Arbitration and judicial remedies

Arbitration and judicial remedies           

At the heart of many residents’ complaints about the demolition and eviction process is frustration with the lack of meaningful redress.  Arbitration and legal remedies, when available, are poorly implemented, and are often rife with official corruption. As Ji, a Chinese lawyer with experience defending the rights of residents in forced eviction cases, explained to Human Rights Watch: “There are two reasons for demolition and eviction:  national development and individual benefit. Big corruption is a serious cause behind demolition and eviction problems.”³⁷

Chinese regulations specify that in cases where residents and developers are unable to reach an agreement on compensation for the demolished home, residents may seek arbitration by the municipal demolition and eviction management department or bring a lawsuit against the developer.³⁸ In practice, the arbitration system appears to be deeply flawed.  Many city demolition and eviction departments are said to have conflicts of interest that would make it difficult for them to render a fair decision in a hearing between developers and residents.  First, while demolition regulations forbid local demolition and eviction departments to carry out demolition and eviction themselves,³⁹ such departments often have close connections with the companies that do the work.  In these cases, authorities have little incentive to find in favor of residents trying to block demolition or to crack down on breaches of regulations by their own companies. 

In addition, there have been allegations of corruption and improper financial interests within the administration of demolition and eviction.  An evictee in Hunan province posted a letter on the Internet complaining that he was refused the right to negotiate compensation for his home by the demolition company.  The legal representative of the company, it turned out, was both the city’s deputy mayor and the director of the city’s construction bureau. ⁴⁰  As the China Economic Times observed, local authorities profit from fees associated with the issuance of permits to developers, who then also are likely to choose to hire demolition companies with official connections in order to conduct forced evictions.⁴¹ 

All these problems lead many who have sought and failed to find redress in the arbitration system to take their cases to court.  However, those who do so, and who are able to find and afford a qualified lawyer to represent them, are likely to encounter familiar conflicts of interest in the court system.  Chinese legal experts say that many courts refuse to hear cases brought by evicted urban residents.⁴²  One resident told Human Rights Watch that even when the municipal department has clearly not followed procedures spelled out in the regulations, such as obtaining a relocation agreement signed by developer and resident, the court may still find against the resident.⁴³  Political interests may intercede:  China’s judicial structure permits local Communist Party committees to decide which cases are and are not heard by courts.  In some demolition and eviction cases where there are strong official interests, Party committees may instruct judges to refuse to hear the cases.⁴⁴  In others, courts simply tell plaintiffs that demolition and eviction cases are “outside of their area of responsibility.”⁴⁵

In the wake of the jailing and conviction of Shanghai lawyer and tenants’ rights advocate Zheng Enchong, some residents and lawyers told Human Rights Watch that lawyers are afraid to take forced eviction cases.  “My friends [who were evicted in Beijing] wanted to find policies and laws that would help them, but the police investigated and failed to find any.  So they found a lawyer willing to take their case, but after Zheng Enchong, the lawyer wouldn’t dare to [represent them],” said Zhang, the friend of a Beijing family who were forcibly evicted from their home.⁴⁶  Two other Chinese legal experts on demolition and eviction who spoke with Human Rights Watch on condition of anonymity after the Zheng Enchong trial expressed similar fears.  One was careful to stress that unlike Zheng, he was only sharing information with Human Rights Watch that had already been published in officially approved news sources.

Should a plaintiff triumph over this system and win the case, his home is already likely to have been demolished, because China’s regulations render the judicial process irrelevant.  All the national and local regulations surveyed for this report permit forced demolition to proceed even before lawsuits have been decided; that is, one cannot get a judicial injunction blocking the demolition pending resolution of the case.  For instance, the national regulations state that “during a lawsuit, the implementation of demolition and eviction will not be stopped.”⁴⁷  Two Beijing residents reported that the demolition department ordered the demolition of their homes, even though the local court had only authorized one of the demolitions. Both houses were destroyed anyway, and when residents protested, they were detained by police. Both later alleged they had been physically abused by the police.⁴⁸

[37] Human Rights Watch interview with Ji [pseudonym], lawyer,  November 11, 2003.

[38] “In cases where evictors and evictees, or evictors, evictees and tenants who have still not reached an agreement on demolition and eviction compensation and eviction; then persons involved in the matter may apply to the residential demolition and eviction management department for arbitration.”   “Regulations for the management of urban residential demolition and eviction,” art. 16. 

[39] “Residential demolition and eviction management departments may not act as demolishers and evictors, and may not be entrusted with demolition and eviction.” “Regulations for the management of urban residential demolition and eviction,” art. 10.

[40] Letter posted on the site of real estate lawyer Qin Bing, “Qin lushi, nihao! Women shi Liuyangde bei chaiqian hu [Hello, Lawyer Qin, we are evictees in Liuyang],” posted November 29, 2003, http://www.qinbing.com/article.asp?articleid=5253.

[41] Zhang Fan, “Chaiqian jiufen beihou you zhongda falu wenti [Serious legal questions in the background of demolition and eviction conflicts],” China Economic Times, October 22, 2003.

[42] Prof. Cheng Jie, public presentation at Columbia University, November 13, 2003; Human Rights Watch interview with Yi [pseudonym, lawyer, New York, November 11, 2003.

[43] Human Rights Watch telephone interview with Kong [pseudonym], December 20, 2003.

[44] Human Rights Watch interview with Yi [pseudonym], lawyer, New York, November 11, 2003.

[45] Prof. Cheng Jie, public presentation at Columbia University, November 13, 2003.

[46] Human Rights Watch telephone interview with Zhang [pseudonym], January 22, 2004.

[47] “Regulations for the management of urban residential demolition and eviction,” art. 16.

[48] Wang Xiaoxia, “Baoli chaiqian anli diaocha [Investigation of violent demolition and eviction cases],” China Economic Times, November 19,2003.