Abusive Litigation in China: Comparative Insights and Practical Approaches for Reform

The paper addresses how to regulate abusive litigation in China while balancing access to justice and judicial efficiency. It critiques existing scholarship for focusing on political will and overlooking the substantive classification, causes, and accountability dimensions of frivolous and abusive claims. The authors concentrate on abusive litigation—claims involving misconduct and accountability issues that require regulation beyond cost-shifting rules—and examine both civil and criminal contexts in China with comparative insights from the Netherlands and England. They note Chinese constraints on recovering lawyers’ fees, the emergence of third-party funding (e.g., WeAnd v Xuding), and the risk that lawyers acting as funders can promote problematic litigation. Internationally, Dutch law relies on institutional filters and limited court intervention, while English law employs wasted costs orders and regulates funders. In China’s criminal justice, abusive litigation is linked to power imbalances between prosecutors, police, and courts, especially in minor offenses and under plea leniency reforms. The article proposes nuanced, context-specific reforms: strengthening lawyer accountability and compensation in civil cases and recalibrating power allocation and judicial oversight in criminal procedure. It also outlines the paper’s structure: conceptual analysis, comparative study, and reform proposals for China, including cautious use of the false litigation crime and exploration of punitive compensation.

The paper surveys debates on defining and regulating frivolous versus abusive litigation, noting economic (negative expected value) and probability-based tests can chill novel rights claims and innovation, while acknowledging some tolerance for frivolous claims is necessary to preserve access to justice. It draws on Yablon’s results-oriented definition tying frivolousness to what a reasonably investigating lawyer would know, and references critiques and developments in malicious prosecution and abuse of process (e.g., Mulheron 2022). Comparative literature contrasts England’s interventionist stance—wasted costs jurisdiction, regulation of funders, maintenance/champerty vestiges—with the Netherlands’ reliance on ex ante institutional filters (collective action gatekeeping, disciplinary councils, scrutiny of third-party funding) and a restrained approach to labeling proceedings frivolous. Chinese sources highlight limited lawyer fee shifting (with narrow post-2016 exceptions), weak self-regulation, market pressures encouraging unmeritorious claims, and emerging mechanisms like criminalization of false litigation. In criminal law, the authors note scholarship on China’s prosecution-centeredness, the plea leniency system, and the rise of the security state, all of which inform the study’s position that abusive litigation in criminal matters stems from structural power allocation rather than lawyer behavior alone.

Doctrinal and comparative legal analysis combined with illustrative case studies and policy/institutional assessment. The authors: (1) Conceptually distinguish frivolous and abusive litigation with an accountability focus; (2) Conduct a comparative review of legal mechanisms in England (wasted costs orders; liability standards; regulation of litigation funders; illustrative cases such as Ridehalgh v Horsefield, Medcalf v Mardell, R (on the application of C) v Salford City Council) and the Netherlands (collective litigation filters; disciplinary council practice; NS seating case; scrutiny of third-party funding); (3) Examine Chinese civil law developments (2016 SPC Opinions on shifting lawyers’ fees; constraints on fee recovery; WeAnd v Xuding; Foxconn v Journalists) and criminal procedure dynamics (case on aiding information network crimes under Art. 287(2); Yu Jinping drunk-driving case within the plea leniency system and appellate escalation); and (4) Synthesize implications to propose differentiated reforms for civil and criminal domains in China, including targeted use of the false litigation offense and consideration of punitive compensation.

- Abusive litigation, distinct from merely frivolous claims, involves misconduct and accountability issues requiring tailored regulation; blanket cost-shifting is insufficient on its own. - In China’s civil justice system, the general prohibition on recovering lawyers’ fees (with narrow exceptions since 2016) weakens deterrence and fails to compensate victims; when lawyers act as funders, incentives for problematic claims can increase (e.g., WeAnd v Xuding funding agreement invalidated for violating public order and good customs, but no personal liability for the lawyer-funder). - England uses wasted costs orders and regulates funders to deter unmeritorious claims and protect judicial integrity, balancing lawyer accountability with client autonomy and privilege; however, these proceedings can be costly and complex (e.g., Ridehalgh v Horsefield). - The Netherlands relies more on ex ante institutional filters (collective litigation gatekeeping, disciplinary bodies) and shows judicial restraint in labeling proceedings frivolous; lawyer compensation can be ordered in cases of fraud/malpractice, but effectiveness as a systemic deterrent remains untested. - In China’s criminal process, abusive litigation is closely tied to power imbalances and prosecution-centeredness, especially under the plea leniency system; courts’ diminished role vis-à-vis procuratorates and public security fosters risks of overreach and unjust burdens on defendants (e.g., broad application of Art. 287(2); the Yu Jinping case’s appellate escalation). - Minor offenses dominate China’s criminal caseload: over 85% of criminal cases result in sentences under three years’ imprisonment or non-prosecution, indicating that abusive practices around minor crimes disproportionately affect defendants and system efficiency. - Effective reform in China requires: (a) enhancing lawyer accountability and victim compensation in civil cases (potentially drawing on English wasted costs concepts while managing risks to access to justice); (b) strengthening court-centered oversight and adjusting power allocation among public authorities in criminal cases; and (c) cautious, targeted use of the false litigation offense and exploration of punitive compensation to redress harms.

The findings address the core question of how to regulate abusive litigation in China without undermining access to justice. In civil matters, comparative insights show that focusing accountability on litigation participants who drive unmeritorious claims—particularly lawyers and funders—can reduce incentives for abuse and better compensate victims. English wasted costs jurisprudence illustrates a compensatory, court-managed tool to protect judicial integrity, while Dutch institutional filters demonstrate the value of ex ante gatekeeping and professional discipline. For China, a calibrated blend—clarifying when lawyers’ fees can be shifted, defining thresholds for misconduct, improving self-regulation and disciplinary clarity, and empowering courts to award compensation—can deter abuse without chilling meritorious or novel claims. In criminal justice, the study situates abusive litigation within China’s political-legal structure: the prosecution-centered plea leniency system and the elevated status of public security and procuratorates diminish courts’ supervisory role, inviting overreach and inconsistent sentencing practices. Addressing these structural dynamics—by enhancing judicial review, supervising investigative powers, and rebalancing authority—directly protects defendants’ rights and aligns procedure with the rule-of-law goal. Overall, the comparative lessons reinforce that solutions must be jurisdiction-specific, harmonizing efficiency with rights protection and professional ethics.

The paper proposes a nuanced, context-specific reform agenda for China. In civil cases, regulators should strengthen lawyers’ liability for abusive litigation while managing impacts on court workload, client-lawyer relations, and access to justice. Courts should proactively compensate victims of abusive proceedings, drawing selectively on the English wasted costs experience. In criminal cases, abusive litigation stems from China’s authority-centered structure and prosecution dominance, exacerbated by the plea leniency system, and is more often driven by public authorities than defense lawyers. Priority should be given to addressing minor offenses and to reconfiguring power allocations so that courts can intervene earlier, supervise prosecutorial conduct, and prevent undue empowerment of public security organs and procuratorates. Elevating courts’ political status and restoring their central role are key to ensuring fair implementation of reforms and protecting human rights.

- The study is doctrinal and comparative; it does not generate or analyze empirical datasets, which may limit quantitative assessment of prevalence or impact. - The authors note that comparative analysis in criminal law is inherently constrained by territoriality and local socio-legal conditions, limiting direct transposability of foreign models. - English and Dutch mechanisms operate within distinct legal cultures and market structures; their selective adaptation to China requires caution to avoid unintended effects on access to justice or court resources.