Equitable Liability and the Rule of Law in China

Since the late 1970s, China’s top leaders, including current President Xi Jinping, have called for establishing the rule of law in China. Many observers have hoped that China would emulate the Western rule of law. If the understanding that government is limited by law is necessary for the Western rule of law, China has had neither practice nor thought of the rule of law throughout its long legal history, and it is not what today’s China intends to establish. What Chinese top leaders have been calling for can be called “rule by law” under which law is only an instrument the top leading body chooses to control the populace and restrain government officials. China is a one-party country under centralism. The top leading body uses a huge bureaucratic system, including the judiciary, to rule the populace. To restrain government officials, one way is to require them to operate in accordance with the law. To achieve this goal, there should be clear laws as instructions to government officials, including judges. However, it is quite challenging for China to meet this requirement. This work uses the development of the concept of equitable liability in Chinese tort law to illustrate this problem. The concept of equitable liability means that where a defendant should not be liable according to standing legal provisions, judges, in considering the actual circumstances, have the power to hold him partially liable. China is not a common law country. “Equity” here does not mean Chinese judges are empowered to make legal rules or standards through deciding cases, but means they are empowered to make context-sensitive decisions by ignoring standing legal provisions. However, lawmakers do not provide any guidance as to when or why judges can or shall subject defendants to equitable liability. Many problems had been generated in the application of the concept of equitable liability due to this lack of guidance or limits. After decades, Chinese legislative officials recognize that unified standards should be provided to judges by the law. However, they do not make any substantial rules or standards, but only deprive judges of the unfettered discretion, in spite of the fact that some kinds of equitable liability were commonly accepted among judges. Consequently, judges still subject defendants to equitable liability in some cases using other ways, which frustrates the new code’s purpose of limiting judges. The incomplete development of the concept of equitable liability reveals that it is quite challenging to meet the requirement that there are clear laws which provide government officials instructions for establishing the Chinese rule by law. The challenge lies in two adverse factors. The first is that the primary task of government officials including judges is to maintain political and social stability. To fulfill this political task, laws are required to be vague and manipulable rather than clear and definitive. The second is that legislative officials who are actually bureaucrats lack motivation and professional competence to improve laws