Hualing Fu & Xianchu Zhang on Judging the Party: Public Law Wrongs and Private Law Remedies (Chinese J of Comp Law)

"Judging the Party: Public Law Wrongs and Private Law Remedies"
 Hualing Fu & Xianchu Zhang
The Chinese Journal of Comparative Law
Published on 23 February 2022

Abstract: This article offers a case study of civil litigation in which the decision of a Party organ or the application of Party rules in a decision have allegedly infringed the private law rights of individuals. Party organs have always performed civil activities and engaged with a wide range of civil legal relations affecting the rights and interests of various individuals and entities, resulting in occasional legal disputes between a Party organ and the aggrieved individuals or entities. After failing to challenge a Party organ’s decision within the political system, the affected member brings a case to court to challenge the validity of the decision. In the court process, legal rules are used primarily to deal with issues involving insignificant players in employment disputes with Party organs. For matters involving the Party’s own officials and those matters regarded as internal, legal rules are largely limited, if not dispensed with entirely, confirming the prerogative state’s superior position in the hierarchy above the normative state. Freedom of contract is more relevant and recognized for claims by individuals at the lower end of the political ecosystem, while politics is reserved for the elites of society and for issues where the Party is determined to maintain direct, hands-on control.