Public interest litigation in China: a Comparison with Australian law

Zhang, Chen (2012). Public interest litigation in China: a Comparison with Australian law PhD Thesis, School of Law, The University of Queensland.

       
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Author Zhang, Chen
Thesis Title Public interest litigation in China: a Comparison with Australian law
School, Centre or Institute School of Law
Institution The University of Queensland
Publication date 2012
Thesis type PhD Thesis
Supervisor Darryn Jensen
Qiao Liu
Total pages 257
Language eng
Subjects 180106 Comparative Law
180123 Litigation, Adjudication and Dispute Resolution
Formatted abstract
The research is about the evolution of public interest litigation in China. The growth of new social rights and the expansion of public law in the past decades have generated a very high level of interest in and focus on public interest litigation. As a key strategy for protecting public rights, public interest litigation is playing an important role in many developed legal systems. In order to facilitate its development, courts in foreign jurisdictions have adopted a series of procedural reforms, including taking a liberal view on standing, relieving an unsuccessful applicant of the need to pay litigation costs, and abandoning undertakings as to damages as a pre-condition to injunctive relief. As a response to the liberal approach taken by courts, open standing provisions which allow any person, whether having interest in the subject matter or not, to commence legal proceedings are increasingly adopted into specific statutes to strengthen the enforcement of the public interest.

Public interest litigation is becoming an alternative way of enforcing public rights to traditional civil proceedings which focus on the vindication of private rights. Public interest litigation is also an increasingly popular topic in China. It is regarded as an effective mechanism to deal with expanding social disputes in a modest way. The first public interest litigation appeared in China in 1996 at a time when the Chinese legal system was undergoing a substantial change in law and structure. It has then grown to cover a wide range of areas that are concerned with the interest of a large number of people. The initial development is remarkable, but the political and legal framework in China does not provide a full space for a consistent expansion. Restrictions in culture, policy, institutions and legislation determine that difficulties that have efficiently been relieved in other jurisdictions are presenting a great challenge to Chinese reformers. With an understanding of the significance of public interest litigation, this research aims to identify its impact on Chinese society, to analyse underlying causes behind the problems, and to suggest reform strategies that are applicable in the Chinese context.

In fulfilling the aims of the research, the Australian experience relating to public interest litigation will be included as a comparative reference. The two countries are greatly different in culture, law and politics, but both of them are likely to adopt a relatively moderate approach to public interest litigation. This similarity provides the possibility of borrowing lessons from Australia, where public interest litigation develops well, to China, where the development is unsatisfactory. Establishing an effective public interest litigation mechanism is a complicated project which requires a slow transformation of culture, policy and law. Instead of proposing a comprehensive reform plan, the research opens an analysis of measures that could be taken before fundamental changes come about. These immediate solutions will facilitate the development of public interest litigation within the constraints of the existing political and legal system.
Keyword Public interest litigation
Public law
Judicial reform
Australia
China

 
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Created: Wed, 24 Oct 2012, 11:52:40 EST by Chen Zhang on behalf of Scholarly Communication and Digitisation Service