KUNSHAN, Jiangsu: China should be vigilant about the growing abuse of process
in court cases both at home and abroad, and actively look for judicial
counter-measures, experts said yesterday.
The abuse of process refers to one party in a civil case who, out of an
illegal motive or purpose, makes use of the lawful right to bring a malicious
case. Such cases are on the rise in and out of China, Gao Zongze, executive
member of the board of China Law Society, said at the International Conference
on Abuse of Process which opened yesterday in Kunshan, East China's Jiangsu
Abuse of the right of action, the right of withdrawing an action, malicious
application for the maintenance of property, and action to deceit, are all
considered as process abuses, according to experts.
One case in point is the Foxconn lawsuit which occurred in early July, in
which two reporters from the China Business News were sued for 30 million yuan
(US$3.8 million) for libel.
The plaintiff, the Hongfujin Precision Industry Co, petitioned for the
preservation of property and the court in Shenzhen sealed the land, cars and
savings of the defendants. The parties settled the case in September.
Experts argued that in the case, not only was the wrong party sued, the
amount claimed excessive, but also the preservation measures, which caused
difficulties to the lives of the defendants, were beyond the purpose of the
system of litigant preservation.
Wu Zhaoxiang, a judge from the Supreme People's Court of China, and also a
member of the 17 Chinese participants, said that with rapid economic growth and
better protection of human rights, more Chinese have learnt how to protect their
rights legally. But at the same time, abuse of process had become more prominent
"Such abuse wastes limited judicial resources and is also detrimental to the
rights of the other party," he said. "It violates the principle that the court
should protect legitimate rights of all."
However, the abuse exists not only in domestic civil proceedings, but also in
international civil proceedings. Some of these international cases are highly
A large number of cases have been filed in US courts against foreign
governments and their officials for the political purpose of swaying public
opinion rather than for actually obtaining redress, said Thomas Peele, senior
partner of the US Baker and McKenzie law firm, one of the eight foreign experts
at the meeting.
He recalled a case in which a member of Falun Gong sued a Chinese government
official in 2004. In the case, still pending in court, plaintiffs have indicated
that they would not even pursue their claims for damages if the court would just
issue a default declaratory judgment against the defendant for the alleged
"Clearly, it is the declaration that the plaintiffs want, not damages," Peele
said, adding that certain aspects of the US procedure make it possible for
default judgment to be entered with less scrutiny than one unfamiliar with US
legal processes might expect.
Gao said that the excessive expansion of jurisdiction by domestic judicial
organs over alien defendants, simple procedures to bring cases to court, and the
default judgment system made such international abuse possible in some
To cope with the growing abuse, experts suggested that China should take
judicial counter-measures such as strengthening reviews for initiation
proceedings and burden the party that abuses the process with litigation fees,
attorney fees and other costs.
"Such measures will better protect the rights of all parties instead of
restraining them," Gao said.
More international exchanges and co-operation are also needed for the
development of a common standard for "the abuse of process", experts said.
(China Daily 12/12/2006 page2)