UNCLAS SECTION 01 OF 03 SHANGHAI 000279

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SENSITIVE
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STATE PASS FOR USTR STRATFORD, WINTER, MCCARTIN, ALTBACH, READE
TREAS FOR AMB HOLMER, WRIGHT, TSMITH
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E.O. 12958: N/A
TAGS: PGOV PHUM KJUS PINR CH
SUBJECT: INTERNATIONAL MEDIATION CONFERENCE HELD IN JIANGSU


(U) Sensitive but unclassified. Not for dissemination outside
USG channels; not for Internet distribution.


1. (SBU) Summary: On the margins of an April 14-18 American Bar
Association(ABA)-sponsored administrative law conference in
Suzhou, Jiangsu Province, Supreme People's Court (SPC)
Administrative Court Chief Judge Zhao Daguang told FSN Rule of
Law Coordinator (ROLC) that the SPC soon would issue a judicial
interpretation that would authorize the use of mediation in
resolving administrative litigation cases. Mediation in
administrative law cases is currently a widely used but not
specifically authorized practice in China. Mediation is
authorized for civil cases or for civil compensation in criminal
cases. Most judges and legal academics at the conference
supported this move, as it would provide judges with more
flexibility to resolve difficult administrative cases,
especially those involving mass disputes such as housing
demolition or relocation cases. Local governmental
representatives, however, were less supportive of using
mediation and worried that it would impinge on the discretionary
power that agencies had in these cases. They urged that the SPC
not issue a judicial interpretation, but rather go through the
National People's Congress (NPC) to amend the law. According to
Zhao, the SPC would go ahead and prepare a draft to the
Administrative Litigation Law and was considering circulating
the draft to the U.S. experts for comments. End Summary.

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Jiangsu High Court Administrative Law Project
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2. (U) On April 14-15, FSN Rule of Law Coordinator (ROLC)
attended the International Forum on Mediation in Administrative
Litigation jointly held by Jiangsu High Court, Suzhou University

Law School and American Bar Association (ABA) in Suzhou. (Note:
ROLC had in fact helped facilitate the conference by letting the
ABA's Beijing Representative know of the Jiangsu High Court's
desire to host such a conference. End note.) There were about
40 Chinese national and international attendees at the
conference. Chinese attendees included judges from the Supreme
People's Court (SPC), provincial high courts and municipal
intermediate courts, academics, and government officials.
International attendees included the United States Court of
Federal Claims Judge Eric Bruggink, University of
Missouri-Columbia Professor Philip Harter, and London-based
Public Law Project Senior Researcher Varda Bondy.


3. (SBU) The conference's focus was the Jiangsu High Court's
administrative law reform project. The project examined whether
mediation should be authorized as a method to resolve property
disputes. The SPC had tasked the project to the Jiangsu High
Court in 2006. The project was one of 13 legal reform projects
supported by the Supreme Court and the only project related to
administrative litigation. In conversations with ROLC in 2006
and Spring 2007, Jiangsu Province High Court Administrative
Court Chief Judge Zhou Rongmeng said that the project focused on
gathering information in four areas: 1) the influence that
mediation had on citizens' rights; 2) its effect on the system
of evidence; 3) its effect on the court's judicial authority;
and 4) its influence on trial procedures. The project was
carried out by three work teams. One team conducted academic
research, a second team carried out investigations, and the
third team drafted a report that had been submitted to the SPC.
The Jiangsu High Court released its project report and
suggestions on using mediation in administrative litigation at
the April conference.


4. (SBU) Zhou said that 80 to 90 percent of administrative
cases in Jiangsu were related to property disputes, such as
housing demolition and relocation cases. According to Zhou,
judges had become increasingly frustrated with these cases
because they felt that they did not have enough flexibility in
providing rulings. In addition, under current law, judges could

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only make a decision on whether the local government's conduct
was lawful or not and could not decide on the level of
compensation for cases. Judges also felt that the level
prescribed by law for compensation was too low, especially in
the prosperous Jiangsu province. Finally, judges were not able
to enforce their rulings since governmental agencies had the
ability to ignore decisions that were not in their favor.


5. (SBU) To increase the level of compensation and to encourage
government agencies to cooperate with rulings, many judges had
started using mediation to settle cases. Judge Zhou said that
mediation provided government agencies with a way to save face
and, thus, be more willing to provide compensation. According
to Judge Zhou, one third of all administrative cases in China
were now settled through mediation. Courts usually conducted
mediation after they tried a case but before they rendered a
verdict. If mediation was successful, a court dismissed the
case on the basis that either the plaintiff agreed the case was
without merit or because the defendant agreed to modify his
behavior without the entry of formal judgment.


6. (SBU) Zhou said the problem now was that it was technically
illegal to use mediation to settle administrative cases. He
added that the SPC was examining the issue and interested in
preparing a judicial interpretation specifically authorizing the
use of mediation in administrative cases and prescribing when
and how mediation should be used. To help it prepare the
judicial interpretation, the SPC tasked the Jiangsu High Court
with implementing a project to collect data on mediation. On
the margins of the conference, SPC Administrative Court Chief
Judge Zhao Daguang told ROLC that the SPC would use this report
as the basis of a judicial interpretation on mediation, which
would be published this year. The SPC was now in the process of
consulting with the National People's Congress (NPC) and State
Council on this issue.


7. (SBU) The conference was originally scheduled for March
2007, but organizers delayed the conference because it
conflicted with a SPC conference on administrative litigation.
At the SPC conference, which took place on March 29, SPC
President Xiao Yang reportedly had acknowledged that China's
administrative courts needed to reform. He said that China's
administrative courts experienced a range of problems, including
outside interference in court decisions. He called for a broad
range of reforms to address these problems, such as allowing
jurisdiction over a particular case to be shifted from a
tribunal in one locale to another. Xiao also specifically noted
the need to adopt new mechanisms to better handle and
"coordinate" action on administrative litigation disputes,
particularly those involving "mass administrative disputes" such
as land seizures. He also called on the SPC to promptly issue a
judicial interpretation on the use of mediation in
administrative litigation proceedings.

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Government Agencies Disagree
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8. (SBU) Although most of the judges and professors at the
ABA-sponsored conference supported using mediation in
administrative litigation, local government officials said they
had serious concerns about the procedure. Jiangsu Provincial
People's Government Legal Affairs Office Vice Director Gao
Jianxin said that according to the law, governmental agencies
had discretionary power in some aspects of administrative cases.
In those aspects, the courts should not force agencies to
undergo mediation. While he did not mention an example, one
argument made by government representatives was that many
government agencies could levy fines on citizens for breaking
certain rules. The amounts for these fines were pre-determined
by law and, according to Gao, courts had no right to change
these amounts. He also worried that government officials would
be under pressure to agree to mediation to resolve cases. He

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also disagreed with SPC's plan to issue a judicial
interpretation to legalize the use of mediation and said that
this issue should be taken up by the NPC which could then amend
the law.

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Jiangsu High Court Report: Mediation Must Be Transparent And
Just
--------------


9. (SBU) The Jiangsu High Court's report stressed the right of
citizens to accept or reject mediation. According to Judge
Zhou, the court should review whether the decision to accept
mediation by the plaintiff (common citizen) was made by himself
willingly without any coercion or threats from the defendant
(government). If there was evidence of coercion, the court
should not hold mediation. The report also emphasized that
mediation should be transparent and just. There should be no
private mediation and all procedures should be held in the
courtroom. Many of the judges that attended the conference also
stressed the importance of due process in administrative
litigation.

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U.S. Experts Wanted
--------------


10. (SBU) According to SPC Judge Zhao, the SPC still planned to
change the law through issuing a judicial interpretation, but
was also going to draft an amendment to the administrative
litigation law. He added that the SPC was considering sending
this draft to U.S. legal experts for comment and asked Beijing
Legal Advisor, ROLC and ABA's representative for assistance in
identifying these experts. Zhao said after getting comments
from experts, SPC would like to visit the United States and hold
face-to-face discussions. He indicated that SPC already had
funding for this trip. He said that after 19 years, the
administrative litigation law should be amended and the SPC
would play an active role in this process.

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Comment: A Breakthrough in Resolving Mass Dispute Cases?
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11. (SBU) The conference was an important step in the SPC's and
Jiangsu High Court's efforts to reform the administrative law.
It is unusual for Chinese officials to openly disagree at public
forums in front of foreign experts. Their comments highlight
the disagreements within the government and legal community over
reform issues. However, if mediation is allowed to be used as a
means to resolve legal disputes, it could provide a much needed
safety valve for dealing with housing demolition, relocation and
other politically sensitive mass dispute cases.


12. (SBU) This message was coordinated with Embassy Beijing.
JARRETT