Inquisitorial Adjudication and Institutional Constraints in Chinese Civil Justice

Authors

  • Xin He,

  • Kwai Hang Ng


  • This research is funded by the Chiang Ching-kuo Foundation Research Grant and the UC Pacific Rim Research Grant. Xin He also wishes to acknowledge the financial support from a GRF grant from the Hong Kong government. Special thanks go to the Chinese judges who helped arrange our fieldwork investigations and those who kindly agreed to be interviewed. We are also grateful for the comments of Professor Nancy Reichman and two anonymous reviewers of Law & Policy.

Address correspondence to Kwai Hang Ng, Department of Sociology, University of California, San Diego, La Jolla, CA, USA, 92093-0533. Telephone: 858-534-2729; E-mail: kwng@ucsd.edu.

Abstract

Based on participatory observations of trials and extensive interviews with judges, this article examines the operation patterns of the civil justice process in China and explores the underlying reasons behind. It finds that, despite the reform efforts placing more responsibility on the litigants, the Chinese civil proceeding remains largely inquisitorial. The decline of out-court investigation is evident, yet judges rely on a limited form of cross-examination aimed to obtain oral testimony that can be used to justify a decision. This kind of judge-initiated questioning becomes an inexpensive substitute for the previously labor-intensive court investigation. The article further argues that the judges do not adjudicate based on whatever evidence presented by the litigation parties, a change mainly attributed to the institutional constraints to which the judges are subject. They respond to the incentives by handling cases efficiently with the minimum possibility of reversal and complaint. The article concludes by offering theoretical implications on the study of comparative legal process more generally.

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