Liu Lei | Grassroots court staff said bluntly: Without petitions, the contradictions between the parties and the judges may be even more acute

Key takeaways:

1. Letters and visits from ordinary basic level courts can be divided into four categories: issues related to fairness, issues related to efficiency, issues related to discipline and work style, and others, of which the first two categories account for the largest proportion. In addition, there are a large number of letters and visits that have not been recorded, most of which come to the court for consultation on relevant legal knowledge.

2. In fact, the information covered in a petition is very diverse and complex. Some of the problems reported by the letter-writers and visitors may not be true, some may be misunderstood by the letter-writers and visitors, some are due to the blind spots of the letter-writers and visitors, and in some cases, the letter-writers and visitors deliberately do so.

3. Letters and visits can play a restraining role in the judicial case-handling process, and can also play a role in relieving the emotions and pressures of the parties. If there is no mechanism for letters and visits, and there is only a judicial mechanism dominated by litigation, the flexible side of judicial operation that is close to the masses will undoubtedly be weakened, and the excessively rigid procedural operation will obviously breed or increase many conflicts.

Liu Lei

(Associate Professor, School of Law, Southwestern University of Finance and Economics)

The relationship between litigation and petitioning is a frequent problem in the work of mainland courts. The mainstream view in academic circles is that there is a conflict between petitioning and litigation, and that petitioning will undermine the spirit of the rule of law that litigation should abide by. This kind of criticism has existed for a long time, but letters and visits are still an important part of the internal working mechanism of the courts, and not only will external letters and visits be forwarded to the courts, but the courts will also set up special reception centers for letters and visits to handle daily visits.

During the investigation and investigation of the court, almost every judge, whether it is a judge in the trial line or a judge in the enforcement line, will feel that the work in this area is very stressful and the contradictions are very sharp when it comes to petitioning. Many judges have had experience in handling petitions. For most judges, the handling of petitions is not a good feeling, and they will be burdened with more or less pressure, and sometimes the pressure will be very high. In many cases, although there is no problem in handling the case from a legal point of view, the presiding judge still has to fill in and submit relevant explanatory materials in order to respond to the petition. It can be said that the mental pressure on judges in the handling of letters and visits is very great. Some of this mental pressure comes from the internal management requirements of the court, while others come directly from face-to-face interaction with petitioners.

During the investigation and investigation of the court of District G of a certain western province, a staff member who received an interview at the court's petition window said such a sentence, which was very vivid and inspiring. She said: "Petitions play the role of a bridge between the media, and if there are no petitions, the contradictions between the parties and the judges will be more acute. At first glance, this sentence seems to be "contrary to common sense", because the popular view is that petitioning brings difficulties and exacerbates the conflict between the parties and the judge. Indeed, judging from the handling process of some cases, the parties have significantly increased the work pressure of judges through letters and visits, and the presiding judges and relevant personnel need to spend more time and energy to deal with them. Why, then, does petitioning play a very important role in weakening the contradictions between the parties and the judges?

There are four types of petitions that the court needs to handle

The District G People's Court divided petitions into four categories, namely, issues related to justice, issues related to efficiency, issues related to discipline and work style, and other categories. Among them, the first two categories account for the largest proportion of letters and visits, the first category accounts for about 40 percent, the second category accounts for about 30 percent, and the remaining 30 percent is about half divided between the discipline-related style and the other two categories. In fact, there are a large number of letters and visits that have not been recorded, and these letters and visits are basically consultations, and the parties go to the court to consult relevant legal knowledge. According to a staff member who has a wealth of experience in receiving petitions, the consultation category can account for half of the reception work at the petition counter. It can be seen that this category is very common.

Take the reception of petitions by the District G Court in July 2022 as an example. Among the petitions related to the issue of justice, only a very small number of cases were handled unfairly, and the vast majority did not actually deal with the problem of unfairness. The problems reflected in such letters and visits are mainly concentrated in three aspects. First, it reflects that the evidence in the trial of the case is insufficient. For example, some petitioners reported that the judge only presumed that he was willing to repay the loan jointly and severally based on the recorded phone call, and insisted on making a judgment before the reconsideration result of the appraisal record was released. Second, it reflects that the seized property is not standardized. For example, some letter-writers and visitors have reported that the seizure of property exceeds the subject matter of preservation, and enforcement measures have been taken without serving the enforcement documents. The third is dissatisfaction with procedural matters. For example, some letter-writers and visitors have complained that ordinary procedures should not be established in the case, that they have overcharged the case acceptance fee, that they need to file a new lawsuit if they change the case, that they have not gone through the defense formalities in accordance with the regulations, and so on.

Letters and visits on efficiency issues are mainly focused on these issues. First, it reflects that civil and commercial cases have not been adjudicated for a long time. For example, some petitioners reported that no judgment was rendered within one year after the case was filed. The second is to reflect the inaction of implementation. For example, some letter-writers and visitors believe that no effective enforcement measures have been taken in enforcement cases or that enforcement has been delayed. Third, the internal procedures are not connected in a timely manner. For example, some reported that it had been half a year since the appeal, but the case file had not been transferred to the Intermediate People's Court; After enforcement is completed, enforcement measures or preservation measures are not lifted in a timely manner.

Some of the problems reflected in the letters and visits related to the discipline style involve improper remarks by the judge, for example, reflecting that the judge publicly stated that the defendant was not responsible before the trial. Some reflect that the judge has violated laws and disciplines, for example, the parties believe that there are different judgments in the same case, the decision to withdraw the case in violation of the law, and the concealment of the details of the assets of the case may be related to the gang. Among other types of problems, some reflect the unsmooth process of handling litigation affairs, for example, reflecting the failure to issue an effective certificate to the assignee of the creditor's rights, and the inability to pay litigation fees due to the lack of electronic file materials.

The above-mentioned letters and visits reflect a relatively common problem. Listing such issues alone is not enough to tell the truth. In fact, some of the problems reported by the letter-writers and visitors may not really exist, some may be misunderstood by the letter-writers and visitors, some are due to the blind spots of the letter-writers and visitors, and in some cases, the letter-writers and visitors deliberately do so. It can be said that the information covered in the petition is very diverse and complex.

Why can petitions weaken the contradictions between the parties and the judges?

Judging from the various types of petitions above, petitions cover a wide range of petitions and there is no absolute scope limit. Although some of the problems reflected in the petition ultimately proved to be non-existent, it does not mean that the petition is meaningless.

On the one hand, letters and visits can play a restraining role in the judicial case-handling process, and the parties can supervise the judicial process at a lower cost and supervise the improvement of judicial operation efficiency. On the other hand, petitioning can also play a role in relieving emotions and pressure for the parties, and the petition mechanism should not only respond to legitimate demands, but also respond to policy demands and emotional appeals. It is conceivable that if there is no mechanism for letters and visits, and there is only a judicial mechanism dominated by litigation, the flexible side of judicial operation that is close to the masses will undoubtedly be weakened, and the excessively rigid procedural operation will obviously breed or increase many conflicts.

The litigation process attaches great importance to proceduralities, and these procedural links and corresponding professional terms have become accustomed to judges and lawyers who have undergone professional training, but for the vast majority of ordinary people, these procedural links and terminology are very unfamiliar. In particular, in the specific operation of the hierarchical organizational system, the complicated procedural settings will undoubtedly significantly increase the cognitive blind spots and emotional focus of the parties in the litigation process, and the ordinary people involved in the litigation are as cautious and trembling as a tightrope walk in their hearts. Petitions are like "decompressors" and "reservoirs", and the cognitive and psychological thresholds for entering the petition channels are relatively low, and the petition mechanism can bring together the problems reflected from all calibers, and play the role of pooling problems, diverting and dealing with them, and solving them thoroughly.

Some people may believe that the finality of the judiciary should be adhered to, and the finality should not be broken just because the parties petitioned the parties, and the establishment of a mechanism for the termination of petitioning cases involving litigation should be strengthened. It is undoubtedly right to insist on judicial finality, but the question is how to properly understand this "finality". In fact, at the level of institutional norms, a mechanism for the termination of litigation-related petition cases has long been formed, but in reality, there are still a large number of litigation-related petition cases, and some of them are still "unconcluded". In other words, even if the litigation procedure is concluded, the parties will still petition, and the court will still respond in a certain way after the petition (although it does not necessarily need to respond in the way of the case trial), and it cannot simply use "it has been concluded" as a reason not to accept the parties.

In this regard, the prevailing view is that a large amount of judicial resources are consumed and the authority of the judiciary is undermined. Of course, this view is also reasonable, but it is still necessary to recognize the complexity of litigation-related petitions. Similar to petitions in other fields, there are also reasonable petitions, unreasonable petitions, and policy consultative petitions in litigation-related petitions. Some problems can be solved in the operation of the litigation process, and some problems are fundamentally social governance problems, or the emotional or emotional guidance problems of individuals in the great changes in their lives or social transformations, which obviously do not need to be responded to in the "modern judicial model", but in China's judicial operation, these problems need to be addressed, otherwise they will undoubtedly spill over the judicial process and evolve into potential social problems.

Of course, this kind of response will not be limited to the courts, but in fact needs to be coordinated by the entire party and government system. This is an unavoidable problem in Chinese society during the transition period, and it is also a problem that China's party and government system has been seriously dealing with. In this sense, petitions can be widely infiltrated into the judicial operation of the litigation process, which can be called the "dual-track" pattern of litigation and petitioning. The formation and operation of this "dual-track" pattern has its important functions and complexities, and it cannot be simply regarded as a "law of non-belief in letters and visits," still less can it be used to simplify the negation of the system of letters and visits.

(If you want to know more about the operation of the courts, please refer to the author's new book "Basic Courts in the County Constitutional System")