Like Throwing an Egg against a Stone--Administrative Litigation in the People's Republic of CHina


JOURNAL OF CHINESE LAW
VOL. 3 SUMMER 1989 NO. I

Like Throwing an Egg Against a Stone?
Administrative Litigation in the

People's Republic of China

SUSAN FINDER*

On April 4, 1989, the National People's Congress of the People's
Republic of China (PRC) passed the Administrative Litigation Law
(ALL).1 This law allows PRC citizens to sue government officials
who violate the law in the course of administrative agency activity.
The possibility that millions of government officials may be forced to
defend their actions in court represents a sharp departure from tradi-
tional Chinese views toward the relationship among government,
courts, and law. For example, the ALL may expand judicial author-
ity, curb administrative discretion, and provide important new proce-
dural rights to natural and legal persons in China.

This article will examine the PRC administrative litigation sys-
tem which was modeled after other legal systems, but still embodies
distinctive features of China's current political structure. The first
section outlines the historical background of administrative litigation
in China, while the second section analyzes the ALL and traces its
legislative history.

I. HISTORICAL BACKGROUND OF ADMINISTRATIVE LITIGATION

Administrative litigation was introduced to China as part of the
late Qing constitutional and legal reforms at the beginning of the
twentieth century.2 In 1908, the Imperial Throne authorized the

* Lecturer in Law, Department of Law, City Polytechnic of Hong Kong.
1. Zhonghua Renmin Gongheguo Xingzheng Susong Fa (Administravtive Litigation

Law of the PRC) (promulgated April 4, 1989) Renmin Ribao [RMRB], April 10, 1989, at 2,
tranrM in CHINA LAW AND PRAmcrEC, June 5, 1989, pp. 37-57 [hereinafter ALL].

2. See, ag., CHI'EN TUAN-SHENG, THE GOVERNMENT AND POLITICS OF CHINA 257
(1961). These reforms were the result of the 1906 imperial mission to Japan during which
visiting Chinese officials were introduced to the 1890 Japanese Administrative Litigation Law
modeled on German and Austrian laws.

Those charged with the responsibility of drafting the law in Japan visited France, Ger-



JOURNAL OF CHINESE LAW

drafting of legislation to establish an administrative court.3 However,
the Qing Dynasty was overthrown before the legislation was
promulgated.4

In 1914, the Yuan Shikai government in Beijing promulgated
laws 5 establishing a Court of Administrative Justice, an Office of
Supervision, and a disciplinary board for government officials.6 The
Court of Administrative Justice, which was separate from the judici-
ary, was authorized to hear cases involving unlawful administrative
actions. Cases were accepted on appeal from the highest level of
administrative agencies and the Court had power to uphold, annul, or
change the administrative determination, but not to award monetary
damages. Officials from the Office of Supervision could bring actions
in the Court of Administrative Justice in the name of injured private
persons, and could bring impeachment actions against wayward offi-
cials. However, few people knew that the new Court of Administra-
tive Justice existed.7

The Nationalist government in 1932 promulgated a second law
establishing an Administrative Court and administrative litigation
procedure.8 This Administrative Court had jurisdiction over all cases
where an injured party appealed an administrative agency's ruling.
Despite the breadth of the 1932 legislation, the impact of the Court
was limited. Its judges were reluctant to make decisions adverse to

many, and Austria to investigate Western administrative systems, and retained two German
jurists as advisers. F. Li, The Administrative Litigation System in Taiwan: Its Structure,
Operations and Role in Protecting Fundamental Rights of the People n.233 (Dec. 1980)
(unpublished S.J.D. thesis available in Harvard Law School Library).

3. F. Li, supra note 2, at 28. The legislation followed the Japanese law closely.

4. The legislation would have established a court of administrative justice to hear four
types of cases: tax assessments; denial or revocation of business licenses; irrigation and public
works; and determination of land ownership between public authorities and private persons.
Access was available to those with grievances against the cabinet, central ministry, provincial
governmental-general, or imperial commissioner, or cases which had been appealed to the
highest possible level. The court would have had three chambers, with five justices sitting en
banc. See generally, id. at 77-81.

5. I. Hsu, THE RISE OF MODERN CHINA 571 (1970). In March 1914, the Beijing gov-
ernment promulgated an "Order for Organization of a Court of Administrative Justice," and
in May, 1914, also by executive order, a "Statute on Administrative Litigation Procedure." F.
Li, supra note 2, at 34 n.58, 35 n.58, 63. The Statute on Administrative Litigation Procedure
was reformulated in July of that year under the title "Law of Administrative Litigation Proce-
dure." F. Li, supra note 2, at 36 n.66.

6. F. Li, supra note 2, at 37.

7. For the discussion of this section, see generally, id. at 37-40; WoQIV ZHONGZI,

MINGUO SHINIAN GUANCHANG FUBAISHI (A History of Bureaucratic Corruption in the First
Ten Years of the Republic of China) 60-62 (1923).

8. F. Li, supra note 2, at 44 n.97. The influence of the Japanese models is considerably
less in the 1932 legislation.



ADMINISTRATIVE LITIGATION LAW

the administrative agencies. 9 Like the earlier Court of Administrative
Justice, the Administrative Court could not award damages,"° and
most citizens were either unaware of the Court's existence or did not
have the resources to make the necessary appeals." Moreover, due to
prevailing political conditions including civil war, warlord control of
certain regions, and the Japanese occupation, the Court was rarely
used. 1 2 One knowledgeable observer described the Court as "an insti-
tution of indifferent value.... [T]o say that it, representing the judi-
cial power, has been able to protect the rights of the people against the
executive power would involve some exaggeration." 1 3 Thus, prior to
1949, institutions for administrative review did not function
effectively.

After the founding of the PRC in 1949, the new leaders abolished
the fundamental laws of the Nationalist regime, including the law
establishing the Administrative Court and administrative litigation
procedure. 4 During the early years of the PRC, the court system
used a combination of new laws and ad hoe regulations and decrees.
In 1953, Chinese leaders set out to develop a formal legal system with
the help of China-based Soviet legal personnel and Chinese students
and officials trained in the U.S.S.R. By 1954, the PRC promulgated a
constitution, which embodied the Soviet-style judicial system. Con-
currently, the National People's Congress (NPC) began drafting crim-
inal and civil codes. Although the 1954 Constitution authorized the

9. The Law of Organization of the Administrative Court required that justices of the
Administrative Court show that they had thoroughly studied the principles and doctrines of
the Kuomintang, and had served for at least two years by presidential appointment in an
agency under the Kuomintang government. Id at 46. Mao Zuquan, a member of the Central
Committee of the Kuomintang, was appointed the Chief Justice of the Administrative Court.
See id at 46 n.103.

10. See generally, id at 46-51.
11. According to Chi'en Tuan-Sheng, "ordinary individuals who have inadequate legal

knowledge and are afraid of the authorities generally do not dare to bring an administrative
appeal to the Executive Yuan. It is usually done only by important persons who know that
they can resort to an appeal to protect themselves against maltreatment by administrative
agents." CH'IEN, supra note 2, at 258. Ch'ien described the judiciary under the Kuomintang
regime as of "generally poor quality." He ascribed the causes as being an insufficient number
of trained personnel, unattractive nature of a judicial career (because of low pay and difficulty
of transfer to more important posts), and party (Kuomintang) and bureaucratic interference in
judicial proceedings. Id. at 254-55.

12. During the several years preceding the start of the Sino-Japanese war, the Court's
caseload varied from 178 cases in 1933 to 307 cases in 1936, and then steadily declined during
the war. F. Li, supra note 2, at 187-88.

13. CH'IEN, supra note 2, at 259.
14. Zhongguo Renmin Zhengzhi Xieshang Huiyi Gongtong Gangling (Common Pro-

gram of the Chinese People's Consultative Conference) (adopted Sept. 29, 1949 by the Chinese
People's Consultative Conference, 1st session), I ZHONGYANG RENMIN ZHENGFU tFAUING
HuIBIAN, 1952 (Collected Decrees of the Central People's Government, 1952) 17, 21 (1982).

1989]



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state to compensate citizens when their rights were violated by gov-
ernment officials, it appears that the administrative courts were in fact
prohibited from taking such cases by internal judicial directives.' 5

There were several methods available to resolve administrative
grievances during the early 1950's. Individuals could appeal directly
to one of several government agencies which monitored the legality of
administrative agency actions. It was more likely, however, that indi-
viduals would initially register a complaint with the xinfang
(ombudsman) offices, which still exist today and are attached to local,
provincial, and national government offices. 16  The xinfang office
could handle the case in any of three ways. First, the xinfang office
could transfer the case to the Procuracy which prosecuted criminal
and civil cases for the government and supervised the legality of gov-
ernment actions. Procurate monitoring of administrative agencies
was a target of severe criticism, however, during the 1957-58 anti-
rightist movement, when it was charged that rightists "tr[ied] to
change this weapon into an instrument by means of which bourgeois
rightists can attack state organs and cadres."' 7 Alternatively, the
xinfang office could transfer the case to supervision offices, which
were successful in uncovering government misconduct until they were
abolished in 1959. Finally, the xinfang office could return the com-

15. Article 97 of the 1954 Constitution provided "[people] suffering loss by reason of
infringement by persons working in organs of state of their rights as citizens have the right to
compensation." Zhonghua Renmin Gongheguo Xianfa (Constitution of the People's Republic
of China) art. 94 (1954) [hereinafter 1954 PRC Constitution]. Hiroshi Oda states that such
cases were one of the "five major rejections," i.e., the judicial practice which prohibited courts
from accepting a certain category of cases including suits against the state for infringement of
citizens' rights, transnational civil and commercial cases, and cases that resulted from the
state's pursuit of a certain policy. Oda, The Procuracy and the Regular Courts as Enforcers of
East Asian States, 61 TULANE L. REV. 1339, 1348 (1987).

16. Zhengwuyuan Guanyu Chuli Renmin Laixin he Jiedai Renmin Laifang Gongzuo de
Jueding (Government Administration Council [predecessor to State Council] Decision Con-
cerning Receiving People's Letters and People's Visits) (adopted June 7, 1951). ZHONCGYANO
RENMIN ZHENGFU FALING HUIBIAN 16 (1953); Guanyu Jiaqiang Chuli Renmin Laixin he
Jiedai Renmin Laifang Gongzuo Zhishi (Improving the Technique of Receiving People's Let-
ters and Visits), 6 ZHONGHUA RENMIN GONGHEGUO FAGuI HUIBIAN (Compilation of Laws
and Regulations of the People's Republic of China) 579 (1957); Dangzheng Jiguan Xinfang
Gongzuo Zhanxing Tiaoli (caoan) (Provisional Regulations of the Party and Government Con-
cerning Letters and Visits (draft)) SIFA SHOUCE 657-662 (1983). See also Shen & Fan, Lun
Xinfang Zai Xingzheng Susong Zhong de Diwei (Discussion of Letters and Visits in Adminis-
trative Litigation), 4 FAXUE ZAZHI 4-5 (1987). Chang, Shitan Jianli Juyou Zhongguo Tese de
Xingzheng Susong Zhidu (A Tentative Discussion of an Administration Law with Chinese
Characteristics), 4 ZHENGFA LUNTAN 70, 71 (1986), suggests that the ineffectiveness of letters
and visits offices led people to feel they had no forum for their grievances and that "officials
support one another."

17. Tan, Absorb Experience and Teaching, Impel a Great Leap Fonvard in Procuratorial
Work, 3 ZHENGFA YANJIU 34-37 (1958) transin, THE CRIMINAL PROCESS IN THE PEOPLE'S

REPUBLIC OF CHINA, 1949-63 381, 383 (J. Cohen ed. 1968).



ADMINISTRATIVE LITIGATION LAW

plaint to the bureau against which the complaint was filed. However,
this method often failed adequately to compensate the complainant
and frequently led to reprisals against the complainant. 8

The widespread violation of individual rights, the arbitrary and
capricious actions taken by officials, and the general collapse of law
and order which took place during the Cultural Revolution, led the
post-Cultural Revolution leaders, many of whose own rights had been
violated, to decide that a fundamental change in the means of resolv-
ing administrative grievances was necessary. The Third Plenum of
the 1lth Central Committee in late 1978 laid the foundation for this
change. With Deng Xiaoping leading, the members of the Central
Committee called for the establishment of a legal system to provide an
efficient mechanism to promote economic and political moderniza-
tion. Peng Zhen, the Chairman of the NPC Standing Committee,
subsequently stated that law and legal institutions were necessary "to
protect the democratic rights of the people, develop socialist democ-
racy, enhance stability and unity, maintain public order and ensure
the smooth advance of socialist construction." 1 9

An important corollary of the decision to modernize the legal
system was the decision to promulgate laws governing state adminis-
tration. In 1980 Deng Xiaoping deemed the sub-standard operation
of state agencies and their personnel as a road block to modernization:
"For a long time we have lacked strict administrative regulations
S.. [and] clear stipulations regarding the competence of each organ
and even each person; whatever the matter, more often than not there
have been no regulations to follow...."I

The 1982 Constitution provided the legal foundation for the
reform policy by setting forth a hierarchy of legal norms. According
to the Constitution, national law can be promulgated only by the
NPC or its Standing Committee.2

' The NPC and its Standing Com-
mittee are authorized to annul those State Council administrative
rules and regulations (xingzheng fagui) that conflict with national
laws or the Constitution.22 In addition, the Standing Committee can
invalidate local regulations (difangxing defagul) passed by provincial
legislatures, autonomous regions, and centrally administered munici-

18. H. HARDING, ORGANIZING CHINA 79-80, 85, 189 (1981).
19. Peng Zhen, Report on Work of the N.P.C Standing Committee, BEUING REvivEWv,

Nov. 29, 1980, at 12.
20. DENG XIAOPING, Dang he Guojia Lingdao Zhidu de Gaige (Reform of Party and

Government Leadership) in DENG XIAOPING WENXUAN (Selected Essays of Deng Xiaoping)
280, 288 (1983).

21. ZHONGHUA RENMIN GONGHEGUO XIANFA (The Constitution of the People's
Republic of China) art. 58 (1982) [hereinafter PRC CoNs'rriruoN].

22. Id art. 67(7).

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palities if these local regulations conflict with State Council adminis-
trative rules and regulations, national law, or the Constitution.23

In response to the official violations of individual rights that
occurred during the Cultural Revolution, article 41 of the 1982 Con-
stitution gives citizens the right to remonstrate the government and
seek redress for grievances.24 This article is generally regarded as pro-
viding the constitutional basis for judicial review of administrative
decisions.

Since the promulgation of the 1982 Constitution, two broad
trends have led towards the establishment of a system of administra-
tive litigation. The first trend is the continuation of the policy of
legalization, i.e., the policy of establishing a legal foundation for the
operation of the Chinese state, economy, and society. This trend is
evident in the NPC's promulgation of a large body of laws. As part of
the national commitment to legalization, legal institutions have been
developed and expanded, including the court system, Procuracy, and
most recently, the Ministry of Supervision, which was established in
1986. Additional efforts have been made to publicize citizens' legal
rights and duties. 26 Among the many laws drafted since 1982 are pro-
visions allowing aggrieved persons to challenge administrative actions
or decisions in court. 27

23. Id. art. 67(8).
24. Id. art. 41.
25. Id. art. 41 states:

Citizens of the People's Republic of China have the right to criticize and make
suggestions to any state organ or functionary. Citizens have the right to make to
relevant state organs complaints and charges against, or exposures of, violation of the
law or dereliction of duty by any state organ or functionary; but fabrication or distor-
tion of facts with the intention of libel or frame-up is prohibited.

In cases of complaints, charges or exposures made by citizens, the state organ
concerned must deal with them in a responsible manner after ascertaining the facts.
No one may suppress such complaints, charges and exposures, or retaliate against the
citizens making them. Citizens who have suffered losses through infringement of
their civil rights by any state organ or functionary have the right to compensation in
accordance with law.
26. In 1985, the Ministry of Justice and Propaganda Department of the Communist

Party Central Committee set forth a five-year plan and the Standing Committee of the
National People's Congress issued a decision concerning popularizing legal knowledge. See
Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Zai Gongminzhong Puji
Falii Changshi de Jueyi (Standing Committee of the National People's Congress Resolution on
Dissemination of Legal Knowledge) (promulgated Nov. 25, 1985) ZHONGHUA RENMIN
GONGHEGUO FAGUI HUIBIAN 23 (1985). In July 1986, the Party Secretariat organized lec-
tures on law in Zhongnanhai for the nation's leaders. ZHONGGuO FALO NIANJIAN (Law Year
Book of China) 42 (1987).

27. For example, in 1982, judicial review provisions were included in article 38 of the
provisional law on food hygiene. See the Provisional Law of the People's Republic of China on
Food Hygiene, art. 38 (adopted Nov. 19, 1982) 2 CHINA LAWS FOR FOREIGN BUSINESS: BUSl-
NESS REGULATION para. 16-540(41) (1988) [hereinafter CHINA L. FOR. Bus.: BUSINESS REG-



ADMINISTRATIVE LITIGATION LAW

The second trend leading towards an administrative litigation
system has been the reform of the economy. Because of economic
reforms, many people now have a financial interest in challenging
unfavorable administrative sanctions or decisions. Over the past six
years, millions of individual household businesses have gone into
operation.28 In addition, many people have established collective
business or service operations for private profit. In the state-owned
sector of the economy, many smaller enterprises have been leased out
to individuals or groups.29 Under the reforms, state enterprises no
longer submit all their profits to the state, but must pay taxes instead,
and are allowed to retain a portion of the remaining profits.30 In addi-
tion, foreigners, most of whom are accustomed to having a legal
forum for challenging administrative sanctions, have established a
palpable presence within the Chinese economy in the form of joint

ULATION]. See also Marine Environmental Protection Law of the People's Republic of China,
arts. 41, 42 (adopted Aug. 23, 1982) 2 CHINA L. FOR. Bus.: BUSINESS REGULATION para. 14-
620(41), (42); Trademark Law of the People's Republic of China, arts. 36, 39 (adopted Aug.
23, 1982) 2 CHINA L. FOR. Bus.: BUSINESS REGULATION para. 11-500(38)-(41); Maritime
Traffic Safety Law of the People's Republic of China, art. 45 (adopted Sept. 2, 1983) 2 CHINA
L. FOR. Bus.: BUSINESS REGULATION para. 15-600(47); Patent Law of the People's Republic
of China, art. 60 (adopted March 12, 1984) 2 CHINA L. FOR. Bus.: BUSINESS REGULATION
para. 11-600(62); Water Pollution Prevention and Control Law of the People's Republic of
China, art 40 (adopted May 11, 1984) in L. Ross & M. SILK, ENVIRONMENTAL LAW AND
POLICY IN THE PEOPLE'S REPUBLIC OF CHINA 306-12 (1987); Forestry Law of the People's
Republic of China, art. 39 (adopted Sept. 20, 1984) id. at 343-50;, Law on the Administration
of Drugs, art. 55 (adopted Sept. 20, 1984) 2 CHINA L. FOR. Bus.: BUSINESS REGULA'tON
para. 16-545(56); Law of the People's Republic of China on Controlling Foreigners Entering
and Leaving the Country, art. 29 (adopted Nov. 25, 1985) 2 CHINA L FOR. Bus: BUSINESS
REGULATION para. 19-510(30); Grasslands Law of the People's Republic of China, arts. 6, 21
(adopted June 18, 1985) in L. Ross & M. SILK, supra, at 379-82; Regulations of the People's
Republic of China on Dumping of Wastes at Sea, art. 22 (adopted March 6, 1985) id at 339-
40; Law on Postal Services of the People's Republic of China, art 39 (adopted D=c. 2, 1986) 2
CHINA L. FOR. BUS.: BUSINESS REGULATION para. 19-532(41); Customs Law of the People's
Republic of China, arts. 46, 53 (adopted Jan. 22, 1987) CHINA LAWS FOR FOREIGN BUSINESS:
CUSTOMs para 50-300; Regulations of the People's Republic of China on Price Control, art. 32
(adopted Sept. 11, 1987) 2 CHINA L. FOR. Bus.: BUSINESS REGULATION para. 16-580(32).

28. In rural areas, the number of household businesses increased from 961,000 in 1981 to
10,342,000 in 1987. The total number of persons employed in rural household business
increased from 1,218,000 in 1981 to 16,660,000 in 1987, with a total business volume of 70.23
billion yuan and retail sales of 48.7 billion yuan (8.4% of national retail sales). The number of
urban household businesses increased from 868,000 in 1981 to 3,383,000 in 1987, employing
1,056,000 in 1981 and 4,923,000 in 1987. State Statistics Bureau, Facts and Figure. The Indi-
vidually Owned Economy, BEUING REVIEW, Feb. 27, 1989, at 23-24.

29. Before 1979, all commercial enterprises were state-owned and managed. As of early
1989, 81.9% of China's 87,000 small and medium-sized commercial enterprises are run as
contracted undertakings, have been leased out, or have had their ownership transferred.
Qiangmin & Liu Jianjun, Taking Stock of Commercial Reform, BEUING REVIEW, Dec. 26,
1988, at 17, 18.

30. Gao Shangquan, China's Economy After 10 Years of Reform, 38 CHINA RCoN.-
sTRucTs 1, at 13-14 (1989).

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ventures and wholly foreign-owned enterprises. As a result of these
changes in the structure of the Chinese economy, the number of busi-
ness operators having a personal interest in challenging unfavorable
administrative sanctions has increased.

In addition to these general legal and economic trends, scholars
and government institutions have focused on developing a system of
administrative litigation. Leading legal advisers to the government,
such as Tao Xijin, criticized existing institutions as being inadequate
to solve the problems of administrative agencies, and advocated the
establishment of a legal framework for administrative litigation.3'

Major advancement toward developing a system began in 1986,
when the Legal Affairs Committee of the Standing Committee of the
NPC commissioned a research group to research and prepare a pre-
liminary draft of an administrative litigation law. The group com-
pleted the draft by August 1987.32 This preliminary draft was then
circulated to interested officials and scholars and to the relevant min-
istries. Concurrently, administrative litigation legislation was imple-

31. See, e.g., Jianyi Zhiding Xingzheng Fa he Xingzheng Susong Fa RMRB, Aug. 11,
1986, at 4. In the interview, Mr. Tao states, "currently, along with economic development, the
number of administrative disputes and administrative cases is continuously increasing. If these
disputes and cases are not handled in a timely and appropriate manner, it is bound to cause
disorder in social-economic life, making it impossible for administrative management to be
carried out smoothly." He was voicing the views of many legal scholars regarding the necessity
of establishing administrative litigation in China. Beginning in 1982, legal academics focused
increasingly on administrative litigation.

See also Zhou, Jixu Zhiding Xingzheng Susong Fagui, XINGZHENG FA 126-135 (1984);
Jiang, Jiaqiang Xingzheng Lifa Wei "Sihua" Fuwu, Zhongguo Fazhibao, Aug. 6, 1982 at 3,
reprinted in 8 ZHONGGUO RENMIN DAXUE SHUBAO ZILIAOSHE FuYIN BAOKAN ZILIAO:
FALO (China People's University Book and Newspaper Center, Photocopied Periodical: Law)
37 [hereinafter RENDA ZILIAO]; Zhu, Shi Lun Woguo de Xingzheng Susong 4 FAXUE YANJIU
14-20 (1984); Piao, Renmin Fayuan Youquan Dui Xingzheng Chufa Zuochu Zuizhong Caiue,
5 ZHENGZHI Yu FALO 21-22 (1984); Xingzheng Susong, 2 ZHENGZHI YU FAL0 19 (1985);
Guanyu Jingii Xingzheng Anjian Panli Wenti, Zhongguo Fazhibao, May 27, 1985, at 3. In
1986 and 1987, the volume of newspaper and journal articles concerning administrative proce-
dure increased. See, e.g., Zheng, "Xingzheng Susong" Hanyi de Bianxi, 2 FAXUE YANJIlu 79-
80 (1986); Jianyi Zhiding Xingzheng Fa he Xingzheng Susong Fa, supra; Shen, Zhiding
Xingzheng Susong Fa he Shezhi Xingzheng Shenpan Jigou de Biyaoxing, Zhongguo Fazhibao,
Oct. 8, 1986, at 3; Zhu, Woguo Yingdang Jianli Duli de Xingzheng Susong Zhidu, 3 ZHENGFA
LUNTAN 54-59 (1987); Tao, Jiaqiang Xingzheng Fazhi Jianshe Shi Dangwu Zhi i, 3 FAXUE
JIKAN 3-6 (1987); Jiejue Xingzheng Zhengyiyu Wanshan Xingzheng Susong Zhidu, 4 FAXUE
JIKAN 45-48 (1987); Yang, Dui Jianli Woguo Xingzheng Susong Zhidu de Sikao, 8 FAXUE 5-8
(1987).

32. Zhou Changxin, Woguo Xingzheng Susong Zhidu zai Yannan Qibu, Fazhi Ribao,
Jan. 28, 1989, at 1.

Chinese writers on administrative law take differing approaches to the definition of
"administrative litigation." Six are listed in ZHONGGUO XINGZHENG SUSONG JIAOCHENG
(Textbook of Chinese Administrative Litigation) 1-2 (Xiong Xianjue ed. 1988). See also
XINGZHENG SUSONG ZHISHI SHOUCE (Handbook of Administrative Litigation) 1-2 (Ying
Songnian ed. 1988).



ADMINISTRATIVE LITIGATION L41V

mented in Chongqing, Sichuan Province, on an experimental basis, in
order to test the proposed legislation.33 The opinion of the Supreme
People's Court regarding the law was solicited,34 and the Court also
began preparations for administrative litigation within the court
system.

35

By early 1987, the Supreme People's Court issued an order estab-
lishing, on an experimental basis, administrative divisions in people's
courts in various parts of the country.36 The purpose of creating the
divisions was to designate the judges who would bear primary respon-
sibility for handling administrative cases.37 In July 1988, Ren Jianxin,
the President of the Court, publicly announced that approximately
one-third of China's 3,000 courts had set up administrative divi-
sions.38 Ren then called for the institution of administrative panels
within all intermediate and higher people's courts by the end of 1988,
and institution within all basic level courts on a more gradual basis. 39

By September 1988, the administrative division of the Supreme Peo-
ple's Court was prepared hear administrative cases."

The Standing Committee of the NPC published a revised draft of
the ALL in November 1988 in order to publicize the law and solicit
public comments.41 Scholars and officials held conferences and meet-
ings between November 1988 and March 1989 to help prepare a final

33. See Chongqingshi Xingzheng Susong Zhanxing Guiding (Chongqing Municipality,
Administrative Litigation Provisional Regulations) (approved Sept. 4, 1987) SiCHUAN SHENG
DIFANGXING FAGUI HUIBIAN 118 (1987) (hereinafter Chongqing Regulations]. "Test-mar-
keting," i.e., selecting one or more cities to try out legislation prepared for national promulga-
tion, is the Chinese practice for controversial legislation.

34. Interview conducted by author (February 1989).
35. These preparations included the compilation of statutes with provisions permitting

court review for court personel. XINGZHENG SHENPAN SHOUCE (Manual for Administrative
Adjudication) (1987).

36. Late in 1986, the People's Court in Guluo County, Hunan Province, established an
administrative division. The first case tried involved a local pharmaceutical company that
disputed the penalty imposed by the local health department for manufacturing fake medicine.
Xingzheng Anjian Gaozhuang You Men, Zhongguo Fazhibao, Nov. 8, 1986, at I. Administra-
tive divisions were also established in Beijing, Shanghai, Shenyang, Wuhan, Chongqing, and
Shenzhen.

37. Document on file with author.
38. Supreme Court Head Speaks at National Mceting, Foreign Broadcast Information

Service-Daily Report, China [hereinafter FBIS-China], July 19, 1988, at 26.
39. As of June, 1988,21 of the nation's higher level courts had established administrative

divisions (72.4%). As of September, 1988, 224 intermediate level courts had established
administrative divisions (64.4%) and 1154 basic level courts had established administrative
divisions (40.3%). Zhou Changxin, supra note 32. As of March 1989, the Shanghai Munici-
pality Higher People's Court administrative division had no cases on its docket. Interview
conducted by author with the Vice President of the Administrative Division of Shanghai
Municipality Higher People's Court (March 1989).

40. New Trial Court to Handle Administratire Cases, FBIS-China, Aug. 25, 1988, at 28.
41. Administrative Law Explained, FBIS-China, Nov. 9, 1988, at 33.

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draft for submission to the National People's Conference in March
1989. Summaries of the debate on the law appeared in the legal press,
along with many articles commenting on or criticizing the draft law.42

On April 4, 1989, the ALL was passed. "
The ALL creates the institutional framework necessary to

develop an administrative litigation system in China. An array of
obstacles, however, threatens to hinder effective implementation of
the ALL. First, government leaders are ambivalent about the goal of
administrative litigation and are concerned that it will result in judi-
cial interference with state administration. Secondly, for a variety of
reasons, which will be detailed below, judges trying administrative
cases frequently find themselves under pressure to uphold administra-
tive decisions.' Thirdly, officials are often hostile to the idea that
they may end up as defendants in court.45 Finally, many ordinary
people remain unaware of the law, feel that officials protect one
another, or believe that it is more dangerous to win such a lawsuit
than to lose.4 6

In reality, it seems that most Chinese doubt that a court has the
power to protect their legal rights. Researchers investigating adminis-
trative litigation in Chongqing found that ordinary people in the city,
influenced perhaps by the enduring truth of the old proverb "officials
always protect each other," reacted suspiciously to the idea that the
administrative division could protect their legal rights.47 The Chief
Judge of the intermediate level people's court in Shenyang stated that
some people feel that suing a government agency is like "throwing an
egg against a stone,"4 8 a proverb which implies that such a suit would
be foolishly self-destructive. Citizens fear reprisals upon winning vin-
dication in administrative litigation. 9

42. See, e.g., Xiugai Hao Zhebu "Min Gao Guan" Fa, Fazhi Ribao, Feb. 10, 1989, at 2;
Dui Xingzheng Susong Fa Caoan Jige Wenti de Jianjie, Fazhi Ribao, Feb. 3, 1989, at 2.

43. The law was passed with 2662 votes in favor, 3 votes against, and 23 abstentions. Jiu
Xiang Jueyi de Piao Tongii, Wen Hui Pao (HK), April 5, 1989, at 1.

Although the vice-chairman of the National People's Congress had asked for implementa-
tion of the law to begin on April 1, 1990, because of legislative concern that a longer prepara-
tion period was needed, implementation was delayed until October 1, 1990.

44. Zhou Changxin, supra note 32.

45. Id.; see also, Juzhang Dang Beigao Bing Bu Diu Ren Xianyan, Fazhi Ribao, March 6,
1989, at 1.

46. Zhou Changxin, supra note 32.

47. Yuan Yue & Tan Zongze, Sifa Tizhi Gaige Zhong de Yi Xiang Tansuo Shiyan (Dui
Chongqing Shi Tuixing Xingzheng Susong de Diaocha), 3 FAXUE JIKAN 65 (1987).

48. Hua Yucai & Zhang Xing, Xingzheng Shenpanting Weihe Menting Lenglu, LIAO-
NING FAZHIBAO, June 20, 1987, at 3.

49. Zhou Changxin, supra note 32.



ADMINISTRATIVE LITIGATION LAW

II. ADMINISTRATIVE LITIGATION LAW

The ALL gives Chinese citizens and organizations, as well as for-
eigners and foreign organizations, the right to initiate a court proceed-
ing against any administrative agency which allegedly has infringed
upon their rights. However, a litigant's rights under the law are not
unlimited since not all administrative actions may be challenged and
the authority of the court is limited. The ALL, discussed in more
detail below, sets forth rules of jurisdiction, venue, and standing.

4. Administrative Litigation Thus Far

The amount of administrative litigation grew substantially in the
years prior to the promulgation of the ALL. According to statistics
of the Supreme People's Court, from 1983 to 1988 courts at all levels
had accepted 12,914 administrative cases.50 In 1987, administrative
divisions of various level courts accepted 5240 cases for initial consid-
eration, 4677 of which went to judgment.51 In 1987, 1007 cases were
accepted for appellate consideration.52 Of the trial cases that went to
judgment, almost half (2225) were public security administrative
cases; 203 of these invalidated public security decisions. In 1987, of
the 948 appellate cases, most of which were public security cases, only
75 invalidated the original administrative decision. 53 In 1988, out of
the 8753 administrative cases accepted throughout the country, there
were 3385 public security cases, 2719 land use cases, 433 zoning cases,
422 forestry cases, 250 food hygiene cases, 204 industrial and com-
mercial cases, 94 weights and measures cases, and 87 environmental
cases.

54

B. Availability of Judicial Review

1. Jurisdiction

People's courts have jurisdiction to hear two categories of cases
against administrative agencies: challenges to administrative action
and tort (civil) actions seeking damages for infringement of rights.
The greater part of the ALL concerns challenges to administrative
actions.

50. Id.
51. Id In 1987, the administrative divisions of the Shanghai courts accepted approxi-

mately 200 cases, while those in Chongqing took 117 cases. Document on file with the author.
52. Zhou Changxin, supra note 32.
53. Id
54. March 1989 document on file with the author.

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a. Challenges to Administrative Action

Article 11 of the ALL places eight types of cases within the juris-
diction of the people's courts." Initially, the drafters had considered
setting forth a broad definition of actionable administrative cases, 6

allowing adjudication of administrative cases in which "the concrete
decision of state administrative agencies affects the legal rights and
interests of citizens and units."' 57 Nevertheless, a more limited defini-
tion of jurisdiction was eventually adopted in the ALL. The Novem-
ber 1988 ALL draft circumscribed the court's jurisdiction by
specifying five categories of cases that were to fall within the court's
jurisdiction. 8 These restrictive provisions were substantially criti-
cized,59 and as a result, article 11, while retaining the enumerative
approach, gives the courts jurisdiction over a larger number of cases
than the November 1988 draft.

In the following circumstances, an aggrieved party may seek
redress in the people's courts: (1) when the administrative agency
levies fines or the Public Security Bureau detains an individual; (2)
when the administrative agency has imposed compulsory measures
such as freezing bank accounts, seizing property or restricting travel;
(3) when the administrative agency infringes upon an individual's
management rights; (4) when an administrative agency refuses to
grant a license although the applicant has met the statutory require-
ments; (5) when an administrative agency is legally obligated to pro-
tect personal or property rights, but refuses to do so; (6) when an
administrative agency fails to issue a pension, disability or death pay-
ment as required by law; (7) when an administrative agency demands
that a person or organization perform obligations not required by law;
and (8) when an administrative agency violates personal or property
rights in any other manner.6°

Article 3 of the Civil Procedure Law 61 provided the statutory
basis for administrative litigation until the ALL went into effect this
year. The article states: "[tihe provisions of this Law shall apply to

55. ALL, supra note 1, art. 11.
56. See Zhonghua Renmin Gongheguo Xingzheng Susong Fa (Administrative Litigation

Law of the PRC (draft)) 1987 [hereinafter 1987 Draft ALL] (on file with author).
57. Id. art.4.
58. Administrative Litigation Law of The PRC (draft) art. 11 (published Nov. 9, 1988)

trans. in BBC-SWB, Far East/0315, Nov. 22, 1988, at B2/1.
59. See, e.g., Gao Heng, Xingzheng Susong Lifa Yingdang Mianxiang Xingzheng Susong

Shishi, Fazhi Ribao, Jan. 16, 1989, at 3.
60. ALL, supra note 1, art. 11.
61. Civil Procedure Law of the People's Republic of China (for Trial Implementation)

(adopted March 8, 1982, implemented Oct. 1, 1982) art. 3 [hereinafter PRC Civil Procedure
Law], reprinted in 2 CHINA L. FOR. Bus.: BUSINESs REGULATIONS para. 19-200.



ADMINISTRATIVE LITIGATION LAW

those administrative cases which, as stipulated by law are subject to
the adjudication of the people's courts."62 This language led to confu-
sion among the courts as to how much jurisdiction was conferred. In
response to this uncertainty, the Supreme People's Court issued an
advisory opinion in 1987 which stated that "as stipulated by law"
means that courts were authorized to accept administrative cases aris-
ing only from laws passed by the NPC and its Standing Committee,
administrative regulations promulgated by the State Council, local
statutes passed by people's congresses (and their standing committees)
of provinces and directly administered municipalities, and regulations
passed by people's congresses of national autonomous areas.63 The
final paragraph of article 11 of the ALL codifies the court's advisory
opinion by clearly stipulating that courts have jurisdiction only if a
judicial review provision is included in national laws, local legislation,
or administrative rules and regulations issued by the State Council.6

The ALL still leaves some cases beyond the reach of judicial
scrutiny since the nature of the administrative action determines its
reviewability. Article 12 specifically exempts four categories of cases
from judicial review.65 The first category exempts an administrative
action involving national defense or foreign relations. The second cat-
egory exempts complaints about regulations, rules, or other decisions
formulated by administrative agencies. The third category exempts
decisions regarding rewards, punishments, appointments, and the dis-
charge of administrative agency personnel. 66 Finally, some adminis-
trative agencies are granted authority to issue final decisions and these
decisions are unreviewable. 67

b. Tort Actions

According to chapter IX of the ALL, people's courts have juris-
diction in civil (tort) actions against administrative agencies and per-
sonnel. This provision reiterates the principle set forth in article 121
of the 1986 General Principles of Civil Law of the People's Republic

62. Id. art. 3(2).
63. Guanyu Difang Renmin Zhengu Guiding Ke Xiang Renmin Fayuan Qisu deXizheng

Anjian Fayuan Ying Fou Shouli Wend de Pifu, 4 ZHONGHUA RENMIN GONOHEGUO ZUIGAO
RENMIN FAYUAN GONGBAO 22 (1987). The opinion was issued in response to a request by the
Guangdong Province Higher People's Court concerning the validity of judicial review provi-
sions included in regulations on economic administrative cases issued by the Shenzhen Sp-cial
Economic Zone People's Government.

64. ALL, supra note 1, art. 11.
65. Id art. 12.
66. See XINGZHENG SUSONG ZHISHI SHOUCE (Handbook of Administrative Litigation

Knowledge) 131 (Ying Songnian ed. 1988). Persons who dispute personnel sanctions may,
under some statutes, appeal within the relevant agency.

67. ALL, supra note 1, art. 11.

1989]



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of China (Civil Law): "[w]here a state agency, or workers in a state
agency in the course of performing their official duties, violate the
lawful rights and interests of citizens or legal persons and cause dam-
age, there must be civil liability."68

The ALL provides that a person or organization may seek tort
damages if an actual administrative act infringes upon and causes
damages to a person's rights or interests.6 9 Action may be brought for
damages or in conjunction with a challenge to the administrative
action. Article 67 of the ALL first requires an appeal to the relevant
administrative agency. A lawsuit may be filed in court only after an
unfavorable disposition by the administrative agency.7°

2. Venue and Jurisdiction

Chapter III of the ALL concerns venue and jurisdiction.7 It
draws on, and supercedes relevant articles of the Civil Procedure
Law, and certain regulations of the Supreme People's Court.

a. Jurisdiction

According to article 13 of the ALL, lower-level courts are the
courts of first instance in most administrative litigation cases. 72 Inter-
mediate-level courts will be courts of first instance in four types of
cases: certain patent right cases; customs cases; "major or compli-
cated" cases; and cases which concern national ministries and com-
missions, provincial governments and directly administered
municipalities. 73 High-level people's courts can act as courts of first
instance in major or complicated cases which arise within their juris-
diction. 74 The Supreme People's Court may act as an administrative
court of first instance, in major or complicated cases that pertain to

68. Zhonghuo Renmin Gongheguo Minfa Tongze (General Principles of Civil Law of
The People's Republic of China) art. 112 (adopted April 12, 1986, effective Jan. 1, 1987) trans.
in Jones, 13 REv. OF SOCIALIST L. 357-386 (1987) [hereinafter PRC Civil Law]. The issue of
civil liability of government agencies and officials for tortious conduct has been discussed by
commentators. See, e.g., Hu Jinguang, Guojia Quanli Jiguan Yingshi Qinquan Xingwei de
Zhuti, 2 FAxUE JIKAN 27-28 (1985); Wu Yan, Zhengfu Dui Qi Gongzuo Renyuan de Qinquan
Xingwei Ying Fu Sunhai Peichang Zeren Chuyi, 12 FAXUE ZAZHI 29 (1985); Zheng Xingfu,
Zhengque Renshi Guojia Jiguan Qinquan Xingweifi qi Minshi Zeren, 3 FAXUE 22-23 (1987);
Zheng Zhongyan, Jianquan he Wanshan Woguo de Xingzheng Peichang Zhidu, 3 FAZHi JIAN-
SHE 12-13 (1987); Zhang Feng, Lun Zhiding Woguo de Guojia Peichangfa, I ZHONrGUO
FAXUE 15-20 (1987).

69. ALL, supra note 1, art. 67.
70. Id.
71. Id. chapter III.
72. Id. art. 13.
73. Id. art. 14.
74. Id. art. 15.



ADMINISTRATIVE LITIGATION LAW

the entire nation.75

Article 23 adds "flexibility" in the area of jurisdiction, where
none had previously existed. Higher-level courts may try cases in the
first instance which normally would be tried by lower-level courts and
higher-level courts may transfer cases within their jurisdiction to
lower-level courts. Conversely, lower-level courts may request
higher-level courts to try cases.76

b. Venue

Article 5 of the Civil Procedure Law used to be the only provi-
sion covering venue. It provided that any lawsuit brought against an
agency falls under the jurisdiction of the people's court of the place in
which the defendant agency is located.77 This remains the general
rule.78 If a case has been reconsidered by a superior level administra-
tive agency, the court in the area in which that superior level agency
exists may also try the case. 79 The ALL is consistent with that part of
the Civil Procedure Law which states that if an administrative case
concerns real estate, the court in the area in which the real estate is
located may exercise jurisdiction.80

In general, the venue rules in the ALL provide that an adminis-
trative case is tried wherever the administrative agency is located.," It
is likely that such provisions are based on judicial convenience in try-
ing cases, since Chinese courts often take an active role in investigat-
ing cases. An inevitable consequence of trying a case in the
defendant's "home court," however, is the likelihood of local favorit-
ism, increasing the already significant advantage of the administrative
agency. The chances that officials of the defendant agency will exert
pressure or otherwise interfere with the regularity of the litigation are
also increased.

A legal challenge to a compulsory measure issued by an adminis-
trative agency may be made where either the plaintiff or the defendant
is located. 2 A court which does not have venue or jurisdiction may

75. Id. art. 16.
76. Id. art. 23.
77. PRC Civil Procedure Law, supra note 61, art. 20. For a discussion ofjurisdiction,

see Fei Zongwei & Jiang Bixin, Jianli Woguo Xingzheng Susong Zhidu de Ruogan Venti, 4
FAxUE JIKAN 4-5 (1987); Yuan Yue & Tan Zongze, supra note 47, at 66; Wang Qiguo, Weguo
Xingzheng Susong Teshuxing Tanxi, 1 FAXUE 19, 20 (1987).

78. ALL, supra note 1, art. 17.
79. Id.
80. Id. art 19; PRC Civil Procedure Law, supra note 61, art. 30.
81. ALL, supra note 1, art. 17.
82. Id. art. 18.

1989]



JOURNAL OF CHINESE LAW

transfer a case to one that does.83 A court may refuse to exercise
jurisdiction for "special reasons" (perhaps because the case is politi-
cally difficult or the court lacks necessary resources.) In such an
event, a court at a higher level may designate an alternate venue. 4 If
courts dispute jurisdiction, the law suggests that the issue should be
resolved through "friendly" consultation. If this fails, superior level
courts will resolve the issue.8 5

3. Standing

a. Plaintiffs

The plaintiff in an administrative action must be a citizen, legal
person or organization, or, under certain conditions, a foreigner,
stateless person, or foreign organization. 6 If the citizen is deceased, a
near relative may bring the action.87

Standing requirements under the ALL differ from those under
the Civil Procedure Law. Not only natural persons and organizations
with legal person status may bring suit, but "other organizations"
may bring suit, as well. It would seem that this term is meant to
include various other types of organizations such as separate factories
of a single enterprise or partnership which do not have legal person
status.8

Administrative litigation may be conducted as a class action.
Although the November 1988 draft omitted any mention of such class
action litigation,89 the ALL, like Article 47 of the Civil Procedure
Law, provides that lawsuits of a similar nature filed by similarly situ-
ated persons may be tried together with the consent of the judge.

As under the Civil Procedure Law, foreign nationals, stateless
persons, and foreign organizations enjoy the same rights to bring
administrative actions as Chinese citizens and organizations unless

83. Id. art. 21.
84. Id. art. 22.
85. Id.
86. Id. art.24. This article states that "[a] citizen, legal person or other organization who

brings an action in accordance with this Law shall be a plaintiff."
87. Id.
88. Take the common example of a large state-owned enterprise with several factories,

which has leased one or more factories to individuals. The enterprise itself is a legal person,
but each factory is not. It would seem that if it is considered to belong to the class of "other
organizations," the leased factory could engage in administrative litigation in the event that its
rights have been infringed upon by an administrative organ. Under the ALL, an enterprise
owned by a school or university (a common phenomenon) which is not an economically
independent unit, could also bring an administrative action.

89. A provision allowing group litigation is being tried in Chongqing, but does not
resolve the question of whether the decision in the litigation is binding on persons who do not
participate but later file their own suit. Chongqing Regulations, supra note 33, art. 18.



ADMINISTRATIVE LITIGATION LAW

relevant treaties provide otherwise or the courts of the foreign country
restrict the rights of PRC citizens or organizations to bring adminis-
trative actions.90 Foreigners and foreign organizations engaging law-
yers to represent their interests in administrative litigation must hire
PRC lawyers.91 This is an improvement over the 1988 draft which
foreign observers had criticized because it made no mention of the
rights of foreigners and foreign organizations to engage in administra-
tive litigation.92

b. Requirement of a "Concrete Act"

Under the ALL, only a concrete administrative act of an agency
is actionable. However, current law does not define a "concrete
administrative act."19 3 Some legal scholars had suggested that the
ALL should encompass "abstract administrative acts." They define
this term to include rules and regulations with binding authority
issued by the State Council or provincial governments, and adminis-
trative measures enacted by county governments.94 According to one
commentator, "in actual life, a great number of those acts that violate
the rights and interests of citizens are abstract administrative acts...
[if abstract administrative acts are not actionable] the rights and inter-
ests of citizens can not receive effective protection." 95 But according
to Wang Hanbin, formerly vice-chairman of the NPC Standing Com-
mittee and director of the NPC legal commission, the ALL was
intended to cover only a limited variety of disputes. 6

c. Defendants

Under the ALL, administrative agencies which have performed
qualified "concrete administrative acts" may be sued. 97 It would
seem that agencies at any level are potential defendants.98 The ALL,

90. ALL, supra note 55, art. 70-72. See also PRC Civil Procedure Law, supra note 61,
ch. V.

91. ALL, supra note 55, art. 73.
92. Lubman & Wajnowski, A Legal Opinion, CHINA TRADE REPORT, Mar. 1989, at 5.
93. A January 1989 draft of the law defined a "concrete administrative act" as a unilat-

eral act, committed by an administrative agency exercising administrative authority in regard
to a specific citizen or organization and involving rights and obligations of the citizen or organ-
ization. Administrative Litigation Law of The PRC (draft) art. 67(1) (published Jan. 24,
1989).

94. Hu Jian, Renmin Fayuan ShouliXingzhengAnjian Fanwei Tanxi, Fazhi Ribao, Mar.
8, 1989, at 3.

95. Zhang Suyi, Gaishi Daowei de Shihou le, Fazhi Ribao, Feb. 20, 1989, at 3.
96. Gu Chengwen, Law to Sue Government Planned for Next Year, China Daily, March

29, 1989, at 1.
97. ALL, supra note 55, art. 23.
98. The ALL specifies which agencies may be sued if a case has been reconsidered,

1989]



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however, does not define "administrative agency" or "administrative
organ." Can semi-official organizations be sued? Can universities be
sued under the ALL? These important questions remain unresolved.
The law does not specify whether the agency must be a legal person.
Under previous law, a branch of an administrative organ or agency
could not be a party to a suit; the parent agency would serve as
defendant.

Under the ALL, administrative organs, but not Communist
Party organizations, are subject to lawsuits.99 In practice, it is often
Party organizations which formulate administrative decisions.
Although the Party is obligated to act within the law, there is no relief
for parties aggrieved by Party decisions under the ALL. '00 This fail-
ure in has rarely been addressed by Chinese legal scholars, undoubt-
edly due to its political sensitivity. 101

In practice, government departments and officials are unaccus-
tomed to being defendants in administrative litigation. The concept is
foreign to them because in their experience officials are accountable
only to superiors and Party discipline committees. A 1987 study done
by a team of researchers at Peking University found that "government
departments are extremely reluctant to be defendants. Their refusal
to appear in court ... [is] not unusual."' 0 2 Similarly, two researchers
who investigated the newly established administrative divisions of the
Chongqing municipal courts, found that officials did not want to
"condescend" to go to court on an equal basis with ordinary citi-
zens." 3 A prominent Shanghai lawyer writing in a recent issue of
Guangming Ribao pointed out that some departments refuse to
answer lawsuits or deliver files to the court; some even destroy incrim-
inating materials.' ° 4 Many officials lack familiarity with law, and
regard the regulatory infrastructure with which they work as inade-
quate. In addition, many either engage in favoritism or encounter it
in their work. A recent survey of the level of legal knowledge of
heads of departments and sections of Shanghai government agencies

administrative authority has been delegated to another organization, two or more agencies
have jointly made the same act, or the original administrative agency has been abolished. See
ALL, supra note 55, art. 23.

99. Id., ch. IV.
100. Id.
101. An exception is Yuan & Tan, supra note 47, at 68. Discussion of whether the Party

should be subject to suit is almost nonexistent in the public press.
102. Wang Gangyi, Court Can Check Government Power, China Daily, Jan. 26, 1988, at

4.
103. Yuan & Tan, supra note 47, at 68.
104. Yao Xuandong, Yishen Xingzheng Anjian Buyi Shumian Shenli, Guangming Ribao,

Feb. 21, 1989, at 3.



ADMINISTRATIVE LITIGATION LAW

(relatively well-trained in comparison to officials in much of China)
found that "their legal knowledge, especially of administrative law,
was extremely deficient." °5 The Shanghai report also found the fol-
lowing aphorisms applicable to administrative activity: "wufa keyi '

(no law on which to rely); "youfa nanyi" (available law is difficult to
apply); "zhifa buyan" (law is not applied strictly.)10 6

d. Third Parties

Article 27 of the ALL allows legal persons or other organizations
with a direct interest in the disputed concrete administrative act to
participate in the litigation as third parties. 0 7 In addition, the
Procuracy may exercise supervision over administrative litigation.10 3

C Exhaustion of Remedies and Time Limits

1. Exhaustion of Administrative Remedies

The ALL encourages but does not require potential litigants to
exhaust administrative remedies before filing suit unless otherwise
required by law. 10 9 The degree to which litigants must first exhaust
administrative remedies varies according to the law or regulation con-
cerned. Some of the statutes which require appeal of the decision
within the relevant agency before filing suit include the tax, patent,
and foreign exchange control laws." 0 It may be surmised that the
policy behind the requirement of exhausting administrative remedies
is to have each agency resolve disputes involving its own work. Chi-
nese judges generally lack any background in the areas of finance and

105. Zhang Shixin, et al., Dui Guojia Xingzheng Gongzuo Renyuan Jinxing Xingzhengfa
Zhishi Jiaoyu Shizai Bixing, 2 ZHONGGUO FAXUE 9, 10 (1987).

106. Id at 11-12.
107. ALL, supra note 55, art. 27.
108. Id. art. 10.
109. Id. art. 37. The question of exhaustion of administrative remedies has been a con-

troversial one for the drafters of the law. An early draft of the law revealed that the majority
of drafters favored a scheme according to which persons who dispute an administrative deci-
sion must first appeal the decision to the next higher level within the relevant agency before
filing suit. 1987 Draft ALL, supra note 56. A minority of drafters favored establishing a multi-
leveled appeal procedure, which would require an aggrieved person to make administrative
appeals upward from the county level all the way to the relevant ministry in Beijing. Draft
ALL, supra note 56.

110. See, eg., Income Tax Law of the People's Republic of China Concerning Joint Ven-
tures with Chinese and Foreign Investment, (promulgated Sept. 10, 1980) art. 15 CHINA L
FOR. Bus.: BusINEsS REGULATIN, supra note 27, para. 33-500; Detailed Implementing Regu-
lations Governing Violation of Exchange Control of the Peoples Republic of China (approved
Mar. 25, 1985, promulgated Apr. 5, 1985), CHINA L. FOR. Bus.: BUSINESS REGULATION,
supra note 27, para.8-675; CHINA L. FOR Bus.: BUSINESS REGULATION, supra note 27, para
33-500; Patent Law of the PRC (adopted March 12, 1984, promulgated April 1, 1985), CHINA
L. FOR. Bus.: BUSINESS REGULATION, supra note 27, para. 11-600.

19891



JOURNAL OF CHINESE LAW

banking and would rather defer to experts in such matters to resolve
related disputes. A plaintiff who brings a civil suit for monetary dam-
ages, however, need not exhaust administrative remedies.

The drafters of the ALL, anticipating that administrative agency
officials may be reluctant to reconsider their decisions, have included
a provision requiring such "reconsideration decisions" to be issued
within two months of appeal, unless otherwise stipulated."' If the
agency refuses to issue a reconsideration decision within the allotted
time, the aggrieved person may file suit with a court within fifteen
days of the expiration of the time limit for issuing the reconsideration
decision. " 2

Requiring exhaustion of administrative remedies does allow the
agency an opportunity to resolve the dispute before facing a hearing
by a court which may lack the necessary technical background, but as
of yet most agencies lack legal guidelines for considering administra-
tive appeals.

2. Stay of the Administrative Decision

The ALL specifies that execution of the administrative decision
will not be suspended during the course of a court appeal, unless pro-
vided by relevant law."I3 A court may suspend execution on its own
initiative if the court decides that execution of the decision will cause
irreparable harm to the plaintiff and not harm the public interest," 4

or may suspend execution upon application by the plaintiff or the
defendant agency." 5 The law favors implementation of the adminis-
trative decision, but enables courts to protect parties from suffering
any consequences.

3. Timing

If a plaintiff appeals to the agency for reconsideration of its origi-

111. Id. art. 38.
112. Id.
113. Id. art. 44.
114. Previously, legal scholars disputed whether a court trying an administrative case

had the legal authority to stay an administrative decision if the relevant statute lacks such a
provision. One group of scholars held that courts could not willfully suspend administrative
decisions. At least one legal scholar stated that courts inherently have such authority, which
he argued followed from the proposition that the judicial powers have a certain restrictive
function in relation to the executive powers. Zhu Xingyou, Shilun Renmin Fayuan Zhongzhi
Xingzheng Caijue Zhixing de Jueding Quan, 2 XIANDAI FAXUE 48 (1988). Zhu also mentions
views of other scholars who reject his own views. He says that because the judiciary can
restrict the executive actions within legal boundaries and can protect affected persons from
suffering harm, a court has the authority either by application of the plaintiff or on its own
initiative to suspend improper administrative decisions. Id.

115. ALL, supra note 55, art. 44.



ADMINISTRATIVE LITIGATION LAW

nal administrative decision, the agency has a maximum of two
months to make the reconsideration decision (unless otherwise pro-
vided by law.) 16 Absent a provision to the contrary, the applicant
then has fifteen days after the issuance of the reconsideration decision
to fie suit with a court.' 17 If no administrative reconsideration was
required, the plaintiff has three months after learning of the adminis-
trative act to file suit.1 8 Given the current communication and trans-,
portation system, as well as the relatively slow pace of affairs in
China, fifteen days is a very short period for an aggrieved party to
engage a lawyer or other representative to aid him in challenging an
administrative decision.

A party filing suit against an administrative agency seeking com-
pensation for damages is subject to more liberal time limits. The Gen-
eral Principles of Civil Law provide that the statute of limitations for
bringing a civil suit is two years (unless the law provides otherwise)' 19

and that the limitation for a person seeking compensation for bodily
injury is one year.1 20

D. Adjudication of Administrative Litigation

1. Nature of Adjudication

The ALL requires that an administrative lawsuit meet four con-
ditions in order to be accepted by a court: the plaintiff must be an
organization, legal person, or citizen; there must be a specific defend-
ant; there must be a concrete claim and a factual basis; and the courts
must have jurisdiction over such cases.12' A court must make a deci-
sion whether to docket a case within seven days of receipt of the com-
plaint. 22 If the court refuses to accept the case, the plaintiff may
appeal the decision. 23

The ALL specifies that courts shall try administrative cases in a
collegiate bench, consisting of an odd number of three or more judges
or "people's assessors."' 24 All administrative cases shall be tried pub-
licly, except those involving state secrets or personal affairs.' 5 Previ-

116. Id. art. 38.
117. Id. Some laws stipulate time limits which range from five days to three months.
118. Id. art. 39.
119. PRC Civil Law, supra note 68, art. 135.
120. Id art. 136.
121. ALL, supra note 55, art. 41.
122. Id. art. 42. A recent commentary in Fazhi Ribao noted that courts often receive

"orders" (from local officials) not to docket cases. Gao Heng, supra note 59.
123. Id
124. Id art. 46. In addition, the ALL provides for recusal of court personnel, and also

permits a party to request ajudge or other judicial personnel to disqualify himself. Id. art. 47.
125. Id. art. 45.

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JOURNAL OF CHINESE LAW

ous drafts of the law, including the November 1988 draft, would have
allowed adjudication based solely on written documents or "paper
trials." 

12 6

The final version of the ALL does not allow use of mediation,
the informal resolution of disputes with the aid of a third party.
Mediation is favored in the resolution of civil disputes, except in tort
cases.127 Earlier drafts of the ALL allowed limited use of
mediation. 128

2. Court Investigation and Compilation of Evidence

According to the ALL, the court has the authority to obtain evi-
dence from relevant parties and units. 129 Article 31 sets forth what
will be considered as competent evidence. 130 The law places the
responsibility upon the defendant administrative agency to provide
evidence concerning its challenged decision, as well as the factual and
legal basis for its decision. 131 The plaintiff's access to relevant docu-
ments of the defendant depends on whether the plaintiff is represented
by a lawyer. Only the plaintiff's lawyer may consult relevant materi-
als, investigate, and collect evidence from the organizations and citi-
zens concerned.

132

Apparently anticipating that defendant agencies might not
always comply with their legal obligation to provide evidence relating
to the disputed administrative decision, the ALL imposes penalties
upon those who destroy or refuse to provide evidence, retaliate
against judicial personnel, or otherwise obstruct justice. 13 3 The law
also forbids the defendant to seek evidence from the plaintiff.,34

These provisions were absent from earlier drafts of the law.

3. Scope and Standard of Administrative Adjudication

The ALL provides that courts shall try administrative cases inde-
pendently according to law, subject to no interference from adminis-
trative agencies, public organizations, or individuals. 135 This means

126. See, e.g., 1987 Draft ALL, supra note 58, art. 28.
127. ALL, supra note 55, art. 67. Article 6 of the Civil Procedure Law states: "The

people's courts shall stress mediation; when mediation efforts are of no avail, the court shall
pass judgment without delay." PRC Civil Procedure Law, supra note 61, art. 6.

128. Draft ALL, supra note 56, art. 6.
129. ALL, supra note 55, art. 34.
130. Id. art. 31.
131. Id. art. 32.
132. Id. art. 27.
133. Id. art. 49.
134. Id. art. 33.
135. Id. art. 3.



ADMINISTRATIVE LITIGATION LAW

that judges should adjudicate cases according to law, not according to
orders from government officials, Party cadres, or other powerful per-
sons. Although the Civil Procedure Law, under which administrative
cases have been tried, contains a similar provision, the political reali-
ties of China do not accord with this exhortation forbidding tamper-
ing with judicial activity.

Recent newspaper articles have suggested that judges are often
inherently partial to government officials. In addition, they are often
pressured or even threatened by such officials. It has been suggested
that administrative cases have been improperly decided due to
outside pressure on the judges. 3 6 The reason suggested by commen-
tators is that "funds, material resources, and even powers of courts
are controlled by such officials."' 137

Another source of pressure is the political and legal work com-
mittee of the local Communist Party, whose members often include
the local Party secretary and the head of the local public security
bureau. According to recent articles, these committees often actually
decide all aspects of court cases. 3 8

Prior to the promulgation of the ALL, the standard for deter-
mining the legality of the challenged administrative act was provided
by the Civil Procedure Law: "in trying a civil case, the people's court
shall base its decision on the facts and take the law as the crite-
rion." 139 The ALL sets forth the same standard as the Civil Proce-
dure Law. '40

The vagueness of the above provision left open for debate the
appropriate standard by which courts should determine the legality of
administrative actions. The focus of this debate by legal academics
and officials was whether and to what extent courts were bound by
regulations issued by administrative agencies at either a national or
local level. In the debates, the position maintained by most officials' 4'
as well as Zhang Zhangzuo, president of the Administrative Law
Society of China,' 42 was that agency regulations had to be used as a

136. One commentator notes that some judges are subjected to so much pressure from
local officials that the majority of their decisions uphold administrative agencies. The masses
call these meetings "upholding meetings." Zhou Changxin, supra note 32.

137. Chen Xiao, Making Law Work for the Little Guy, China Daily, Jan. 13, 1989, at 4.
See also Gao Heng, supra note 59.

138. See, eg., a recent article in Minzhu yu Falr by Yang Yintang, of the Intermediate
People's Court in Huaiyin, Jiangsu Province, which is summarized in: End of 'Conviction
Before Trial' Urged, China Daily, Sept. 5, 1988, at 4.

139. PRC Civil Procedure Law, supra note 61, art. 5.
140. ALL, supra note 55, art. 4.
141. Chen Xiao, supra note 138.
142. Dui Xingzheng Susong Fa Caoan Jige Menti de Jianjie, supra note 43.

19891



JOURNAL OF CHINESE LAW

basis for deciding cases. This position was based on the argument
that such regulations have the status of law (legislation approved by
the National People's Congress and its Standing Committee), and that
unless regulations are considered to be "law," local governments will
have no legal basis for carrying out their authority and as a result will
be rendered powerless. 143

The second view held by some scholars, judges, and at least one
member of a provincial legislature was that courts are not legally
bound by agency regulations. This view was based on the argument
that, although both national law and local regulations have normative
value, "law" may be promulgated by legislative organs of the central
government or organs to which it has delegated such authority.
Moreover, most local regulations are not publicly distributed and are
issued by the agencies themselves. Therefore, according to this argu-
ment, using such regulations as the basis for court decisions would be
detrimental to the protection of citizens' rights and interests.'44

In the end there was general agreement among those involved in
drafting and commenting on the legislation that the courts were
bound by national regulations, administrative regulations of the State
Council, and local legislation. These views are incorporated into arti-
cle 52 of the ALL.145

Article 53 of the ALL represents a compromise position in the
debate over the appropriate standards for determining the legality of
administrative regulations. In referring to local regulations, a court
must make an initial determination whether the regulations issued by
provincial governments are inconsistent with those issued by national
ministries and commissions, or whether the regulations issued by vari-
ous national ministries and commissions are inconsistent with each
other. Although the court is not bound to apply the regulations, it
does not have the authority to invalidate the offending regulations.
Rather, ALL article 53 directs the court to ask the Supreme People's
Court to request an interpretation or decision from the State Coun-
cil. 146 This provision demonstrates the limited scope of judicial review
in China.

E. Scope of Review

Article 54 of the ALL sets forth the scope of authority of a

143. Falil Yizu bu Yixi bu Heshi Yi, Renmin Ribao, Sept. 5, 1988, at 4.
144. Xiugai Hao Jiebu "Min Gao Guan" Fa, Fazhi Ribao, Feb. 10, 1989, at 2.

145. ALL, supra note 55, art.52.
146. Id. art. 53.



ADMINISTRATIVE LITIGATION LAW

reviewing court. 14 7 The administrative decision should be upheld if
the evidence on which the administrative act is based is conclusive
and the agency's application of relevant laws and regulations is
correct. 

148

A reviewing court may set aside an administrative decision, in
whole or in part, or order a reconsideration of a decision by the
administrative agencies if it makes one or more of the following deter-
minations: principal evidence is insufficient; application of law and
regulations is erroneous; legal procedures were violated; a decision
exceeded authority; or an agency abused its authority. 149

During the drafting of the ALL there was considerable contro-
versy as to whether courts should have the authority to modify
agency decisions. 150  The November 1988 draft limited a court's
authority to modify administrative sanctions to those which were
basically appropriate but either too harsh or too light.151 As the law
now stands, a court can modify an administrative sanction which is
obviously unfair.' 52

1. Conflicts of Law

The ALL has no provisions guiding a court on what it should do
if it determines that relevant local legislation conflicts with national
law or rules promulgated by the State Council. The Supreme People's
Court has issued some guidance to lower courts on this issue. In a
1985 notice on economic adjudication, the Court informed lower
courts that if local legislation conflicts with either the Constitution,
national laws (passed by the National People's Congress or its Stand-
ing Committee) or administrative regulations (promulgated by the
State Council), the courts should report the conflict to the local Peo-
ple's Congress and its standing committee. 53 The notice does not fur-

147. Id. art. 54.
148. Id.
149. Id.
150. Interview conducted by author (February 1989).
151. Draft ALL, supra note 58, art 36(4). An early draft of the law provided that courts

could not modify decisions made by administrative agencies within the scope of the agency's
legal authority. However, several exceptions were made to this rule, including authorizing
courts to modify agency decisions concerning ownership rights as well as those reconsideration
decisions concerning compensation of damages. Another exception was made for instances in
which the agency decision is "clearly inappropriate" or in which outside persons or institutions
interfered with the normal decision making processes of the agency and as a result the plaintiff
was affected unfavorably. 1987 Draft ALL, supra note 56, art. 22.

152. ALL, supra note 55, art. 54(4).
153. Guanyu Jiaqiang Jingfi Shenpan Gongzuo de Tongzhi (Dec. 9, 1985), reprinted in

XINGZHENG SUSONG ZHISHI SHOUCE (Handbook of Knowledge of Administrative Litigation)
206, 209 (Ying Songnian ed. 1988).

1989]



JOURNAL OF CHINESE LAW

ther specify how such courts should act nor what result might be
reached.

The 1985 notice has been interpreted by at least one Chinese
scholar as suggesting that the Supreme People's Court is declaring its
authority to invalidate local laws that contravene the Constitution. ,54
A more orthodox interpretation of this provision is that "reporting"
means that a court may send a report to the local legislature pointing
out the apparent conflict between the local law and national law or
the Constitution or for information as to what the legislature meant.
It is this latter interpretation which is adhered to by those administra-
tive division judges with whom the author has spoken.'55

The November 1988 draft law provided that in the case of a con-
flict between local legislation or rules promulgated by the State Coun-
cil and national law, national law would take precedence. 56 No such
provision appears in the final text of the law.

2. Enforcement and Appeal

The ALL gives courts a three month period, extendable in spe-
cial circumstances, to issue judgments in administrative cases. 157 If in
the course of adjudication, a court considers that government officials
have committed crimes or other violations, it may forward relevant
materials to the procuracy or other relevant authorities.'5 "

After the judgment of a court becomes legally valid, both parties
are obliged to implement it. 59 The necessity for including such a
measure in legislation was shown in a recent study by a Peking Uni-
versity professor and his colleagues, who found that government defi-
ance of court rulings that are not in their favor is "not unusual.'160

Other legal commentators have noted that one of the crucial issues in
administrative litigation is that court decisions in administrative cases
often cannot be implemented.1 61 Government officials often refuse to
return plaintiff's property, impose similar or more severe penalties
(based on the original facts) on the plaintiff, or even illegally detain
the plaintiff or otherwise restrict his movements. 62

154. Liu Nanping, "Judicial Review" in China: A Comparative Perspective (manuscript to
be published in the REVIEW OF SOCIALIST LAW).

155. Interview conducted by author with members of the administrative division,
Shenzhen Special Economic Zone People's Court (December 1988).

156. 1987 ALL Draft, supra note 56, art. 4(2).
157. ALL, supra note 55, art. 57.
158. Id. art. 56.
159. Id. art. 65.
160. Wang Gangyi, supra note 103, at 14.
161. Gao Heng, supra note 59, at 67.
162. Id.



ADMINISTRATIVE LITIGATION L4V

There are a variety of reasons for such defiance. For many gov-
ernment officials, it is a new and strange experience to find themselves
in court justifying their actions. It is even more peculiar for them to
be told by a court, which the officials do not perceive to be an institu-
tion of equal status, that the decision they have made is invalid.
Involved officials may feel that they have personally been shamed by
losing the lawsuit and want to avenge themselves.

Article 65 of the ALL gives a court several options in enforcing
its decision against an administrative agency. 163 The court may order
the appropriate bank to transfer the amount of the fine or compensa-
tion to be paid to the plaintiff from the defendant's account; the court
may impose a fine of 50 to 100 yuan per day upon an agency that does
not implement the judicial decision within a specified period; the
court may present the judicial opinion to the administrative agency's
superior level, which shall be obliged to comply with the court ruling;
and if the circumstances warrant, the chief administrator(s) and the
persons directly responsible shall be investigated and possibly crimi-
nally prosecuted. 164

Under the ALL, a party who contests the decision of the court of
the first instance has the right to appeal to the court at the next higher
level. 165 The law limits litigants to two adjudications with the second
adjudication being final.' 66 According to Article 61, the court of sec-
ond instance shall review the facts and legal basis for the initial judg-
ment. 167 In doing so, the court may act either as an appellate court
and remand a case in which the evidence is unclear, or act as a second
trial court by making an investigation of the facts and then issuing a
ruling. 16S

III. CONCLUSION

While the concept of administrative litigation is derived from for-
eign legal systems, an examination of the Administrative Litigation
Law reveals that the Chinese legislation is not merely a transplanted
foreign law. Rather, adoption of the ALL reflects the recognition by
the Chinese leadership of its potential utility in resolving the increased
number of disputes between administrative agencies and Chinese or
foreign individuals, corporations, and partnerships.

The ALL may prove to possess far greater potential than

163. ALL, supra note 55, art. 65.
164. Id.
165. Id. art. 58.
166. Id. art. 6.
167. Id. art. 61.
168. Id. art. 61(3).

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JOURNAL OF CHINESE LAW

expected. First, the ALL may serve to include within the ambit of
judicial scrutiny an increasingly broad range of administrative activ-
ity. Second, the ALL has the potential to influence significantly the
power balance between the individual, the local government, and the
national government. Local and national government officials have
exercised enormous, and generally unchallenged, power over the eco-
nomic and personal lives of individuals through their authority to
issue licenses, permits, and confiscation orders, and to impose fines
and other administrative penalties. By enabling individuals to chal-
lenge the validity of such administrative actions in court, the ALL
theoretically places individuals and government organs on more equal
footing. By providing for open trials, the ALL has the potential
through press coverage to facilitate increased public monitoring of
official behavior.

The implementation of the ALL faces significant obstacles. Gen-
erally, the judiciary has a low level of professional competence, faces
pressure from local administrative officials, and is subject to Party
interference. State employees, whose activities are in many cases not
governed by detailed or effective legal guidelines, often possess only a
vague awareness of relevant laws and are unaccustomed to operating
according to any legal standard. Similarly, many ordinary people,
who are unfamiliar with law, are doubtful that either courts or law
will protect them.

The success of the ALL in achieving its objectives depends on the
further development of Chinese judicial and administrative institu-
tions and an increased readiness among the Chinese people to seek
protection of their rights in court. A well-educated judiciary is imper-
ative as is a larger number of legally trained judiciary personnel. It is
of vital importance that government officials in the bureaus and offices
throughout the country become well-versed in Chinese law and recog-
nize its authority in governing their activities. Regulations governing
judicial proceedings must be expanded to ensure the independence of
the judiciary. Finally, the Chinese people must become aware of their
right to challenge administrative decisions and gain confidence that
they will receive justice in court. Although the passage of the ALL is
a significant piece of legislation, the paucity of cases thus far indicates
that many Chinese people believe administrative litigation is like
throwing an egg against a stone.