Civil law in China

最近在別處討論回應別人的長文，也算是給某些想了解中國民事法的外國人科普，順便貼來這裡吧。

I recently had a discussion with some Chinese on the aspect of civil law in China. What brought up the discussion was an event happened in the city of Wuhan. The case was that a middle-aged woman was eating a bowl of "hot dry noodle" which is a smelly food in the subway. Eating in the subway is prohibited in Wuhan (subject to a 200 yuan fine) and obviously passengers around her were disturbed so they asked her to stop. She refused to comply. Then a passenger sitting across her took his phone out to take a picture, intending to expose her behavior on the Internet and shame her. The woman got so angry because of this she throw the noodle at this guy's face, then wanted to take away his phone and delete the picture. They almost got into a fight but it was stopped by other passengers. The phone was saved and the story and picture got posted. And now many on the Internet both rationally and fanatically criticized the woman and some even wanted to "human search" her. The original poster kind of regretted not blocking her face in the photo and asked people not to do the "human search" because it wasn't that big of a deal to ruin someone's life for.

Such a minor event brought up lots of discussions on the Internet. Many believed that posting her photo or even taking it without permission is a civil offense, some argued that shaming someone on the Internet is a worse thing to do than eating in the subway or throwing noodle towards others. Some research and discussion later it was agreed by most that taking a picture of someone against their will is indeed legal per civil law (as long as it in public place and the picture not used for defamation or profit), while eating in the subway is actually a civil offense (many initially see it as against "subway regulation" but not breaking a law).

Breaking the law is quite a serious event in most Chinese people's mind, so they typically don't consider minor civil offenses as breaking the law even though technically they often is. In many western countries you may be asked to go to court just to dispute a minor traffic violation, whereas in China, although you can still bring it to court, it rarely happens (but still more often now than ever). When it does, the court procedure is comparatively more formal and time consuming as they don't have a specialized traffic court to handle these issues. Cost wise, it is still fairly low, I have seen cases of about 100 yuan each trial in court fee.

In general and traditionally, Chinese people tend to distance themselves from the court much more so than their western counterpart because in tradition they resolve most minor conflicts through Arbitration (in a loosely-defined sense). There certainly is a lot of pros in this system as it drastically reduce legal cost and it speed up conflict resolution in many cases. However, in some other cases, over reliance on arbitration has caused grave injustice in civil dispute in that "whoever cried the loudest get the milk". It has long been a belief and criticism from many Chinese that the arbitrator (usually the local government or police) only pursues one goal, which is not justice, but to calm things down and settle both parties as soon as possible, essentially a "harmony" without justice. Based on this principle, the one party who is willing to "cry the loudest" by protesting, shouting in your face, blocking the doors of government or public agencies will usually get more compensation regardless of whether they deserve it or not. The law enforcement and judiciary branches do very little to investigate or intervene from a justice perspective in minor civil disputes, especially if the parties in dispute do not see it as worthy to go to court. Even when it does go to court, the court may favor the party who is an individual and rooted locally because these are the people who will have the time and energy to protest at the door of your court afterwards, or they may go "Shang Fang" (going to the petition office) and cause headache to your court and the local government. The other party who has a full time job, living elsewhere, or is a corporation/agency/hospital, will often be asked to make some compensation even if they're not at fault.

The benefit of arbitration is continually being recognized by official statements but there have also been increasingly loud criticisms on the focus of harmony instead of justice. It was argued that this is actually harming social harmony. After all, how do you get the milk if you don't cry? It has also fueled some very poisonous behaviors such as blaming the one who help you get up from a fall as the one who hit you, prior incidents like this has already significantly decreased people's willingness to help strangers in trouble. People feel they're not protected by the legal system if the people they help suddenly decide to extort them to make sure someone pays the hospital money, or if the whole thing is a racketeering set-up from the start. The Chinese refer to this as "Peng Ci" or porcelain-crashing and they were so prevalent because an arbitration-focused system is very ineffective in punishing them. There are cases such as that a Good Samaritan was blamed and then cleared their name through surveillance footage, but still the other party who wrongfully blamed a Good Samaritan to cheat for money get no punishment at all, all they got were a few words of blame from the angry policeman handling the case. If it wasn't for that surveillance footage and if they end up in court, there is a true risk for the Good Samaritan to be court ordered to pay the damage. In some Chinese court (to be fair, not in all courts), the lack of evidence will only make you pay less, not freeing you completely from the responsibility. Even if the court is fair, when the accident involves a pedestrian and a vehicle, the vehicle will be withheld until a court decision is made and the owner has to pay storage fee every day, not to mention they won't have a car to use for weeks. So in almost all pedestrian-vehicle accidents, unless the injury is server and potential compensation very significant, the traffic police will usually persuade the driver to settle it outside of court: "Just let your insurance company pay the guy or get some from your own wallet to get it over with. You can get your car back quicker, you save time and energy and so do we, everyone is happy". They will say this even if they know the pedestrian is at fault and many drivers did comply because this option is more economical, even though less justified.

I hope this can give you guys a better picture on the enforcement of Chinese civil law and how it is impacting the society and culture. I hate seeing people (sometimes Chinese themselves) simply blame these things on "corrupted moral values of Chinese culture/lack of culture/CCP/Communism/Capitalism". They fail to see the institutionalized effect of the unique civil law system in China, but once you see it, it can explain a lot. It tells you where this general sense of injustice and insecurity came from, it tells you why so many Chinese netizens feel the urge to seek revenge on the web instead of in the court or through legislation, it tells you how civil disobedience can be rewarding, it also tells you why certain crimes are so prevalent while other crimes are not. This is the question of how a traditionally derived, arbitration focused civil law system could adapt to the modern world of industrialization, commercialization, and urbanization. It is my belief that China requires a more active and independent civil and criminal court system to serve its changing social needs. Arbitration is not to be dismissed, but it is certainly important to put more focus on justice over pursuing a high rate of immediate settlement. This is not about simply copying the legal system from the "West" as China need to figure out their own way and pace of affording the significantly increased cost in such a transition. Otherwise they run the risk of rendering their legal system both corrupt and slow. How can they retain efficiency of their current system while putting additional resources into serving more justice to society, especially on the less serious but much more common civil disputes? Certainly a question waiting to be answered.

Especially those who talk of the 'west' being oh-so-perfect. And of course those who don't have a clue on what Chinese culture and traditions are like.