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2021-06-02 12:39:45 Voices

In 2001, a Shenzhen man identified in media reports only by his surname, Liu, hired a domestic helper, Yang. Liu had separated from his wife of more than 20 years after he claimed she had developed a gambling addiction and had an extramarital affair. Nine years later, in 2010, Liu and Yang began a relationship. Between 2015 and 2017, Liu filed to divorce his wife and updated his will twice to leave his real estate and company shares to Yang. In 2017, before the courts could finalize the divorce, Liu died.

Not long afterward, Liu’s legal wife, Chen, challenged the new will in court. Finally, in January 2021, the Shenzhen Intermediate People’s Court overturned an earlier ruling and threw the new will out. Citing one of the “general provisions” in China’s Civil Code, the court declared that a civil document or activity can only be valid if it doesn’t violate morality or harm public order. Separated or not, Liu and Chen were married at the time of his death, and the court ruled he could not disinherit her in favor of Yang.

On social media, the verdict became the subject of a heated debate. Supporters of the court’s reasoning argued that validating wills like Liu’s might “open the door to more inappropriate relationships between men and women,” while opponents criticized the court for imprisoning Liu in an unhappy marriage, even in death.

The Shenzhen case is not the first high-profile instance of morality and public order being used to cut a mistress out of a will: Two decades ago, a reported 1,500 people packed a courtroom in the southwestern Sichuan province and cheered when the judge ruled that a local man’s mistress had no claim to his estate, irrespective of his will. Still, cases such as these highlight a core tension in China’s increasingly professionalized judicial system: How should judges balance concerns of morality with the text of a law?

“Public order and morality” clauses are common in nations with civil law systems like France and Germany. In China, legal scholars like Fan Yu of Renmin University have argued that the country’s specific social conditions — namely its rapid social transformation and marketization since the 1980s — justify judicial activism on the basis of morality and social impact.

As the pace of legislation has lagged ever further behind social realities, courts have often had to make judgment calls without fixed legislative guidelines for them to refer to. In 2002, a year after the Sichuan ruling, Fan noted that the case had exposed a loophole in the country’s inheritance laws and that, in such instances, the ability to refer to morality gave judges flexibility in interpreting the law in line with legislators’ intent. Instead of legislation driving judicial rulings, in many cases, court judgements have served as the starting point for legislators.

Following the chaos of the Cultural Revolution, China’s social elite and intellectuals were acutely aware of the importance of the rule of law.

Rather than embracing this authority, however, many Chinese judges, lawyers, and legal experts were concerned by judicial activism and its effect on a key national priority: the professionalization of the country’s justice system. Following the chaos of the Cultural Revolution, China’s social elite and intellectuals were acutely aware of the importance of the rule of law. This gave rise to a generation of lawyers who generally believed in the independence of law as a professional field. Wary of both political interference and the expansion of judicial discretion, they advocated for strict interpretations of the law based on in-depth studies of written statutes. Contrary to Fan, this group believed judges were being insufficiently cautious in their use of the public order and morality principle.

The reputation of China’s courts was at stake, not least because some verdicts were characterized by both poor moral judgments and an absence of legal professionalism. In one landmark ruling from 2007, a court worked back from legal statutes to essentially discount the existence of “good Samaritans.” Afterward, critics accused it of contributing to China’s supposed moral decline, while legal scholars raised questions about its professional competence.

The perceived distance between the courts and people’s gut instincts and common sense — exacerbated by negative portrayals of modern judicial processes in popular culture — has been a source of concern among Chinese legislators for decades. In 2000, the Chinese government proposed “rule by virtue,” which would operate in tandem with the rule of law. Around the same time, central and local television stations across the country premiered new shows like “Legal Report,” which sought to popularize basic knowledge of the law through reenactments and analyses of cases.

Advocating for rule by virtue and emphasizing the social effects of justice are not necessarily incompatible with the process of legal professionalization. Since 1999, parallel to the emergence of rule by virtue, China has carried out several rounds of judicial reform to give judges greater independence and responsibility. It has also taken steps to increase transparency, uploading verdicts to online databases and thereby opening judges up to public oversight.

More recently, in early 2021, the Supreme People’s Court published a nonbinding but nonetheless influential “guiding opinion” encouraging judges to “apply socialist values when interpreting the law and explaining verdicts.” This doesn’t mean that judges should rely solely on China’s list of “core socialist values” in deciding a case, however. Rather, it tells them that, when dealing with civil cases for which there are no clear legal provisions, they can base their decisions on the purposes and principles of legislators and cite any of the 12 state-defined core socialist values in their reasoning. Such language is aimed at the public rather than legal professionals: Its purpose is to frame legal legitimacy as being derived from morality and strengthen the public’s faith in the judicial system.

Legal scholars Liao Yong’an and Wang Cong found that some verdicts were lazily justified using moral values in place of substantive analysis.

That said, the use of moral discourse in rulings could still pose a risk to legal professionalism. In a study of public verdicts from 2012 to 2017, legal scholars Liao Yong’an and Wang Cong found that some verdicts were lazily justified using moral values in place of substantive analysis. Chinese judges still vary greatly in terms of their professionalism, and with caseloads mounting as new reforms make it easier to file a lawsuit, it has become more difficult for inexperienced judges to strike a balance between procedural justice and considerations of societal impact when justifying their verdicts.

A greater challenge is the increasing diversity of Chinese society. People from different regions, classes, and walks of life have an ever-evolving and increasingly divergent understanding of what public order and morality mean. In 2019, a court in Beijing ruled that online shopping platform Dangdang’s decision to fire a transgender employee constituted workplace discrimination. Its verdict explicitly cited “the value we attribute to common respect and equal rights for the people.” Societal views of “mistresses” are also changing: More and more people no longer see marriage as a once-in-a-lifetime choice, and believe that it can’t survive in the absence of passion. That’s one reason why the popular response to the Shenzhen ruling that stripped Yang of her rights to her lover’s estate was less ecstatic than in Sichuan 20 years earlier.

“Marriage and family law should generally be conservative, and legal norms can only be changed if there is a fundamental change in the moral values of society,” Fan wrote 19 years ago. Today, the changes she spoke of are taking place all around us. China’s reform-era judicial system has prided itself on its responsiveness to social transformations, but under increasing public and official scrutiny, it remains to be seen whether and how it will strike a balance between legal professionalism and the social and moral ramifications of its rulings.

Translator: Lewis Wright; editor: Kilian O’Donnell.

(Header image: A still frame of a judge from the 2014 film “Dearest.” From Douban)