An Alternative to Impact Litigation in China: The Procurator as a Legal Avenue for Cases in the "Private Family Sphere" of Domestic Violence

By Yang, Hai-Ching | Washington International Law Journal, January 1, 2011 | Go to article overview

An Alternative to Impact Litigation in China: The Procurator as a Legal Avenue for Cases in the "Private Family Sphere" of Domestic Violence


Yang, Hai-Ching, Washington International Law Journal


I. INTRODUCTION

"The wife is like a horse bought . . . subject to my disposal at will."1 For many abusive husbands in China, this traditional idea is a reflection of their thinking-that wives are "private property subject to their control."2 In one case, an abusive husband boasted without shame in front of a court, that he has beaten his wife many times and that his whippings were an effective method to control her.3 Unfortunately, violence has become a means for an abusive husband to maintain his authority and to solve problems in the family.4 Faced with the challenges of domestic violence and patriarchal norms, numerous non-governmental organizations and legal aid centers have explored different means of publicizing domestic violence cases to the general public. One effective measure is the use of impact litigation by organizations such as the Peking University Center for Women Law Studies and Legal Aid Services ("the Center").5 This technique publicizes "typical cases" through media and awareness efforts and creates a ripple effect, sometimes resulting in a favorable judicial decision for the plaintiff victim.6

Despite its numerous benefits, impact litigation suits in domestic violence cases have been stymied by structural setbacks in the legal and enforcement processes. One explanation for the limited effect of impact litigation suits could be that such lawsuits target issues that require further internal reforms in mentality and practice among judicial actors and government officials. Traditional concepts of gender, and position and duty within the family, for example, may reinforce gender stereotypes and encourage the acceptance of domestic violence.7 Traditional notions of gender may also inhibit judicial and governmental actors from effectively participating in cases in the "private family sphere," such as domestic violence cases, creating higher barriers for victims to bring successful lawsuits.8 With multiple impediments in the legal and enforcement systems, questions point towards the need for an internal monitoring mechanism, perhaps a different party, to initiate suit where external techniques achieved limited success.

In Shi Changqing and Song Jie's article, "Exploring The Problem of the Procurator's Civil Litigation Activities," the authors recommend the procurator9 as an important agent in cases for the public's interest.10 The procurator is the equivalent to the American version of prosecutor. By litigating in cases where the litigant is unable to do so due to threats, physical, and economic difficulties,11 and working with internal bureaus and external organizations, the procurator can play a crucial role in domestic violence cases.

This comment provides a closer examination of the procurator's role as one who can potentially transverse this gray area of domestic violence, once considered to be solely in the "private family sphere." Such an approach may successfully achieve more positive results for victims than a purely impact litigation approach. Part II surveys the growth of legal aid and laws protecting women's rights in China, in particular the rise of quasilegal organizations such as the Center. Part III elaborates on the Center's use of impact litigation and its limitations in "private family matters" through case illustrations. Part IV argues that litigating through the procurator, despite its shortcomings, may be a more effective legal channel than external impact litigation in the gray area of domestic violence.

II. WITH THE RISE OF LEGAL AID, QUASI-LEGAL ORGANIZATIONS HAVE EXERCISED IMPACT LITIGATION TO ADVANCE WOMEN'S RIGHTS' PROTECTION

In the past decade, Chinese laws and regulations pertaining to women's rights increased exponentially. Simultaneously, the growth of quasi-independent legal organizations began addressing the legal landscape of women's rights. Particularly one organization, the Peking University Center for Women Law Studies and Legal Aid Services, aggressively utilizes impact litigation to advance women's rights' protection. …

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