Dispute formatting: dispute transformation in case-filing

ZHU Tao1,2

(1.Department of sociology, Beijing University of Technology)
(2.Center for Creative Collaboration of Capital Social Construction and Social Management)

【Abstract】Many studies focus on dispute and dispute resolution, but often overlook the issue of dispute transformation. Based on the analysis of case-filing, this article explains how various factors of daily life enter the legal world through dispute formatting. When disputes are developed into lawsuits, the systematic logic of law and the logic of daily life constantly interact with each other. Dispute formatting appears at two stages: “internal filtering” and “external packaging,” which concern the dispute’s nature, naming process, formalization, and paperwork. The “filtering-packaging” mechanism is the key for dispute transformation. It demonstrates judicial procedures and conventions that mutually restrain and limit each other in their interaction, and to a certain extent facilitates the interchange between the fusion of the legal world and the real life world.

【Keywords】 dispute transformation; dispute formatting; “filtering-packaging” mechanism;

【DOI】

【Funds】 Youth Project of National Social Science Foundation (13CSH008) Research Program of Beijing Municipal Education Commission (SM201410005003)

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(Translated by CHENXI Jinyan)

    Footnote

    [1]. ① Compared with the science of law, the sociology has a broader understanding of the concept of disputes, which is not limited to disputes and conflicts that actually happen. The denotation of the concept of disputes is expanded to emotions and attitudes on people’s subjective level in daily life (Lu, 2009; Guo, 2013: 142; Xiao et al., 2014). This article adopts the above-mentioned broad definition of disputes. [^Back]

    [2]. ① Please note that these stages are not simple independent, and do not need to proceed in order. If parties are unsatisfied, they can directly escalate their dissatisfactions to the dispute period. Or in other cases, disputes can also be demoted to a certain level (Nader and Todd, 2007). [^Back]

    [3]. ① The “dispute resolution” in a narrow sense only refers to that disputes have been settled, focusing on the results, while the “dispute resolution” in a broad sense also includes ways to deal with disputes, or in other words, dispute management (Merry, 1979; Zhu, 2011). Apparently, the dispute resolution in this article is the latter sense. [^Back]

    [4]. ② The “level” in this theory does not mean that one is superior to the other. Rather, it refers to different positions in a model. [^Back]

    [5]. ① Dispute transformation is different from changes of dispute classification. Disputes can be classified into civil, administrative and criminal disputes, or into land, inheritance and other disputes. Dispute classification is of great impact on selecting dispute resolutions (Cheng, 2009). [^Back]

    [6]. ① This study looks at administrative disputes as examples of the case-filing mechanism. There are other studies on administrative dispute resolution. See Cheng, 2009; Zhang, 2009. [^Back]

    [7]. ① Here, the concept of lifeworld and system dichotomy is borrowed from the social theory of Habermas. And ethnic standards and customs, communicative practices in households, communities and so forth are called daily communicative practices in the lifeworld (Habermas, 2003). [^Back]

    [8]. ② Unless specified, investigations and interviews in this article come from the author’s field survey in the People’s Court in County A. To concentrate the research subject, cases involved are all trials of first sentence of civil cases, with no reference of administrative and criminal cases. [^Back]

    [9]. ① The case-filing in this article is in a broad sense, that is, covering the ordinary processes like prosecution, hearing a case and preparation before a trial of first instance of civil cases (Fu, 2011). This is consistent with the working responsibility of the case-filing courts and case-filing processes in judicial practices. [^Back]

    [10]. ② Questions were raised by the author during interviews. The same below. [^Back]

    [11]. ① The legislation and judicial documents in this article are rendered as: the second revision of the Civil Procedure Law of the People’s Republic of China in 2012 is abbreviated as the Civil Procedure of Law (2012); Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China is abbreviated as the Interpretation of the Civil Procedure of Law (2015). [^Back]

    [12]. ② On February 26, 2015, Opinions on Comprehensively Deepening the Reform of the People’s Court: the Fourth Five Year Reform Program for the People’s Courts (2014–2018) was issued by the Supreme People’s Court. It specifically proposes the goals of “transforming the case-filing review system to registration system; as for the cases that should be accepted by people’s courts, cases should be accepted; lawsuits need to be heard, so as to guarantee the requests of parties.” The critical issue of case-filing has once again aroused the attention of the public general. On April 1, 2015, the 11th meeting of the Central Leading Group for Comprehensively Deepening Reform reviewed and passed the Opinion on Promoting the Case-filing Registration Reform in the People’s Courts. The Supreme People’s Court printed and distributed it on April 15. And it was implemented since May 1. [^Back]

    [13]. ① The 19th article in the Management Rules of the Trial Process in the People’s Court of County A. [^Back]

    [14]. ① In judicial practices, there are circumstances that disputes cannot become lawsuits because there is no applicable cause of action in local courts. For this end, the Provisions on the Cause of Action (2011) specifically points out that one cannot equate the revised Provisions on the Cause of Action of Civil Cases with the lawsuit conditions in 119th article of the Civil Procedure Law. One cannot use the reason that the party’s request does not have corresponding cause of action to apply in the revised Provisions on the Cause of Action of Civil Cases, so as to refuse or rebut the prosecution, affecting the right of prosecution of the party. [^Back]

    [15]. ② The “land settlement” refers to disputes that are caused by land settlement subsidies in general. The land settlement subsidies refer to the subsidiaries offered by the government after the land has been exploited, so as to settle the agricultural population whose production material is the land and whose income comes from the land. [^Back]

    [16]. ① Based on the 64th and 65th articles of the Civil Procedure Law (2012), the party is responsible to provide evidences of one’s own proposal and one should submit evidences in time. In the 121st article, the petition for appeal should be clear about the evidences and evidence sources. Of course, providing evidences is not limited to case-filing period. [^Back]

    [17]. ① The 90th article in the Interpretation of the Civil Procedure (2015) points out that the party should provide evidences to prove the facts in the prosecution. [^Back]

    [18]. ② The judge should guide the party to provide evidences, conduct necessary investigation, interviews and so on, so as to find as many facts of the case as possible. Yet considering the reality, the 96th article of the Interpretation of the Civil Procedure (2015) points out that except certain regulations, investigating and collecting the evidences by the people’s courts should follow the party’s application. [^Back]

    [19]. ③ According to the 121st article in the Civil Procedure Law (2012), the petition for appeal should clearly state the name, gender, working place, address and other information of the defendant, or name, address and so on of the legal entity or other organizations. In the meantime, the third article of the Interpretation of the Civil Procedure (2015) points out that the address of citizens refers to their address in the household registration. [^Back]

    [20]. ① According to the 123rd article in the Civil Procedure Law (2012), if the case meets all the prosecution requirements, it should become a lawsuit within seven days and the party should be noticed. In the local courts, the trial of first instance of civil cases is generally reviewed and decided whether it can become a lawsuit on the day that all prosecution materials are submitted. Only those that need panel discussions will take less than seven days. The Regulations on Several Issues of the Case-filing Registration of the People’s Court of the Supreme People’s Court (abbreviated as Regulations on the Case-filing Registration (2015)) also emphasizes on this part. [^Back]

    [21]. ② According to the 53rd article of the Management Rules of the Trial Process in the People’s Court in County A, (1) civil and commercial cases that can apply to simple processes should be completed within three months since the case-filing day; (2) civil and commercial cases that can apply to normal processes should be completed within six months since the case-filing day. [^Back]

    [22]. ③ On the legal level, the disputes that are brought to courts without case numbers have not yet transformed to lawsuits in the process. [^Back]

    [23]. ④ See the 126th article of the Civil Procedure Law (2012). [^Back]

    [24]. ① See the Notice on the Issue of Opinions on Pushing the Reform of Case-filing Registration of the People’s Courts of the Supreme Court (abbreviated as Opinions on theCase-filing Registration (2015)). [^Back]

    [25]. ② See the second article of the Regulations on Case-filing Registration (2015). [^Back]

    [26]. ③ See the “scope of case-filing registration” in the Opinions on the Case-filing Registration (2015) and the tenth article of the Regulations on the Case-filing Registration (2015). [^Back]

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This Article

ISSN:1002-5936

CN: 11-1100/C

Vol 30, No. 06, Pages 1-25+242

November 2015

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Article Outline

Abstract

  • 1 Introduction
  • 2 Literature review and methodologies
  • 3 Internal filtering: nature transformation from disputes to lawsuits
  • 4 External packaging: form transformation from disputes to lawsuits
  • 5 Conclusion and discussion
  • Footnote

    References