By Han Yuting (韓雨亭), Lu Liyi (魯禮義)
Issue 594, Nov 12, 2012
Regional, page 12
Translated by Dou Yiping
Original article: [Chinese] 

As business exchanges across the Taiwan Straits increase, the role of the judiciary in between is becoming particularly important. In order to safeguard the legal rights of Taiwanese in the mainland, a pilot Taiwan-related court has been established in Haicang, Xiamen in Fujian Province.

On Oct 31, the idea got a nod of approval from the State Council’s Taiwan Affairs Office.

The dispatched tribunal is a pilot project for judicial reform led by the Supreme People's Court. Before it was established, there were benches across the country that handled Taiwan-specific issues, but they’ve failed to adequately address the conflicts that arise with Taiwanese parties.

“Haicang Court is breaking new ground in regional jurisdiction,” said Huang Minghe (黃鳴鶴), judge of Xiamen Intermediate People's Court.

Playing the Taiwan Card

Two years ago Chen Guomeng (陳國猛) first proposed setting up a special court for Taiwan-related cases. Last year when he was chosen to be president of Xiamen Intermediate People’s Court, he found Fu Yuanping (傅遠平), head of the Haicang Zone court, to discuss the proposal. The two clicked instantly.

Chen called some young judges together and drafted a feasibility report from the perspective of Fujian-Taiwan culture, the investment climate and China’s Taiwan policy.

According to data from the provincial commercial bureau, there are 3,796 Taiwanese-backed companies in Fujian with $8.6 billion in investment, making the court’s establishment obviously worthwhile. But laws often lag behind the realities on the ground. As stated in the feasibility report, there was broad support for setting up a Taiwan-related court, but the legal basis was more questionable.

The only direct legal basis was a clause from Civil Procedure Law of the People's Republic of China, which stipulates that a superior people's court is entitled to try civil cases that are under the original jurisdiction of an inferior people's court. The superior court can also hand civil cases over to an inferior people's court. 

“If there were a definite law to follow, people would have done this long before,” said Cao Fagui (曹發(fā)貴), the incumbent presiding judge of the Taiwan-related court. “Theoretically, it’s feasible.” 

Huang Minghe, the Xiamen judge, said that they had the legal conveniences to set up the court in Haicang, Xiamen.

Proposal to approval took only about three months. The procedure amounts to devolution – when a higher organ delegates authority to a lower level. The Taiwan-related court is equivalent to a division-level unit under Xiamen Intermediate People’s Court.

“Devolution is a good thing for the contract parties, since it saves their litigation costs,” Chen said.

A Unified Standard

A big advantage to having a Taiwan-related court instead of setting a tribunal for each district court is that the staff can be specialized rather than handling different types of cases simultaneously.

The Taiwan-related court provides services like online filing, circuit trials and night court. If Taiwanese businessmen can’t make it to court in person, they can hold court through online video. And with the centralized management, they no longer have to negotiate with several courts for one case. It can all be done in Xiamen.

Moreover, there’s going to be a unified standard for judgment. Judges’ understanding of a law often differs, so their judgments can likewise be contradictory. Taiwanese often aren’t able to comprehend this. “In the mainland, Hong Kong, Macau and Taiwan, there are four different judicial systems,” Huang said. “It’s probably an unimaginable thing for people in other parts of the world.” 

So for impartiality at trials, Taiwanese are sometimes invited to sit on the jury.

Right now, the Taiwan-related court is working along with Haicang Court. Soon, it will get its own building with Taiwanese elements in the design.