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Review of Government Action – The Role of Administrative Law in China: a Foreign Perspective

Review of Government Action – The Role of Administrative Law in China: a Foreign Perspective. Vivienne Bath Senior Lecturer in Law, Faculty of Law, Sydney University Director, Centre for Asian and Pacific Law. What is administrative law?. Separate area of law

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Review of Government Action – The Role of Administrative Law in China: a Foreign Perspective

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  1. Review of Government Action – The Role of Administrative Law in China: a Foreign Perspective Vivienne Bath Senior Lecturer in Law, Faculty of Law, Sydney University Director, Centre for Asian and Pacific Law

  2. What is administrative law? • Separate area of law • Deals with government bodies engaging in administration – that is, public work and management and the provision of public services • Elements: work of a public nature; activity authorised by law and in accordance with law; element of compellability of action of government body

  3. Scope of Administrative Law • Deals with: • Law of administrative organs – establishment of administrative bodies; powers of public officers • Administrative behaviour – exercise of power; manner; procedure; principles and provisions • Administrative relief – includes administrative reconsideration and procedure

  4. Laws • Administrative Litigation Law of the PRC 1989中华人民共和国行政诉讼法 • State Compensation Law of the PRC 1994中华人民共和国国家赔偿法 • Law of the PRC on Administrative Punishments 1996中华人民共和国行政处罚法 • Law of the PRC on Administrative Supervision (1997) and Implementing Regulations (2004)中华人民共和国行政监察法;中华人民共和国行政监察法实施条例 • Administrative Reconsideration Law (1999)中华人民共和国复议法 • Administrative Licensing Law 2003 (effective 1 July 2004)中华人民共和国行政许可法

  5. Features of the system • General principle: “administration in accordance with law” 依法行政 • Provision of right of appeal against administrative action – through lawsuit or administrative reconsideration • Limitation of rights to impose punishments (particularly detention) • Right to compensation for individuals affected by administrative act • Supervision of administrative agencies • Controls over rights of agencies to impose licensing and approval requirements

  6. Coverage - Administrative Litigation • Can bring claim when “legitimate rights and interests” infringed by a specific administrative act • Right to claim limited to infringement of personal or property rights • No conciliation except in relation to damages • Court bound to apply law, administrative rules and regulations as basis.

  7. Causes of Action and Remedies • Annulment or requirement for defendant to undertake administrative act again: • Inadequacy of evidence • Erroneous application of law or regulations • Violation of legal procedure • Exceeding authority • Abuse of power • Obvious inappropriateness of specific administrative act • In case of delay, court may set fixed time for performance of obligations • Amendment of “obviously unfair” administrative sanction

  8. Remedies • Action against offending administrator if has violated administrative discipline – report to higher authorities, or transfer of case for criminal action • Compensation under State Compensation Law

  9. Themes • Imposition of strict time limits • Execution of specific administrative act generally not suspended except in special circumstances • Concern to preserve distinction between administration and criminal action • Emphasis on personal as well as agency liability for infringements

  10. Administrative Licensing Law • Provides for • Publicity, fairness and impartiality in the grant of licences, permits, etc. • Limitations of circumstances in which a licensing requirement can be imposed • Controls over independence of local government in imposing requirements • Prevention of abuses and fund-raising opportunities

  11. Does the system work? • Relatively small number of administrative cases and administrative reconsideration cases • 2004: increase of 4.7% of administrative cases from 2003 (92,192 from 88,050) • BUT more than 90,000 case in 1998 and more than 100,000 in 2002 • Percentage of overall cases low – between 1% to 2% of total caseload • Success rate: not particularly high • Administrative action to implement Administrative Licensing Law – revocation of large numbers of administrative licences • Draft anti-monopoly law contains section restricting and controlling local protectionism

  12. Issues • Close relationship of administrative bodies and business – subsidiaries under government bodies; guanxi, etc. • Lack of independence of supervisory bodies • Discretion powers of administrative bodies in relation to rule-making power and interpretation • Apparent lack of success of administrative reconsideration system

  13. Issues • Lack of awareness of rights • Fear of retaliation • Weakness of administrative supervision system (strengthened partly by 2004 regulations) • Criticisms of procedure (draft documents issued by Supreme Court in 2004 to improve procedures)

  14. Conclusions • Objective of “administration in accordance with law” • Gradual strengthening of legal regime in relation to administrative rights • Difficulties from local powers; weak courts; social issues relating to local authorities • Improvement likely to be gradual

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