimate)
“Important and increasing role of land sales as a source of local finance”
Shades into corruption
Career incentives
 Attracting investment big career booster

Key to promotion for local officials

Targets for attracting investment

Reduce compensation, offer “cheap” land to lure investors
Are citizens empowered?
Sources of grievances over land takings
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
Illegal land takings


Unapproved, no urban planning process
Inadequate/unpaid compensation for land taken
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Are Citizens Empowered?
Government taking of farmers’ land
#1
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2006 14 mu (small) land taking
for factory in industrial park
Each level of local government
kept 10s-100 thousand RMB in
revenue from land development
Only 40/71 households received
cash compensation
 Average household compensation
~6,000 RMB = 800 US$


Per capita net income ~4,000
RMB = 5-600 US$
Only a few got jobs in new
factory
Are Citizens Empowered?
Government taking of farmers’ land #1
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Some households excluded
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Who is excluded?
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From cash compensation
From readjustment of
remaining farmland
From jobs
Especially married daughters
and their families living in
natal village
Leads to lawsuits over land
takings compensation
Are Citizens Empowered?
Possible channels for dispute resolution
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Direct negotiation
Mediation
Petition
Arbitration
Litigation* *venue where law likely to matter most
Other
 People’s
Congress
 Media
 Protest/Demonstration
 Violence
Are Citizens Empowered?
Exercising the right to sue in court
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
Disposition of court in woman’s land claim
 Mixed
picture—some women successful; others not
 Example in case study
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

Court refused to accept case
Court acknowledged right of plaintiff to sue
Court claimed inability to enforce any judgment
finding for plaintiff
Court told plaintiff to seek remedy through
petitioning government directly
Are Citizens Empowered?
Handling citizen grievances through legal channels
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
Recall 26 households reported disputes over land takings
compensation
 80% reported great or very great impact on life
 73% initiated some action in response
Outcomes of legal challenges to land
takings compared to other land disputes
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Abandoned/
Differences
Land Taking Transferred
Land Boundary/ Significant
Compensation
Land Readjustment
Other
(Chi-Sq)
Percent Attempting
Mediation
Petition
Litigation
Other
39
46
19
19
50
8
0
0
39
17
0
4
50
29
4
11
0.77
0.05
0.02
0.21
Percent Resolved
35
83
52
64
0.03
Percent Extremely Dissatisfied
78
56
17
15
0.08
Number of cases
N=89
26
12
23
28
Does Law Matter?
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
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
Aspirationally, yes
In least contentious cases, yes
Most citizens
 Little
contact with legal system
 Only
14% had land disputes
 Only 4% had land takings compensation disputes
 Reservoir
of trust
Does Law Matter?
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Rank Ordering of Trust in Local Government Agencies
Court
11
Mass Organizations
10
Media
9
Village Committee
8
Legal Aid
7
Lawyer
6
County Government
5
Township Government
4
Township Justice Bureau 3
Petition Office
2
Police
1
Does Law Matter?
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
But, some citizens experience intense grievances
 Land
takings compensation
 Actively use the legal system
 Hard
to challenge interests of local governments in land
development
 Hard to challenge power of village elites in distributing
compensation
Does Law Matter?
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
State has promoted law to increase the regime’s
legitimacy and to improve governance
 Passed
and popularized laws to protect rights
 Expanded courts and judiciary
 Developed legal profession

Land rights, specifically
 Part
of the “legislative explosion” (Fu 2009)
 Also a major source of rural unrest
Conclusion
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

There are divisions within state apparatus itself
about how far law can go
“Rule by law”
 Acknowledges
the power of political elites—like local
officials—to override the courts

“Rule of law”
 Recognizes

law as the ultimate authority
Subject of debate within China itself