Lawyers: more abuse of court process

By Zhu Zhe (China Daily)
Updated: 2006-12-12 06:50

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 Province.

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 as well.

"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 politically sensitive.

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 wrongs.

"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 countries.

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)

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