1. Quoted in Yong, Liu, ‘Tantan shen zhi fenli de biyaoxing” (“A discussion of the need to separate adjudication from execution”), Fazhijianshe (Construction of the Legal System), No. 3 (1984), p. 46.Google Scholar

2. Tianxiang, Zheng, “Zuigao renmin fayuan gongzuo baogao” (“Supreme People's Court work report”), Zuigao renmin fayuan gongbao (Supreme People's Court Gazette) (hereafter SPCG), No. 2 (20 June 1988), p. 8Google Scholar (hereafter “Supreme People's Court work report 1988”).

3. As will be shown later, however, there are some interesting ways in which even an unenforced and unenforceable court judgment can have significant real-world consequences.

4. For more on the factors that go into the production of a court decision, see Chang, Phyllis L., “Deciding disputes: factors that guide Chinese courts in the adjudication of rural responsibility contract disputes,” Law and Contemporary Problems, Vol. 52, Nos. 2 & 3 (Spring & Summer 1989), pp. 101–142CrossRefGoogle Scholar, and Clarke, Donald C., “What's law got to do with it? Legal institutions and economic reform in China,” UCLA Pacific Basin Law Journal, Vol. 10, No. 1 (Fall 1991), pp. 58–4.Google Scholar

5. I make this argument more fully in Clarke, Donald C., “The law, the state and economic reform,” in Gordon, White (ed.), The Chinese State in the Era of Economic Reform: The Road to Crisis (London: Macmillan, 1991), pp. 190–211.CrossRefGoogle Scholar

6. As will be shown, whether that order would be obeyed is quite a different matter.

7. See e.g. North, Douglass C. and Thomas, Robert Paul, The Rise of the Western World (Cambridge: Cambridge University Press, 1973)CrossRefGoogle Scholar; North, Douglass C., Institutions, Institutional Change, and Economic Performance (Cambridge: Cambridge University Press, 1990).CrossRefGoogle Scholar

8. See e.g. Yingjie, Tai, “Tantan women fayuan de zhixing gongzuo” (“A discussion of our court's work in execution”), Renmin sifa gongzuo (People's Judicial Work), No. 3 (1957), p. 20Google Scholar (reporting complaints that courts could only talk, not act).

9. A mere 13 characters (“Some judgments and rulings have not been executed”) were allotted to the problem in Zheng Tianxiang's 1987 work report - a far cry from the three long paragraphs he devoted to it the following year, when he called it “the most outstanding problem in economic adjudication.” See Tianxiang, Zheng, “Zuigao renmin fayuan gongzuo baogao” (“Supreme People's Court work report”), SPCG, No. 2 (6 June 1987), p. 12Google Scholar; Zheng Tianxiang, “Supreme People's Court work report 988,” p. 8.

10. Ibid. Presumably the sample consisted of judgments that called for the defendant to do something, not all judgments regardless of who won, but as Zheng did not say so we do not know for certain.

11. Lianhuang, Gu and Zhongming, Zhu, “Qianghua zhixing gongzuo, weihu falii zunyan” (“Strengthen execution work, uphold the dignity of the law”), Renmin sifa (People's Judicature), No. 4 (1989), p. 3.Google Scholar The authors provide no source for this number.

12. Yongchang, Qian, “Lun shen zhi fenli, zhixing fenliu” (“On the separation of adjudication from execution and the separate process of execution”), Fazhi jianshe, No. 1 (1990), p. 16.Google Scholar

13. Academic interview L (1992); Court interview F (1992). The 1982 Law on Civil Procedure's formal requirement of “stressing mediation” (Art. 6) was dropped in the 1991 revision.

14. “Lianhu fayuan renzhen jiejue ‘zhixing nan’” (‘The Lianhu court conscientiously resolves the problem of difficulties in execution”), Fazhi zhoubao (Legal System Weekly), 9 October 1990, p. 1.

15. “Ci an gai ding he zui?” (“What crime was committed in this case?”), Zheng fa luncong (Miscellany of Politics and Law), No. 1 (1992), p. 17.

16. I discuss this issue at greater length in Clarke, Donald C., “Dispute resolution in China,” Journal of Chinese Law, Vol. 15, No. 2 (Fall 1991), pp. 286–88.Google Scholar

17. Deping, Fei, “Jingji shenpan zhixing gongzuo qianlun” (“A brief discussion of execution in economic adjudication”), Faxue pinglun (Jurisprudence Review), No. 1 (1986), p. 64.Google Scholar

18. Shenzhen jingji tequ shenpan shijian (The Practice of Adjudication in the Shenzhen Special Economic Zone) (Beijing: Renmin fayuan chubanshe, 1990), p. 138.

19. China has four levels of courts: basic, intermediate, higher (at the provincial level), and supreme. Execution chambers are most necessary at the basic and intermediate level, because they have original jurisdiction over almost all cases and are thus in charge of execution of the judgment whether or not it is appealed.

20. It is this bureaucratic identity that leads me to use the parallel but unpleasant sounding “execution chamber” instead of “execution department.”

21. Beijing Shi Zhongji Renmin Fayuan Zhixing Ting (Beijing Intermediate Level People's Court Execution Chamber), “Wei zhixing gongzuo de liangxing xunhuan gaijin women de gongzuo” (“Improve our work to achieve a virtuous cycle in execution work”), p. 2, in Di ‘er ci quanguo shenghui chengshi zhongji renmin fayuan zhixing gongzuo yantaohui huiyi cailiao (Materials from the Second National Conference of Intermediate Level People's Courts from Provincial Capitals on Execution Work) (June 1992) (hereafter Conference Materials); Xi'an Shi Zhongji Renmin Fayuan Zhixing Ting (Xi'an Intermediate Level People's Court Execution Chamber), “Qiantan zhixing gongzuo de diwei he zuoyong” (“A brief discussion of the position and role of execution work”), pp. 4–5, in Conference Materials. According to one court source, the chief of the execution chamber is, unlike the chiefs of the other chambers, often not on the court's Adjudication Committee (shenpan weiyuanhui), the organ of collective leadership in the court. To add insult to injury, execution chambers are apparently the last to get access to a car. Their officers have to ride about on bicycles. Ibid. p. 6.

22. Ibid. pp. 4–5.

23. Lawyer interview R (1992); a similar point is made in Lawyer interview X (1992); Academic interview M (1992); Academic interview C (1992).

24. The citations are too numerous to list here. See generally Clarke, “Dispute resolution in China,” pp. 67–69.

25. Article 210 of the 1991 Law on Civil Procedure provides that where the person or property to be executed against is outside a court's geographical jurisdiction, it may entrust (weituo) execution to the court of the relevant region. It is not required to do so, and retains the option of sending its own officials to execute.

26. Youxi, Chen and Chunbao, Xue, “Zaocheng fayuan zhixing nan de san dajiben yinsu” (“Three basic causes for the courts’ difficulties in execution”), Zhejiang fazhibao (Zhejiang Legal System Daily), 16 August 1990, p. 3.Google Scholar

27. Tang, Dehua (ed.), Minshi shenpan ruogan lilun yu shijian wenti {Several Practical and Theoretical Problems in Civil Adjudication) (Changchun: Jilin renmin chubanshe, 1991), p. 391.Google Scholar

28. “Dangqian jingji anjian weihe zhixing nan?” (“Why is there a current execution problem in economic cases?”), Shanghai fazhi bao, 2 October 1989, p. 1.

29. Chen Shibin, “Dawu xian fayuan jianchi difang baohuzhuyi, tuoyan sannian ju bu xiezhu zhixing waidi panjue” (“Dawu county court persists in local protectionism; after delaying three years, still refuses to assist in execution of an outside judgment”), Fazhi ribao (Legal System Daily), 4 June 1988, p. 1.

30. Jian, Liu and Xiaoqian, Mu, “Zhixing zhong de wu da nanti - Guangdong sheng jingji jiufen anjian diaocha zhi san” (“Five major problems in execution - part three of an investigation into cases of economic disputes in Guangdong”), Fazhi ribao, 19 April 1988, p. 3.Google Scholar

31. Lawyer interview R (1992); Court interview K (1992).

32. Some in the legal community have made proposals to this effect. See, e.g., Chengdu Shi Zhongji Renmin Fayuan (Chengdu Intermediate Level People's Court), “Dizhi he lcefu difang baohuzhuyi de tantao” (“An exploration into how to resist and overcome local protectionism”), p. 13, in Conference Materials.

33. For details, see Zuigao Renmin Fayuan Renshi Ting (Supreme People's Court Personnel Department), “Gaige ganbu tizhi, jiaqiang guanli gongzuo, baozheng renmin fayuan yi fa duli shenpan” (“Reform the cadre system and strengthen supervisory work; guarantee the people's courts’ independent adjudication according to law”), Renmin sifa, No. 9 (1990), pp. 16–17.

34. Zuigao Renmin Fayuan (Supreme People's Court), “Guanyu zai shenli jingji jiufen anjian zhong renzhen banhao waidi fayuan weituo shixiang de tongzhi” (“Notice on conscientiously carrying out tasks entrusted by courts from other areas in the course of trying cases of economic disputes”) (20 January 1988), in Sun Changli, Handbook on Execution Work, pp. 265–66.

35. See e.g. “Xiang-E liushisi jia fayuan lianshou gongpo yidi zhixing nan guan jian xiao” (“Sixty-four courts in Hunan and Hubei join hands, achieve results in overcoming the problem ofexecutingjudgments in other regions”), Fazhiribao, 24July 1991, p. 1 (reporting mutual execution agreement among courts of several cities along the Yangtze).

36. Chunbao, Xue, “Dui dangqian fayuan panjue huo caiding de jingji anjian zhixing wenti de pouxi” (“An analysis of current problems in execution of court judgments or rulings in economic adjudication”), Zhejiang faxue (Zhejiang Jurisprudence), No. 2 (1989), p. 25Google Scholar. Other sources very roughly corroborate this figure.

37. Lawyer interview H (1992); Academic interview G (1992).

38. Lawyer interview O (1992); Lawyer interview H (1992); Academic interview J (1992); Guangzhou Shi Zhongji Renmin Fayuan Zhixing Ting (Guangzhou Intermediate Level People's Court Execution Chamber), “Chongfen fahui zhixing gongzuo de zhineng zuoyong, genghaode wei shehui anding he jingji fazhan fuwu” (“Give full play to the function of execution work, serve social stability and economic development even better”), p. 4, in Conference Materials. I know of no statutory basis for this policy.

39. Lawyer interview A (1992) (“Normally, one doesn't execute against means of production; one executes against circulating funds”). This appears to be a “customary” rule with no basis in statute.

40. Changying, Wang (President, Shenzhen Intermediate Level People's Court), “Zhengque yunyong shenpan jingji anjian de qiangzhi cuoshi” (“Correctly use coercive measures in the adjudication of economic cases”), Shenzhen fazhi bao, 23 July 1990, p. 7Google Scholar. This is not to suggest that courts in common law systems never take practical consequences into account when rendering judgment or undertaking execution. The difference - and it is a significant one - is that they must never admit to doing so, while Chinese courts are urged to. Fiat justitia, mat ccelum is not a maxim of the Chinese legal system.

41. For a case where a court refused to enforce its own judgment against an enterprise on precisely these grounds (“The township government leaders don't approve of its being put to death; we must consider the matter from the standpoint of what's advantageous to economic development”), see Zhang Yiping, “Thoughts on local protectionism.”

42. Nanning Shi Zhongji Fayuan (Nanning Intermediate Level People's Court), “Guanyu kaizhan anjian zhixing huizhan de yixie zuofa he tihui” (“Some methods and experience gained in conducting execution campaigns”), p. 13, in Conference Materials.

43. Academic interview G (1992).

44. “Fayuan yao baoliu bei zhixing ren de shenghuo feiyong ma?” (“Does the court need to preserve an amount for the execution debtor's living expenses?”), Shanghai fazhi bao (Shanghai Legal System News), 18 December 1989, p. 7. Compare this stingy immunity with that of the bankruptcy laws of, say, Florida, which exempt from seizure among other things all wages and the debtor's personal residence, regardless of its value. As one bankruptcy judge complained, “you could shelter the Taj Mahal in this state and no one could do anything about it.” Rohter, Larry, “Rich debtors finding shelter under a populist Florida law,” New York Times, 25 July 1993, p. 1.Google Scholar

45. On housing cases generally, see Fuzhou Shi Gulou Qu Fayuan (Gulou District Court, Fuzhou), “Dui zhixing shoufang anjian ruogan wenti de tantao” (“An investigation into several problems in executing cases involving the restoration of housing [to an owner]”), in Conference Materials.

46. Cheng, Cheng, Jiaxing, Liu and Yanling, Cheng, “Guanyu woguo minshi zhixing zhong de jige wenti” (“Some issues in civil execution in our country”), Faxue yanjiu (Studies in Jurisprudence), No. 1 (1982), p. 43.Google Scholar

47. This policy appears to apply only to cases deemed to be “internal contradictions” and thus can be waived in the case of political dissidents and their families. The wife and daughter of Ren Wanding, gaoled both in the late 1970s and the late 1980s for human rights advocacy, found the door to their flat nailed shut with all their belongings still inside upon arriving home one afternoon. Wudunn, Sheryl, “Wife of jailed China dissident is left homeless by eviction,” New York Times, 19 April 1992, p. A7.Google Scholar

48. Ibid., “Housing cases,” p. 11. The relevant paragraph allows a court to suspend execution when it deems it “necessary” to do so for any reason.

49. See Articles 77 and 164 of the 1982 Law on Civil Procedure. This interpretation is supported by “Dui bei zhixing ren de zhei zhong xingwei gai zenme ban?” (“What should be done in the face of this kind of behaviour by the execution debtor?”) (Letter to the Editor), Renmin sifa, No. 4 (1990), p. 48.

50. Chen, Yanling, Yang, Rongxin, Liu, Jiaxing, Zhao, Huifen, Tang, Dehua and Cheng, Cheng (eds.), Minshi susong fa shixing wenti tantao (Investigation of Issues in the Implementation of the Law on Civil Procedure) (Beijing: Falii chubanshe, 1985), p. 231.Google Scholar

51. Academic interview S (1992); Lawyer interview R (1992).

52. Academic interview S (1992); Junjie, Li, “Lun ju bu zhixing panjue zui de fanzui goucheng” (“On the constituent elements of the crime of refusing to carry out judgments”), Hebeifaxue (Hebei Jurisprudence), No. 1 (1992), pp. 32–34Google Scholar; Yi, Chang, Qiangzhi zhixing lilun shiwu (The Theory and Practice of Compulsory Execution) (Chongqing: Chongqing chubanshe, 1990)Google Scholar (hereafter Chang Yi, Compulsory Execution), p. 27 (who views this limitation as a weakness).

53. Court interview F (1992); Court interview E (1992); Wei, Wang, “Ju bu zhixing renmin fayuan panjue caiding zui ji qi shenli chengxu de tantao” (“An exploration of the crime of refusing to carry out court judgments and rulings and the procedure for its adjudication”), Renmin sifa, No. 10 (1990), p. 16Google Scholar (viewing violence and threats as aggravating circumstances instead of necessary elements).

54. See e.g. “Wang Zhanshu bei juliu fakuan” (“Wang Zhanshu detained and fined”), Beijing fazhi bao (Beijing Legal System News), 23 May 1990, p. 1.

56. Space limitations preclude discussion here of the fascinating issue of who is supposed to prosecute in such cases.

57. Yixin, Luan, Yingjie, Peng and Heping, Shi, “Dui dangqian shenli jingji jiufen anjian youguan chafeng, dongjie, kouhua kuanxiang de diaocha yu tantao” (“Investigation and exploration into sealing, freezing and seizing funds in current adjudication of economic dispute cases”), Hebeifaxue, No. 1 (1992), p. 26.Google Scholar

58. Zuigao Renmin Fayuan, Zhongguo Renmin Yinhang (Supreme People's Court, People's Bank of China), “Guanyu chaxun, dongjie he kouhua qiye shiye danwei, jiguan, tuanti de yinhang cunkuan de lianhe tongzhi” (“Joint notice on investigating, freezing, and levying on bank accounts of enterprises, institutions, organs, and organizations”) (28 December 1983) (hereafter “Joint notice on freezing accounts”), in Sun, Changli (gen. ed.), Zhixing gongzuo shouce (Handbook on Execution Work) (Beijing: Renmin fayuan chubanshe, 1988), pp. 695–97.Google Scholar

59. Court interview F (1992); Art. 80, Zuigao Renmin Fayuan (Supreme People's Court), “Guanyu shiyong ‘Zhonghua renmin gongheguo minshi susong fa’ ruogan wend de yijian” (“Opinion on several issues regarding the application of the ‘People's Republic of China Law on Civil Procedure’ ”), SPCG, No. 3 (20 September 1992), p. 91.

60. Court interview U (1992).

61. “Joint notice on freezing accounts.”

62. Court interview E (1992).

63. See e.g. Zhongguo Renmin Yinhang, Zuigao Renmin Fayuan, Zuigao Renmin Jianchayuan, Gongan Bu, Sifa Bu (People's Bank of China, Supreme People's Court, Supreme People's Procuracy, Ministry of Public Security, Ministry of Justice), “Guanyu chaxun, tingzhi zhifu he moshou geren zai yinhang de cunkuan yiji cunkuan ren siwang de cunkuan guohu huo zhifu shouxu de lianhe tongzhi” (“Joint notice concerning investigating, stopping payments from, and confiscating funds of individuals held in banks as well as the procedures for making payments from or transferring ownership over funds belonging to deceased depositors”) (22 November 1980), in Sun Changli, Zhixing gongzuo shouce, pp. 686–89.

64. See Pan Dingqu and Luo Shifa (Changsha Intermediate Level People's Court), “Qiantan zhixing huanjing” (“A brief discussion of the execution environment”), p. 6, in Conference Materials.

65. Compare Article 77 of the 1982 Law on Civil Procedure (allowing detention or criminal prosecution of those with an obligation to assist the court in a civil case who fail to do so) with Article 103 of the 1991 Law on Civil Procedure (allowing only a fine of bank personnel who refuse to assist courts). According to one high-level court official I interviewed, this weakening of court powers was the result of strong lobbying during the revision process by the People's Bank, which did not want courts to be able to lock up bank officials. Court interview B (1992).

66. Of course, we will never really know, since it is possible that China's economy would have developed even faster with such effective enforcement.