What kind of petition may applicants file before administrative courts? May applicants only request the invalidation of an administrative act? May administrative courts rule on compensatory claims?
Article 49.3 of the Administrative Procedure Law of the People’s Republic of China provides that administrative proceedings shall be initiated “with specific claims”. According to the provisions of the judicial interpretation, the parties can make a wide range of litigation requests, such as forming litigation, paying litigation, confirming litigation, reviewing normative documents, and hearing civil disputes together. Moreover, Article 68.1 of the Interpretation of the Supreme People’s Court on the Application of the Administrative Procedure Law of the People’s Republic of China provides, “There is a ‘specific lawsuit request’, as stipulated in Article 49.3 of the Administrative Procedure Law, which refers to: (1) requesting the judgment to be revoked or the administrative act to be changed; (2) requesting the administrative organ to perform certain statutory duties or payment obligations; (3) requesting a judgment to confirm that the administrative act is illegal; (4) requesting the judgment to confirm the invalidity of the administrative act; (5) requesting the administrative organ to award compensation; (6) requesting the settlement of disputes over administrative agreements; (7) requesting to review the following regulatory documents together; (8) requesting the relevant civil disputes to be resolved together; or (9) other claims.”
It is noteworthy that the plaintiff may only apply for the confirmation of the administrative act’s invalidity, and the people’s court shall deal with it separately according to different situations. At the same time, Article 94.2 of the Interpretation of the Supreme People’s Court on the Application of the Administrative Procedure Law of the People’s Republic of China provides, “If a citizen, juridical person, or any other organization files a lawsuit to confirm the invalidity of an administrative act, which the people’s court considers that the administrative act does not fall under the invalid situation and the plaintiff requests cancellation of the administrative act as explained, the people’s court shall continue the hearing and make a corresponding judgment under the law. If the plaintiff requests to cancel the administrative act but exceeds the legal time limit for filing a lawsuit, it shall rule to dismiss the lawsuit. If the plaintiff refuses to change the claim, it shall rule to dismiss the claim.”
According to the provisions of the Administrative Procedure Law and the State Compensation Law, the people’s court may make a compensation judgment for damages caused by illegal administrative acts. Article 68.1.5 of the Interpretation of the Supreme People’s Court on the Application of the Administrative Procedure Law of the People’s Republic of China provides that the plaintiff may request the administrative organ to award administrative compensation. The people’s court may make a judgment on the plaintiff’s request for administrative compensation after hearing the administrative case thus formed.
3.2. Emergency procedures
Are there any emergency procedures available before administrative courts? In the affirmative, do they cover the whole field of administrative law or do they concern only specific areas of administrative action (individual freedoms, public procurement, etc.) ?
Article 56 of the Administrative Procedure Law of the People’s Republic of China provides, “During the proceedings, the execution of administrative acts shall not be suspended. However, under any of the following circumstances, the execution of administrative acts shall be suspended: (1) the defendant deems it necessary to cease execution; (2) the plaintiff or interested party applies for suspension of execution, and the people’s court believes that the execution of the administrative act will cause irreparable losses and the suspension will not harm the state or the public interests; (3) the people’s court believes that the implementation of the administrative act will cause great damage to the state and public interests; and (4) it needs to be suspended under laws and regulations. Any party dissatisfied with the ruling of ceasing or not ceasing the execution may apply for a review once.” Meanwhile, Article 57 provides, “In cases involving failure to pay pension, minimum living allowance, work-related or medical and social insurance against any administrative organ, the people’s court may, upon the plaintiff’s application, rule to enforce in advance, if the relationship of rights and obligations is clear and the plaintiff’s living will be affected if it is not subject to advance enforcement. Any party dissatisfied with advance enforcement may apply for a review once. The enforcement shall not be suspended during such review.”
3.3. Procedural principles before administrative courts
What are the rules governing the conduct of litigation before administrative courts? What are the guarantees offered to litigants? What are the principles governing the relationship between judges and litigants?
The people’s court shall institute a registration system for administrative proceedings initiated by citizens, juridical persons, or other organizations. Article 51.1 of the Administrative Procedure Law of the People’s Republic of China provides, “Upon receiving a complaint, the people’s court shall register and file a case if it meets the requirements of this Law.” In addition, Article 51.2 provides, “If it is impossible to determine whether the conditions for filing a complaint stipulated in this Law are met on the spot, it shall receive the complaint, issue a written certificate indicating the date of receipt, and decide whether to file a case within seven days. If it does not meet the conditions for filing a complaint, it shall rule against filing a case. The ruling shall state the reasons for not filing the case. If the plaintiff refuses to accept the ruling, it may file an appeal.” Moreover, Article 51.3 provides, “If the contents of the complaint are deficient or there are other errors, guidance and explanation shall be given and the parties shall be informed of the contents that need to be corrected at one time. Without guidance and explanation, it is not allowed to refuse the receipt of a complaint on grounds that the requirements are not met.”
Subject to the provisions set out in Article 6 of the People’s Court Law of the People’s Republic of China, the people’s courts adhere to judicial justice, take facts as basis, take law as the criterion, abide by legal procedures, protect the litigation rights and other legitimate rights and interests of individuals and organizations under the law, and respect and protect human rights.
Furthermore, subject to Article 32.12 of the Law of the People’s Republic of China on Judges, judges are not allowed to meet the parties and their agents without permission. In addition, they are not allowed to accept gifts and benefits from the parties and their agents. Meanwhile, Article 55.1 of the existing Administrative Procedure Law of the People’s Republic of China provides, “If the parties believe that the judicial officers have an interest in the case or have other relations that may affect fair trial, they have the right to apply for the judicial officers’ withdrawal.” At the same time, Article 55.2 provides, “If a judicial officer believes that he or she has an interest or other relationship with the case, he or she shall apply for withdrawal.”
3.4. Reference standards for the control exercised by administrative judges
In relation to which norm (regulations, laws, international conventions, constitution ...) do administrative judges control administrative acts? Are they competent to control the conformity of laws and regulations with the Constitution (constitutional judicial review)? Are they competent to control the conformity of laws and regulations with international treaties (judicial review of international law)?
In this regard, Article 63.1 of the Administrative Procedure Law of the People’s Republic of China provides, “The people’s courts shall hear administrative cases based on laws, administrative regulations, and local regulations. Local regulations shall apply to administrative cases occurring within their respective administrative areas.” Moreover, Article 63.2 provides, “The people’s courts shall hear administrative cases in ethnic autonomous areas on the basis of autonomous regulations and separate regulations of the ethnic autonomous areas.” Furthermore, Article 63.3 provides, “The people’s courts shall refer to the rules in hearing administrative cases.” In trying administrative cases, the question of whether laws and regulations are in conformity with the constitution and international treaties does not fall within the scope of examination by the people’s courts. Article 98 provides, “This Law shall apply to administrative proceedings by foreigners, stateless persons, and foreign organizations in the People’s Republic of China, unless otherwise provided by law.” In addition, Article 99 provides, “Foreigners, stateless persons, and foreign organizations have the same rights and obligations in administrative proceedings in the People’s Republic of China as citizens and organizations of the People’s Republic of China. If a court of any foreign country restricts the administrative litigation rights of citizens and organizations of the People’s Republic of China, the people’s courts shall apply the principle of reciprocity to the administrative litigation rights of citizens and organizations of that country.” Meanwhile, Article 100 provides, “Foreigners, stateless persons, and foreign organizations, who want lawyers to represent them in an administrative proceeding before the court, shall entrust lawyers from lawyers’ institutions of the People’s Republic of China.” In addition, Article 101 provides, “Where the people’s court hears administrative cases, the relevant provisions of the Civil Procedure Law of the People’s Republic of China relating to period, service, property preservation, hearing, mediation, suspension of litigation, termination of litigation, summary procedure, and enforcement, as well as the supervision of the People’s Procuratorate over the acceptance, hearing, adjudication and enforcement of administrative cases that are not provided under this Law shall be subject to the Civil Procedure Law of the People’s Republic of China.”
Moreover, Article 267 of the Civil Procedure Law of the People’s Republic of China provides, “If an international treaty concluded or acceded to by the People’s Republic of China has provisions different from this Law, the provisions of such international treaty shall apply, except for clauses that the People’s Republic of China has declared to reserve.” At the same time, Article 268 provides, “Civil proceedings against foreigners, foreign organizations, or international organizations with diplomatic privileges and immunities shall be conducted in accordance with the relevant laws of the People’s Republic of China and the provisions of international treaties concluded or acceded to by the People’s Republic of China.”
Furthermore, Article 274 provides, “The people’s court may serve litigation documents on parties not having domicile within the territory of the People’s Republic of China in the following ways: (1) by means provided in international treaties concluded or acceded to by the country where the addressee is located with the People’s Republic of China; (2) through diplomatic channels; (3) for the addressee with the nationality of the People’s Republic of China, the embassy or consulate of the People’s Republic of China in the country where the addressee is located may be entrusted to serve on behalf of the addressee ...” In addition, Article 283 provides, “According to international treaties concluded or acceded to by the People’s Republic of China, or in accordance with the principle of reciprocity, people’s courts and foreign courts may request each other to serve documents, investigate into and collect evidence and conduct other litigation acts on their behalf. The people’s court shall not enforce any matter requested by a foreign court that is detrimental to the sovereignty, security, or public interests of the People’s Republic of China.”
Moreover, Article 284 provides, “Judicial assistance shall be requested or provided by means specified by the international treaty concluded or acceded to by the People’s Republic of China or, in the absence of such treaty, through diplomatic means. Foreign embassies or consulates stationed in the People’s Republic of China may serve documents to citizens of their own country or investigate into them for evidence; provided however that they shall not violate the laws of the People’s Republic of China, nor will they take compulsory measures. Except for those prescribed in the preceding paragraph, no foreign organs or individuals may serve documents or investigate for evidence within the territory of the People’s Republic of China, unless otherwise permitted by the competent authority of the People’s Republic of China.” In this regard, Article 287 provides, “If the enforced or his/her property is not within the territory of the People’s Republic of China and when the other party requests for enforcement, the party may either apply directly to the foreign court with jurisdiction for recognition and enforcement, or ask the people’s court to request for recognition and enforcement by the foreign court in accordance with the provisions of international treaties concluded or acceded to by the People’s Republic of China or in accordance with the principle of reciprocity.”
Meanwhile, Article 288 provides, “If the judgment or ruling of a foreign court with legal effect is recognized and enforced by the people’s court of the People’s Republic of China, the party may either directly apply to the intermediate people’s court of the People’s Republic of China with jurisdiction for recognition and enforcement, or ask the foreign court to request for recognition and enforcement by the people’s court in accordance with the provisions of international treaties concluded or acceded to by the People’s Republic of China or in accordance with the principle of reciprocity.” In this regard, Article 289 provides, “If the people’s court decides to recognize the validity of a legally effective judgment or ruling issued by a foreign court applying for or requesting recognition and enforcement, it shall issue an enforcement order in accordance with the relevant provisions of this law if it considers that it does not violate the basic principles of the laws of the people’s Republic of China or the national sovereignty, security, or social and public interests after examining it in accordance with the international treaties concluded or acceded to by the People’s Republic of China or per the principle of reciprocity. Those who violate the basic principles of the laws of the People’s Republic of China or the sovereignty, security, or social and public interests of the State shall not be recognized and enforced.”
Moreover, Article 290 provides, “If an award made by a foreign arbitration institution needs to be recognized and enforced by the people’s court of the People’s Republic of China, the parties shall apply directly to the intermediate people’s court in the place where the person subjected to enforcement is domiciled or where his property is located, and the people’s court shall manage it in accordance with the international treaties concluded or acceded to by the People’s Republic of China or in accordance with the principle of reciprocity.”
Furthermore, Article 87 of the Legislative Law of the People’s Republic of China provides, “The Constitution has the highest legal effect, and all laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules shall not contravene the Constitution.” Article 88 states, “Laws are superior to administrative regulations, local regulations and rules. Administrative regulations are superior to local regulations and rules.” Meanwhile, Article 89 provides, “Local regulations are superior to local government rules at the same level and at lower levels. The rules formulated by the people’s governments of provinces and autonomous regions are superior to those formulated by the people’s governments of cities with districts and autonomous prefectures within their respective administrative areas.”
At the same time, Article 90 provides, “If the autonomous regulations and separate regulations make modifications to laws, administrative regulations and local regulations according to law, the provisions of the autonomous regulations and separate regulations shall apply in this autonomous area. Where laws, administrative regulations and local regulations are modified in accordance with the authorization, the provisions of the laws and regulations of the special economic zone shall apply to the special economic zone.”
Moreover, Article 91 provides, “There is equal effect between departmental rules and regulations and between departmental rules and regulations and local government rules. All of them shall be implemented within their respective limits of authority.” At the same time, Article 92 reads, “If the special provisions of laws, administrative regulations, local regulations, autonomous regulations and special regulations and rules formulated by the same authority are inconsistent with the general provisions, the special provisions shall apply. If the new regulations are inconsistent with the former regulations, the new regulations shall apply.” Furthermore, Article 93 provides, “Laws, administrative regulations, local regulations, autonomous regulations, and special regulations and rules are not retroactive, except for special provisions to better protect the rights and interests of citizens, legal persons, and other organizations.”
3.5. Scope and nature of administrative judicial review
May administrative judges control all acts taken by the administration? Are certain acts exempted from this control?
The people’s court is not entitled to examine the legality of all acts of administrative organs. Article 13 of the Administrative Procedure Law of the People’s Republic of China provides four situations that do not fall within the scope of administrative litigation: “People’s courts do not accept lawsuits filed by citizens, juridical persons, or other organizations on the following matters: (1) national defense, foreign affairs, and other state acts; (2) administrative regulations, rules, or universally binding decisions and orders formulated and issued by administrative organs; (3) the decision of the administrative organs on rewards, punishments, appointment, and removal of the staff of the administrative organ; and (4) the administrative act prescribed by law to be finally decided by the administrative organ.” Nonetheless, these kinds of behaviors have not been left uncontrolled, but supervised by other laws and regulations.
Which degree of control is used by administrative judges? Does this degree of control vary according to the nature of the challenged act and/or the margin of appreciation left to the administration?
Subject to Article 6 of the Administrative Procedure Law of the People’s Republic of China, “the people’s court hears administrative cases and reviews the legality of administrative acts”. Herein, legality review is the basic principle of the people’s court in hearing administrative cases. People’s courts generally do not examine the rationality of administrative acts. The exception to this rule is Article 70.6 of this Law, saying that if the administrative organ obviously improperly exercises its administrative discretion, the people’s court may decide to revoke it. However, the people’s court shall respect the right of the administrative organ to exercise its discretion with justifiable reasons.”
3.6. Dissident opinions
When judges disagree with a ruling, are they allowed to express a dissenting opinion? In the affirmative, may they express it in all cases?
During case discussions, judges may express differing opinions. In such an event, they may decide the case per the principle of majority. However, such differing opinions are usually not reflected in judgment documents.
3.7. Alternative methods of dispute resolution
Are there alternative dispute resolution methods? Please specify.
The people’s court generally adopts the method of adjudication to resolve disputes in administrative cases, rather than alternative dispute resolution methods. An exception to this rule is the following provision set out in Article 60.1 of the Administrative Procedure Law of the People’s Republic of China: “The people’s court shall not apply mediation when hearing administrative cases. However, cases involving administrative compensation, compensation, and the exercise of discretion by administrative organs, as prescribed by laws and regulations, can be mediated.”
3.8. Digitised procedures
Is there a specific digital procedure for the submission of claims?
The Administrative Procedure Law of the People’s Republic of China does not provide for digital procedures for filing complaints. In recent years, people’s courts have been actively exploring online acceptance of complaints. In this regard, Article 3 of the Guiding Opinions of the Supreme People’s Court on Fully Promoting the Development of Litigation Service Centers of People’s Courts 2014 provides, “The people’s court shall go through case filing procedures at the litigation service center with parties and their agents, when such parties make online submission of case materials that comply with the case filing requirements, as reviewed by case filing judges online. The people’s courts shall explore a mechanism for identifying the authenticity of litigations and realizing online case filing by judges.” Moreover, Article 1.1 of the Provisions on Several Issues Concerning Case Adjudication by Internet Courts formulated by the Supreme People’s Court in 2018 provides, “The internet courts shall basically conduct online trials, wherein case acceptance, delivery, mediation, evidence exchange, pre-trial preparation, court trial, and sentencing shall be generally completed online.” So far, administrative cases to be heard by the internet courts have been filed online.