The Hot Blood Still Flows Within

On November 19, 2023, while riding my bicycle on a Beijing road, I was in a car accident that nearly cost me my life. After learning of it, a classmate from my first year of high school invited my cousin to rush to the hospital to see me. He was deeply saddened and told my cousin that he would be forever grateful to me, and that good people ought not to go unrewarded. He told my cousin that, back in our first year of high school, he had injured his leg; although other classmates expressed sympathy, no one looked after him. At the time, only I spared no effort carrying him up and down, and he has never forgotten it.

In fact, I have forgotten even this classmate's name, let alone remember the incident. But what he described does fit my character. In middle and high school I was class monitor most of the time, also president of the student union and a kind of spiritual leader among students. My middle-school headmaster said bluntly that wherever I went in life I would likely become a leader of some influence. I always actively helped every classmate in need, and I was involved in many of the things that happened at our school.

On July 2nd, my traffic-accident compensation dispute was heard at the Haidian District Court; no verdict was delivered in court, and the judge chose to announce judgment at a later date. After this accident, my emergency-room visit, suturing, and follow-up treatment cost over 14,000 yuan. To date, despite repeated demands, the other party and their insurer have not paid me a cent of medical costs—yet they were the first to sue, claiming repair costs from me. Because the traffic police apportioned shared responsibility for the accident, the other side believes I owe them compensation for their car repair and has come after me for it first.

I have studied similar judgments, and the viewpoints of courts nationwide fall roughly into two camps.

One camp, citing Article 1208 of the Civil Code—"Where a motor vehicle causes damage in a traffic accident, liability for compensation shall be borne in accordance with road-traffic-safety laws and the relevant provisions of this Law"—and Article 76 of the Road Traffic Safety Law, rules that non-motor-vehicle users have no statutory duty to compensate the motor vehicle's damage, thereby reflecting the humane and civilized side of our law. Article 76 provides: where a motor vehicle causes personal injury or property damage in a traffic accident, the insurer shall compensate within the limits of compulsory third-party liability insurance; the shortfall is borne as follows: (1) between motor vehicles, the at-fault party bears compensation; if both are at fault, responsibility is shared in proportion to each side's fault; (2) between a motor vehicle and a non-motor-vehicle driver or pedestrian, if the non-motor-vehicle driver or pedestrian is not at fault, the motor-vehicle side compensates; if fault on the part of the non-motor-vehicle driver or pedestrian is proven, the motor-vehicle side's compensation is appropriately reduced according to the degree of fault; if the motor-vehicle side is not at fault, it bears no more than ten percent liability. Where the loss is caused intentionally by a non-motor-vehicle driver or pedestrian colliding with the motor vehicle, the motor-vehicle side bears no liability.

Because in traffic accidents a motor vehicle poses far greater harm to a non-motor vehicle, the principle of "danger burden on the superior party" requires that vulnerable non-motor-vehicle users or pedestrians be given protection in motor-vehicle-versus-non-motor-vehicle or pedestrian accidents. Many provinces and municipalities in China apply this principle, including Shanghai, Guangdong, Tianjin, Henan, and Hebei.

The other camp, citing Article 60 of the Insurance Law, supports the insurer exercising subrogation against non-motor-vehicle users and pedestrians, treating them on an equal footing with motor vehicles. The party bearing primary responsibility pays 70%, the party bearing secondary responsibility pays 30%; equal responsibility means 50% each; full responsibility means 100%. Municipalities and provinces applying this principle include Beijing, Chongqing, Inner Mongolia, and Liaoning.

This has produced two utterly different outcomes in disputes over accidents between motor vehicles and non-motor vehicles or pedestrians. In Shanghai, Tianjin, Guangdong, Henan, and Hebei, the non-motor-vehicle or pedestrian side is not required to compensate the motor vehicle's damage, and the responsibility apportioned in the accident report is instead reflected by reducing the motor vehicle's compensation to the non-motor-vehicle side. In Beijing, Chongqing, Liaoning, and Inner Mongolia, by contrast, a responsible non-motor-vehicle user must compensate the motor vehicle's loss.

I happen to live in Beijing, where, by convention, I was bound to lose this case; my lawyer and judge friends in Beijing all advised me to give up. To be honest, I did not want to waste time and energy and planned to pay for a lesson, because an individual can hardly change a region's judicial practice through personal effort.

But our country happened to issue the "Supreme People's Court Measures for Implementing Uniform Application of Law" in 2021, calling on judges everywhere to "retrieve similar cases and judge like cases alike." The purpose of this regulation was precisely to rectify the judicial chaos in which identical cases are judged in opposite ways across the country. Localities going their own way had created room for rent-seeking by corrupt judicial officials and bred widespread public grievance. When the same case is judged completely differently, the losing party naturally feels wronged, and many people across the country have indeed cried out for justice over this.

In early 2021, the Central Political and Legal Affairs Commission listed "improving the mechanism for uniform application of law" among the ten key reform tasks of the political-legal domain for 2021, specifying that the Supreme People's Court should take the lead, focusing on concrete problems in adjudication—especially inconsistent views on the application of law and uneven standards among the Supreme Court's own tribunals and among courts nationwide.

So from this angle, my lawsuit was not a foregone loss. I wrote my defense from this standpoint, and it evidently put the presiding judge in a dilemma. By convention she should refer to Beijing's prior judgments and order me to pay the other side's repair bill. But under the new national Measures, once I raised the request for similar-case retrieval and like-case adjudication, she could not lightly rule against me. That is why she could not deliver a verdict on the spot and had to think carefully and announce judgment on a later date.

My Beijing legal friends still poured cold water, telling me not to expect anything: Beijing judges are not that idealistic, and following old conventions is the lowest-risk course for them. But a few friends urged me to persist, because—like me at the outset—they believe that winning this case would overturn Beijing's habitual rulings in such matters, securing what vulnerable parties deserve not only for me but for all similar claimants in the future—a public service of "one generation plants the trees, the next enjoys the shade."

In our view, the very reason Article 76 of the Road Traffic Safety Law treats motor-vehicle-vs-motor-vehicle accidents differently from motor-vehicle-vs-non-motor-vehicle or pedestrian accidents is to protect the vulnerable party on the road, reflecting the law's humanity and civilization. I personally can afford the repair bill, but future, poorer, more vulnerable pedestrians or non-motor-vehicle owners in similar situations may be ruined—injured and impoverished—just to pay a motor vehicle's repair costs. So if I persist in this lawsuit and even promote, nationwide, the uniform adjudication of like cases—just as I once pushed the State Council to abolish the urban detention regulations—persuading localities to apply Article 76 as Shanghai does, I would benefit many people.

But lawsuits are truly exhausting. This is the first lawsuit of my life, and I pray it is the last. My friends in Beijing's judicial system all urge me to surrender, take a small loss, settle early, and get on with what I should be doing. When I am weary, I think the same way, because paying a bit of a repair bill will not damage me much. I have more important things to do; my life's goal is to keep exploring the deep waters of the life sciences and, for future patients like my mother, to seek a path to survival.

Yet when I saw on China Judgements Online that especially disadvantaged people have met the same judgment, pity was hard to contain, along with a deep loathing for this intractable "psoriasis" of like cases judged differently. It makes our law like a girl anyone can dress up—open to arbitrary interpretation—and that overly flexible discretion can be exploited by corrupt officials for private gain, leaving our people with a poor sense of the rule of law despite having laws on the books.

I had never before touched this field, nor had I been able to feel for those suffering from like-case divergence. As a child I actually held the ideal that "the highest physician governs the nation," hoping to improve our society. From seventh grade I stood out: I loathed every injustice at school, and where others feared to intervene, I stepped forward fearlessly, at personal risk. Precisely because of this trait, at whatever school I arrived, within a short time classmates and teachers would elect me class monitor and student-union president.

Facing the prospect of like-case divergence myself, my instinct was to stand up and cry out, pushing for implementation of the Supreme People's Court Measures and advancing our judicial progress. Because I have this ability (though it may not succeed in the end, I believe it will play some part), while many people do not—they cannot even afford to write a petition, let alone build public support on opinion platforms.

These past few days I have been torn; two sets of thoughts struggle in my mind, wanting to give up and wanting to push on. In the end I chose, without unduly harming my studies and career, to make a moderate effort—within the procedural rights the law gives me—to change Beijing's past adjudicative habits, answer the Party's call, and promote the retrieval of similar cases and uniform adjudication nationwide. But this is destined to be an arduous litigation marathon, perhaps running through first instance, second instance, appeal, and protest—each round consuming much energy. Because every time I litigate, I put the presiding judge or prosecutor in a difficult position; they have their own pressures, and following local convention is the lowest-risk course for them.

The reason I choose this is that all of us may face the same problem on the road—especially our elderly and children. Following the conventions of Beijing, Chongqing, Inner Mongolia, and Liaoning would be a cold-blooded social Darwinism in this matter, which by today's world standards is backward legal practice.

Today I face the same situation Sun Zhigang faced when he died over the urban detention regulations: unreasonable legal rules and judicial conventions produce many tragedies. Improving social rules in small ways can also save lives and save families; this is the concrete expression of the "great physician governs the nation" ideal in real life. After the Sun Zhigang case, as a stranger to him, I dared to stand up and cry out, and played some part in advancing social progress. Today, why should I now flee out of weariness?

Social progress depends on the joint effort of every individual. Four years ago, when my son took his high-school entrance exam, I said to him on the way: "Son, study hard, and if you get the chance, go abroad and live a more comfortable life in a developed country." My son replied: "Dad, this is our home. Why should I not stay here and work to improve our society and the lives of our fellow citizens?" That retort shamed me deeply. A parent's love wants one's child to live more comfortably, yet my child harbored the same dream I had in my youth—to advance social progress and build our homeland.

I am now forty-five. As a father, I often wonder: what can I do to improve the lot of our descendants, of the next generation by the millions? In fact the ancients already gave us the answer: "Do not refrain from a good deed merely because it is small." Start with small things; a small matter looks tiny, yet it may affect many people and the whole social environment.

When I joined the Sun Zhigang case, I acted out of indignation, never imagining what change would result. But the outcome was quite beautiful. Today, young people going out to work no longer have to live like thieves, trembling on their own country's soil as my generation did—afraid, without a temporary residence permit (and in very tense times even with one it was useless, because patrol guards would tear it up and treat us as vagrants).

I remain deeply proud that I did not stand aside then. Compared with the great majority who swallow their anger and accomplish nothing, I at least did something for social progress. Liang Qichao wrote that he had "drunk ice for ten years, yet the hot blood would not cool," and that "in a thousand-year dark room, a single lamp brings light." Hot blood is a person's nature; ten years of drinking ice will not cool it, and I fear a lifetime of it would not either. Many dark social ills, if only one person persists, can be greatly transformed—achieving that "single lamp in a thousand-year dark room."

This litigation marathon may last two or three years or longer, but I have already set my mind at peace and am ready to coexist with it alongside my studies and work. Perhaps fate chose me for this task, to let me contribute to pushing this reform. Ten or twenty years from now, looking back, I may feel as proud as I do now recalling my part in the Sun Zhigang case and the abolition of the urban detention regulations. Because once this mentally and intellectually demanding good deed succeeds, it will surely benefit countless people.