E-Book, Englisch, 267 Seiten, eBook
Jiang Court Delay and Law Enforcement in China
2006
ISBN: 978-3-8350-9012-5
Verlag: Deutscher Universitätsverlag
Format: PDF
Kopierschutz: 1 - PDF Watermark
Civil process and economic perspective
E-Book, Englisch, 267 Seiten, eBook
Reihe: Ökonomische Analyse des Rechts
ISBN: 978-3-8350-9012-5
Verlag: Deutscher Universitätsverlag
Format: PDF
Kopierschutz: 1 - PDF Watermark
Qing-Yun Jiang shows that court delay is not a serious problem in the lower courts in respect to trial cases, but mainly in appeal cases and retrial cases, which require more time. The author confirms that law enforcement has been an obstacle for the development of market economy and a bottleneck of the judiciary and he concludes that judicial reform should not only deal with symptoms, but with the roots of the political and economic structure.
Dr. Qing-Yun Jiang promovierte bei Prof. Dr. Hans-Bernd Schäfer am Institut für Recht und Ökonomik der Universität Hamburg. Er studierte Wirtschaftswissenschaft in Schanghai und Jura in Hamburg.
Zielgruppe
Research
Weitere Infos & Material
1;Foreword;6
2;Preface;8
3;Contents;10
4;List of Charts and Graphs;14
5;List of Tables;16
6;Introduction;18
7;Chapter 1 Special Problems of the Judicial System in Developing Countries;24
7.1;I. Introduction;24
7.2;II. The Judicial System in Developing Countries;26
7.3;III. The Problems facing the Judicial System in Developing Countries;27
7.3.1;1. Court Delay;28
7.3.2;2. Difficulty in Judicial Independence;30
7.3.3;3. Non-adapted Civil Law;32
7.3.4;4, Absence of Arbitrariness in Judgments;33
7.3.5;5. Corruption;34
7.3.6;6. Law's Enforcement;36
7.4;IV. The Impetus of Judicial Reform;38
7.4.1;1. Access to Justice: Internal Impetus;38
7.4.2;2. Well-Functioning Legal System for Market Economy: External Force;40
8;Chapter 2 Legal System and Civil Process in China;41
8.1;I. Introduction;41
8.2;II. The Development of Chinese Legal System in Brief;44
8.3;III. Civil Procedure Code (1991) and Civil Process;50
8.4;IV. The Current Structure of the Court System;61
8.5;V. The Problems Facing the Chinese Judicial System and its Restructuring;72
9;Chapter 3 A Survey of the Functioning of Court System: Duration of the Courts;84
9.1;Part I : Survey of the Duration of the Court;84
9.1.1;I. Introduction;84
9.1.2;II. Filing and Disposal: A Nationwide Overview and Analysis;86
9.1.3;III. Empirical Study of Functioning of the Courts;103
9.1.4;IV. Functioning of Court System: Assessment based on Interviews and Questionnaires;135
9.1.5;V. Findings based on the Empirical Study;150
9.2;Part II: Critical Evaluation of Functioning of the Court System;155
9.2.1;I. Introduction;155
9.2.2;II. Critical Assessment of Court Efficiency;155
9.2.3;III. Court Delay and the Trial Committee;159
9.2.4;IV. The Application of Simple Procedure;162
9.2.5;V. Restructuring Supervision Procedure: Reducing Court Delay;166
9.2.6;VI. Evaluation of the Appeal;171
9.2.7;VII. Accessibility of the Court;174
9.2.8;VIII. The Role of Mediation and Arbitration;176
9.2.9;IX. Lawyers' Engagement and Court Delay;179
9.2.10;X. Procedure Justice and Judicial Reform;180
9.2.11;XI. Summary;183
10;Chapter 4 A Survey of Litigation Costs, Court Budgets and Access to Justice;186
10.1;I. Introduction;186
10.2;II. An Investigation of Litigation Costs in China;188
10.3;III. Critical Assessment of the Current Cost Scheme in Civil Process and Accessibility of Justice;195
10.4;IV. A Survey of Judiciary Budget in Jiangxi Province;205
10.5;V. Findings and Suggestions;211
11;Chapter 5 The Problem of Enforcement of Judgments by the Courts;213
11.1;I. Introduction;213
11.2;II. The Organization of Enforcement and Procedure;214
11.3;III. The Problems and Reasons for the 'Difficulty in Law Enforcement;217
11.4;IV. A Survey of Duration of the Enforcement of Judgment;226
11.5;V. Critical Evaluation of Current Law Enforcement Mechanism;230
11.6;VI. Findings and Suggestions;239
12;Chapter 6 Summary and Policy Recommendations;244
13;Bibliography;261
14;Appendices;268
Special Problems of the Judicial System in Developing Countries.- Legal System and Civil Process in China.- A Survey of the Functioning of Court System: Duration of the Courts.- A Survey of Litigation Costs, Court Budgets and Access to Justice.- The Problem of Enforcement of Judgments by the Courts.- Summary and Policy Recommendations.
Chapter 4 A Survey of Litigation Costs, Court Budgets and Access to Justice (S. 168-169)
The charge of various court fees has impeded the accessibility to justice. Under current administration of court fees, which are transferred to the local administrations and then reimbursed proportionately to the courts, the courts have more incentive to increase income by charging excessive fees. Meanwhile, the lack of budget autonomy leads to the interference of the local governments as well as the longer duration of the trial. To guarantee budget autonomy under current situation, it is practical to establish a two-tiered budget supply, namely, the remuneration of the judges and operational costs of the courts shall be guaranteed by budget of the state, whereas the costs for court facilities shall be borne by the locals. Under such budget allocation, the judiciary will be less dependent on the locals and the worries of the judges will be relieved.
I. Introduction
The cost of a judicial system consists of mainly 2 parts. One is the public cost which is borne by the state in establishing the judicial system, the other is the private cost which is charged by the court such as litigation cost and lawyers fees which are borne by the parties. The functioning of the court system in a country is heavily affected by the burden of these costs. In economic terms, costs will affect the demand. The burden of the litigation cost of the parties will influence the decisions of the parties on whether or not to go to the courts for remedy under a certain constraint such as the probability of winning their case and enforcement of judgments. Additionally, delay and backlog will increase the price to the parties implicitly, consequently, people will react to this added cost by reducing their filings and not redress their grievances within the court system.
In China, lawyers do not monopolize all of the litigation cases since the Civil Procedure Code allows a non-lawyer to represent the parties, consequently the parties involved depend less on the lawyers to plea their case. Besides cost considerations, non-engagement of lawyers in litigation has much to do with the fact that lawyers are not trustworthy nowadays because of bribery, lack of necessary legal training and substandard professional knowledge. If lawyers roles are only seen as mediators and middleman in bribing judges, this will only increase the additional costs of litigation rather than increasing quality legal service as expected. In the past years, the moral hazard has been a hurdle for the development of the service sector of lawyers. Furthermore, the court budgets will also affect the functioning of the court system.
The lack of financial support to the judiciary could lead to a dysfunctional judicial system. In other words, if the courts lack financial support in office facilities, highly skilled personnel and other infrastructures like vehicles, communication equipment, etc., the filing and disposition of the cases will be affected and a prompt disposition is unlikely in such a situation. In Germany, litigation costs have arisen dramatically as a result of savings policy, which shifts the fees to the litigants.
