: 
Global Law Working Papers
2006 Series
GLWP
04/06
Author
Xin He
Hauser Research Scholar (2005-2006)
AbstractChinese Courts' recent refusal to directly take some disputes raises questions on to what extent that they are firmly controlled by the Communist Party and the governments. Through closely examining the handling process of "Married-out-Women" disputes, this article shows that lower courts in Guangdong Province, China, have effectively resisted the pressure which demanded them to solve the disputes. Arguing that they had legal barriers and enforcement difficulty in solving the disputes, the courts ultimately pushed away the disputes to the governments but agreed to review the governments' decisions in administrative litigation. By so doing, the courts largely avoid the legal barriers and the difficulty in judgment enforcement, but retain an advantageous position in the power relationship with the governments. The article argues that Chinese courts are capable of deliberating about, and transforming their situations by strategically interpreting the law and negotiating with other superior powers. It suggests that both judicial independence and the development of rule of law in China is far more complicated than is often recognized, and judicial behavior cannot be adequately explained in the absence of fairly thick descriptions and understanding of the legal arguments, resource constraints, and strategic interpretations open to the courts at their own context.
Contact the Author
lwxin@cityu.edu.hk
