Comments on: Opening the Floodgates to Freaky, Misogynistic Chinese Litigation

By: Stan

Stan — Fri, 20 Nov 2009 04:52:06 +0000

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.

By: Matthew McKee

Matthew McKee — Fri, 20 Nov 2009 03:38:05 +0000

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.

By: Stan

Stan — Thu, 19 Nov 2009 18:42:52 +0000

No US-style discovery here, but that would be fun, eh?

By: Stan

Stan — Thu, 19 Nov 2009 18:41:38 +0000

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.

By: Tony

Tony — Thu, 19 Nov 2009 18:35:53 +0000

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.

By: Dan

Dan — Thu, 19 Nov 2009 18:10:49 +0000

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!