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Citizens v. Mandarins: Administrative Litigation in China*

Published online by Cambridge University Press:  12 February 2009

Minxin Pei
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Extract

The Chinese government has, in the last 20 years, devoted enormous political resources and effort to revamping its legal system. The resultant legal reforms, part of the government′s programme of political institutionalization, have been the subject of intense scholarly interest in the West. One of these legal reforms was the Administration Litigation Law (ALL), passed in April 1989 and implemented in October 1990. The theoretical significance of this law can hardly be exaggerated because, if fully enforced, it would afford Chinese citizens an important legal instrument with which to defend themselves against the abuse of state power by government agencies and officials. Like other legal reforms, the ALL has attracted the attention of both Chinese and Western legal scholars. However, most early studies do not offer in-depth empirical analysis of the implementation of the law, its effects on China′s administrative practices and its political implications. A possible exception was a 1992 study by a group of Chinese scholars who used polling data to assess the public perception of the ALL and relied on two case studies to investigate how the law was implemented at the grassroots level. Nevertheless, the 1992 study has its limitations. Apart from the issue of the reliability of polling in China, it contains no national data on the implementation of the law; nor does it provide an in-depth analysis of sample court cases that went to trial according to the provisions of the ALL. Furthermore, it covers only a very brief period following the implementation of the law and relies on insufficient data, especially at the national level. Other works on the ALL suffer from similar problems, as lack of empirical data apparently restricted their authors mostly to a historical review of the evolution of administrative litigation in China, an analysis of the legal provisions of the ALL and speculation about its effectiveness.

Type
Research Notes
Information
The China Quarterly , Volume 152 , December 1997 , pp. 832 - 862
Copyright
Copyright © The China Quarterly 1997

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Footnotes

*

The financial support for the research was provided by the United States Institute of Peace (SG-71–94). The opinions, findings, and conclusions or recommendations expressed in this article are those of the author and do not necessarily reflect the views of the United States Institute of Peace. The author wishes to thank the helpful comments from Larry Diamond, Elizabeth Perry, Stanley Lubman and Jonathan Hecht.

References

1. See Dicks, Anthony, “The Chinese legal system: reforms in the balance,” The China Quarterly, No. 119 (September 1989), pp. 540–576]CrossRefGoogle Scholar; Pitman, Potter (ed.), Domestic Law Reforms in Post-Mao China(Armonk, NY: M. E. Sharpe, 1994)]Google Scholar; and Lubman, Stanley, China′s Legal Reforms(New York: Oxford University Press, 1996).]Google Scholar

2. See Ruixiang, Gong (ed.), Fazhi de lixiang yu xianshi (The Ideal and Reality of the Rule of Law)(Beijing: Zhongguo zhengfa daxue chubanshe, 1993).]Google Scholar

3. Finder, Susan, “Like throwing an egg against a stone? Administrative litigation in the People′s Republic of China,” Journal of Chinese Law, Vol. 3, No. 1 (Summer 1989), pp. 1–28]Google Scholar; Potter, Pitman, “The Administrative Litigation Law of the PRO judicial review and bureaucratic reform,” in Potter, Domestic Law Reforms in Post-Mao China, pp. 270–304]Google Scholar; Bing, Song, “Assessing China′s system of judicial review of administrative actions,” China Law Reporter, Vol. 8, Nos.1–2 (1994), pp. 1–20.]Google Scholar

4. Lawsuits against government officials and agencies had been filed and tried even before the passage of the ALL, but the number of such cases grew dramatically after the passage of the law.

5. These 236 cases include 189 from a series of textbooks for Chinese judges. They are collected in Zhongguo shenpan anli yaolan (SelectedMajor Trial Cases in China);this series is edited by Zhongguo gaoji faguan peixun zhongxin (The National Training Centre for Senior Judges) and the Law School of the People′s University; it is published by Zhongguo renmin gongan daxue (The Chinese People′s Public Security University) Publishing Company. The 189 cases were from Zhongguo shenpan anli yaolan (hereafter ZSAY)(1992, 1993, 1994, 1995). Forty cases were published in Renmin fayuan anli xuan (Selected Cases from the People′s Court), Nos. 11–15 (Beijing: Renmin fayuan chubanshe, 1995). Seven cases were published in Zhongguo falu nianjian (Law Yearbook of China), various years.]Google Scholar

6. Liu Jinghuai, “Min gao guan you fa keyi” (“The legal basis for private citizens to sue government officials”), Liaowang29 October 1990, p. 14.]Google Scholar

7. Also see Potter, , “The Administrative Litigation Law of the PRC,” pp. 274–276]Google Scholar; Finder, , “Like throwing an egg against a stone?” pp. 8–10.]Google Scholar

8. Liu Jinghuai, “Min gao guan you fa keyi,” p. 14.]Google Scholar

9. The CCP Politburo reportedly held two special meetings on the ALL. Peng Zheng, the chairman of the National People′s Congress, strongly supported the ALL. Interview with the head of the Institute of Law at the Shanghai Academy of Social Sciences, May 1997.

10. The Chinese title of this law is “Zhonghua renmin gongheguo zhi an guanli chufa tiaoli.” It gave the Chinese law-enforcement authorities broad powers to impose penalties (including administrative detention) on Chinese citizens.

11. For a brief discussion on this development, see Shuisheng, Tong, “Min gao guan beiwanglu” (“A memo on citizens suing officials”), Falii yu shenghuo (Law and Life), No. 82 (October 1990), p. 20.]Google Scholar

12. At the end of 1988 there were 1,400 administrative tribunals; in 1990 the number rose to 2,638. Xinhua yuebao, No. 534 (April 1989), p. 36; Liu Jinghuai, “Min gao guan you fa keyi,” p. 15.

13. According to Wang Hanbin, the chairman of the Judiciary Committee, the NPC received commentaries on the law from 130 government agencies and courts and only 300 commentaries directly from private citizens. Xinhua yuebao, No. 534 (April 1989), p. 36.

14. Henan, Guangdong, Sichuan and Tianjin were mentioned in Liu Jinghuai′s report. Liu Jinghuai, “Min gao guan you fa keyi,” p. 15.

15. Haikun, Yang, “Baituo xingzheng susong zhidu kunjing de chulu” (“A solution to the besieged administrative litigation system”), Zhongguo faxue (Chinese Legal Science), No. 3 (1994), p. 51]Google Scholar; Potter, , “The Administrative Litigation Law of the PRC,” pp. 287–290]Google Scholar; Finder, , “Like throwing an egg against a stone?” pp. 27–28.]Google Scholar

16. The official text of the ALL can be found in Xinhua yuebao, No. 534 (April 1989), pp. 32–36; an English translation is available in China Current Laws, Vol. 1, No. 9 (October 1989), pp. 6–16. The references to the text of the ALL in this article are mostly based on this translation.

17. For detailed analysis of the provisions of the ALL, see Potter, , “The Administrative Litigation Law of the PRC,” pp. 276–281]Google Scholar; Finder, , “Like throwing an egg against a stone?” pp. 11–27.]Google Scholar

18. See Potter′s, excellent analysis of the limits of the ALL, in “The Administrative Litigation Law of the PRC,” pp. 282–287.]Google Scholar

19. See, for example, Gong Ruixiang, Fazhi de Hxiang yu xianshi.

20. The 1994 data for several provinces are unavailable. We use the data for 1993 and 1992 for these provinces to estimate their share of ALCs. Our estimates show that Tianjin′s share (based on 161 ALCs in 1993) was 0.78% with a differential of –0.72; Shanxi′s share (631 in 1993) was 2.2% with a differential of –03; Jiangsu′s share (906 in 1992) was 3.3% with a differential of –2.55. The number of cases accepted for trial by individual provinces seemed slightly to exceed the number given by the Supreme People′s Court.

21. Zhongguo falti nianjian(1994), p. 236; Zhongguo falii nianjian(1995), p. 847.

22. Hunan nianjian (Hunan Yearbook)(1995), p. 88; Shandong nianjian (Shandong Yearbook)(1995), p. 844.

23. Renmin ribao, 22 March 1996, p. 3.

24. Court cases provide some clues as to what are labelled under the “other” category. They include the following: cases against the bureau of standards, against the patent bureau, against local governments on matters other than land use or zoning, against tax collection agencies, against the supervisory agencies of state-owned enterprises, and against the bureau of civil affairs.

25. Yongjin, Tang, “Yichang jingqiaoqiao de geming” (“A quiet revolution”), in Gong Ruixiang, Fazhi de lixiang yu xianshi, p. 60.]Google Scholar

26. Shuyi, Zhang and Zhongle, Zhan, “Qiantu guangming, daolu quzhe” (“Bright future and tortuous road”), in Gong Ruixiang, Fazhi de lixiang yu xianshi, pp. 113, 121.]Google Scholar

27. Compared with the data for previous years, the number of dismissed cases in 1995 might be too high.

28. Few court decisions change original administrative actions because the ALL restricts the court′s authority to modify administrative actions. Such actions may be revised only when administrative penalties are deemed “clearly unjust.”

29. See cases nos. 11,12,13,22,35inFaoto«7992;nos. 15,23,38,43,44 in Yaolan 1993;nos. 47, 59 in Yaolan 1994;nos. 10 and 30 in Yaolan 1996.

30. Haikun, Yang, “Baituo xingzheng susong zhidu kunjing de chulu,” p. 51]Google Scholar; Zheng, Hangsheng (ed.), Report on Social Development by Renmin University of China, 1994–1995(Beijing: Renmin daxue chubanshe, 1995), p. 68.]Google Scholar

31. This claim was based on a report on the implementation of the ALL conducted by the Sichuan Supreme People′s Court. It was cited in Tang Yongjin, “Yichang jingqiaoqiao de geming,” pp. 43^14.

32. For cultural agencies, the court upheld their administrative actions in 20% of the lawsuits in 1992, 12.5% in 1993, 9.2% in 1994 and 11.4% in 1995 while revoking their administrative actions in 22% of the cases in 1992, 26.7% in 1993, 17% in 1994 and 16.2% in 1995. The court upheld the actions of public hygiene agencies in 16.3% of the cases in 1993 and 17.2% in 1994, while revoking their actions in 18% of the cases in 1993 and 13% in 1994. Zhongguo falii nianjian(1994), p. 1029; (1995), p. 1065; (1996), p. 959; Renmin fayuan nianjian (Yearbook of the People′s Court)(1992), p. 839.

33. Because the sample includes many lawsuits against industrial and commercial administrations, the share of the suits filed by private entrepreneurs and firms might be larger than in a random sample. However, the information in Table 9 shows that only 11 private entrepreneurs and firms were plaintiffs in cases against industrial and commercial administration, indicating that the selection bias is not too severe in this sample. In terms of the outcome of the suits, private firms and entrepreneurs won 25 cases (53%), obtained partial favourable rulings in six cases (13%), lost 12 cases (26%), and withdrew in four cases (three cases were withdrawn after the defendants revoked the disputed actions).

34. The previously cited 1992 study based on primary research reported similar findings. Of the 96 plaintiffs surveyed, about 19% reported that their economic status was “relatively poor or poor”; 68% reported that their economic status as “average.” Tang Yongjin, “Yichang jingqiaoqiao de geming,” p. 7.

35. Yongjin, Tang, “Yichang jingqiaoqiao de geming,” p. 35.]Google Scholar

36. Ibid.p. 29.

37. According to two Chinese researchers, most peasants were unwilling to spend money on legal representation. Zhang Shuyi and Zhan Zhongle, “Qiantu guangming, daolu quzhe,” p. 117.

38. The data on the number of lawyers in China were obtained in Zhongguofalu nianjian(1994), p. 1045; (1995), p. 1079; (1996), p. 975. 39. Zhongguo falti nianjian, 1993, 1994, 1995

40. In addition to lack of economic resources, Chinese peasants have less access to legal counsel because there are very few lawyers in the countryside.

41. The following text is based on “Administrative Procedure Law,” China Current Laws, Vol. 1, No. 9 (October 1987), p. 10.]Google Scholar

42. Before the implementation of the Law on State Compensation on 1 January 1995, citizens could not sue the state for damages.

43. Potter, , “The Administrative Litigation Law of the PRC,” p. 288.]Google Scholar

44. Finder, , “Like throwing an egg against a stone?” p. 28.]Google Scholar

45. Potter′s insight on the “legality” focus of the ALL is invaluable in understanding why it was enacted and how it was implemented. Potter, “The Administrative Litigation Law of the PRC,” p. 288.

46. Zhan, Zhongle, “Xingzheng susongfa shishi xianzuang yu fazhan fangxiang diaocha wenjuan baogao” (“Report on the survey on the implementation and trends of the ALL”), in Gong Ruixiang, Fazhi de lixiang yu xianshi, p. 280.]Google Scholar

47. Yongjin, Tang, “Yichang jingqiaoqiao de geming,” p. 11.]Google Scholar

48. Ibid.p. 59.

49. Ibid.p. 14.

50. See Potter, Pitman, “Riding the tiger: legitimacy and legal culture in post-Mao China,” The China Quarterly, No. 138 (June 1994), pp. 325–358]CrossRefGoogle Scholar; Epstein, Edward J., “Law and legitimation in post-Mao China,” in Potter, Domestic Law Reforms in Post-Mao China, pp. 19–55.]Google Scholar

51. Potter, , “Riding the tiger,” pp. 325–326.]Google Scholar

52. According to a 1992 poll, 88% of the ordinary people surveyed said that they had heard about the ALL. Tang Yongjin, “Yichang jingqiaoqiao de geming,” p. 10.