China

Concerning the general presentation of judicial organizations, the Chinese courts consist of ordinary people’s courts and specialized people’s courts. Article 12 of the existing the Organic Law of the People’s Court of the People’s Republic of China states, “The people’s courts consist of the following: (1) Supreme People’s Court; (2) local people’s courts at various levels; and (3) specialized people’s courts.” In addition, Article 13 provides, “Local people’s courts at various levels are divided into high people’s courts, intermediate people’s courts, and primary people’s courts.” Moreover, Article 15.1 provides, “Specialized people’s courts include military courts, maritime courts, intellectual property courts, financial courts, and others.” Currently, the Supreme People’s Court has also set up six circuit courts.

With respect to administrative hearings, Article 4.2 of the existing Administrative Procedure Law of the People’s Republic of China provides, “The people’s court shall set up an administrative division to hear administrative cases.” In this regard, the Supreme People’s Court, high people’s courts, intermediate people’s courts, and the primary people’s courts have administrative divisions to hear administrative cases exclusively. Meanwhile, subject to Article 3 of the Interpretation of the Supreme People’s Court on the Application of Administrative Procedure Law of the People’s Republic of China, the administrative divisions of the people’s courts at all levels shall hear administrative cases and review cases wherein administrative organs have applied for the execution of their administrative acts. Moreover, specialized people’s courts and people’s tribunals neither hear administrative cases nor review and execute cases in which administrative organs have applied for the execution of their administrative acts. When hearing administrative cases, specialized people’s courts, such as railway transport courts, shall implement the provisions set out in Article 18.2 of the Administrative Procedure Law of the People’s Republic of China: “With the approval of the Supreme People’s Court, high people’s courts may, according to the actual situation of the adjudication, specify several people’s courts to hear administrative cases across administrative regions.”

1.2. Key dates in the evolution of the administrative jurisdictional order and the control of administrative acts

Article 3.2 of the Civil Procedure Law of the People’s Republic of China (Trial) (adopted by the Standing Committee of the National People’s Congress on March 8, 1982 and effective as of October 1, 1982) provides, “The provisions of this Law shall apply to administrative cases to be heard by the people’s courts as prescribed by the law.” The organs concerned have been dispensing administrative justice since the law came into force on October 1, 1982.

Moreover, Article 1 of the Administrative Procedure Law of the People’s Republic of China (adopted by the National People’s Congress on April 4, 1989 and effective as of October 1, 1990) provides, “This Law is enacted in accordance with the Constitution with a view to ensuring the correct and prompt hearing of administrative cases by the people’s courts, protecting the legitimate rights and interests of citizens, juridical persons and other organizations, and maintaining and supervising the exercise of administrative functions and powers by administrative organs under the law.” Furthermore, Article 2 provides, “Citizens, juridical persons or other organizations who believe that the specific administrative acts of administrative organs and personnel of administrative organs infringe upon their legitimate rights and interests shall have the right to file a lawsuit to the people’s court in accordance with this Law.” Meanwhile, Article 5 provides, “The people’s court shall hear administrative cases and review the legality of specific administrative acts.” The law came into force on October 1, 1990, marking the official promulgation of the Code of Administrative Procedure.

On November 1, 2014, the Standing Committee of 12th National People’s Congress adopted the Decision on Amending the Administrative Procedure Law of the People’s Republic of China. This decision came into effect on May 1, 2015. This decision has comprehensively revised the Administrative Procedure Law of the People’s Republic of China, laying down the foundation for further development of administrative hearings. On June 27, 2017, the legislature revised the administrative procedure law for the second time and established the administrative public interest litigation system.

1.3. Criteria of competence of the administrative jurisdiction

a. Scope of Hearings: Article 12 of the Administrative Procedure Law of the People’s Republic of China states the scope of accepting cases in administrative proceedings. Article 12.1 provides, “The people’s court shall accept lawsuits filed by citizens, juridical persons, or other organizations over the following issues: (1) dissatisfaction over administrative punishments, such as administrative detention, suspension or revocation of permits and licenses; order to suspend production or business; confiscation of illegal income; and confiscation of illegal property, fines, warnings, etc.; (2) refusal to accept mandatory administrative measures, such as restricting personal freedom or sealing up, seizing or freezing property, and administrative enforcement; (3) in applying for an administrative license, the administrative organ refuses or fails to reply within the statutory time limit, or refuses to accept other decisions made by the administrative organ concerning the administrative license; (4) refusal to accept the administrative organ’s decision confirming the ownership or use right of natural resources, such as land, mineral resources, waters, forests, mountains, grasslands, wasteland, beaches and sea areas; (5) refusal to accept the decision on expropriation and requisition and its compensation decision; (6) the administrative organ refuses to perform its duties or refuses to reply when it is approached for performing its legal duties of protecting the legitimate rights and interests of persons, property rights, and so on; (7) the administrative organ violates its autonomy or the right to contracted management of rural land and the right to rural land management; (8) the administrative organ abuses its administrative power to exclude or restrict competition; (9) the administrative organs illegally raise funds, apportion expenses, or illegally require other obligations; (10) the administrative organ fails to pay pensions, minimum living allowance, or social insurance benefits according to law; (11) the administrative organ fails to perform according to law, fails to perform according to the agreement, or illegally changes or rescinds the government franchise agreement, land and housing expropriation compensation agreement, etc.; and (12) the administrative organs infringe upon other legal rights and interests, such as personal rights and property rights.”

Furthermore, Article 12.2 provides, “In addition to the provisions set out in the preceding paragraph, the people’s court shall accept other administrative cases that can be brought under laws and regulations."

At the same time, Article 13 of the Administrative Procedure Law of the People’s Republic of China provides the following 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 organ on the 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."

In addition, the scope of accepting cases in administrative proceedings is further regulated by the judicial interpretations of the Administrative Procedure Law.

b. Mode of Hearing: According to the provisions of the Administrative Procedure Law, the people’s court shall examine the legality of the administrative act being sued. For administrative agreement cases, the people’s court may conduct legal review and contractual review.

c. Criteria of Hearing: According to the provisions of the Administrative Procedure Law, China’s administrative proceedings are divided as follows:

(1) Revocation of Judgment: It is applicable to illegal administrative acts, such as insufficient main evidence, wrong application of laws and regulations, violation of legal procedures, overstepping authority, abuse of authority, and obvious misconduct.

(2) Payment Judgment: If the defendant fails to perform his statutory duties, the judgment orders the defendant to perform its obligations. At the same time, if the defendant has the obligation to pay under law, the defendant shall be judged to perform its said obligation.

(3) Confirmation of Judgment: The people’s court may decide to cancel administrative acts that should be cancelled but their cancellation will cause great damage to national, social, and public interests, and there will be minor violations of the procedures.

In addition, the people’s court has full jurisdiction over administrative agreement cases and can make judgments in accordance with the relevant provisions of the contract law.

2. Organisation of the administrative jurisdcictional order

2.1. Key founding dates

2.2. Organization and competence of the administrative jurisdiction

Is administrative justice rendered by specialized courts or by specialized chambers set within jurisdictions with a general competence? Does the administrative jurisdiction include several levels of jurisdiction (first instance, appeal, cassation)? Are there specialized administrative courts?

Administrative justice is executed by an administrative division set up within the people’s court with general jurisdiction.

Articles 14, 15, 16, and 17 of the Administrative Procedure Law of the People’s Republic of China prescribe that administrative justice includes four levels of jurisdiction: Supreme People’s Court, high people’s courts, intermediate people’s courts, and the primary people’s courts. Meanwhile, Article 7 provides that the people’s court shall hear administrative cases and implement the system of court of second instance as that of last instance. For example, if the primary people’s court is the first-instance court, the second-instance court shall be the intermediate people’s court. If the intermediate people’s court is the first-instance court, the second-instance court shall be the high people’s court. According to the authorization under Article 18.2 of the Administrative Procedure Law, railway transportation courts may hear administrative cases with the approval of the Supreme People’s Court. In addition, maritime courts and intellectual property courts exercise administrative cases in their respective field as authorized by law.

2.2.2. Internal organization of administrative courts and composition of the bench of judges

Are administrative courts organized in chambers or divisions? Are these chambers or divisions specialized? Are there several degrees of formation of the court (single judge, collegiate panels with three, five ... judges, full court)?

Article 4.2 of the Administrative Procedure Law of the People’s Republic of China provides, “The people’s court shall set up an administrative division to hear administrative cases.” In addition, Article 68 provides, “The people’s court shall hear administrative cases by a collegial panel of judges, or by a collegial panel of judges and people’s jurors. The number of members of the collegial panel shall be an odd number of more than three.”

In accordance with the provisions set out in Article 83 of the existing Administrative Procedure Law of the People’s Republic of China, administrative cases of first instance heard by the people’s courts shall be heard by a single judge if summary procedures are applied. Meanwhile, Article 16 of the People’s Juror Law of the People’s Republic of China stipulates, “The people’s court shall hear the following cases of first instance, which shall be conducted by a collegial panel of seven people composed of people’s jurors and judges: ... (2) public interest litigation cases filed in accordance with the Civil Procedure Law and the Administrative Procedure Law; (3) cases involving land requisition and demolition, ecological environment protection, food and drug safety, and significant social impact; …”

2.2.3. Do administrative courts have advisory powers (advice to the administration, government, parliament, etc.) ?

The people’s court is responsible for hearing administrative cases and does not have the right to consult (making suggestions to the administrative departments, government, parliament, etc.). The exception is the following provision of Article 64 of the Administrative Procedure Law of the People’s Republic of China: “If the people’s court considers the normative documents stipulated in Article 53 of this Law illegal after review, it shall not be used as the basis for determining the legality of administrative acts, and shall make suggestions to the enacting authorities.”

Moreover, Article 53.1 provides, “Citizens, juridical persons, or other organizations may request to review the normative documents formulated by the State Council departments, local people’s governments, and their departments on which the administrative act is based when they lodge a lawsuit against the administrative act.” Meanwhile, Article 53.2 provides, “The normative documents referred to in the preceding paragraph do not contain rules.”

Furthermore, subject to the provisions set out in Article 96 of the Administrative Procedure Law, the people’s court may make judicial suggestions to the supervisory organ or the administrative organ at the next higher level. Some of these judicial suggestions may involve amendments to administrative regulations, rules, and normative documents.

eople’s courts generally have libraries (reference rooms) from where judges can access papers and electronic documents, such as laws, regulations, and legal research materials.

2.3. Status of administrative judges

How is the recruitment of judges organized (competitive exam, political appointment, peer election…)? What are their statutory guarantees while in office, particularly in terms of independence?

Concerning judges’ selection and guarantee, Article 47.1 of the existing the Organic Law of the People’s Court of the People’s Republic of China provides, “Judges are selected from among persons who have obtained legal professional qualifications and meet other conditions prescribed by law. Newly appointed judges shall be examined by the judge selection committee for professional competence. Judges of the people’s courts at higher levels are generally selected from among the judges of the people’s courts at lower levels.” Moreover, Article 47.2 provides, “The president shall have legal professional knowledge and experience. Vice presidents and members of the adjudication committee shall be elected from among the judges, prosecutors, or other persons having the qualifications of judges and prosecutors.” In addition, Article 47.3 provides, “The duties, management, and protection of judges shall be subject to the provisions set out in the Law of the People’s Republic of China on Judges.”

As for the rights enjoyed by judges, Article 8 of the existing Judges Law of the People’s Republic of China provides, “Judges shall have the following rights: (1) provision of terms of reference and working conditions necessary to perform their duties as judges; (2) right to hear cases under the law without interference from administrative organs, social organizations, and individuals; (3) being free from being removed, demoted, dismissed, or punished without legal reasons or procedures; (4) labor remuneration and insurance and welfare benefits; (5) personal, property, and residential safety protected by law; (6) provision of trainings; (7) right to lodge complaints or accusations; and (8) right to tender resignation.”

3. Procedural rules before administrative courts

3.1. Types of pleas

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.

4. Effects and execution of judgments

4.1. Powers of administrative judges

May judges amend administrative acts by substituting their own analysis to that of the administration or may they only invalidate them? May they compel the administration to act in a specific way (power of injunction, penalties)?

Generally, the people’s court does not directly change the administrative act in its judgment on an administrative case; provided however that the administrative organ fully respects the ruling of the people’s court in the judgment and makes a new administrative act according to the opinion of the people’s court. Meanwhile, Article 77.1 of the Administrative Procedure Law of the People’s Republic of China provides, “If the administrative penalty is obviously improper, or if other administrative acts involve the determination of the amount of money, the people’s court may decide to change it.”

At the same time, Article 96 of the Administrative Procedure Law of the People’s Republic of China provides, “If an administrative organ refuses to perform a judgment, ruling, or conciliation statement, the people’s court of first instance may take the following measures: (1) require the bank to transfer the fine or payment to be paid by the administrative organ from its account; (2) impose a fine of RMB 50 to RMB 100 per day against the person in charge of the administrative organ which fails to enforce the same within the prescribed time limit (fine shall be calculated from the expiry date of such time limit); (3) announce the refusal of the administrative organ to perform; (4) make judicial suggestions to the supervisory organ or the administrative organ at the next higher level of the administrative organ (the organ that accepts the judicial proposal shall manage the same in accordance with the relevant provisions and inform the people’s court of the results); or (5) detain the person in charge or other responsible person of the administrative organ that refuses to enforce the judgment, ruling, or mediation, causing adverse social impacts, or hold him/her criminally liable if the circumstance is serious enough to constitute a crime.”

4.2. Impact and authority of administrative judgments

To whom do decisions rendered by administrative judges apply (absolute effect – erga omnes - of res judicata, relative effect of res judicata)? What criterion is used to choose between these two options?

Subject to Article 2.1 of the Administrative Procedure Law of the People’s Republic of China, “citizens, juridical persons, or other organizations, who believe that the administrative acts of administrative organs and personnel of administrative organs infringe upon their legitimate rights and interests, may bring a lawsuit to the people’s court under this Law”. Herein, administrative cases are formed by a specific citizen, juridical person, or organizations bringing a lawsuit to the people’s court against a specific administrative act made by a specific administrative organ. Since the people’s court makes a judgment on a specific administrative case, the res judicata is usually relative, i.e. it is binding only on the parties that decide the administrative case and usually does not have absolute effect.

The exception to this rule is objective litigation wherein the judgment of the legality of the administrative act being sued restrains the judgment of the legality of the same administrative act being sued in other cases.

4.3. Appeals

May rulings of administrative courts be challenged? What is the time limit for appeal? Before which authorities / jurisdictions can these rulings be challenged?

Subject to provisions set out in Article 7 of the Administrative Procedure Law of the People’s Republic of China, the people’s court shall hear administrative cases and implement the system of court of second instance being that of last instance. If a party refuses to accept the judgment of first instance, it may file an appeal with the people’s court at the next higher level.

Meanwhile, with regards to the duration of appeal, Article 85 of the Law provides, “If a party refuses to accept a judgment of first instance of a people’s court, it shall have the right to file an appeal with the people’s court at the next higher level within 15 days after the date on which the written judgment was served. If a party refuses to accept a written order of first instance of a people’s court, it shall have the right to file an appeal with a people’s court at the next higher level within 10 days after the date on which the written order was served. If an appeal is not filed within the time limit, the first-instance judgment or ruling of the people’s court shall have legal effect.”

1. National judicial organisation

1.1. General presentation of the judicial organisation and position of the administrative jurisdictional order

1.2. Key dates in the evolution of the administrative jurisdictional order and the control of administrative acts

1.3. Criteria of competence of the administrative jurisdiction