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Global Law & Politics Network Workshop Wednesdays: Substantive Justice: How Chinese Courts Approach Catastrophic Loss

Rachel Stern (University of California, Berkeley) (with Benjamin L. Liebman, Wenwa Gao and Xiaohan Wu)
Wednesday, March 2, 2022 - 8:00am to 9:00am
Zoom link (please register below)

Empirical work on civil litigation in Chinese courts consistently finds that 1) litigants care more about how their case turns out than they do about whether the process was fair and 2) that Chinese courts place great emphasis on finding an outcome that all parties can accept. Beyond a tendency to compromise, though, how do Chinese courts decide what is fair? We draw on a dataset of 42 million Chinese court cases to analyze how Chinese courts interpret “substantive justice” in tort cases involving bad luck and catastrophic loss. Sometimes working within the boundaries of formal law, and sometimes pushing beyond it, we find that Chinese courts regularly impose costs on parties with ethical, but not legal, obligations to the victims. The legal reasoning in these decisions reflects two de facto doctrines, or common judicial solutions to a recurrent fact pattern, that assign social liability to people participating in a shared activity and space-based liability to owners of a physical space. In contrast to the conventional wisdom that when Chinese courts ignore or stretch the law it is due to concerns about maintaining social stability, or to protect the interests of powerful parties, social liability and space-based liability stretch the law to ensure those who have suffered losses are compensated, and emotional harm is acknowledged. These cases highlight the role that contemporary Chinese courts continue to play as social managers. When catastrophe hits, Chinese courts reinforce social solidarity by mandating loss-sharing and by redistributing significant sums of money to victims and their families.  

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