Administrative law in China
Administrative law in|
common law jurisdictions
Administrative law in|
civil law jurisdictions
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Administrative law in China was virtually non-existent before the economic reform era. Since the 1980s, China has constructed a new legal framework for administrative law, establishing control mechanisms for overseeing the bureaucracy and disciplinary committees for the Communist Party of China. However, many have argued that the usefulness of these laws are vastly inferior in terms of controlling government actions, largely because of institutional and systemic obstacles like a weak judiciary, poorly trained judges and lawyers, and corruption.
During the late 1970s and early 1980s, economic reforms called for an expansive role for government, and little attention was paid to administrative law. The 1982 Constitution contained provisions regarded administrative procedures, compensation, and the right to sue. As the Constitution is not directly justiciable, between 1982 and 1988, there were more than 130 implementing laws and regulations which provided for administrative litigation in specific instances. By the end of 1988, the Supreme People's Court had established an administrative law division and more than 1400 local courts had created administrative panels to hear administrative cases.
In 1987, drafting of an Administrative Procedure Law (行政诉讼法) began. The ALL was passed in 1989 and went into effect on 1 October 1990. This law made it possible for individuals to bring a case against the administration and also laid down the relevant criteria and procedures for administrative litigation.
The pace of administrative law legislation increased in the 1990s. In 1990, the Administrative Supervision Regulations (行政监察条例) and the Administrative Reconsideration Regulations (行政复议条例) were passed. Both regulations have since been amended and upgraded into laws. The 1993 State Civil Servant Provisional Regulations (国家公务员暂行条例) changed the way government officials were selected and promoted, requiring that they pass exams and yearly appraisals, and introduced a rotation system. In 1994, the State Compensation Law (国家赔偿法) was passed, followed by the Administrative Penalties Law (行政处罚法) in 1996.
The Administrative Procedure Law (APL) also known as the Administrative Litigation Law (ALL) allows parties to bring suit when their lawful rights and interests are infringed by a specific administrative act of an administrative organ or its personnel.
The rights and obligations of the parties involved in an administrative litigation in China are important for realizing the targets, to protect the individuals’ rights and to limit the public powers set up by the Administrative Procedure Law, 1989. According to the law in China, a plaintiff refers to an individual, a legal person or other lawful organizations, whose rights have been directly affected by a defendant, viz. a public authority or its employee exercising public powers. This position has, however, experienced reformation and expansion by the Supreme People’s Court’s interpretation of law and the introduction of public interest litigation. A plaintiff is now guaranteed the right of access to a court, right to counsel, right to motion for conflict out, etc. These rights are to be exercised lawfully and should comply with the rules and instructions laid down by the courts. Since all the parties are equal before law, a defendant or a third person is guaranteed similar rights and also subject to similar obligations. A few differences, however, exist among them as well.
Several Chinese dissidents have invoked administrative law. In 1991, Guo Ruoji, formerly a professor at Nanjing University, sued the Communist Party committee of his university for stripping him of his professorship and banning him from travelling abroad. Both the Nanjing Intermediate Court and the Jiangsu Provincial Supreme People's Court ruled against Guo, on the grounds that acts of the Communist Party of China is not an administrative organ. Several other dissidents filed similar lawsuits against the government and the CPC. In 1993, Yuan Hongbing, a professor at Renmin University in Beijing, sued the university's CPC committee for banning a book he had edited, The Tide of History, which attacked leftist orthodox views. In 1998, Li Weiping, a Wuhan-based dissident, used the administrative law to sue the head of the city's Public Security Bureau for the seizure of his passport.
Administrative reconsideration (review)
Administrative reconsideration offers a number of advantages over litigation under the Administrative Litigation Law. First, administrative reconsideration is free of charge. Second, administrative reconsideration bodies may consider both the legality and appropriateness of administrative decisions. Third, Parties may challenge not only the specific act, but in some cases the abstract act on which it is based.
In 1986 the Ministry of Supervision was restored, and in 1993 it was merged with the CPC Discipline Committee system. In 1990, the State Council passed the Administrative Supervision Regulations, which were subsequently amended and upgraded to a law in 1997.
The ministry and its subordinate bodies function somewhat like ombudsmen in other jurisdictions. Supervisory organs are charged with overseeing government and administrative officials and their appointed personnel. Whereas courts are generally limited to examining the legality of administrative acts, supervision organs may look into the appropriateness of administrative decisions. Supervisory organs may conduct discovery on administrative departments and officials, issue injunctions to cease acts in violation of law or disciplinary rules, temporarily remove or seal evidence, among other powers.
- Constitution of the People's Republic of China, Article 41 (1982).
- Lin Feng, Administrative Law: Procedures and Remedies in China (Hong Kong: Sweet & Maxwell, 1996) at 8–9.
- Lin, note 2 at 116.
- APL, Article 2.
- Jianlong, Liu (April 1, 2011). "ADMINISTRATIVE LITIGATION IN CHINA: PARTIES AND THEIR RIGHTS AND OBLIGATIONS" (PDF). NUJS Law Review. Retrieved January 3, 2015.[permanent dead link]
- Administrative Reconsideration Law, Article 39.
- ARL, Article 3(3).
- ARL, Article 7.