[author]Hu Changming

[content]

Reflection on the Modernization Theory and Practical Explanation of China's Litigation Growth

Hu Changming

Associate Researcher at the Institute of Law, Chinese Academy of Social Sciences, and Associate Professor at the University of Chinese Academy of Social Sciences.

Abstract: Since the reform and opening up, Chinese society has undergone profound changes. During this process, China's litigation rate has continued to rise, with a significant increase in the number of litigation cases. In the past forty years, the total amount of litigation in China has increased more than 50 times, and in 2021, the number of new cases accepted by courts nationwide exceeded 33 million. Through empirical research on the number of criminal, civil, and administrative litigation cases, it is found that the growth of litigation in China can be divided into two rapid growth stages and one stagnant stage, and there are significant differences in the growth trends of the three types of litigation. Among them, administrative litigation has the fastest growth rate, while civil litigation has the largest increment. The explosive growth in the number of lawsuits in China after the reform and opening up is the result of multiple factors such as economy, society, law, and policy. Research has shown that although the process of social modernization provides a macro background for the growth of litigation, the growth of litigation in China is also influenced by some special factors: the decline of the people's mediation system and the weakness of the commercial arbitration mechanism have to some extent exacerbated the burden on the judicial system; Meanwhile, the frequent changes in laws and judicial policies since the reform and opening up, as well as the lower litigation costs, have further led to the growth of litigation in China.

Keywords: litigation growth; Modernization theory; Social change; Alternative dispute resolution methods; Judicial policy

Since the reform and opening up, China's litigation cases have shown a rapid growth trend overall. Over the past forty years, the number of cases accepted by the court each year has increased from hundreds of thousands to tens of millions. Ten years ago, scholars pointed out the phenomenon of "litigation explosion". Since then, the number of cases accepted by Chinese courts has more than tripled, but the number of judges has decreased instead of increasing. At present, "more cases and fewer people" is no longer an occasional phenomenon in some courts in the eastern coastal areas. In 2023, the average number of cases concluded per judge in courts across the country will exceed 350, and even in the central and western regions, there will be courts with an average of over 800 cases concluded per judge, which means that judges will conclude more than 3 cases per working day. This situation has had a series of impacts on the litigation process. In the fourth round of amendments to China's Civil Procedure Law, measures such as expanding the scope of application of the sole proprietorship system and limiting the application of the collegiate bench system, and increasing the application rate of small claims litigation have to some extent improved litigation efficiency. However, due to the limited availability of judicial resources and the rigidity of litigation procedures, the judicial supply still cannot meet the increasing demand for litigation, and judges working overtime has become the norm. Some courts have experienced a decline in the quality of trials and delays in litigation, leading to a phenomenon of "litigation squeeze". In recent years, the most frequently discussed prominent contradictions in the work reports of the Supreme People's Court are the "contradiction between people and cases" and the heavy workload of judges. The National Conference of Supreme Court Presidents held on January 13, 2025 also pointed out that the most prominent difficulties and challenges in the current work of the people's courts are the large number of cases and the difficulty in resolving disputes. Therefore, exploring the reasons for the growth of litigation in China since the reform and opening up and proposing countermeasures has become an important issue that urgently needs to be addressed.

In recent years, many scholars have attempted to provide multidimensional explanations for issues such as the increase in litigation and the problem of "more cases and fewer people". However, research in the legal community on the growth of litigation in China is mostly limited to qualitative observations, lacking empirical, especially precise quantitative analysis. Therefore, there is still a lack of analysis of the law and explanation of the reasons for the increase of cases since China's reform and opening up. There is a lack of in-depth discussion on some issues with Chinese characteristics, such as the relationship between China's litigation growth and the Chinese path to modernization process, the Chinese style characteristics of litigation growth, and the role of judicial policy in China's litigation growth.

Clarifying these issues not only helps to provide new explanations and theories for the growth of litigation, but also provides scientific basis for the goals and measures of the comprehensive reform of the judicial system, which is of great benefit to ensuring the healthy and sustainable operation of the judiciary. Therefore, this article intends to reflect on the existing theory of litigation growth by combining China's social and economic development indicators and judicial statistical data, and based on practical explanations of the reasons for China's litigation growth, propose countermeasures on how to curb the current litigation growth.

1. Theoretical explanation for the growth of litigation

Many countries and regions have experienced explosive growth in litigation, and many scholars at home and abroad have proposed various theoretical models for the reasons of litigation growth. These theories have certain enlightening significance for explaining the growth of litigation in China.

Firstly, some argue that there is a significant correlation between litigation rates and economic development, especially in the early stages of industrialization where the claim that economic development has led to a significant increase in litigation has been prevalent. Some foreign scholars have conducted years of tracking surveys on the litigation volume and industrialization progress of various countries. For example, Jose Toharia studied the relationship between changes in litigation volume and industrialization progress in Spain from 1900 to 1970; F.van Loon and E. Langerwerf analyzed the relationship between economic growth and court litigation volume in Belgium from 1835 to 1980; Christian Wollschl ä ger analyzed the changes in industrialization and litigation rates in Bremen, Germany from 1549 to 1984. They generally came to similar conclusions. There are also scholars in China who support this claim, believing that the growth of China's litigation volume is highly correlated with GDP. With rapid economic development, the civil litigation rate will correspondingly increase, and the increase in litigation volume is an inevitable result of economic development.

Secondly, some scholars focus on studying the reasons why litigation growth is highly correlated with economic development. Zuo Weimin believes that the impact of economic development on litigation is reflected in two aspects: firstly, the increase in people's income provides them with more resources to seek high cost public power remedies; Secondly, in complex market economic activities, the possibility of friction and disputes among market trading entities is also increasing. Ran Jingfu explains the relationship between economic development and the increase in litigation cases from the perspective of Underlying Activities. He believes that for society as a whole, the larger the amount of trading activities people engage in, the greater the possibility of breach of contract. The industrialization, urbanization, commodity economy, transportation, and communication revolution that accompany economic development have led to an increase in potential activity volume, a significant expansion of activity types, and an increase in litigation rates.

Thirdly, some scholars have delved deeper into the surface of economic development, arguing that economic growth is not the direct cause of increased litigation. Economic growth only promotes and accelerates social transformation and change, while the latter leads to the disintegration of traditional society. The fundamental reasons for the growth of litigation include accelerated social mobility, social unrest, misconduct, and the enhancement of people's awareness of rights. There are several representative viewpoints among them: one is the "population mobility theory". On the one hand, population mobility leads to more frequent social interactions and a greater variety and frequency of disputes. On the other hand, population mobility makes people more inclined to use formal legal means as a means of dispute resolution. The second is the "social deviance theory". Economic development will bring about social changes and transformations. In the process of transitioning from traditional agricultural society to industrial and commercial society and information society, old moral norms, values, and religious beliefs gradually collapse. The moral norms and value system required for the new society have not yet been established, resulting in social deviance. Social misconduct leads to an increase in social conflicts, and these disputes enter the court, resulting in an increase in the number (rate) of lawsuits. The third is the "awakening of rights theory". The rapid development of the social economy has brought about changes in people's work and living environment, which in turn has led to changes in legal culture. People's attitudes towards litigation have also changed, and "being good at litigation" has become a change in attitude towards resolving disputes in modern society after interpersonal relationships have become indifferent. That is to say, in modern society, people's awareness of safeguarding their rights is stronger. When faced with disputes, they no longer adopt a tolerant and negotiated attitude, but actively seek public power intervention, which leads to litigation.

Fourthly, some argue that the decline of other dispute resolution pathways has led to litigation being the only one standing out. Modern society provides people with a variety of dispute resolution paths, and litigation, as one of the dispute resolution methods, has a certain "competitive relationship" with other dispute resolution methods. In other words, the amount of legal use is inversely proportional to other social control measures as a whole. "When the amount of other social control decreases, the amount of law will increase," and people are more likely to choose litigation. For example, traditional families have stronger control over their family members than other social relationships, resulting in fewer family disputes entering the court. Modernization is actually a process of increasing the total amount and expanding the scope of legal control. Therefore, this viewpoint holds that the gradual decline of traditional dispute resolution methods such as gentry theory, internal coordination within units, and people's mediation has led to various conflicts and disputes, even some trivial disputes that are not suitable for litigation resolution, flocking to judicial organs. The court's transformation from the last line of defense in dispute resolution to the first line of defense is an important reason for the significant increase in litigation.

The above viewpoint has some explanatory power for the growth of litigation, but there are also shortcomings. For example, there is a lack of in-depth exploration into the Chinese characteristics of the growth of litigation in China, a lack of attention to the annual changes in litigation growth since the reform and opening up, and the differences in growth rates of different types of cases. There is also a lack of in-depth empirical research combining theoretical interpretation and empirical data testing. This article intends to conduct a comprehensive analysis of the growth trend of litigation in China based on previous research theories and statistical analysis of litigation data, and attempt to further explain the reasons for the significant increase in litigation in China.

2. Empirical analysis of the growth trend of litigation in China

2.1 Research Materials and Methods

This article takes 1978 as the starting point to examine the growth of litigation in China, mainly based on the following considerations: firstly, the Third Plenary Session of the Eleventh Central Committee held in 1978 opened the curtain of China's reform and opening up, and China's economic development and judicial system entered a new stage. The second is that 1978, as the first year of China's reform and opening up, marked the beginning of the explosive growth of litigation cases in China. Thirdly, from 1966 to 1976, China's litigation system was severely damaged and statistical data was missing. Since 1978, China's statistical system has become more sound, with continuous and accurate litigation and economic statistical data, making it more feasible to use this as the starting point for this study.

2.1.1 Research object: Measurement of litigation volume

There are many indicators to measure the litigation volume of a country or region. Judicial statistics not only include the number of cases received and closed, but also the number of first instance, second instance, retrial, and non litigation cases. This article selects the number of cases received in the first instance as the research object, mainly based on the following considerations: firstly, selecting the number of cases received instead of the number of cases closed is because the number of cases received can more timely and comprehensively reflect the changes in the number of disputes entering the judicial channel, and the number of cases closed is closely related to the number of cases received and is influenced by judicial efficiency. Selecting the number of cases received can more accurately reflect the research theme. Secondly, the number of cases received in the first instance represents the total number of disputes that need to be resolved by the court, while the second instance and retrial are only extensions of the same dispute procedure, and the number of disputes behind them has not increased; And the number of cases received in the first instance accounts for a large proportion of the total number of cases tried by the court and has remained relatively stable over the years. By studying the number of cases received in the first instance, we can comprehensively reflect the trend of changes in the total number of cases received by the court every year. Thirdly, the research object of this article is the number of cases received in criminal, civil, and administrative categories. The reason is that the judicial statistical standards for other enforcement, non litigation preservation, and procedural cases have undergone multiple changes and are all non litigation cases, which affects the accuracy of the research.

2.1.2 Research methods and indicator calculation

To study the growth pattern of litigation in China since the reform and opening up, this article has compiled authoritative data from the "China Statistical Yearbook" and "China Legal Yearbook". The number of first instance criminal, civil, and administrative cases accepted by Chinese courts from 1978 to 2021 was counted, and the annual growth rate and average annual growth rate of each type of case were calculated. The growth contribution rate was used to measure the impact of the three types of cases on China's litigation level.

The growth contribution rate of various types of cases is equal to the growth rate of litigation for that type of case multiplied by the proportion of that type of case in all first instance cases in the previous year. The formula is expressed as: Growth contribution=Growth rate of this type of case litigation x Proportion of the previous year x 100.

Taking civil cases in 2021 as an example, the growth rate of civil cases that year was 26.46%, while the proportion of first instance civil cases in the previous year (2020) was 90.4%. The product of the two is 23.9%, which means that 23.9% of the 25.5% growth rate of all litigation cases in that year was the result of the increase in civil cases. Similarly, the growth contribution of criminal cases can be calculated as 1.2%, administrative cases as 0.4%, and the growth rate of litigation as the sum of the three types of litigation growth contributions, which is 23.9%+1.2%+0.4%=25.5%.

This article calculates the growth rate of various types of cases since 1978. Based on this, we can observe the growth of various types of cases since the reform and opening up, as well as the impact of changes in each type of case on the overall growth and changes of litigation cases.

2.2 The overall trend of the growth of litigation cases in Chinese courts

2.2.1 After the reform and opening up, the overall growth rate of litigation has been astonishing

Over the past forty years, the number and speed of litigation cases in Chinese courts have been astonishing, with the total number of first instance cases increasing from over 440000 to over 18.22 million, a growth of 40.71 times and an average annual growth rate of 9.0%.

Firstly, from the perspective of the three types of cases, the number of lawsuits has doubled, but the growth rate varies greatly. Among them, the number of civil cases increased the most, from over 300000 to over 16.61 million, an increase of over 16.31 million. In 2021, the number of first instance civil cases received was 55.23 times that of 1978, with an average annual growth rate of 9.78%; The growth rate of administrative cases is the fastest, increasing 639 times from 1983 (573 cases) to 2021 (over 330000 cases), with an average annual growth rate of 18.53%; Criminal cases are the most stable, increasing from an initial 140000 to 1.27 million, an increase of 8.69 times, with an average annual growth rate of 5.16%, and the slowest growth rate among the three types of cases.

Secondly, civil cases have the highest contribution rate to the growth of litigation cases. Over the past 43 years, the cumulative number of civil cases in China has increased by more than 16.31 million, accounting for 91.75% of the total increase in litigation cases; The cumulative number of criminal cases has increased by more than 1.13 million, accounting for 6.36% of the total growth; However, the cumulative increase in administrative cases only accounts for 1.89% of the total growth. Preliminary data analysis shows that the increase in civil cases after the reform and opening up has contributed more than 90% of China's litigation increment.

Thirdly, the annual growth rate of cases shows a fluctuating state. Since the reform and opening up, although the number of litigation cases in China has shown an overall upward trend, the growth in quantity is not linear. Figure 1 can intuitively reflect the fluctuation of litigation growth. In the past 43 years, the number of litigation cases in China has been increasing for 34 years, with the highest growth rate reaching 48.61% in 1980. In addition, there were also growth rates exceeding 20% in 1983, 1986, 1988, 1989, 2015, and 2021; However, there were only nine years of negative growth in litigation, namely 1985, 1991, 1997, 2000, 2001, 2002, 2003, 2004, and 2020. Among them, four years had negative growth rates below -1%, and the maximum negative growth rate was -5.97% in 2020. From the perspective of case growth, there have been a total of fourteen years with an annual growth rate exceeding 500000 cases. Among them, the four years with an annual growth rate exceeding 1 million cases are concentrated in the past decade, namely 3.708 million cases in 2021, 1.955 million cases in 2015, 1.519 million cases in 2019, and 1.013 million cases in 2018.

The Three Main Stages of Changes in Chinese Litigation

From a stage perspective, the growth of litigation cases in China can be roughly divided into two periods of rapid growth and one period of stagnation. The first period of rapid growth was from 1978 to 1996, during which the number of cases increased from over 440000 to over 5.31 million, an increase of nearly 12 times, with an average annual compound growth rate of 14.73%. During the first period of rapid litigation growth, the number of cases received by the court did not always maintain a high growth rate. From 1984 to 1985, the number of litigation cases in China decreased instead of increasing; From 1990 to 1992, the average annual growth rate was only 1.55%, and the growth almost stagnated. But overall, before 1996, China's litigation cases maintained a high-speed growth trend, which can be called the first period of rapid growth in cases after the reform and opening up. The second growth period is from 2007 to 2021, during which the growth rate is not too fast, but the growth duration is relatively long, with cases continuing to grow for fourteen years; The total number of cases increased by 13.04 million, a 3.5-fold increase, with an average annual growth rate of 8.74%. Between the two growth periods of 1997 and 2006, there was a relatively long period of stagnation, during which the number of cases accepted by the courts decreased instead of increasing for six years. In 2006, the number of first instance cases received by courts nationwide decreased by 130000 compared to 1997, with an average annual compound growth rate of -0.24% (see Figure 1)

Figure 1: Litigation Volume and Growth Rate in China Since the Reform and Opening Up

2.2.2 Comparison of growth rates of three types of cases

Since the reform and opening up, the growth rate of China's three types of litigation has shown the following patterns: firstly, there is a significant difference in the growth rate of criminal, civil, and administrative cases, and the growth rate of the three types of litigation cases is not correlated (see Figure 2). For example, in 1983, the growth rate of criminal cases exceeded 120%, while the growth rate of civil cases was only 2.7%; In 1986, the growth rate of criminal and civil cases was both over 20%, while the growth rate of administrative cases that year was -31.0%. Through Spearman's correlation analysis, it was also found that among the three types of litigation, only the growth rates of civil and administrative cases have a certain weak correlation, with a correlation coefficient of 0.370. There is no correlation between the growth rate of criminal cases and civil or administrative cases. The second is that the growth rate of litigation cases is related to all three types of cases, but it is most closely related to the growth rate of civil cases. After 1989, the growth line of civil litigation basically overlapped with the growth line of all first instance litigation. From the perspective of correlation coefficients, there are strong and weak differences in the correlation between the growth rate of all litigation cases and the growth rates of criminal, civil, and administrative cases. The correlation coefficient with civil cases is 0.810, indicating a high degree of correlation; The correlation coefficient with criminal cases is 0.568, indicating a moderate level of correlation; The correlation coefficient with administrative cases is only 0.382, indicating weak correlation. This also indicates that the volume of civil cases has the most significant impact on the overall volume of litigation cases (see Table 1).

Through the above analysis, it is found that although there has been an increase in litigation in China since the reform and opening up, there are differences in the years and types of cases. If the reasons for the changes and growth in China's litigation volume are explained in a general manner without distinguishing between years and case types, it will not only be ineffective, but also prone to falling into fallacies.

Figure 2 Comparison of litigation change rates for three types of cases