Abstract
Chinese petition (xinfang) system is an important topic in the studies of law, society, and politics. Litigation-related petition (Shesu xinfang, hereinafter as petition) in courts constitutes a crucial part of the petition system and deserves scholarly attention. This dissertation studies the relationship between petition and the appeal system. It attempts to illustrate how petition influences the functions of the appeal system, particularly how the two major functions of the appeal system, i.e. the error correction function and the catharsis function, are alienated under the high tides of petitioning. Under the above framework, this dissertation presents in details the interactions between upper-level and lower-level courts, among judges, litigants, and legal counsels, and among the judiciary, local governments, people’s congresses, and the media. As to methodology, this dissertation draws from first-hand empirical data, deploys methods of both law and society research and comparative law research, and combines the perspectives of various agents in petitioning, so to broaden the limited scope of existing studies on petition.This dissertation is consisted of eight chapters. Chapter Three, Four, Five, and Six are the core chapters.
Chapter One introduces the research question, the theoretical perspective, and the research methodology. The research question is raised through the introduction a highly representative case of petitioning, which covers the characteristics of most of the petitioners’ cases.
Chapter Two provides the background information of petition and the functions of the appeal system, including the connotation of petition, the introduction of the appeal system and its functions, and a brief explanation of how petition alienates the functions of the appeal system.
Chapter Three adopts the perspective of petitioners. It empirically investigated how petitioners have overlooked or ignored the appeal system, how this improper use of the appeal system leads to alienation, and how the alienation manifests itself. Far more than merely restating the rights claims of petitioners, this chapter probes the motives of petitioner in their selection of dispute resolution procedures, and analyzes how these motives contribute to the alienation of the catharsis function of the appeal system.
Chapter Four adopts the perspective of the judiciary. From a top-down perspective, it examines the phenomenon of selective registration, excessive mediation, and internal referrals, illustrates the abusive use of retrial and post-litigation consultation, and analyses the subsequent alienation of the error correction function of the appeal system and its manifestation. It is found that upper-level courts are both controlling and evasive, while lower-level courts are both subordinating and resistant. The said alienation is further reinforced by the misplaced relationships, which are “compatible” and “overlapped,” between the upper-level and the lower-level courts.
Chapter Five examines the positive and negative influences exerted by legal counsels of petitioners on the alienation of the functions of the appeal system. It is found that the intervention of legal counsels (retired judicial officials and lawyers) in some cases have, to a certain extent, served as the catalytic in the alienation process of the catharsis and error correction functions of the appeal system. In some cases, the actions of legal counsels are misguided and accelerate the said alienation process, even though their motivation is good,
Chapter Six analyses how the intervention of local governments, people’s congresses, and the media reproduce the alienation of the functions of the appeal system. This chapter provides a lot of unpublished and thought-provoking empirical data, which demonstrate how judges are converted from “the oppressor” to “the oppressed” in petitioning. These findings, along with the alienation theory, offers a new perspective to understand the power relations among courts, petitioners, and extra-legal institutions.
Chapter Seven provides reflections on the causes of alienation, which are attributed to the double resistances of both petitioners and grassroots judges/courts. From a theoretical perspective, this chapter reexamines the empirical findings in previous chapters, and critically analyzes the interactions between petitioners and judges/courts as well as the lack of judicial independence and neutrality, which leads to the alienation.
Chapter Eight, as a concluding chapter, concludes the entire dissertation and offers suggestions for corresponding reforms. It also analyzes the potential influences of the on-going judicial reforms in China on the handling of petitions in courts, and how the judiciary may resolve the alienation of the appeal system in the forthcoming new era. Finally, it prospects new trend and new forms of alienation in a foreseeable future.
The contributions of this dissertation are two-fold. As to the empirical aspect, this dissertation presents a lot of authentic and unpublished data. Many of the reported cases are handled or supervised by the author over the past ten odds years. Empirics of existing studies in this field barely reach such a depth. As to the theoretical aspect, this dissertation innovatively connects petition and the appeal system through the alienation theory, and thus expands the scope of relevant studies. Further, it constructs the concept of the double resistances, which is an important supplement to the existing resistance theory.
| Date of Award | 5 Jan 2018 |
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| Original language | Chinese (Traditional) |
| Awarding Institution |
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| Supervisor | Xin Frank HE (Supervisor) |
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