This legal issue may not be relevant to many of my readers, but that’s never stopped me before. But for those of you who have come up against the formalism of the Chinese legal system, or even just its often maddening bureaucratic nature, you’ll be happy to hear that some folks out there are trying to make the system slightly more flexible.
FYI, when I use the term “formalism” when talking about Chinese law, I’m not really using it the right way. My general meaning is that the system here tends to be overly bureaucratic and technical, and that folks can easily be tripped up by the minutiae, the specific, formal rules that often must be followed before a task can be accomplished. And unfortunately, there are lots of bureaucrats here that sit back and wait for you to make that one minor, albeit fatal error, that allows them to dump your application/complaint/petition in the trash.
In other words, the system can appear from the outside as rule-based, technical and quite formal — hence my use of “formalistic.”
“Legal formalism” on the other hand, is a different kettle of fish. Here’s some nice gibberish from Wikipedia that actually does describe the jurisprudence side of this fairly well:
The most obvious characteristic of legal formalism is the purported separation of legal reasoning (or “application” of norms to facts) from normative or policy considerations. The “formalist fiction” is that the process that produced the legal norms has exhausted normative and policy considerations; accordingly, law can be seen as a more or less “closed” normative system.
To simplify, a system based on legal formalism leaves the normative issues to the legislature, while the judge is there to just apply law to facts, or referee that process. The judge is not there to deal with policy or to worry about normative issues.
The role of judges in China is obviously quite different, as they have tremendous discretion and are expected to take policy considerations into mind when making rulings, albeit in a very conservative fashion. Therefore the process might be technical, bureaucratic and formal, but “legal formalism” does not accurately describe China’s legal system. (Just wanted to clarify that in case I have any confused lawyers reading this.)
One of those maddening technical rules we deal with here relates to defendants and identity. I have been involved in cases where defendants cannot be found and judges are unwilling to do more than try calling a defendant’s mobile number — when that fails, the case is put in permanent stasis, instead of going with some sort of constructive notice or proceeding to a default judgment, which would happen in many other jurisdictions.
Imagine running across this problem when you’re faced with an online tort like defamation. Someone has bad-mouthed your company, for example, on a microblog, and all you know about that person is their username (e.g. “leifeng88” or “hellokitty4ever”. Matching up that username with a warm body will be difficult at best, if not impossible, and that’s assuming the judge is willing to help. In many cases, the user information kept on file by the microblog service will be incomplete or even false. This is one problem, by the way, that Real ID systems are designed to fix, among other things.
Jiangxi Province is fighting back against technical rules that would stop such a defamation action in its tracks:
In the past, it would have been unthinkable because defendants’ true identities are required in a trial according to Chinese law or else courts will not accept the cases.
But now online violators in East China’s Jiangxi province can be sued first based on their virtual identities, such as their nickname on QQ, an instant communication tool.
[ . . . ]
The judges help the plaintiff find violators using virtual names first and then confirms their real identities after the court has accepted the case[.]
Cool. I still remember when judges wouldn’t lift a finger to help a plaintiff locate a defendant, discover documents, or order preliminary injunctions, so this kind of activism is a huge change. Moreover, with the number of online defamation and copyright infringement suits filed these days, it makes sense that the judiciary is looking for better ways to process these cases.
Now, I know what you’re thinking. This is yet another example of “The Man” stifling free expression and putting his proverbial boot on the neck of well-meaning anonymous microbloggers. Well, maybe there is some of that going on, but I don’t think that’s what this is all about. We’re not talking about a whistle blower who posts something embarrassing about the local Party official and then is invited to have a cup of tea with the neighborhood PSB. In Jiangxi, these are civil court judges responding to civil tort complaints. To the extent that this pilot program streamlines that process, I’m OK with that.
All in all, this appears to be a step in the right direction. At the same time, though, I can’t help but think that if the government-mandated Real ID system was actually implemented, none of this would be necessary. But apparently that isn’t going to happen anytime soon.