ROBERT J.MORRIS 4/19/20126:38PM 278 TSINGHUA CHINA LAW REVIEW Vol.2:273 Interestingly,some PRC legal scholars have viewed this CGJ model as the one which the PRC should adopt and integrate,including the publishing of dissenting opinions,as its judicial model.2 Recently, Professor Chen Hung-yee of the University of Hong Kong,after an extensive review of the procedures and powers of the Taiwan Council of Grand Justices,has written:"In my view,we ought to conduct extensive studies on the theory and practice of how the courts of Taiwan,Germany,and other continental law countries apply constitutional provisions,and through such analysis consider future developments which the courts of our country can follow when citing or applying aspects of the constitution(我认为，我们应 该对台湾地区和德国等大陆法系国家的法院适用宪法条文的理 论和实践作深入的研究，从而思考我国法院未来在援引或适用 宪法方面应走的道路).13 The seeming“adoption'”of Marbury may be a back-door approach to advocating adoption of the CGJ system,without any explicit acceptance.14 The resemblance of the Taiwanese system and cases in the US system is commonly remarked on,but does Oi really warrant such a comparison?The abolition of the Oi case in 2008 may have been a response to these kinds of possibilities.Oi remained good law for seven years when it was constantly referred to as "China's Marbury."Even after its demise,the case continues to generate discussion about the role of the courts and the constitution.The comparative use of Marbury forms the theoretical heart of this article. 2PRC court rules now allow for the acceptance of certain lower-level Taiwan civil judgments. 民法院关于人民法院认可台湾地区有关法院民事判决的补充规定，Zui gao ren min fa yuan guan yu ren min fa yuan ren ke Taiwan di qu you guan fa yuan min shi pan jue de bu chong gui ding [Supreme People's Court Supplementary Rules on People's Courts'Recognition of Civil Decisions Made by Courts of the Taiwan Region](promulgated by the Judicial Comm.Sup.People's Ct..Mar.30,2009, effective May 14.2009)2009 SUP.PEOPLE's CT.GAZ.112 (P.R.C.). is陈弘毅，齐案“批复"的废止与“宪法司法化"和法院援引宪法问题，法学，Chen Hongyi,Qi an'pi fu'de fei zhi yu 'xian fa si fa hua'he fa yuan yuan yin xian fa wen ti,Fa Xue [Questions Concerning Abolition of Oi's Pifu,Judicialization of Constitution and Citation of Constitution by Courts]LEGAL SCI.MONTHLY,Mar.26,2009,at 11,14. “Se,eg,许章润，多向度的现代汉语文明法律智慧：台湾的法学研究对于祖国大陆同行的影 Xu Zhang Run,duo xiang du de xian dai han yu wen ming fa lu zhi hui-tai wan de fa xue yan jiu dui yu zu guo da lu tong hang de ying xiang [The Multi-Dimensional Legal Knowledge of Modern Chinese Culture-The Influence of Taiwan Jurisprudence on the Lawyers in the Mainland 6 J.CoMP.L.95 (2003)
ROBERT J. MORRIS 4/19/2012 6:38 PM 278 TSINGHUA CHINA LAW REVIEW Vol. 2:273 Interestingly, some PRC legal scholars have viewed this CGJ model as the one which the PRC should adopt and integrate, including the publishing of dissenting opinions, as its judicial model.12 Recently, Professor Chen Hung-yee of the University of Hong Kong, after an extensive review of the procedures and powers of the Taiwan Council of Grand Justices, has written: “In my view, we ought to conduct extensive studies on the theory and practice of how the courts of Taiwan, Germany, and other continental law countries apply constitutional provisions, and through such analysis consider future developments which the courts of our country can follow when citing or applying aspects of the constitution (我认为,我们应 该对台湾地区和德国等大陆法系国家的法院适用宪法条文的理 论和实践作深入的研究，从而思考我国法院未来在援引或适用 宪法方面应走的道路). 13 The seeming “adoption” of Marbury may be a back-door approach to advocating adoption of the CGJ system, without any explicit acceptance.14 12 PRC court rules now allow for the acceptance of certain lower-level Taiwan civil judgments. 最高人 民法院关于人民法院认可台湾地区有关法院民事判决的补充规定, Zui gao ren min fa yuan guan yu ren min fa yuan ren ke Taiwan di qu you guan fa yuan min shi pan jue de bu chong gui ding [Supreme People’s Court Supplementary Rules on People’s Courts’ Recognition of Civil Decisions Made by Courts of the Taiwan Region] (promulgated by the Judicial Comm. Sup. People’s Ct., Mar. 30, 2009, effective May 14, 2009) 2009 SUP. PEOPLE’S CT. GAZ. 112 (P.R.C.). The resemblance of the Taiwanese system and cases in the US system is commonly remarked on, but does Qi really warrant such a comparison? The abolition of the Qi case in 2008 may have been a response to these kinds of possibilities. Qi remained good law for seven years when it was constantly referred to as “China’s Marbury.” Even after its demise, the case continues to generate discussion about the role of the courts and the constitution. The comparative use of Marbury forms the theoretical heart of this article. 13 陈弘毅, 齐案“批复”的废止与“宪法司法化”和法院援引宪法问题, 法学, Chen Hongyi, Qi an ‘pi fu’ de fei zhi yu ‘xian fa si fa hua’ he fa yuan yuan yin xian fa wen ti, Fa Xue [Questions Concerning Abolition of Qi’s Pifu, Judicialization of Constitution and Citation of Constitution by Courts] LEGAL SCI. MONTHLY, Mar. 26, 2009, at 11, 14. 14 See, e.g., 许章润, 多向度的现代汉语文明法律智慧: 台湾的法学研究对于祖国大陆同行的影 响, Xu Zhang Run, duo xiang du de xian dai han yu wen ming fa lu zhi hui-tai wan de fa xue yan jiu dui yu zu guo da lu tong hang de ying xiang [The Multi-Dimensional Legal Knowledge of Modern Chinese Culture—The Influence of Taiwan Jurisprudence on the Lawyers in the Mainland] 6 J. COMP. L. 95 (2003)
ROBERT J.MORRIS 4/19/20126:38PM 2010 CHINA'S MARBURY 279 A.Historical and Theoretical Background Is the 1982 PRC Constitution justiciable,and does the SPC have the authority to interpret it?Under the PRC system,the courts have,or are supposed to have,no power to adjudicate the Constitution if any interpretation is required.15 If it were to be interpreted at all,like statutes and administrative rules,such interpretation would be the sole province of the law's creator,the National People's Congress (NPC)and its Standing Committee (NPCSC).16 Indeed,the word "interpretation"itself is contested and problematic.7 The advent of the icase further problematized the matter because the SPC took upon itself the authority to construe and apply the PRC Constitution in deciding a case by answering a query from a lower court.It can be argued that the Court's strategy was not necessary to the case itself nor to assisting the Plaintiff in achieving her petition.Full statutory grounds were available in what was essentially nothing more than a personal injury(tort)case, yet the SPC undertook a constitutional analysis that,without saying it in so many words,took to the Court a jurisdiction expressly denied it in the Constitution.Depending upon one's view,this may have lent greater legitimacy or illegitimacy to the SPC in the debates that have ensued.18 i5 See UNDERSTANDING CHINA'S LEGAL SYSTEM:ESSAYS IN HONOR OF JEROME A.COHEN(C.Stephen Hsu ed.,2003)(courts of the "greater China"area);CoNFUCIAN DEMOCRACY,WHY AND How: PROCEEDINGS OF THE FIRST INTERNATIONAL CONFERENCE ON LIBERAL,SOCIAL AND CONFUCIAN DEMOCRACY (Hahm Chaibong et al.eds.,2000)(comparing "Asian democracy");CONFUCIANISM FOR THE MODERN WORLD(Daniel A.Bell Hahm Chaibong eds.,2003)(comparing "Asian democracy"); Jack N.Rakove,The Origins of Judicial Review:A Plea for New Contexts,49 STAN.L.REV.1031 (1997)(federalism);see generally NANPING LIU,OPINIONS OF THE SUPREME PEOPLE'S COURT: JUDICIAL INTERPRETATION IN CHINA(1997)(background and overview of Chinese legal system);POH- LING TAN,ASIAN LEGAL SYSTEMS:LAW,SOCIETY AND PLURALISM IN EAST ASIA (1997)(comparative overview of legal systems and contexts). See Kong Xiaohong,Legal Interpretation in China,6 Conn.J.Int'l L491(1991). ”蒲海涛和杨平，“齐玉苓案”涉及的若干问题（其后果却可能削弱宪法制约因家权力的核心功能， 冲淡基本权利的公法性)，Pu Haitao&Yang Ping,“qi yu ling an”she ji de ruo gan wen ti[Some Ouestions Regarding the "Oi Yuling Case"]23 SCI.ECON.SoC'Y 93 (2005).The authors neatly problematize a key idea through a kind of word-play:judicialization (and privatization/personalization (of the law-both phrases pronounced exactly the same. Qianfan Zhang.The People's Court in Transition:The Prospects of the Chinese Judicial Reform,12 J.CONTEMP.CHINA 69(2003)(providing an overview of the SPC in the present era);see also Liu. Opinions,supra note 15 Anthony R.Dicks,The Law-Making Functions of the Chinese Judiciary: Filling Holes in the Civil Law,in Comparative Law in Global Perspective:Essays in Celebration of the Fiftieth Anniversary of the Founding of the SOAS Law Department (Ian Edge ed.,Transnational Publishers,2000)
ROBERT J. MORRIS 4/19/2012 6:38 PM 2010 CHINA’S MARBURY 279 A. Historical and Theoretical Background Is the 1982 PRC Constitution justiciable, and does the SPC have the authority to interpret it? Under the PRC system, the courts have, or are supposed to have, no power to adjudicate the Constitution if any interpretation is required.15 If it were to be interpreted at all, like statutes and administrative rules, such interpretation would be the sole province of the law’s creator, the National People’s Congress (NPC) and its Standing Committee (NPCSC).16 Indeed, the word “interpretation” itself is contested and problematic.17 The advent of the Qi case further problematized the matter because the SPC took upon itself the authority to construe and apply the PRC Constitution in deciding a case by answering a query from a lower court. It can be argued that the Court’s strategy was not necessary to the case itself nor to assisting the Plaintiff in achieving her petition. Full statutory grounds were available in what was essentially nothing more than a personal injury (tort) case, yet the SPC undertook a constitutional analysis that, without saying it in so many words, took to the Court a jurisdiction expressly denied it in the Constitution. Depending upon one’s view, this may have lent greater legitimacy or illegitimacy to the SPC in the debates that have ensued.18 15 See UNDERSTANDING CHINA’S LEGAL SYSTEM: ESSAYS IN HONOR OF JEROME A. COHEN (C. Stephen Hsu ed., 2003) (courts of the “greater China” area); CONFUCIAN DEMOCRACY, WHY AND HOW: PROCEEDINGS OF THE FIRST INTERNATIONAL CONFERENCE ON LIBERAL, SOCIAL AND CONFUCIAN DEMOCRACY (Hahm Chaibong et al. eds., 2000) (comparing “Asian democracy”); CONFUCIANISM FOR THE MODERN WORLD (Daniel A. Bell & Hahm Chaibong eds., 2003) (comparing “Asian democracy”); Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031 (1997) (federalism); see generally NANPING LIU, OPINIONS OF THE SUPREME PEOPLE’S COURT: JUDICIAL INTERPRETATION IN CHINA (1997) (background and overview of Chinese legal system); POHLING TAN, ASIAN LEGAL SYSTEMS: LAW, SOCIETY AND PLURALISM IN EAST ASIA (1997) (comparative overview of legal systems and contexts). 16 See Kong Xiaohong, Legal Interpretation in China, 6 Conn. J. Int’l L. 491 (1991). 17 蒲海涛和杨平, “齐玉苓案”涉及的若干问题 (其后果却可能削弱宪法制约国家权力的核心功能, 冲淡基本权利的公法性), Pu Haitao & Yang Ping, “qi yu ling an” she ji de ruo gan wen ti [Some Questions Regarding the “Qi Yuling Case”] 23 SCI. & ECON. & SOC’Y 93 (2005). The authors neatly problematize a key idea through a kind of word-play: judicialization ( 司法化 ) and privatization/personalization (私法化) of the law—both phrases pronounced exactly the same. 18 Qianfan Zhang, The People’s Court in Transition: The Prospects of the Chinese Judicial Reform, 12 J. CONTEMP. CHINA 69 (2003) (providing an overview of the SPC in the present era); see also Liu, Opinions, supra note 15 ; Anthony R. Dicks, The Law-Making Functions of the Chinese Judiciary: Filling Holes in the Civil Law, in Comparative Law in Global Perspective: Essays in Celebration of the Fiftieth Anniversary of the Founding of the SOAS Law Department (Ian Edge ed., Transnational Publishers, 2000)
ROBERT J.MORRIS 4/19/20126:38PM 280 TSINGHUA CHINA LAW REVIEW Vol.2:273 All documents and decisions of the SPC are published officially in the Gazette of the Supreme People's Court of the People's Republic of China(中华人民共和国最高人民法院公报)，which is issued six times a year and cumulated in a single bound volume once a year.They are not intended to carry the weight of precedent (as in common-law stare decisis)or the force of command or coercion that decisions of common-law courts do and that Interpretations of Taiwan's CGJ now do.The SPC does not(or is not supposed to) issue constitutional interpretations一to“say what the law is'”一the famous dictum of Marbury.The 2001 SPC bound volume of the Gazette contains the Qi decision.20 PRC courts are required to look to the NPC and NPCSC for decisions on the constitutionality of the law,including the adjudication of administrative rules and decisions.This arises out of several provisions of the 1982 Constitution.Article 62 of the Constitution provides that the NPC has the "power to supervise the enforcement of the Constitution."Article 67 provides that the NPC's Standing Committee has the "power to interpret the Constitution and supervise its enforcement(解释宪法，监督宪法的 实施)，to enact and amend laws(制定和修改法律..)，and to interpret laws(解释法律).”None of the above powers are given to the courts.Therefore,those functions cannot be labelled under "judicial review,"as described in common-law jurisdictions.The courts may conduct some form of"review,"but this activity cannot See Nanping Liu,Legal Precedentswith Chinese Characteristics:Published Cases in the Gaete of the Supreme People's Court,1(5)ZHONG GUO FA YAN JIU XUE KAN [Journal of Chinese Law]107 (1991).Indeed,one of the maneuvers of the SPC in the Qi case,as we shall see,was to cite several "precedents"without declaring them to be precedents.See Chris X.Lin,A Ouiet Revolution:An Overview of China's Judicial Reform,4 ASIAN-PAC.L.POL'Y J.255,313 (2003);Zhang Zhanyi,A Discussion of Communicative Culture,23 CLTA J.107 (1988);Series Introduction,Contract,Guanxi and Dispute Resolution in China (Tahirih V.Lee ed.,Garland Publishing,1997);Paul Gewirtz, Independence and Accountability of Courts,24 GLOBAL L.REV.7 (2002),Approaches to Constitutional Interpretation:Comparative Constitutionalism and Chinese Characteristics,31 HK L.J.200(2001). The seminal article,with much that is still true and relevant,is Jerome Alan Cohen,The Chinese Communist Party and Judicial Independence':1949-1959,82 HARV.L.REV.967 (1969). 2 An English translation of the case may be read at Huiping ller (trans),Qi Yuling v.Chen Xiaogietal. 39 CHINESE EDUC SOC'Y 58-74 (2006). 2Pitman B.Potter,Globalication and Economic Regulation in China:Selective Adaptation of Globalized Norms and Practices,2 WASH.U.GLOBAL STUD.L.REV.119,138-39 (2003)(notes 87 through 100 and accompanying text)
ROBERT J. MORRIS 4/19/2012 6:38 PM 280 TSINGHUA CHINA LAW REVIEW Vol. 2:273 All documents and decisions of the SPC are published officially in the Gazette of the Supreme People’s Court of the People’s Republic of China (中华人民共和国最高人民法院公报), which is issued six times a year and cumulated in a single bound volume once a year. They are not intended to carry the weight of precedent (as in common-law stare decisis) or the force of command or coercion that decisions of common-law courts do and that Interpretations of Taiwan’s CGJ now do.19 The SPC does not (or is not supposed to) issue constitutional interpretations — to “say what the law is” — the famous dictum of Marbury. The 2001 SPC bound volume of the Gazette contains the Qi decision.20 PRC courts are required to look to the NPC and NPCSC for decisions on the constitutionality of the law, including the adjudication of administrative rules and decisions.21 19 See Nanping Liu, ‘Legal Precedents’ with Chinese Characteristics: Published Cases in the Gazette of the Supreme People’s Court, 1(5) ZHONG GUO FA YAN JIU XUE KAN [Journal of Chinese Law] 107 (1991). Indeed, one of the maneuvers of the SPC in the Qi case, as we shall see, was to cite several “precedents” without declaring them to be precedents. See Chris X. Lin, A Quiet Revolution: An Overview of China’s Judicial Reform, 4 ASIAN-PAC. L. & POL’Y J. 255, 313 (2003); Zhang Zhanyi, A Discussion of Communicative Culture, 23 CLTA J. 107 (1988); Series Introduction, Contract, Guanxi, and Dispute Resolution in China (Tahirih V. Lee ed., Garland Publishing, 1997); Paul Gewirtz, Independence and Accountability of Courts, 24 GLOBAL L. REV. 7 (2002); Approaches to Constitutional Interpretation: Comparative Constitutionalism and Chinese Characteristics, 31 HK L. J. 200 (2001). The seminal article, with much that is still true and relevant, is Jerome Alan Cohen, The Chinese Communist Party and ‘Judicial Independence’: 1949-1959, 82 HARV. L. REV. 967 (1969). This arises out of several provisions of the 1982 Constitution. Article 62 of the Constitution provides that the NPC has the “power to supervise the enforcement of the Constitution.” Article 67 provides that the NPC’s Standing Committee has the “power to interpret the Constitution and supervise its enforcement (解释宪法，监督宪法的 实施), to enact and amend laws (制定和修改…法律….), and to interpret laws (解释法律).” None of the above powers are given to the courts. Therefore, those functions cannot be labelled under “judicial review,” as described in common-law jurisdictions. The courts may conduct some form of “review,” but this activity cannot 20 An English translation of the case may be read at Huiping Iler (trans), Qi Yuling v. Chen Xiaoqi et al. 39 CHINESE EDUC & SOC’Y 58-74 (2006). 21 Pitman B. Potter, Globalization and Economic Regulation in China: Selective Adaptation of Globalized Norms and Practices, 2 WASH. U. GLOBAL STUD. L. REV. 119, 138-39 (2003) (notes 87 through 100 and accompanying text)
ROBERT J.MORRIS 4/19/20126:38PM 2010 CHINA'S MARBURY 281 be considered as "judicial review."This is,or has been,perceived as the outer limit of judicial involvement with the Constitution- until the Oi case. II.QIYULING V.CHEN ET AL.-A PRECIS Plaintiff,Qi Yuling(齐玉苓)，wasa28year-old female living in Shandong Province.Defendant,Chen Xiaoqi(陈晓琪)，also28, was of the same province.They graduated the same year.Their facial features were obviously different.In their examinations of 1990,Qi did well but Chen did not and so lost the opportunity for further educational advancement.In order to continue in school at the next level,she fraudulently got hold of Plaintiff Qi's notice of admission.Chen's father,also a defendant,assisted her in falsifying a photograph and helping her make the switch of place and identity.When she presented the document at the school,she did not take along evidence of the examination.Nevertheless,by using Plaintiffs name and identity,she was admitted and began her studies.In 1993,after pretending to be the Plaintiff for three years, Chen graduated and got a job-an expected consequence of her education.Other defendants(the school,school officials,etc.)were complicit,either knowingly or negligently,in this identity fraud. The school in question was a vocational business school. The lower Shandong court held that under the "general rule of the civil law,"which protects the right of name,another person was prohibited from "interfering with,falsifying,or passing oneself off as"the name or identity of another.It is significant that this reference was to a rule or statute,not the PRC Constitution.The difficulty for the lower court was that the General Principles of the Civil Law of the People's Republic of China does not explicitly provide the civil right to receive education.Section 4 of Chapter 5 of the General Principles does provide for rights to personal name, reputation,and honor,and this may be part of the "evolving concept of a right to privacy in Chinese law."22 However,Article 9,Section 2Shen Kui,Is It the Beginming of the Era of the Rule of the Constitution?Reinterpreting China'sFirst Constitutional Case',12 PAC.RIM L.POL'Y J.199,216 (2003)
ROBERT J. MORRIS 4/19/2012 6:38 PM 2010 CHINA’S MARBURY 281 be considered as “judicial review.” This is, or has been, perceived as the outer limit of judicial involvement with the Constitution — until the Qi case. II. QIYULING V. CHEN ET AL.—A PRÉCIS Plaintiff, Qi Yuling (齐玉苓), was a 28 year-old female living in Shandong Province. Defendant, Chen Xiaoqi (陈晓琪), also 28, was of the same province. They graduated the same year. Their facial features were obviously different. In their examinations of 1990, Qi did well but Chen did not and so lost the opportunity for further educational advancement. In order to continue in school at the next level, she fraudulently got hold of Plaintiff Qi’s notice of admission. Chen’s father, also a defendant, assisted her in falsifying a photograph and helping her make the switch of place and identity. When she presented the document at the school, she did not take along evidence of the examination. Nevertheless, by using Plaintiff’s name and identity, she was admitted and began her studies. In 1993, after pretending to be the Plaintiff for three years, Chen graduated and got a job — an expected consequence of her education. Other defendants (the school, school officials, etc.) were complicit, either knowingly or negligently, in this identity fraud. The school in question was a vocational business school. The lower Shandong court held that under the “general rule of the civil law,” which protects the right of name, another person was prohibited from “interfering with, falsifying, or passing oneself off as” the name or identity of another. It is significant that this reference was to a rule or statute, not the PRC Constitution. The difficulty for the lower court was that the General Principles of the Civil Law of the People’s Republic of China does not explicitly provide the civil right to receive education. Section 4 of Chapter 5 of the General Principles does provide for rights to personal name, reputation, and honor, and this may be part of the “evolving concept of a right to privacy in Chinese law.”22 22 Shen Kui, Is It the Beginning of the Era of the Rule of the Constitution? Reinterpreting China’s ‘First Constitutional Case’, 12 PAC. RIM L. & POL’Y J. 199, 216 (2003). However, Article 9, Section
ROBERT J.MORRIS 4/19/20126:38PM 282 TSINGHUA CHINA LAW REVIEW Vol.2:273 L,of the Education Law(教育法)，the more specific statute,provides that every citizen "has the duty as well as the right to receive education,"and Article 81 provides for civil liability for anyone who infringes such right23-two facts that have gone surprisingly unremarked in much of the literature on Oi,including the trial and appellate court documents.24 Despite judgment in her favor,plaintiff was not satisfied.She filed an appeal in the Shandong Higher People's Court.The primary basis of this appeal was that the mental suffering caused by Defendant Chen was so severe.The appeal also rested on a difference in the regulations and policies regarding the need for a letter of introduction and other matters affecting the identification process for students.The defendants-appellees'concerted actions, she alleged,had deprived her of her right to education and caused her to forfeit a series of related rights and benefits as a result.The original judgment,she alleged,denied the full damages for her infringed educational rights and was therefore in error.She asked the appellate court to increase the monetary awards,primarily for mental distress.The response of the appellee father was that indeed,he had helped his daughter set up the trickery,and his daughter had gained the advantage of it,but this in fact had not violated plaintiff's express intent that she "was not prepared"to attend the school.He added that although they may have violated plaintiffs general right to education,they had nevertheless not violated her right to secondary or higher education,and that therefore she was not entitled to greater damages for mental distress. The appellee school replied that the damages plaintiff had suffered to her reputation were entirely due to the elaborate scheme. fabrication,and the materials of altered records of the father and daughter.The school alleged that there was no proof of its knowledge or complicity in any actions that may have caused plaintiffs mental anguish.After reviewing and augmenting the facts of the case,the appellate court noted that the case consisted in a "knotty question of the application of the law"because under Section 23教育法，Jiao yu fa[Education Law](promulgated by the Standing Comm.Nat'I People's Cong,. Mar.18,1995,effective Sep.1,1995),available at ww.nuaa.edu.cen/xcb_web/law_study/jiaoyufa.htm(last visited Sep.24,005)(P.R.C.). This singular omission deserves further study and comment,but is beyond the scope of this article
ROBERT J. MORRIS 4/19/2012 6:38 PM 282 TSINGHUA CHINA LAW REVIEW Vol. 2:273 1, of the Education Law (教育法), the more specific statute, provides that every citizen “has the duty as well as the right to receive education,” and Article 81 provides for civil liability for anyone who infringes such right 23 — two facts that have gone surprisingly unremarked in much of the literature on Qi, including the trial and appellate court documents.24 Despite judgment in her favor, plaintiff was not satisfied. She filed an appeal in the Shandong Higher People’s Court. The primary basis of this appeal was that the mental suffering caused by Defendant Chen was so severe. The appeal also rested on a difference in the regulations and policies regarding the need for a letter of introduction and other matters affecting the identification process for students. The defendants-appellees’ concerted actions, she alleged, had deprived her of her right to education and caused her to forfeit a series of related rights and benefits as a result. The original judgment, she alleged, denied the full damages for her infringed educational rights and was therefore in error. She asked the appellate court to increase the monetary awards, primarily for mental distress. The response of the appellee father was that indeed, he had helped his daughter set up the trickery, and his daughter had gained the advantage of it, but this in fact had not violated plaintiff’s express intent that she “was not prepared” to attend the school. He added that although they may have violated plaintiff’s general right to education, they had nevertheless not violated her right to secondary or higher education, and that therefore she was not entitled to greater damages for mental distress. The appellee school replied that the damages plaintiff had suffered to her reputation were entirely due to the elaborate scheme, fabrication, and the materials of altered records of the father and daughter. The school alleged that there was no proof of its knowledge or complicity in any actions that may have caused plaintiff’s mental anguish. After reviewing and augmenting the facts of the case, the appellate court noted that the case consisted in a “knotty question of the application of the law” because under Section 23 教育法, Jiao yu fa [Education Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 18, 1995, effective Sep. 1, 1995), available at www.nuaa.edu.cn/xcb_web/law_study/jiaoyufa.htm (last visited Sep. 24, 2005) (P.R.C.). 24 This singular omission deserves further study and comment, but is beyond the scope of this article