The Solid Power of Soft Law

By staff reporter JIAO FENG

HUIZHOU City of Guangdong Province has made in-depth explorations into new ways of building democracy at the grassroots level. In 2009 the city rolled out a trial system in its rural and urban areas of casting legal professionals in the roles of deputy directors of village（neighborhood） committees. It has been well received. Parties can now resolve any disputes that may arise through consultations with and the mediations of these legal eagles. They so help to avoid acrimonious recriminations. The governance advice these legal deputy directors can give to grassroots cadres also enables them to settle many spats on the spot.

Professor Luo Haocai of Peking University， who is also chair of the China Society for Human Rights Studies， hails the Huizhou practice as an exemplar of rule of law thinking. “Huizhous explorations of grassroots-level governance will help to construct a society ruled by law and also promote social governance. It provides a good medium for the application of soft law，” Professor Luo said.

Practical Services， Tangible Benefits

Mr. Huang， a village cadre of Shanqian Village in Longhua Town， Huizhou City， arrived early at the town council law office on the day that the legal deputy director of the village committee was available for legal consultations.

Huang， aged 43， was elected a village cadre by his fellow farmers earlier this year. He soon faced two conundrums. The first was a contract dispute. The lease on the villages collectively-owned mountain forests had expired， but the contract did not specify to whom ownership of the trees fell upon its expiration. The second involved losses due to the payment arrears of a tenant renting village land. Aware that the legal deputy director was a licensed lawyer， Huang hoped his expertise might help solve these matters.

These legal deputy directors of village （neighborhood） committees provide legal expertise in compiling and revamping neighborhood constitutions， covenants concerning collective properties， legal education， and other services. Their function is to instill the rule of law concept in grassroots officials and also the general public. They thus improve social governance according to the law.

Their letters of appointment stipulate that legal deputy directors duties do not include daily management of com- munities； also that they are required to spend no less than 12 workdays a year at the community committee headquarters office. As their phone numbers are available to the public， villagers can contact them at any time， either at the office or elsewhere. These legal deputy directors are not on the community committee payroll， but receive subsidies from the Huizhou municipal government.

So far there are 919 such volunteer legal workers in Huizhou. They comprise law practitioners， grassroots legal professionals and political-legal organs staff. All have solid academic backgrounds and rich practical experience. Community cadres are keen to seek their advice when resident disputes arise. Being neither villagers nor managers， their status is that of neutral， non-interested parties. This non-aligned factor inspires villagers trust and confidence when the need for mediation arises. The system of legal deputy directors has now been extended to all 1，249 urban and rural communities across Huizhou.

Head of the Huizhou-based Choice& Win Law Office Yang Zejun serves as legal deputy director of two community committees in HZZK Hi-tech Industrial Development Zone. Yang believes that economic development in Chinas countryside over the past years of reform and opening-up has heightened rural residents awareness of their rights and interests. There is consequently a demand for legal services， whose quality is inhibited by relatively low standards of education and communications in rural areas， and limited access to information. Huizhous legal deputy director scheme fills this gap through government-funded legal services to the populace.

Legal Awareness

That the government should be responsible for settling local grievances or difficulties is an entrenched belief among Chinese people， rural residents in particular. When disputes arise between farmers， they go to the village committee for a settlement. The town government deals with contentions between individuals and the village committee， which might subsequently escalate to higher authorities until a solution acceptable to all parties is found. This is why Chinas public petition system is also known as“visits to higher-ups.”

The petition system enables citizens or organizations to submit their opinions， proposals or complaints to government departments at various levels which then handle them according to law. It provides an important channel for the government to respond to public opinions. But petitions that do not follow due process and bypass certain administrations pose risks to social stability.

An accident occurred on March 5， 2014 at Mr. Fangs chicken farm， which he had leased from a Mr. Cai of Beidi Village， Longhua Town， Boluo County. It resulted in a head injury to a farm worker surnamed Bai， who was then rushed to hospital. Bais family， Fang， and Cai couldnt agree on who was responsible for the costs of medical treatment and compensation， so Bais family filed a complaint with the county government.

As Mr. Bai was still in hospital awaiting treatment， payment of these costs was imperative. The legal deputy director Zhou Fulin and his colleagues pinpointed in meetings with the three concerned parties the harsh legal penalties both Cai and Fang would incur if delays to Mr Bais treatment due to late payment of fees resulted in his death. As both parties were implicated in Bais employment they agreed to share responsibility for the accident. In response to Cai and Fangs protests that the compensation demands of Mr Bais family members were unreasonable， Zhou Fulin suggested that they first pay the costs of treatment and later take the matter to court which， after due process would award Bai a rational sum. Fang and Cai accordingly made an advance payment to Bai for his medical treatment， and Bais family dropped their petition to the local government and instituted legal proceedings. In December of 2014 the court ruled that Mr Bai be compensated in the sum of RMB 160，000.

A farmer surnamed Tan of Yongping Village， Tonghu Town， grew vegetables on a plot of land adjacent to that of his neighbor， who planted eucalyptus trees. The trees plundered water and soil nu- trients and their fallen leaves poisoned the vegetable field， considerably reducing its yield. Although Tan had protested to the village committee on several occasions， locals held to the common view that no one should dictate what a person decides to cultivate on their own lands. In desperation， Tan sent his son to fell the culprit trees. The conflict consequently spiraled.

Upon bringing the two neighbors together， the legal deputy director of the village committee Yang Zejun gave a detailed explanation of the basic principles of the settlement of neighbors disputes under the Property Law， which entail respect for history and facilitating production and livelihood. As Tan began growing vegetables long before his neighbor planted eucalyptus trees， he took precedence in this case. The two parties finally came to terms and reached an amicable settlement.

“Rural residents are not fully aware of their legitimate rights， and legal deputy directors can provide education and enlightenment in this regard. Once cognizant of their rights， people are more likely to raise claims in a rational manner. The role of legal deputy directors is thus to help villagers solve problems according to law. This enables orderly governance at the grassroots level，” Yang said.

From Hard Law to Soft Law

In addition to brokering disputes， mass education is another important task of legal deputy directors. They give lectures on the law to residents and local officials， and in some areas run Wechat accounts. This enables locals to obtain legal advice on such situations as， “Who is to blame for injury from a roof collapse？”； “Can I rent out my land as I please？”； or “What should I do in the event of a traffic incident？” via mobile phone.

Legal deputy director Xu Xianghui of Longhua Town sees this role as distinct from that he plays at court. It takes a more moderate， human approach to contentions in efforts to reconcile discord and so obviate going to court. On the basis of law， legal deputy directors must factor into specific situations by reasoning with and convincing the feuding parties to follow a just procedure that will yield fair results.

“The court cannot dissipate all discontent， and rigid application of legal provisions doesnt remedy all problems. Whats most important is to teach rural residents to think along the lines of the law，” Xu said. “The legal deputy director system represents the consultative， lenient and free nature of soft law.”

The term “soft law” refers to state law that does not rely on coercive state power to enforce， which is otherwise referred to as “hard law.” The focus of “soft law” is more on equality， consultation， and respect for the concerned partiesexpression of will. It downplays coercive enforcement by the state machine， instead tapping into multiple modes such as social constraint， motivation， and inducement.

“Law enlightenment will enable the populace to better know their rights and to express their desires and needs through a rational medium. This puts pressure on governments at grassroots level to respect and abide by the law， and on executive authorities to exercise self-discipline in their administration，”Yang Zejun said. “A law-based society， however， cannot operate entirely according to a police mentality or to compulsion by the state machine. Chinese society is traditionally averse to litigation， because it values harmony and discourages confrontation. The more instructive， consultative approach of soft law is therefore welcomed in social governance， particularly in Chinas rural areas. Governments at grassroots level in the countryside should be aware of this，” Yang concluded.