China's Impact Litigation (2005)

Author: Wu Ge
Publisher:
Publish Date: 2006-10-01
Features: Preface by Zhang Sizhi
Whenever a lawsuit is filed, it will have an impact; the difference lies in its magnitude and depth. "Impact litigation" is set apart from other cases, and thus has its own unique concepts and connotations. This book synthesizes the practices of impact litigation in 2005, while also including discussions on research in this field. It defines impact litigation as: "Individual cases whose value extends beyond the claims of the parties involved, capable of significantly promoting the resolution of similar cases, the improvement of legislation, judicial systems, social management mechanisms, and the transformation of people's legal awareness." While our practice may not yet have provided a more comprehensive and rigorous scientific concept, the author of this book not only highlights a profound and timeless topic but also offers an analysis, laying a foundation and a stepping stone for future research. This is extremely valuable for the development of China's legal profession and legal cause!
After a preliminary reading of the 16 cases in the book, setting aside theoretical considerations, these cases can be broadly categorized into two types: public interest litigation and rights protection litigation. These two categories are actually intertwined. Public interest litigation inherently contains elements of rights protection, as it involves both benefits and interests. It is heartening to see that both types of litigation, particularly rights protection litigation, have increasingly garnered attention and importance from the legal community. It seems necessary to elaborate on this further.
"What is the role of a lawyer?" This question has been frequently heard over the years. It is similar to asking, "What is the purpose of life?" and carries profound philosophical depth, making it difficult to articulate clearly. It is also true that some people view lawyers as "outsiders" or "deviants," believing them to be involved in "bad" deeds, yet this is often dismissed as mere gossip rather than genuine criticism. The deeper the forest, the more diverse the birds—why worry about it? Let them speak.
However, I firmly believe that lawyers are inherently meant to protect rights. The only difference lies in whether some are conscious and intentional, while others remain in a state of confusion or ambiguity. Take a look at any lawsuit handled by lawyers throughout history—none have been without involving infringement and rights protection.
"I'm just doing it for a living!" That's fine, that's fine. No one has the right to look down upon such aspirations. But if you handle cases for "a living" without being able to protect your clients' rights, what means will you have to "make a living"?
However, I still do not fully agree with the assertion that "we are in an era of rights protection." This claim helps highlight the role and significance of rights protection in contemporary society; but to label it as the defining mark of our time may not be entirely accurate. In practice, or in social life, there are two forms of rights protection that should be distinguished. One is abstract, or to put it bluntly, politicalized. It often targets the "anti-rights protection side" while placing the "infringer" in a secondary position. This approach is beneficial for creating momentum and making a show of force, but it lacks practicality. The slogans it promotes and the lofty goals it sets ultimately remain confined to declarations.
The other form is concrete, at the legal level, or in other words, the professional role of lawyers. It resolves specific conflicts of interest through judicial channels, challenging unreasonable factors in political life and social order. Its characteristics lie in: achieving human rights and dignity with individual cases and minimal costs, providing legal redress to those who have been wronged. It primarily targets the "infringer." During the process, there will be value judgments, but when making choices, neither short-sightedness nor (utilitarianism) is involved. There will be ups and downs, and the ability to win or lose, but everything is grounded in the practical protection of people's rights, the rights of the vulnerable—none of it lacks practicality.
The nature of lawyers' rights protection determines their working methods and approaches, and this book reflects on these aspects, making it worth referencing. I would only like to add that sitting in a small room shouting slogans like "rotating hunger strikes" to intimidate opponents is extremely irresponsible and disrespectful. This practice should be abandoned.
The resources available for lawyers' rights protection may be abundant or scarce, depending on perspective. A careful examination of the 16 cases in the book reveals sufficient evidence of a "strong" side. Beyond law and legal principles, there are at least three additional resources: morality, critical thinking, and wisdom. Wisdom is particularly important—it is an inexhaustible resource. Insight into matters, careful consideration of claims, the design of techniques, the application of strategies, and even necessary compromises—all are manifestations of this resource. Mastering and utilizing it often involves the skillful formulation of questions.
As Western philosophers once said, "Solving problems is dead, while posing questions is alive." This is a truth! From the perspective of lawyers' rights protection, the questions we raise should: first, imbue old problems with new meaning; second, be targeted; third, exhibit a critical spirit; and last, but most importantly, stem from the key aspects of the case. From another angle, they should be so compelling that they leave the other party with no way to respond or retreat. To put it more boldly, they should have "lethality." But they must be avoided from being overly broad and unfocused.
It is well known that raising questions requires first identifying them, and from the perspective of legal practice, identifying problems often involves observing and grasping the "details." This is not mere nitpicking. In my opinion, studying litigation and seeking flaws is not far from the truth.
Does the responsibility of rights protection litigation lie in drawing universal conclusions from individual cases? Some have raised this question. The answer is yes. The "research paradigm" mentioned by the book's editor likely refers to this idea. The insight I gained from this is: first, some cases, regardless of their outcomes, can still yield universal conclusions through the study of their processes alone. Second, what is meant by "universal conclusions" is generally understood to include: elevating human spiritual awareness; promoting the process of national legalization; advancing political system reform; and putting the universal values of "universal love, equality, and freedom" into practice. Third, this transition from the particular to the general represents a qualitative change from quantity to quality, a leap from practice to theory. It follows that achieving these responsibilities and drawing universal conclusions is far from easy.
The Danish philosopher and physicist Niels Bohr once said, "Every success is partial." This undoubtedly means that on the path to success, one must accumulate "accumulation"—hard, multi-faceted accumulation: the accumulation of experience, the accumulation of morality, the accumulation of materials. In this regard, China's Impact Litigation·2005 has made outstanding contributions. Thanks to these accumulations, systematic and in-depth thinking becomes possible, and through practical steps, well-calculated strategies can be designed to undermine the foundations on which "infringers" rely and transform the soil in which they grow. This is a long process, and as individuals, we may not reach that beautiful destination. But I believe that if we are determined to pursue this path, we will certainly contribute small but meaningful elements within the legal community.
In this way, even if we are not born for this purpose, why not dedicate ourselves to it with unwavering resolve? We seek to understand the truth and count no cost, striving to the very end.
Rights protection litigation inevitably clashes with politics, power, and hostile forces. We do not need to raise rights protection as a banner, but it serves as a mirror, reflecting certain political actions—such as the expropriation of farmers' land—that have deviated from the rule of law, leading to conflicts with rights protectors. In the face of such harsh realities, the best strategy for lawyers, I believe, is to "focus on the case itself" without involving other issues. If legal wisdom can guide bad politics back onto the right track, then rights protection has achieved its goal.
Of course, such conflicts of interest can sometimes be extremely intense. This raises the important issue of self-protection for lawyers. Do not mistake this for weakness. We must protect the hard-won "space for rights protection" that so many people have struggled for, and we must also protect our own safety. We must not fail to achieve our goals only to face persecution, leaving us unable to continue rights protection! The occupation of space and the gathering of strength are of utmost importance—how can we afford to be careless or dismissive?
Although the achievements in this book are comforting, it also reflects how our rights protection practice, compared to the rich and challenging aspects of social life and the reality of "infringement," is far from adequate. Friends who are committed to this cause must be skilled in self-protection and contribute more to achieving this "adequacy."
The book calls on us to "ring the bell of hope," a phrase both poetic and profound. May I add one more line: "Hope lies in the footsteps of all of us moving toward the future: step by step, never stopping."
Looking back at the passed year of 2005, it seems there were still some impact litigation cases that must be recorded in the annals of the legal system, or perhaps excluded due to their "sensitivity," such as the Cheng Yizhong-Yu Huafeng case. This is an unavoidable regret. But I hope that starting from the 2006 volume, this shortcoming can be eliminated. Can it?
At this moment, I am once again reminded of the 1943 high school student's composition, whose opening line was timeless: "Far away, in the east, the sun is rising." The poem is filled with poetic beauty, profound charm, and a sense of life's wonder, inspiring hope that the future belongs to the youth, who carry the hopes of all marginalized groups. The future is beautiful; we should all strive for it—not just in impact litigation, not just in rights protection!