Opening the Floodgates to Freaky, Misogynistic Chinese Litigation
Since my last post was a bit too much on the bitchy/preachy side, here’s something slightly more amusing.
In Common Law countries, judges are often asked to rule on new causes of action/points of law, sometimes referred to as matters of “first instance.” A Common Law judge has a lot of power in this regard and can have a major effect by recognizing new kinds of claims.
One argument often made by defendants in these cases is that if the judge recognizes the claim or legal theory, this would open up “the floodgates” of litgation to all other similarly situated litigants, which depending on the issue at hand, could be millions of people.
Legislators also discuss new laws in these terms (i.e., “If we pass this law, it will open up the floodgates to . . .”).
Perhaps that sort of thinking was going through this judge’s mind when the following ruling was made here recently:*
The Xianfeng county people’s court in Hubei province turned down a man’s request for compensation from his ex-wife who failed to get pregnant.
Liu who married Chen in 1999 said the latter had wasted his entire youth.
Even as the court granted the couple a divorce, it rejected Liu’s demand for compensation. (China Daily)
With the misogynistic attitudes of many Chinese men combined with the total population of this country, one shudders to consider the sheer number of potential cases out there.
*Note: The Common Law principle of stare decisis is not applicable here, so just to be clear, nothing that judge did would have any bearing on future litigation. I’m just having fun with this.
Interesting – i’m a mature student studying law (almost tantamount to an admission of mental infirmity, I suppose) and married to a Chinese (PRC) woman (a less damning admission, I would think…!)
As you point out precedent and stare decisis don’t operate in PRC Civil Law. Is there ANY latitude for individual cases to be seen as persuasive or is everything always strictly judged on a discrete basis with reference to the provisions of a civil code?
I agree it would have been a spectacularly misogynisytic and inequitable precedent to set!
Courts often do follow persuasive authority, like the decision of a higher court or a Supreme Court opinion. However, this is less formal and occurs less frequently than the comparatively rigid precedential system in Common Law countries.
Did he at least submit evidence that the failure was not his fault first? If you brought that claim in a U.S. court, you’d probably get some pretty embarrasing and intrusive discovery requests.
No US-style discovery here, but that would be fun, eh?
Stan your post inadvertently raises another interesting point – differences in procedures in common law countries. The ability to raise new claims in Australian courts is far more limited than the US because of the nature of our pleadings (which are very different to US “briefs”).
I have also never heard the term “first instance” used in this context. As far as I am aware we only use it to contrast appellate proceedings from proceedings “at first instance”. The differences between Australian and US discovery is whole other story.
Interesting point about pleadings. On “first instance,” it is commonly used to describe the first court that hears a case (as opposed to the appellate court). A trial court, for example, would often be the court of first instance for a case that has been appealed.