Steve Wolfson, EPA
IV. Environmental Litigation
A. Context
1. Ambitious environmental law reform agenda
2. Broader governance context
B. Legal authority for Environmental PIL
1. Article 58 of Environmental Protection Law
2. Supreme People's Court interpretation
C. EPIL litigation
1. Cases so far
2. Support from legal reformers
3. Challenges / constraining factors
D. Conclusions
SUMMARY OF CHINESE ADMINISTRATIVE LAWS & REGULATIONS
Prepared by Neysun A. Mahboubi for panel on “Administrative Law in China: Recent Developments”
ABA Administrative Law Conference • December 7, 2016
1. Review of Administrative Action
Administrative Litigation Law (1989, revised 2014): Provides for judicial review of challenges to the
legality of “specific administrative acts” – phrasing condensed to “administrative acts” under 2014 revision,
but no substantive change apparent as of yet – that infringe upon personal or property rights, and to the
reasonableness of administrative penalties. Courts may not invalidate general directives that serve as the basis
for agency action, but may choose “not to apply” low-level rules that conflict with higher-level law. Under
2014 revision, courts may have somewhat more leeway to explicitly consider the legality of low-level rules,
but still lack power to directly invalidate. Prior exhaustion of administrative remedies generally not required.
State Compensation Law (1994, revised 2010): Elaborates substantive and procedural standards for state
compensation under the Administrative Litigation Law, and provides new compensation liability – that is not
available under the Administrative Litigation Law – for investigative, procuratorial, judicial, and prison
management officials in their handling of criminal cases.
Xinfang Regulations (1995, revised 2005): Define complaint processing, information gathering,
administrative monitoring, and social propaganda functions of “letters and visits” (xinfang) offices, and
provide procedural framework for the filing of complaints. The 2005 revision makes some attempt to prevent
petitioners from “skipping levels” in lodging their claims.
Administrative Reconsideration Law (1999): Provides for same or higher-level agency review of challenges
to specific administrative acts.1 Review usually conducted by internal agency “legal affairs office” (fazhiban).
On applicant’s request, review may extend to the legality of low-level rules that served as the basis for agency
action. Per 2014 revision of the Administrative Litigation Law, reviewing organs can be named defendants in
related administrative litigation under most circumstances, including when original agency action unmodified.
2. Administrative Procedures
Administrative Penalties Law (1996): Delimits authority to establish and to enforce administrative penalties,
such as fines, confiscation, suspension of operations, revocation of permits, and detention. Establishes
baseline procedures for levying administrative penalties, including the right to a prior hearing.
Administrative Supervision Law (1997): Defines responsibilities of, and operating procedures for,
supervisory organs within government departments that monitor administrative discipline. Includes provisions
on citizen reporting of charges against government officials, and on appeals by government officials of
administrative sanctions they have received.
Legislation Law (2000, revised 2015): Chapters Three and Four set out a basic framework for the
formulation of administrative regulations (xingzheng fagui), local regulations (difangxing fagui), ministerial
rules (bumen guizhang), and local government rules (difang guizhang).2 Lowest-level “normative documents”
(guifanxing wenjian) – that technically do not rise to the level of law, but in practice are binding – are not
1
More procedural detail is set forth in the State Council’s Regulations on Implementation of the Administrative
Reconsideration Law (2007).
2
More detail on rulemaking procedures for fagui and guizhang is set forth in the State Council’s Regulations on
Procedures for Formulating Administrative Regulations (2001) and the State Council’s Regulations on Procedures
for Formulating Rules (2001).
addressed.3 Article 90 – now Article 99 per 2015 revision, which also contains further procedural elaborations
– contemplates legal and constitutional review of fagui and guizhang by a specialized working office of the
Standing Committee of the National People’s Congress.
Administrative Licensing Law (2004): Delimits governmental authority to establish administrative licenses,
and stipulates procedures for their award, modification, and cancellation. The possible legal basis for
administrative licenses is restricted to law (falü), administrative regulations (xingzheng fagui), and local
regulations (difangxing fagui). Outside of temporary emergency situations, administrative licenses may not be
established on any other grounds.
Open Government Regulations (2007): Require disclosure of certain government information, both on
agencies’ own initiative and in response to citizen requests, and provide a basic framework for classification.
Specifically authorize administrative litigation challenging decisions on information disclosure.
Administrative Compulsion Law (2011): Sets out the normative and procedural framework for immediately
coercive enforcement actions (seizure, impoundment, freezing of assets) by front-line agency officers, and for
enforcement of administrative decisions that have not yet been followed by the subject parties. Includes
provisions on applying for court enforcement of administrative decisions when the relevant agency has not
been granted enforcement power by law.
3
The formulation of guifanxing wenjian is addressed by a series of national-level policy documents, in particular the State
Council’s Outline on Promoting Administration under Law (2004), the State Council’s Opinions on Strengthening
Administration under Law (2010), and the CCPCC-State Council Joint Implementing Framework for Establishing
Rule of Law Government (2015).
-2-
[CEG Translation] The Difficult Birth of China’s Administrative Procedure Law
Published: May 21st, 2010
By Shen Xinwang; translation by Wang Yujue
Original Date Published: May 14th, 2010
The following article, from China News Weekly, outlines the history of China’s repeated failure to
establish a unified administrative law, and the renewal of debate that has taken place since Wen
Jiabao’s call to prioritize administrative law earlier this year.
The difficult birth of China’s Administrative Procedure Law
Underneath the difficult birth of the Administrative Procedure Law lies the tension between
“unlimited government” and “limited government.”
The creation of an administrative law was first proposed in 1986. During the following 25 years, it
was once listed in the legislative plan by the National People’s Congress (NPC), but was finally run
aground. To date, the law has not yet been added to the legislative agenda, despite the 25-year efforts
of many administrative law scholars.
Recently, however, it seems that the tide is turning. In late March, at an anti-corruption working
conference held by the State Council, Premier Wen Jiabao stated that governments at all levels
should make improving administrative procedures a priority. “Procedure should be highly valued.
Standard procedure should be considered at every step in the enforcement of administrative law.
Only in this way can officials have a standard to which to refer, and can we avoid the arbitrariness of
law enforcement.”
Wen’s statement is widely believed to be a new opportunity for China to renew the law.
As early as 1986, at a symposium held by the Ministry of Justice, Zhang Shang, the first secretarygeneral of the China Law Society’s China Administrative Law Research Society, put forth legislation
on administrative procedure and litigation.
Luo Haocai, who became the vice chairman of the 9th and 10th CPPCC (Chinese People’s Political
Consultative Conference) National Committee several years later, even raised concrete suggestions.
According to Luo, the Administrative Procedure Law should regulate the procedures of
administrative activities, legislation and adjudication.
However, Zhang and Luo didn’t anticipate that the wait for an administrative law would last a quarter
of a century. Some of the most influential luminaries of the Chinese administrative law circle died
off, but the law was still not on the legislative to-do list.
Jiang Ming’an, a law professor at Peking University, is the drafter of almost every administrative
law. “After the Administrative Litigation Law was enacted in 1989, the Administrative Penalties
Law, the State Compensation Law and the Administrative Compulsory Enforcement Law were
issued in succession. The later ones were worked out in light of the first one,” said Jiang.
In 1987, considering China had no administrative laws, the Administrative Legislation Researching
Group was proposed and set up by the NPC. Almost all the elites in the administrative law circle
were absorbed into the group.
At first, Tao Xijin, the initiator and one of the group’s consultants, suggested that the work be started
by drafting a “General Principles of Administrative Law.” This became the primary task of the
group. However, group members found it impossible to produce a draft that satisfied all government
agencies.
Under such circumstances, Jiang Ping, then-president of the China University of Political Science
and Law, advised the group to concentrate first on procedural laws. The suggestion was supported by
other members. As a result, the Administrative Litigation Law was approved by the NPC two years
later.
However, in the following 20 years, this law has been an obstacle in the development of the
Administrative Procedure Law.
“As the Administrative Litigation Law states that concrete administrative activities without legal
procedures should be withdrawn, the Administrative Penalties Law was then produced. As the
Administrative Litigation Law states that the government should compensate citizens for its illegal
administrative activities, the State Compensation Law was produced. The implementing of the
Administrative Litigation Law triggered a series of separate procedure laws,” said Jiang Ming’an.
What’s more, due to the rapid development of the Chinese economy and society, it was preferred that
the laws and regulations that were most urgently needed should be made first. Some administrative
2
laws and regulations involving administrative procedures were put on the agenda, like the Regulation
of Administrative reconsideration and the Regulation of Administrative Compulsory Enforcement.
The fundamental cause of this emphasis on drafting urgently needed laws first is that in China, it’s
almost impossible for governments to show restraint from their tendency to monopolize everything.
And it is unenforceable. In this case, the legislative path of “separate laws first,” which aimed to deal
with problems on an ad hoc basis, was once regarded as a sound measure to meet emergencies.
Such a legislative path gradually exposed more and more drawbacks. With the absence of unified
administrative legislation, each separate law or regulation branches off in its own direction. One
time, a separate enforcement team was created for each new administrative law and regulation. In
some areas, there were more than 20 different enforcement teams, following different laws and
regulations and led by different government agencies. Thus, the society saw extreme inequality
between governors and citizens.
According to Ma Huaide, vice president of the China University of Political Science and Law, the
major defect of making separate administrative laws first is that each law could only refer to a limited
range of administrative activities, creating many opportunities for some government agencies to
circumvent the law.
The general legislative path adopted by countries ruled by law is to produce an administrative
procedure law to regulate the means, process, steps and time limits of governments’ administrative
activities. All administrative activities should follow the procedures stated in the law. Otherwise,
relative government units would be sued. The purpose of all this is to prevent the abuse of power.
“On the one hand, officials have the nature and the ability to circumvent separate laws. On the other
hand, there are no unified regulations on administrative procedures and thus no basic administrative
law principles. More and more social problems show that to develop the Administrative Procedure
Law is a matter of great urgency,” said Ma.
Around the year 2000, there was a renaissance of Administrative Procedure Law. Three different
drafts produced by legal scholars received great attention. Dozens of law symposiums were held, and
some put emphasis on soliciting opinions from German and American scholars.
Driven by such efforts, the 10th NPC Standing Committee listed the Administrative Procedure Law
in its legislative plan in 2003.
3
On November 24, 2004, the Administrative Legislation Researching Group formally delivered the
Administrative Procedure Law (Draft) to the Legislative Affairs Commission of the NPC Standing
Committee. It was believed that the law would certainly be submitted to the NPC within a given time
frame for its consideration.
But all these attempts came to nothing. In 2008, the 11th NPC Standing Committee removed the law
from its legislative plan. From then on, legislation of the law was at a standstill.
The legislation of the Administrative Procedure Law met with more than a little resistance, most
notably from the administrative department, especially from those who held real power.
“It’s incredibly hard to promote the legislation. Numerous interests are entwined with one another,”
said Jiang Ming’an.
According to a key official of the Legislative Affairs Commission of the NPC Standing Committee,
in the legislative body, even those who approve of enacting the law are worried that, “If the law is
enacted, and the administrative department it is resistant to following it, the prestige of law will be
damaged.”
Interest groups present a major obstacle. In order to reduce resistance and gain more support, a
German scholar suggested to Jiang Ming’an, lawmakers should publicize the law’s potential benefits
to all groups involved (including citizens and civil servants.
According to some officials, Wen’s recent statement about the Administrative Procedure Law was
spurred by various factors. The first is that the widely-used practice of entrapment, or sting
operations, triggered great criticism throughout the country last year. The second is that Hunan
Province’s pilot project on administrative procedure law improved the provincial government’s
credibility and administrative efficiency.
According to the NPC’s legislative plan, China should establish a legal system with Chinese
characteristics by the end of 2010. Some point out that basic laws of civil and criminal law have been
established , while only the basic administrative law– the Administrative Procedure Law – remains
absent. Therefore, the enactment of the Administrative Procedure Law will complete China’s legal
system.
4
http://www.freedominfo.org/2016/02/china-promotes-open-government-as-it-seeks-to-reinventits-governance-model/
China Promotes Open Government as it Seeks to Reinvent Its
Governance Model
22 February 2016
By Jamie P. Horsley
The author is a Fellow at the Woodrow Wilson International Center for Scholars, on leave from
the Yale Law School China Center. The views expressed in this article are solely those of the
author.
China’s recent actions under Communist Party General Secretary Xi Jinping at home and abroad
have prompted many observers to question whether Xi’s reform agenda entails a reversion to the
authoritarian days of Mao Zedong. Yet, in the midst of a wide-ranging anti-corruption campaign,
an unprecedentedly severe crackdown on expression and advocacy by lawyers, journalists and
other activists, missteps in communicating recent currency and financial decisions that threw
markets into turmoil, and China’s opacity regarding its intentions in the South and East China
Seas, the Chinese Party-state continues to press forward with putting in place and improving new
governance mechanisms to achieve “open government” as part of its broader goal of more
innovative, clean, service-oriented and law-based government.
Disclosure of government-held records, transparency and public participation in rulemaking and
policymaking, requiring government officials to explain their actions to the public and other
mechanisms to help curb abuse of discretion and enhance government accountability to the
people — all governance innovations that preceded the Xi administration under the rubric of
“transforming government functions” and “reinventing government” — continue to be developed
under Xi.
A new guideline published jointly by the Party Central Committee and the State Council calls for
comprehensively promoting the achievement of open government affairs by 2020,[1] the year by
which the Party has pledged to achieve a “moderately prosperous society.” The February 2016
Open Government Opinions, which might be likened to an executive order on steroids, in that it
is also backed by the sole political party in power, follows on the heels on another joint
document issued in December[2] that set forth a more detailed program to improve law-based
government during the period 2015-2020, in accordance with the general directives in the Party’s
2014 Fourth Plenum “Decision on Certain Major Issues in Comprehensively Promoting
Governing the Country in Accordance with Law.”[3] The December instruction and the Fourth
Plenum Decision both emphasized openness, repeating the principle that “disclosure is the norm,
non-disclosure the exception” and calling for greater openness of government decisions,
enforcement, management, public services and results.
1
The Open Government Opinions, consisting of 21 action items, reflect the challenges of attaining
transparent governance, including the need to change official attitudes, improve regulatory
systems, further emphasize information disclosure obligations and increase civic participation.
The opening sentence declares that openness and transparency are basic features of rule of law
government. Ensuring that power is exercised “in the Sunshine” is necessary to realizing socialist
democratic politics, enhancing the country’s governance capacity, strengthening the state’s
credibility and protecting the people’s rights to know about, participate in, express themselves
about and supervise government action. Openness is also recognized as an important means to
achieve economic and social development, stimulate social innovation and market vitality, and
better address the concerns and needs of society.
The specific goals of the Opinions are, by 2020, to have raised open government to a new level;
put in place an open government affairs “negative list” system; achieved transparency of the
whole process of exercising administrative power and providing government services; clearly
have improved disclosure systems, standards and the effective use of information technology,
while achieving a high level of public participation; and, through openness and transparency, win
the understanding, trust and support of the people. To help ensure implementation, governments
at all levels are to designate a leading official to be responsible for open government work,
which is to be included in performance evaluations and given increased weight in scoring,
although it is not clear whether that is the evaluation of the government department or individual
officials handling that work.
The scope of the term “open government affairs” used in the Opinions appears to be broader than
that used in China’s statute on what the Chinese call “open government information” (OGI),
which refers to access to government-held records. The State Council OGI Regulations took
effect May 1, 2008[4] and require agencies at all levels of the Chinese government to disclose
government records made or obtained in the course of exercising their duties both proactively
and on request. The Regulations list broad, non-exhaustive categories of documents held in
government files that should be made public by government agencies, public institutions and
other entities performing public services, and stipulate only three broad exemptions from
disclosure: for state secrets, commercial secrets and privacy. However, they also prohibit
disclosure of any information that might endanger state security, public security, economic
security or social stability. The number of information requests, appeals and lawsuits has
increased over the nearly eight years those Regulations have been implemented, and the central
government has continuously endorsed gradual expansion of the scope of information that is to
be proactively disclosed through annual OGI work priorities issued each year since 2012.
Moreover, the OGI Regulations have helped stimulate greater judicial, congressional and even
Party openness as well.
The Opinions call for revision of the Regulations, a task that is already scheduled on the State
Council’s legislative agenda, to further improve disclosure proactively by the government and on
request. In spite of the impact of the OGI Regulations in promoting a greater degree and official
acceptance of transparency in principle, government performance, particularly at lower levels of
government, remains uneven, and officials and the public remain uncertain about exactly what
can and cannot be disclosed and when.
2
The Open Government Opinions require central government departments and provincial level
governments to formulate “negative lists” of more specific kinds of information that may not be
disclosed, including information that might endanger state security, public security, economic
security or social stability. All other information in principle is disclosable in accordance with
law. How this open government affairs negative list relates to the OGI Regulations, and how
these multiple negative lists will be coordinated so as to ensure uniformity of interpretation of
what information should and should not be disclosed, remains to be clarified. Chinese scholars,
officials and judges have recognized, in the course of implementing the OGI Regulations, that it
would be useful to have more clearly defined exemptions the provide guidance, for example, on
when information relating to law enforcement operations or policies that are under deliberation
can be made public. It will be interesting to see what specific categories of information are added
in these negative lists. The U.S. Freedom of Information Act has nine exemptions, only seven of
which are actively used, but the FOI laws of many states have longer lists that are updated based
on court decisions and changed circumstances, which can be useful in providing guidance to
officials tasked with sometimes difficult disclosure decisions. Connecticut, for example,
currently has 27 exemptions and Florida exempts more than 500 specific records from disclosure.
The Opinions direct that pre-disclosure secrecy examination procedures mandated by the OGI
Regulations be improved, to properly handle the relationship between open government and
ensuring the protection of state secrets under China’s Law on Safeguarding State Secrets. While
China has made some progress in attempting to clarify and regularize its system for who can and
how to classify and de-classify state secrets,[5] and some Chinese plaintiffs have successfully
challenged the authority of a defendant to classify certain information, the broad scope of the
definition of what is a state secret and lack of procedures whereby the public can challenge
secrecy classification decisions and assertions on their merits have meant that the state secrets
exemption remains an expansive loophole in the open government project. The fact that the OGI
Regulations also penalize officials who release information that should not be disclosed makes it
all too easy to simply refuse a disclosure request on secrecy grounds. Nonetheless, Chinese
courts have on occasion disagreed with a government agency’s assertion of a state secrets
defense to non-disclosure and, over the last few years, information relating to budgets and
government expenses, soil pollution, and administrative penalty decisions that had once been
protected as a state secret is now recognized to be public record.
As an accountability measure, the Opinions further require government agencies to publish and
update lists of their specific administrative powers and responsibilities, so that the public can be
clear about their tasks and powers, as well as their limitations. These lists are a new mechanism
designed by the current administration to constrain and prevent abuse of government power,
what Xi has referred to as “restraining power in a cage of regulations.”[6] While Premier Li
Keqiang has announced a new principle that market players can do whatever is not specifically
prohibited by law, government agencies are forbidden to take action unless they are specifically
authorized to do so by law. As of March 2014, 60 central departments had published lists of their
approval authority in respect of some 1,235 items and, as of the end of 2015, all 31 provincial
level governments had published their “power lists,” while 24 of those had also published
“responsibility lists.” The Opinions require municipal and country governments to publish both
kinds of lists by the end of 2016. Similarly, all administrative user and special project fees are
3
required to be made public, to help eliminate all unauthorized government fee collections
through transparency.
The Opinions also call for more transparent, fair and just administrative law enforcement by
government agencies, through making public not only the scope of enforcement authority, the
procedures to be followed and the results of enforcement actions in areas such as the
environment, food and drug safety, work safety, subsidized housing and land resources, but also
the remedies for members of the public who object to any government enforcement actions.
Beyond the above disclosure requirements, the Open Government Opinions also emphasize the
importance of public participation, the effectiveness of which depends on providing the public
with adequate information based on which to make informed input. In the face of widespread
protests over projects ranging from nuclear power to chemical to garbage incineration plants, the
central and local governments have come to recognize they need to do a better job of engaging
the public early in the decision-making process in order to understand and respond to their
concerns and better inform them of the goals, details and risks involved, so as to help ensure
sound decisions and garner support for the projects. To these ends, government at all levels is
directed to explore new forms of public participation for different matters, and establish
platforms for the government and the public to better interact. Public participation is emphasized
particularly for what is called “major decision-making,” which covers decisions other than
legally-binding rulemaking, including major policies, planning and decisions relating to
government-invested projects. The State Council has been working on, and several provincial
and local governments including Zhejiang, Jiangsu, Jiangxi, Gansu, Guangzhou and Xi’an, have
already issued and are carrying out, procedures to regulate this decision-making process, which
requires the five basic elements of public participation, expert input, risk analysis, legality review
and collective discussion and decision.
The Opinions further specify that major decision-makings should have an advance disclosure
system. A draft decision and justification for all matters relating to the public’s vital interests,
significant reform plans, major policy measures and major projects should, except when they
involve state secrets, be made public for input through such means as hearings, workshops,
surveys, advisory consultations and media communication, and an explanation of the collected
opinions and how they were considered should be published in an appropriate manner.
Governments are directed to explore having stakeholders, the general public, experts and the
media attend government meetings on these matters to increase transparency, and once the final
decision is made, the “agreed matters” and related documents are to be promptly made public.
Moreover, how these decisions are implemented and the results of inspections and audits, as well
as any malfeasance or accountability issues, are also to be disclosed so the public can make
suggestions for improvement. Such transparent and participatory decision-making procedures are
similar to those that have been legislated, though still being improved, for lawmaking by the
people’s congresses and rulemaking by the State Council and local governments.
Following the bungled handling of publicity regarding a high speed train collision near Wenzhou,
Zhejiang province in 2011, the Party and State Council released joint opinions[7] urging greater
efforts in open government work, including responding better to society’s concerns and
providing information about incidents, emergencies and investigations. By 2013, the central
4
government started promoting the practice of providing explanations at the time an action is
taken or decision is made, frequently organizing experts to help with the explanatory work, as
well as utilizing press conferences, which it had introduced in 2000 as a regular practice for both
government and Party. The Open Government Opinions require all levels of government and
their departments to utilize those who participate in policymaking, scholars and experts who are
familiar with the issues and the media, as well as graphic charts, audio and video, to explain
policies effectively. For especially controversial or complex issues relating to policies or
regulations, press releases, policy briefings, interviews and articles should be used to explain the
background, goals and important points. Leading officials at the central and provincial
government levels are encouraged personally to appear at press conferences and policy briefings
to discuss policies, especially regarding emergencies and issues of great social concern.
Moreover, responsible officials should take interviews to authoritatively explain their position on
policy issues, playing the role of “Number 1 Spokesperson” for their organization. For their part,
the media and research institutes are charged with improving their own explanations of major
Party and State Council policies. Governments are also to establish system for collecting,
analyzing and responding to public opinion in an authoritative and timely manner, especially in
the event of emergencies or other hot social concerns. The media is to be utilized as a bridge
between the Party-state and the people, be invited to activities and given interviews so they
understand major policies to quickly convey news and explanations, as well as help “guide”
public opinion. While the emphasis on following public opinion and explaining government
decisions has its instrumentalist goal of trying to manage public opinion, the Opinions clearly
recognize that public understanding and acceptance of government policies is critical to enlisting
public support for effective policy implementation.
The Opinions reaffirm earlier policies on promoting Big Data and the gradual sharing with the
public of government data resources to support entrepreneurship, as well as the government’s
new “Internet-Plus” initiative. They call for enhanced utility of the 86,000 official government
websites as primary platforms not only for publishing and requesting official information, and
soliciting public opinions, but also for providing all kinds of online government services
including licensing applications and approvals, filing complaints and responding to the public’s
concerns. Using government social media platforms to further disseminate information and
provide services is also encouraged.
Lastly, the Opinions reiterate the importance of training government officials, especially leading
cadres, about open government, raising consciousness about its importance and improving
capacity to properly release information, explain policies and respond to society’s concerns. The
Communist Party training schools, government training institutes and other cadre training centers,
as well as universities, are to offer courses on open government to increase understanding and
capacity, with a goal to have every official throughout the whole country who undertakes open
government work receive at least one training within the next three years.
Establishing the culture and practices of open government in China is a long-term enterprise.
Given the continuing challenges in the United States to achieving open and effective government
that satisfies the public,[8] this is hardly surprising. The Open Government Opinions are only the
latest in a series of Party and State Council pronouncements, but they build on other Party and
central government policies and laws promoting “administration in accordance with law,” local
5
government experiments with new systems and the active participation by Chinese society in
these new avenues of interaction with government to continue the gradual process of changing
attitudes and practices on the ground on the part of both the Party-state and the public. Even with
the pressures of the ongoing anti-corruption campaign and tightening ideological environment,
Chinese officials at all levels of government still have to deliver public goods effectively on a
daily basis. More than ever, they need the cooperation, assistance, participation and support of
the public they serve. China’s leaders recognize that, to achieve this, they need to press forward
with working to develop a more open, participatory and accountable governance system, as
challenging as that “reinventing government” project remains.
[1] “China issues guideline on government openness,” China Daily, February 17, 2016, at:
http://usa.chinadaily.com.cn/china/2016-02/17/content_23526573.htm; Chinese text: Chinese
Communist Party Central Committee and State Council, “Opinions on Comprehensively
Promoting Open Government Affairs Work” [Zhonggong zhongyang bangongting, Guowuyuan
bangongting yinfa “Guanyu quanmian tuijin zhengwu gongkai gongzuo de yijian”], published
February 17, 2016, at: http://www.gov.cn/xinwen/2016-02/17/content_5042791.htm.
[2] “China lays out plans to build law-based govt by 2020,” China Daily, December 28, 2015, at:
http://english.gov.cn/policies/latest_releases/2015/12/29/content_281475262859416.htm
Chinese Communist Party Central Committee and State Council, “Implementing Framework for
Establishing Rule of Law Government (2015-2020)” [Fazhi zhengfu jianshe shishi gangyao
(2015-2020)], published December 28, 2015 at: http://www.gov.cn/xinwen/201512/28/content_5028323.htm.
[3] Jamie P. Horsley, “China’s Leaders Endorse Disclosure as the Norm,” November 4, 2014, at:
http://www.freedominfo.org/2014/11/chinas-leaders-endorse-disclosure-norm/.
[4] Jamie P. Horsley, “China Adopts First Nationwide Open Government Information
Regulations,” on Freedominfo.org, posted May 9, 2007, at:
http://www.freedominfo.org/features/20070509.htm.
[5] Susan Finder, “How China Classifies State Secrets,” The Diplomat, December 23, 2014, at:
http://thediplomat.com/2014/12/how-china-classifies-state-secrets/.
[6] “Xi Jinping vows ‘power within cage of regulations,’ ” Xinhua News Agency, January 22,
2013, at: http://news.xinhuanet.com/english/china/2013-01/22/c_132120363.htm.
[7] “China Restates Openness Policy in New Guidance,” Freedominfo.org, August 4, 2011, at:
http://www.freedominfo.org/2011/08/china-restates-openness-policy-in-new-guidance/.
[8] Charles Clark, “Obama’s ‘Open Government” is Closed Until Further Notice,” The Fiscal
Times, December 21, 2015, at: http://www.thefiscaltimes.com/2015/12/21/Obama-s-OpenGovernment-Closed-Until-Further-Notice.
Filed under: Latest Features
6
Haibo He
The 2104 Amendment of
Administrative Litigation Law
in China
1. Problems of the ALL 1989
2. Courses of Amendment
The Time can be no better.
Courts, government legal office, scholars
3. Main Contents of Amendment
3.1 “Three Difficulties”
Public organization, administrative contract, case-file system
Adjustment of Jurisdiction, Procedure, Criteria of review, Mediation
Fine, Arrest, Publication
3.2 Measures with Chinese characteristics
3.3 Unachieved Proposals
4. Preliminary Effects
cases admitted by the courts
250
Case Number (thousand）
220
First Instance
200
Second Instance
150
120
100
91
98
84
80
50
81
88
93
96
96
102
136
142
130
123
108
53
26
0
98
98
129
0
83
1
1
85
1
5
87
9
10
89
27
28
35
13
91
93
95
97
99
Year
01
03
05
07
09
11
13
15
Rule for Defendant
80
Rule for plaintiff
No rulings
70
Percentage（％）
60
50
40
30
20
10
0
87
89
91
93
95
97
99
01
Year
03
05
07
09
11
13
15
70
Withdrew
dismissed
Transferred
比例（％）
60
50
40
30
20
10
0
87
89
91
93
95
97
99
01
年份
03
05
07
09
11
13
15
180
Case Number（thousand）
160
application
Acceptance
conclusion
140
120
100
80
60
40
20
0
98
99
00
01
02
03
04
05
06
07
Year
08
09
10
11
12
13
14
15
Rule for Agency
Rule for citizens
Others
80
70
Percentage (%)
60
50
40
30
20
10
0
99
00
01
02
03
04
05
06
07
Year
08
09
10
11
12
13
14
15
Conclusion
He Haibo
[email protected]
How Much Progress Can a Legislation Bring?
The 2014 Amendment of the Administrative Litigation Law of PRC
He Haibo
Abstract
The Administrative Litigation Law of the PRC underwent significant amendments in 2014,
the background, courses, main contents and the preliminary effects of which have been examined
in this paper.
Generally speaking, the amendment has made a powerful response to issues besetting judicial
review, especially the “difficulties in getting an administrative lawsuit registered, adjudicating
administrative cases and executing court decisions”. After the amended Law came into effect, the
acceptance of first instance administrative lawsuits increased sharply, the plaintiff win rate rose
slightly and the reform of the administrative reconsideration and petition mechanisms has also
been promoted. The Amendment has achieved the desired results of the legislators and
administrative litigation in China is embracing the best ever period in its history.
However, the deep-seated problem that has troubled administrative litigation for years still
exists. Proposals, such as the court review of normative documents, collateral review of local
regulations, acceptance of public interest litigation have all been evaded. Full guarantee of the
independence and authority of administrative trial will depend on the overall advancement of
judicial and political reform. Administrative trial still faces difficult future.
The Amendment of the Administrative Litigation Law shows the efforts to promote the
rule of law in this era, but also reflects the multi-stages and limitations of the process of the rule
of law in China.

HE Haibo, Professor of law at Tsinghua University School of Law, currently visiting scholar at Harvard Law
School East Asian Legal Studies Program. The author can be reached by [email protected].
Preliminary Draft: Comments are welcome and appreciated.
1 Contents
I.
BACKGROUND OF THE ADMINISTRATIVE LITIGATION LAW
AMENDMENTS
A. Symbol of Democracy and Rule of Law
B. Predicaments of Administrative Litigation
C. The Law is in “Urgent Need of Amendment”
II.
COURSE OF THE ADMINISTRATIVE LITIGATION LAW
AMENDMENTS
A. Start-up
B. Participating Parties
C. Three Deliberations
D. Passing
III.
MAIN CONTENTS OF THE ADMINISTRATIVE LITIGATION LAW
AMENDMENTS
A. Measures to Solve “Three Difficulties”
B. Provisions with Chinese Characteristics
C. Unachieved Amendment Proposals
IV.
PRELIMINARY EFFECT OF THE AMENDMENTS
A. Administrative Cases Increase Substantially and the “Difficulty in Getting an
Administrative Lawsuit Registered” Has Been Mitigated to a Great Extent
B. Plaintiff win rates rise slightly and the “Difficulty in Adjudicating
Administrative Cases” Has Shown Some Improvement
C. Administrative Reconsideration Achieves Better Effect and the “Main Chanel”
Role has not been Brought into Full Play
Conclusion
2 The Administrative Litigation Law of the PRC underwent significant amendments in
2014, twenty-five years after its promulgation. A lot of hopes have been placed upon it
of solving difficulties in settling administrative distributes and pushing forward rule of
law in China. This paper will examine the background, courses, main contents and the
preliminary effects of the amendments. The author’s concerns will be around the issue:
In the era of “promoting rule of law in all arounds”, as proclaimed by the leading party,
how much progress may the amendments bring to China’s legal system construction?
I.
BACKGROUND OF THE ADMINISTRATIVE LITIGATION
LAW AMENDMENTS
A. Symbol of Democracy and Rule of Law
The current administrative litigation system in China was established by the 1989
Administrative Litigation Law (hereinafter referred as “The Law”). The 1989 Law was
adopted by China’s highest organ of state power -- the National People’s Congress
(hereinafter referred as the “NPC”) on the eve of the “Tiananmen incident” and was
scheduled to take effect in October 1990 -- one and half years later. It is not common
to deliberate and adopt a law by an organ of nearly 3000 deputies in China; it is even
rare to prepare for one and half years to take effect. It was actually a sign of grave and
arduous transition of this country with an ancient civilization to the modern governance
system.
The Law allows citizens and organizations to file a complaint against the peoples’
government or its divisions about their action or inaction in the people’s courts at
different levels and the latter shall hear the case. It is totally a new attempt in China’s
traditional bureaucracy and contemporary party-state system that an independent
judicial organ instead of the administrative official’s superior examines the action of
3 the administrative organ concerned. Being fully aware of the impacts and difficulties in
the implementation of the Law, the Legislators were cautious as to grant relatively
limited power to the court: Citizens may only litigate against specific administrative
decisions, but may not file a lawsuit against generally applicable normative documents;
the court may only judge the legality of a specific administrative action according to
laws and regulations, but may not review the constitutionality of laws and regulations;
and may not review in principle the administrative discretion.
The promulgation of The Law has been deemed from the beginning as a significant
event in the construction of democracy and rule of law in China. The government and
academic circles have held activities to mark the fifth, the tenth and twentieth
anniversary of The Law’s promulgation and the mass media has done lots of publicity.
The people’s courts nationwide have accepted and concluded more than 2.1 million
administrative lawsuits by 2014. By rough estimation, 1/4 of the plaintiffs had got some
sort of relief through litigation. Administrative litigation has also helped increase the
awareness of administration by law, promoted the perfection of the administrative law
system and stimulated the formation of a professional group of administrative law.
Without administrative litigation, many of the plaintiffs would have been still running
on the road to petition and many of the officials would not have heard of “exceeding of
power`” “due process”. “The significance of The Law can never be overstated,”1 said
Ying Songnian, who has been involved in drafting The Law.
B. Predicaments of Administrative Litigation
Nevertheless, the implementation of The Law has proved to be unusually difficult.
Ordinary people described administrative litigation as “hurling an egg against a rock”,
judges mocked themselves as “living in the crevice”, and scholars’ descriptions were
filled with words such as “hardship, predicament”.2 Prior to the amendment of The
1 YING Songnian, Walk with Law: Ying Songnian’s Narration, China University of Political Science and Law
Press, 2016, p…
2 GONG Xiangrui (ed.), Ideal and Reality of the Rule of Law: Report on the Actual Implementation and Future
Development of the Administrative Litigation Law of the People’s Republic of China, China University of Political
Science and Law Press, 1993; LIN Lihong (ed.), Ideal and Reality of the Administrative Rule of Law: Report on the
4 Law, the NPC Legislative Affairs Commission (hereinafter referred as the
“Commission”) summarized in its survey report the predicaments of administrative
litigation as “difficulty in getting an administrative lawsuit registered, difficulty in
adjudicating administrative cases and difficulty in executing court decisions”. 3 The
“Three Difficulties” were widely accepted and set the tone for future legislation. To be
specific,
1. Difficulty in Getting an Administrative Lawsuit Registered
The most prominent problem in implementing The Law is the difficulty in getting an
administrative lawsuit registered. Lawsuits of sensitive areas relating to birth control
(early stage), land expropriation and house removal, town planning and illegally-built
structure demolition, and business shut-down, where there were intensive disputes and
frequent mass incidents, were found especially difficult to enter litigation. Some
people’s courts simply did not accept any such cases. “The work in our division is to
battle against the ordinary people with wits and courage,” said a judge of the lawsuitregistration division self-mockingly, “and make every attempt to not to register the
lawsuit.” A chief judge of a High People’s Court administrative division estimated that,
in his jurisdictional area, about only 1/3 of all the lawsuits filed with the people’s courts
were accepted. Because a large number of lawsuits were rejected by the people’s courts
and could not be resolved through litigation, the persons concerned had had to turn to
petition. According to Scholar YU Jianrong’s 2004 survey, 401 out of 632 farmers who
went to the Capital City Beijing for petition had filed a lawsuit about their problems
with the people’s court before they turned to petition. 172 lawsuits were rejected by the
people’s court, accounting for 43% of the total.4
The lawsuits the people’s courts
Empirical Research on the Implementation of the Administrative Litigation Law, Peking University Press, 2014.
Discussion in English journals, see Susan Finder, “Like Throwing an Egg against a Stone: Administrative Litigation
in the People's Republic of China,” 3 Journal of Chinese Law 1 (1989); PEI Minxin, “Citizens vs. Mandarins:
Administrative Litigation in China,” 152 China Quarterly 832 (1997); Kevin O’Brien & LI Lianjiang, “Suing the
Local State: Administrative Litigation in Rural China,” 51 China Journal 75 (2004); HE Haibo, “Litigations without
a Ruling: The Predicaments of Administrative Law in China,” 3 Tsinghua China Law Review 257-281 (2011).
3 XIN Chunying (Deputy Director of the Legislative Affairs Commission of the Standing Committee of the
NPC), “Explanations on the Amendment of the Administrative Litigation Law of the PRC (Draft)”, at the Sixth
Plenary Session of the 12th Standing Committee of the NPC on December 23, 2013.
4 YU Jianrong, “Plight of China’s Petitioning System and Way out,” Strategy and Management, 1st issue, 2009.
5 rejected were mainly administrative disputes.
The difficulty in getting an administrative lawsuit registered was shown statistically by
the small number of administrative cases. In 2014, 141 880 administrative cases of first
instance were accepted by the people’s courts nationwide, which created a historical
record before The Law was amended. But what did the number of 140 thousand cases
a year suggest? It meant one administrative case for around 10 thousand people, and
fewer than 40 administrative cases for a people’s court. Many courts accepted and heard
fewer than 10 administrative cases throughout a year. Among the 9 million various
cases of first instance accepted and heard by the people’s courts nationwide, only 1.5%
were administrative cases. Compared with ten million petition cases, administrative
cases were almost trivial. The number of petitioners (an estimate of several hundred
thousand) alone registered at the State Bureau for Letters and Visits is much greater.
Compared with other countries, there were surprisingly fewer administrative cases in
China. France has a 60 million population and French local administrative courts heard
more than 200 thousand cases a year. Germany has an 80 million population and a total
of 500 thousand various administrative cases are heard at its several sets of courts.
Given the fact that in China, administrative dispute resolution is not required in
principle to “exhaust administrative remedies”, and disputes handled (not solved)
through administrative reconsideration are no more than that through administrative
litigation, 140 thousand cases for a year is really a small number.
2. Difficulty in Adjudicating Administrative Cases
Difficulty in adjudicating administrative cases was at first manifested that only a tiny
number of administrative cases were closed with judgement. In recent years, the
people’s courts only closed fewer than 30% administrative cases with judgment, which
was even lower than that of civil cases. Where were the remaining cases then? The
people’s courts had actually found various reasons to dismiss the lawsuits instead of
conducting substantive ruling. The record of dismissal in a year was 15%. More cases
ended because the people’s courts have tried to persuade the plaintiffs to withdraw. The
6 withdrawal rate has never been lower than 30% since after The Law became effective,
and the highest one reached 57%. It was still close to 50% in the several years before
The Law was amended. The low rate of judgement was partly because the authority
advocated a judicial policy of coordination and reconciliation. But the main reason was
that the people’s courts do not have strong political and legal backing and they were
unable to hear those cases that should have been adjudicated.5
Another manifestation of the difficulty in adjudicating administrative cases was the low
rate of ordinary plaintiffs’ win by court judgment, and consequently high appeal rate
and petition rate. Plaintiff first instance win rate dropped all the way from 20% when
The Law was first implemented to 8% in previous years before the amendment. Almost
80% of the parties of all cases closed by judgement would appeal against the court
judgment. 90% of the appellants were ordinary people and administrative organs only
accounted for 5%. The bias at the first trial was evident. Courts of the second instance
might handle the appeals slightly in favor of the ordinary people but the situation could
not be much better. Only less than 10% was favorable to the plaintiffs and 70% to 80%
was favorable to the defendants. Only 1 out of 10 ordinary people win by judgment at
the first and second instance together. Due to the low win rate at the first and second
instance, the rate of petition to a further higher court of administrative cases was several
times higher than that of civil cases.
The low win rate of the ordinary people revealed the poor law enforcement by
administrative organs. According to a judge, administrative actions that were sued to
the court were mostly questionable, and 50% of them should be revoked. The people’s
court in Taizhou, Zhejiang Province, once executed cross-regional jurisdiction, namely,
to transfer a case against County A administrative organ to the people’s court in County
B for trial. The one year’s result showed that the government’s losing rate reached
5 HE Haibo, “Litigations without a Ruling: The Predicaments of Administrative Law in China,” 3 Tsinghua
China Law Review 257-281 (2011).
7 62.5%.6 Beginning in July 2014, all the people’s courts in Henan Province executed
cross-regional jurisdiction and the one-year result showed that the government’s losing
rate reached 28.6%, 18% higher than that before the cross-regional jurisdiction was
practiced.7 Cross-regional jurisdiction was less subject to administrative interference.
Thus the losing rate of Taizhou and Henan seemed to be more reflective of the actual
level of administrative law enforcement and the potential level that judicial review in
China should have reached.
The third manifestation of difficulty in adjudicating an administrative case was that the
ordinary people rarely won a case in the real sense. In some cases, the people’s court
revoked the administrative action or ordered the administrative organ to perform its
duties. It seemed that the ordinary people had won their cases, but the cases were
actually switched back to administrative procedures. The litigation would probably
have to go through the procedures again after the administrative organ concerned made
a decision anew. Some, in the extreme case, even went over many rounds. Some
disputes involved both an administrative action and the interests of a third party. The
party concerned had to proceed separately with the civil action and administrative
litigation. Unfortunately, much energy was wasted on many pointless things due to the
lack of coordination on the court’s side. In an extreme case, the parties took 10 years
and got 28 rulings of different courts in different procedures but still on the way of
petition.8 Under such circumstances, an ordinary person could only get an empty win
at best and the dispute had not been really settled.
6 SUN Wenying & HUANG Xian’an, “Cross-Regional Trial of Administrative Cases, Chen Chongguan and
His Colleagues One Step Ahead,” People’s Court Daily, Feb. 5, 2004. For more discussion, see ZHENG Chunyan
& CHEN Chongguan, “Reflection on the Mode of Remote Cross Trial of Administrative Cases,” Journal of
Zhejiang Gongshang, 1st issue, 2005; Administrative Division of Zhejiang Provincial Higher People’s Court, “A
Survey Report on Jurisdiction of Administrative Cases, Focusing on Administrative Cases of Cross-Regional
Jurisdiction in Zhejiang Province,” published in Administrative Regulation and Judicial Review, 4th series, Law
Press China, 2007; HE Cailin, “Reform from within the Crevice: Narration from the Perspective of Jurisdiction of
Administrative Trials,” published in Peking University Law Review, 2nd series, 10th vol., Peking University
Publishing House, 2009.
7 SHI Yan, “Reform on Cross-Regional Jurisdiction of Cases against Authorities Brought by Ordinary People:
Sever Local Government’s Network,” People’s Daily Online, August 11, 2015,
http://henan.people.com.cn/n/2015/0811/c356896-25927749.html
8 WANG Guisong (ed.), The Conundrum of Interweaving of Civil Action and Administrative Litigation:
Reflection from Jiaozuo Real Estate Dispute, Law Press, 2005.
8 3. Difficulty in Executing Court Decisions
Difficulty in execution did not become a common problem in the past. One reason was
that it was long overshadowed by case registration and adjudication. The court had
already ruled out some tough cases while they put cases on file and considered
subsequent disposition while they adjudicated a case. Thus, there were not many cases
of compulsory execution. The number of administrative cases of compulsory execution
(including cases when an ordinary person was the obligator) dropped from the highest
40 thousand pieces to fewer than 10 thousand pieces in recent years, accounting for
only 4.6% of administrative cases. There are even fewer conflicts relating to execution
on record in statistics, which may suggest that litigants increasingly obey the effective
court’s judgments and resistance is decreasing.
Nonetheless, there were still a few difficult cases of execution, especially when there
was strong resistance from the administrative organ. In Fan Zhanfei vs. Department of
Land and Resources of Shaanxi Province, the plaintiff claimed the revocation of the
mining license. The losing defendant went so far as to hold a multi-department
administrative coordination meeting to veto the effective court judgment.9 In another
extreme case, a people’s court in Hunan Province ruled that a Tianjin public security
sub-bureau should pay RMB 5 million compensation but it was still not executed 12
years later, though the Supreme People’s Court expressed its concern and the Central
Political and Legislative Affairs Committee of the Communist Party sent a letter. 10
Although such phenomenon is not common, it actually serves as a touchstone which
reflects the weakness and incompetency of the judicature and helplessness in the face
of resistance. Such phenomenon has aggravated the public’s impression that the
people’s court is useless and further dampen the parties’ confidence in administrative
litigation.
9 WANG Wenzhi & XIAO Bo, “Department of Land and Resources of Shaanxi Province Vetoed the Court
Judgment and Intensified the Ming Right Dispute,” The Economic Observer, July 19, 2010; ZHAO Lei,
“Department of Land and Resources of Shaanxi Province Vetoed the Court Judgment and Pressed the Supreme
People’s Court to Amend the Judgment,” Southern Weekly, August 5, 2010.
10 WU Yi, “It is Easier to Climb to Heaven than to Execute a Judgement,” Chinese Lawyer, 10th issue, 2007;
HE Xin, “The Court Ruled that Tianjin Tanggu Public Security Sub-bureau Should Pay RMB5 Million
Compensation But the Sub-bureau has not Executed It 12 Years Later,” Nanfang Metropolis Daily, April 24, 2008.
9 C. The Law is in “Urgent Need of Amendment”
Judges have long known the problems in implementing The Law. The people’s court
has made a great effort to settle the predicaments. However, judicial efforts are subject
after all to the restrictions of The Law and amending The Law is inevitable.
At first, judges have overcome some deficiencies of The Law’s existing rules through
innovative interpretation of them. For instance, the people’s court has attempted to
break through the original restrictions on personal right and property right and
incorporated the right to education and “other legitimate rights” into litigation so that
the scope of administrative litigation has been expanded.11 Although legislation does
not explicitly provide for administrative procedures, the people’s court may on the basis
of the “due process principle” revoke administrative actions so as to strengthen review
of the legality of administrative actions.12 If an administrative organ does not, when it
takes an administrative action, inform the interested party of the content or the relief
approach and application deadline, the plaintiff shall be granted an extended time limit
(beyond the statutory time limit of 3 months) for filing his complaint. The people’s
court has also developed in practice new mode of judgment such as dismissing plaintiffs’
claims and affirming the illegality or invalidity of the alleged administrative action, and
the flexibility and appropriateness of judgment has been improved as a result. These
judicial innovations were altogether embodied in the “Ninety-eight Judicial
Interpretations” issued in 2000.13 These innovations show the potentials of a dynamic
judicial system even in the case of limited judicial authority. Nevertheless, judges
cannot ignore the legal restrictions in their innovations and such innovations by a few
bold judges cannot represent the general practice.
11 HE Haibo, “Expanding the Scope of Administrative Litigation: One Page History of Judicial Practice 1990 2000,” Peking University Law Review, 2nd series, 4th vol. (2002); Thomas Kellogg, “‘Courageous Explorers’?
Education Litigation and Judicial Innovation in China,” 20 Harvard Human Rights Journal 141 (2007).
12 HE Haibo, “The Dawn of the Due Process Principle in China,” 22 Columbia Journal of Asian Law 57-118
(2008)
13 “The Supreme People’s Court Judicial Interpretation of Several Issues Relating to the Implementation of the
Administrative Litigation Law of the PRC,” Fa-Shi [2000] No.8. See JIANG Bixin, “The Contribution of Judicial
Interpretation to the Development of Administrative Law Theories,” China Legal Science, 4th issue, 2001.
10 In addition, judges have attempted other methods to flexibly handle administrative
cases so as to ease the difficulties in getting an administrative lawsuit registered and
adjudicating administrative cases. For instance, some courts experimented on “round
table trial” to avoid the rigidness of traditional court setting. Specifically, the plaintiff,
the defendant and the judge are all seated at one table and talk and negotiate in a mild
manner. 14 Some people’s courts, considering potential dilemmas after a case is
registered, conducted “pre-action mediation”, namely, the court first mediate between
the two parties before registering the lawsuit brought by the plaintiff. If both parties
accept the mediation, the court then will not need to put the case on file (may not even
though the mediation fails). Coordination is certainly the most widely used by the
people’s court to persuade plaintiffs to withdraw. Because The Law prohibits mediation,
judges renamed their practice as “coordination”, which is actually disguised mediation.
Coordination has long been used extensively in administrative litigation. Judges even
consider it for some time as a new mode of administrative trial under the influence of
official documents. However, such measures are simply reluctant choice of judges who
cannot decide cases according to law. These measures have not benefited plaintiffs
substantially in most cases.15
What’s more, many courts take active approach politically to local Party Committees
and governments and closely follow the “central task” of the locality for the purpose of
obtaining the above two’s support to administrative trials. As somebody put it, “help
and not cause troubles.” A grassroots administrative division presiding judge, who has
been awarded the title of Outstanding Individual of National Administrative Trial,
explained me his “5% theory”: the court will give unconditional support to the
administrative action concerning the local government’s “central task”; for the rest 95%
14 ZHENG Chunsun, “Round Table Trial of Ordinary People’s Case against Administrative Organ, Talk and
Negotiation in a Mild Manner: Dezhou Court Administrative Division’s New Trial Mode Helps Achieve 80%
Amicable Settlement,” Legal Daily, July 24, 2008, at http://www.legaldaily.com.cn/bm/200807/24/content_908113.htm.
15 HE Haibo, “Litigations without a Ruling: The Predicaments of Administrative Law in China,” 3 Tsinghua
China Law Review 257-281 (2011).
11 administrative cases, the local government should respect the court and be supportive.
Such an approach indeed sacrifices judicial independence which both violates the
principle of the rule of law and undermines radically judicial status and authority.
Although the people’s court has made various efforts, administrative litigation is still in
straitened circumstances and unable to get rid of the predicaments. Presiding Judge
ZHAO Daguang of the Supreme People’s Court Administrative Division appealed
loudly at the 2013 annual administrative law conference that the administrative
litigation system had come to a “dead end” and must be amended. The very tiny and
insignificant effects of the court system’s various efforts in political and legal aspects
further increased people’s aspiration for the amendment.
II.
COURSE OF THE ADMINISTRATIVE LITIGATION LAW
AMENDMENT
A. Start-up
The legislature has noticed the demand for amending The Law in an early time. The
Standing Committee of the NPC included it in the five-year legislative schedules 2003
as a program to “discuss, prepare a draft and arrange for deliberation at due time”; the
Standing Committee took it again in the five-year legislative schedules 2008 as “a draft
bill to be submitted for deliberation within its term of office” and included it again in
the. 16 But it would not be arranged for deliberation until the next NPC Standing
Committee holds its session. The Law, enacted in 1989 and remained untouched ever
since, is almost the oldest law in contemporary China where the legal system is under
rapid development and there are frequent revisions of law. By compassion, the Civil
16 “Legislative Schedule of the Tenth National People’s Congress Standing Committee,” People’s Daily Online,
Dec.18, 2003, at http://www.people.com.cn/GB/14576/14957/2252949.html; “Legislative Schedule of the
Eleventh National People’s Congress Standing Committee,” the National People’s Congress website, at
http://www.npc.gov.cn/npc/xinwen/syxw/2008-10/29/content_1455985.htm. For more information of legislative
plan, see KAN Ke, “Look back on the NPC Standing Committee’s Legislative Planning Work,” the National
People’s Congress website, at http://www.npc.gov.cn/npc/xinwen/lfgz/lfdt/2013-11/07/content_1812837.htm.
12 Procedure Law and the Criminal Procedure Law have undergone respectively two
major amendments during that period.
Whether it is the right time for legislation is much related to the political climate. The
Law was adopted exactly along with the upsurge of political restructuring reform in the
1980s; it is hard to imagine the enactment of The Law without that trend. Afterwards,
the political reform receded to a low ebb and it was very difficult to put major reforms
on the agenda. Technically speaking, the Supreme People’s Court itself is able to amend
The Law (and it actually has done a lot) whereas no improvement at the system level
can be made without the resolution from the top authority. None of the major issues
involved in the administrative litigation system, such as incorporating normative
documents into the scope of administrative litigation, raising on a large scale the level
of trial courts, excluding local government’s interference with court trial, will not
concern the adjustment between judicature and administration, and legislation and the
Party Committee; and none will not be tackled without the resolution of the top
authority.
It is not always a good time for legal reform. There was an obvious “regression” roughly
after 2006 in the Chinese political and legal system under the control of ZHOU
Yongkang, who was sentenced later for his corruption. Instead of underlining the court’s
independence in trial, officials at each level demand an adherence to “absolute
leadership of the Party”; instead of underlining trial according to law, they chase a
“unity of three effects” (i.e. political effect, social effect, and legal effect); instead of
demanding the court to adjudicate cases decisively, they demand the court to do “grand
mediation”.17 In such a case, it was doubtful whether an amendment of law would
achieve the desired effect by society. An official of the Legislative Affairs Commission
stated at a meeting in early 2009 that amendments should touch major issues and
facilitate the improvement of the system; if it was not got right, it might lead to
17 HE Haibo, “Administrative Rule of Law, How Far Away are We from It?” Tribune of Political Science and
Law, 6th issue, 2013.
13 regression to effectuate the amendments. 18 Some judges and scholars were also
concerned that bad timing for amending The Law might not result in “positive effect”
but cause “negative consequences” instead.
After the 18th National Congress of the Communist Party of China, the leadership
slightly redressed the deviation and “rule of law” and “judicial reform” became again
hot words. Amending The Law was really put on the agenda at this time. In November
2013, the Third Plenary Session of the 18th Central Committee of the CPC proposed to
build rule of law in China, announcing to make the masses feel fair and just in all the
judicial cases. In October 2014, the last critical moment to amending The Law, the
Fourth Plenary Session of the 18th Central Committee of the CPC released a signal of
“comprehensive promotion of the rule of law” and put forward a number of measures
relating to the administrative litigation system. Among the highlights were “to perfect
the system and mechanisms of administrative litigation, to reasonably adjust the
administrative litigation jurisdiction system, to effectively solve the prominent
problems of difficulty in getting an administrative lawsuit registered, difficulty in
adjudicating administrative cases and difficulty in executing court decisions”; “to
improve the rules on administrative organ’s appearance in court, support the court to
accept and hear administrative cases, and respect and execute effective court
decisions.”19 That, under a system led by the Chinese Communist Party, can be deemed
as the political determination and supreme authorization for amending The Law.
Compared with the past, the time for amending The Law could not be any better.
B. Participating Parties
The amendment of The Law, as a typical process of legislation and with the NPC
Standing Committee as the center, involved many parties.
18 Forum on Administrative Litigation Law, The NPC Legislative Affairs Commission, Jan.21, 2009, at Henan
Building/Plaza/Edifice in Beijing.
19 “Decision of the Central Committee of the CPC on a Number of Major Issues Concerning Comprehensively
Promoting the Rule of Law,” adopted at the Fourth Plenary Session of the 18th Central Committee of the CPC on
Oct. 23, 2014.
14 1. Legislative Affairs Commission
At the NPC level, the “Legislative Affairs Commission” is mainly responsible for the
amendment of The Law. This Commission consists of over 300 legislative experts who
are responsible for drawing up major draft bills, and since after 2007 the whole process
of legislative work including the overall planning, organization, coordination, guidance
and service. There are over twenty experts in the “Administrative Law Office” of the
Commission who are responsible for major administrative legislation. This Office has
drafted the basic laws including the Administrative Penalty Law, the Administrative
License Law, and the Administrative Coercion Law and completed the amendments of
a series of important laws including the Environmental Protection Law.
Compared with other State organs (including the people’s court), the Commission is in
a more detached position and the experts have a good understanding of the actual
situation of administrative litigation. But after all, this Commission does not have
formal legislative power and thus cannot decide major issues. It is at best a coordinator
of the opinions of all parties. The Commission needs to first act on the orders of the
Central Committee of the CPC and the NPC, and then coordinate the opinions of the
people’s court, the people’s procuratorate, the legal affairs office and other departments,
and also listen to the voices of the public, the scholars and others in society. It also cares
whether the draft bills it draws up can be adopted by a massive majority vote among
the 152 NPC Standing Committee members.
2. Other Organs
Among all the State organs, the people’s court has the deepest feeling of various
problems of administrative litigation. It aspires to amend The Law, pays earnest
attention to amending The Law and has the closest association with the Commission.
Judges have accompanied the Commission officials in most of their surveys; the
Supreme People’s Court has drafted their version of amendments to The Law and
submitted to the Commission; and the leading Party group of the Supreme People’s
15 Court has twice submitted opinions on specific issues to the Commission.20 Compared
with scholars’ opinions, the opinions of the court receives more attention. Judges say in
private to the Commission officials, “You are helping us solve the problems,” and the
Commission officials would say, “We are family, our pleasure.” Notwithstanding, the
commission will not take all the demands in the list.
The function of the people’s procuratorate is not that prominent and its problem is
relatively simple. They expect The Law to grant them a more clear and powerful status,
to bring, representing the public interest, administrative lawsuits with the court, and as
the guardian of law to supervise the whole process of administrative litigation. Their
arguments have been adopted partially.
The attitude of the government legal departments appears to be comparatively negative.
Although the government system makes great efforts to build “governance by law”,
they are concerned that judicial intervention will exceed administration officials’
endurance capacity and disturb the agency’s routine work. Government law officers
rarely publish articles, hold discussions, or state their stand in public. But the
Commission cannot ignore their attitude. The Commission basically needs to persuade
the Legal Affairs Office of the State Council to accept major institutional changes or at
least the Legal Affairs Office does not strongly oppose the changes. The people’s
procuratorate failed in its pursuit for representing the public interest to sue against the
administrative organ just because the objection of the Legislative Affairs Office of the
State Council.
3．The Public, NPC Deputies and Legal Scholars
The public is very concerned about amending The Law. The NPC Standing Committee
20 These opinions are not publicly disclosed. But one can learn about the Supreme People’s Court’s basic
standpoint from the work of the Supreme People’s Court judges. See JIANG Bixin (ed.), Perfection of the Chinese
Administrative Litigation System: Study on the Practice of Administrative Litigation Law Amendments, Law Press
China, 2005; JIANG Bixin, “Some Thoughts on Perfecting the Administrative Litigation System,” China Legal
Science, 1st issue, 2013; LI Guangyu, WANG Zhenyu & LIANG Fengyun, “Ten Major Issues in the Amendment of
Administrative Litigation Law,” Journal of Law Application, 3rd Issue, 2013.
16 published the draft amendments twice to solicit public comments and the public has
showed considerable enthusiasm.21 It was reported that that more than four thousand
citizens nationwide has responded with 7 736 pieces of comments in total.22 Some
NPC deputies also offered their opinions one after another. These opinions may not be
professional or very operational, but they reflected the concerns and dissatisfaction with
The Law’s implementation. The public complained about the “difficulty in getting
administrative lawsuits registered with the court”, that they could not “see the defendant
administrative official in court”, and that the reconsideration organ simply sustains the
original action, which deeply impressed the legislature. The legislature eventually
responded to the public complaints.
Social organizations in China are underdeveloped and legal scholars largely act as the
spokesperson for public interest and the consultant of the legislature. Administrative
law scholars have been constantly calling for the amendment of The law for years. Ying
Songnian, professor and leading scholar of administrative law, has proposed repeatedly
in the capacity of NPC deputy to amend The Law. The Chinese Administrative Law
Society and other academic organizations have held a great number of discussions in
the course of amendment. The mass media has also frequently reported scholars’ appeal.
Several major academic institutions have submitted their respective proposed
amendments.23 Generally speaking, scholars share a highly consistent standpoint: more
judicial review and more effective dispute solution. However, legal scholars have
played a more positive role in technical issues than in policy decision.
21 The NPC website, at http://www.npc.gov.cn/npc/lfzt/2014/2013-12/31/content_1822188.htm,
http://npc.people.com.cn/n/2014/0901/c14576-25580921.html.
22 “Legislation Drafts that have Closed up Soliciting Public Comments”，The NPC website, at
http://www.npc.gov.cn/npc/flcazqyj/node_8195_2.htm，last visited November 19, 2016。
23 MA Huaide (ed.), Judicial Reform and Perfection of the Administrative Litigation System: Proposed
Amendments to the Law and Explanations, China University of Political Science and Law Press, 2004; HU
Jianmiao (ed.), Study on Revising the Administrative Litigation Law: Proposed Articles and Reasons, Zhejiang
University Press, 2007; YANG Xiaojun, Study on Problems of the Administrative Litigation Law and Reform of the
System, Chinese People’s Public Security Publishing House, 2007; MO Xiaochuan (ed.), More Effective Judicature
Needed to Build Rule of Law: Study on the Amending the Administrative Litigation Law and Expert Proposals,
Tsinghua University Press, 2014; HE Haibo et al., “Ideal Administrative Litigation Law: Scholars’ Proposed Draft
of the Administrative Litigation Law,” Administrative Law Review, 2nd issue, 2014.
17 Like in the course of many other legislations, foreign laws were frequently taken as a
reference by Legislative Affairs Commission officials and scholars as well.24 Foreign
experts from the U.S., Germany, Japan and experts from Taiwan were several times
invited to Beijing for consultation.
C. Three Deliberations
In accordance with the Legislation Law of the PRC, a legislative bill shall in general be
put to vote after three deliberations at the sessions of the Standing Committee of the
NPC; if there is a consensus from various quarters, the bill shall be put to vote after two
deliberations, or even after one deliberation. The Draft Amendment of The Law has
undergone three deliberations, which reflects legislators’ prudence. However, it only
took less than one year that the Draft Amendment was adopted on November 1, 2014.
It was first deliberated at the Sixth Plenary Session of the 12th Standing Committee of
the NPC in December 2013 and the third deliberation was conducted in the end of
October, 2014. For amendment of an important law, that was pretty fast, at least faster
than most scholars had expected.
After three deliberations, the Draft Amendment changed its contents in many places.
This paper will not relate in detail the changes made at each deliberation but will give
an overview of the content changes.25 This will help understand the value of many
deliberations on a draft bill.
Generally speaking, the Legislative Affairs Commission has done considerable survey
24 A Chinese translation and compilation of foreign statutes with regard to judicial review is on the way of
publication. HE Haibo (ed.), A Compilation of Administrative Litigation Law of China and Foreign Countries, The
Commercial Press, 2016 (forthcoming).
25 For more relevant information, please refer to the explanations of all the previous deliberations by the
legislative departments. They are respectively; LI Shishi (Vice-Chairman of the Law Committee of the NPC),
“Report on the Revisions of the Amendment of the Administrative Litigation Law of the PRC (Draft),” at the Tenth
Plenary Session of the 12th Standing Committee of the NPC on August 25, 2014; QIAO Xiaoyang (Chairman of
the Law Committee of the NPC), “Report on the Results of the Deliberations on the Amendment of the
Administrative Litigation Law of the PRC (Draft)”, at the Eleventh Plenary Session of the 12th Standing
Committee of the NPC on October 27, 2014; QIAO Xiaoyang (Chairman of the Law Committee of the NPC),
“Report on the Opinions on Revisions of the Re of the Standing Committee of the NPC on Amending the
Administrative Litigation Law of the PRC (Draft),” at the Eleventh Plenary Session of the 12th Standing
Committee of the NPC on October 31, 2014.
18 before drafting the bill. Besides, they have referred to scholars’ proposed drafts and
known the opinions of various quarters. Thus, the Commission was comparatively
certain of the goal of the Amendment. Once the Commission completed the draft bill,
the basic framework of the Amendment was therefore determined. Some scholars
proposed previously “extensive revision”, that is, to “do overall revision” from the
litigation system and mechanisms to the wording of the clauses and structure of the
code. Obviously, that proposal was not accepted. The Commission’s draft bill is
basically a “moderate revision”. Nonetheless, new suggestions were constantly
accepted at the deliberations and the draft bill was gradually improved.
After the first deliberation by the Standing Committee, the second draft had several big
changes. “Obviously improper” was added to the basis of judicial review, which gives
the court a better footing in exercising its reviewing power over administrative
discretion and a concrete reason to invalidate an unreasonable administrative act. The
clause “The Supreme People’s Court shall refer to the State Council for ruling when
[the court] thinks the rules are inconsistent” was deleted. The reconsideration organ
shall also become the defendant when it sustains the alleged administrative action. The
second draft for deliberation also made a little adjustment to the structure, that is, the
chapter with the most content, “Trial and Judgment”, was divided into five sections,
which made it better organized.
Some major revisions were made to the draft bill even at the last deliberation. Social
organizations that undertake public administration and public service functions under
authorization were also included as the defendant of administrative litigation. The
controversial administrative contract was added to the scope of accepting lawsuit. It
was emphasized that the people’s court should disclose on its own initiative legally
effective judgments and rulings “for the public access”. Just one day before the bill was
put to vote, Qiao Xiaoyang, Chairman of the Law Committee of the NPC, made a
19 special explanation on these changes.26
Some clauses in the draft bill have been repeatedly revised. For instance, it was
provided in the first draft, “The Higher People’s Court may determine a number of
grassroots people’s courts’ cross-administrative-regional jurisdiction over first instance
administrative cases.” The Supreme People’s Court and others pointed out that crossadministrative-regional jurisdiction over administrative cases should not be limited to
grassroots people’s courts and the draft bill should leave some space for the reform of
jurisdiction reform. Therefore, the word “grassroots” was deleted in the third draft. The
Supreme People’s Court then pointed out in accordance with the message of the Fourth
Plenary Session of the 18th Central Committee of the CPC that was just concluded that
cross-administrative-regional jurisdiction would not be limited to first instance cases.
Thus, the language “first instance” was deleted before the draft was put to vote. The
final text is “A higher People’s Court may determine under the approval of the Supreme
People’s Court a number of people’s courts to exercise cross-administrative-regional
jurisdiction over administrative cases in light of the actual situation of the trial work.”
Some individual clauses remained the same though they also underwent several
changes. The Law provides that the court shall revoke any administrative action that
“violates statutory procedures”. In the first draft, it was revised to the language “violates
statutory procedures and may have practical impact on the plaintiff’s right.” Some
scholars commented that this revision of the language denied the independent value of
administrative procedure and turned out to be a regression of the Chinese legislation on
administrative procedure. In the second draft, the language was revised as “violates
statutory procedures and no additions and corrections can be made.” Some scholars
concerned that this would leave too much space for administrative organs and as a result
make requirement of statutory procedures meaningless. The third draft accepted
26
QIAO Xiaoyang (Chairman of the Law Committee of the NPC), “Report on the Opinions on Revisions of
the Decision of the Standing Committee of the NPC on Amending the Administrative Litigation Law of the PRC
(Draft),” at the Eleventh Plenary Session of the 12th Standing Committee of the NPC on October 31, 2014.
20 scholars’ opinions, removed the additional limit and restored the original expression of
The Law.
D.
Passing
Under the Chinese legislative system, amendment of law may be conducted by the
annual National People’s Congress which consists of nearly 3000 deputies and by the
NPC Standing Committee that is much smaller in size but holds meetings more
frequently. It may appear to be more solemn when an amendment is conducted by the
NPC but the amendment will not be any higher in its legal effect. Moreover, the NPC’s
sessions are relatively shorter but have more matters. As a result, it is often difficult to
put legislative matters on the agenda. In practice, the vast majority of law amendments
have been conducted by the Standing Committee and only four laws were amended by
the NPC itself.27 Thus, it is not strange at all that the amendment of the Administrative
Litigation Law was carried out by the Standing Committee.
The draft bill was put to vote after three deliberations at the session of the Standing
Committee of the NPC. On November 1, 2014, the Eleventh Plenary Session of the 12th
Standing Committee of the NPC adopted the Decision on the Amendment of the
Administrative Litigation Law by 152 votes in favor, 0 votes against and 5 abstention.
Although the legislature is comparatively easy to achieve consensus under the Chinese
political regime, it is also common to have negative votes. The result of zero negative
vote implied that the Amendment has been widely recognized by the Standing
Committee members who are mostly officials. This, for the staff of the legislature, is a
huge success.
27 The four laws are respectively “The Law on Chinese-Foreign Equity Joint Ventures (2001)”, “The Electoral
Law of the National People’s Congress and Local People’s Congresses of the PRC (2010)”, “The Criminal
Procedure Law (2012)”, and “The Legislation Law (2015)”. But several revisions of the above laws were also
conducted by the Standing Committee of the NPC. Many other major amendments of important laws, such as “The
Organic Law of Local People’s Congresses of Local People’s Governments of the PRC”, “The Criminal Law”, and
“The Civil Procedure Law” were all conducted by the Standing Committee.
21 III.
MAIN CONTENTS OF ADMINISTRATIVE LITIGATION
LAW AMENDMENTS
After the 2014 amendments, the articles of the Administrative Law increased from 75
to 103, out of which 45 are revised, 33 are added, 5 are deleted, and only 25 of the
original provisions remained unchanged. The Amendment is a relatively big revision
looking simply at the language. But some clauses have only incorporated the previous
judicial interpretations of the Supreme People’s Court, and some have been revised to
make the expression more precise or concise (e.g. abandon the concept of “specific
administrative action”, and use the wording “administrative action”). What marks a
major amendment of a law is not how many provisions have been changed, but how
much the institution have been improved. Measured by the improvement of the system,
this Amendment has achieved remarkable progress, but there are still considerable
limitations.
A. Measures to Solve “Three Difficulties”
As the problems have been identified as “difficulty in getting an administrative lawsuit
registered, difficulty in adjudicating administrative cases and difficulty in executing
court decisions”, legislators’ attention was drawn to these three aspects and their efforts
were concentrated in solving these difficulties.
1. Measures to Solve “Difficulty in Getting an Administrative Lawsuit Registered”
The Amendment of The Law takes it as the first priority to solve the difficulty in getting
a case registered. It first set it as a legal principle to register a case according to law,
requiring the court to protect the right of a citizen to file a complaint, and emphasizing
that administrative organs must not interfere with the court’s case accepting. The
Amendment also adds a list of the types of actionable administrative actions, declaring
that several types of tough administrative cases, like land expropriation decisions, shall
fall into the scope of case acceptance of administrative litigation. Thirdly, the pre22 registration complaint examination is revised as complaint registration. When the court
“is unable to determine on the spot whether a complaint meets the conditions for filing
a complaint as set out by the present law, the court shall receive the complaint, issue a
written certification bearing the date of receipt, and decide whether to register the
complaint within seven days.” Fourthly, remedies are set out for plaintiffs when their
complaints are rejected. When the court refuses to register a complaint, the plaintiff
may either appeal the rejection or file his complaint with the court at a higher level; if
the court rejects the complaint materials and gives no written certification, the person
directly in charge and other persons directly responsible shall be disciplined. With
regard to lawsuit registration, the Amendment sets out the guideline, the rule and the
guarantee, the tough tone and severe measures of which are unprecedented in the
Chinese law.
2. Measures to Solve “Difficulty in Adjudicating Administrative Cases”
In order to solve the difficulty in adjudicating administrative cases, the Amendment has
adopted a number of measures.
It has first strengthened procedural safeguards. The chief official of an administrative
organ is required in principle to appear in court, or at least an employee should appear
in court; if the chief official or an employee of an administrative organ refuses to appear
in court, or if an administrative organ uses illegal means such as deceiving or coercing
the plaintiff to withdraw his complaint, the administrative organ shall be subject to
appropriate punishment. In the course of litigation, if the court deems that the execution
of an administrative action will impair State interest and public interest, or will cause
irreparable damage to the parties, the court shall rule to suspend the execution of the
alleged administrative action. The time limit for trial of administrative cases has been
extended (the original 3 months for first trial has been extended to 6 months) and
summary procedures have been added so as to relieve judges’ caseload.
In the second place, the court is equipped with more powerful means of examination.
23 If an administrative action is “obviously improper”, the court shall rule to revoke it.
Previously, the court may only exercise very limited review of administrative discretion.
An administrative action that just violates statutory procedure slightly and does not
cause any actual impact to the plaintiff’s right shall also be deemed illegal. When the
court deems a normative document – legal documents that are not formal legislation
but have universal binding force -- on the basis of which the alleged administrative
action is taken is illegal, the court shall not take the normative document as a legal basis
for determining the legality of the alleged administrative action. This point has also
been clarified.
Thirdly, court decisions can be more flexible and diverse. Besides revoking illegal
administrative actions, the court may also declare administrative actions illegal or void
and order the administrative organ to modify its action or to perform what it should do.
If the revocation of an administrative action that should be revoked may cause
significant detriment to State interest and/or public interest, the court shall restrain from
revocation and declare the administrative action illegal instead, and order the
administrative organ to take remedial measures. If an administrative action seriously or
evidently violates the law, for instance, the action is not taken by a competent
administrative institution or baseless, the court shall declare the administrative action
invalid. In addition to evidently inappropriate administrative punishment, other
administrative actions involving erroneous determination of the amount of money, the
court shall directly enter a judgment to modify it. The scope of mediation by the court
is largely extended: the court may conduct mediation in all cases involving
administrative discretion, and conclude the cases with mediation agreement. Prior to
the Amendment, judges could only persuade the plaintiff to withdraw to achieve
reconciliation.
Fourthly, with regard to a case that is tossed back and forth, the Amendment makes
special provisions for the purpose of closing the case and settling the dispute. When the
cases involve administrative license, registration, collection, expropriation, or
24 administrative organ’s decision on civil disputes, the court shall, under the parties’
application for solving together relevant civil dispute, adjudicate them together. When
a party appeal against the decision on a case reheard by the trial court, the court of
second instance must not remand the case for retrial.
3. Measures to Solve “Difficulty in Executing Court Decisions”
For the purpose of solving the difficulty to execute court decisions, the amendment also
makes a “fierce prescription”. At first, for any administrative organ that “should make
the payment” but does not perform it, the court shall inform the bank to transfer the
money from the administrative organ’s bank account; before this, The Law did not
mention compensation. Second, if an administrative organ fails to perform its duties
within the prescribed time limit, the “chief official of this administrative organ” shall
be imposed a fine of RMB 50-100 a day; before this, the court may only impose a fine
on the administrative organ. This revision is more accommodating in theory of law and
will be more viable in practice. Third, if an administrative organ refuses to perform the
court’s judgment, ruling or mediation agreement which results in adverse impact in
society, the court shall detain the administrative organ’s executive staff directly liable
and other staff directly liable; if the circumstances are serious enough to constitute a
crime, the court shall transfer it to the people’s procuratorate for initiating a lawsuit.
This provision is most likely to be ready just in case but it conveys a very clear message:
administrative officials must take the court decision seriously. When the Amendment
of The Law was promulgated, a newspaper gave a banner headline to this provision.28
Fourth, the court may make a public announcement on an administrative organ’s refusal
to perform the court decision and put forward judicial recommendations to relevant
departments. This seemingly mild approach is probably more helpful under the Chinese
system to urge administrative organs to perform their obligations. Anyhow, it should be
rare in the future that an administrative organ avowedly refuses to perform the court
decision.
28 “Responsible Official Shall be Detained if Administrative Organ Refuses to Perform Court Decision,”
Beijing Times, Nov.2, 2014, 1st & 4th edition.
25 B. Provisions with Chinese Characteristics
Legislators have also established in the course of amending The Law some rules with
strong Chinese characteristics to accommodate to the current Chinese political system
and social perception. First of all, the chief official of an administrative organ is
required to appear in court. Secondly, reconsideration organ is demanded to be the
defendant. These rules are controversial even in China. One can only understand the
reasons that they are established in the Chinese context and their practical effect
remains to be seen.
1. The Chief Official of an Administrative Organ Appear in Court
It has been advocated and practiced in some places long before amending The Law that
the chief official of an administrative organ appear in court. A State Council’s document
has also included as a measure to “strengthen the construction of a government ruled
by law”.29 Those who favor this provision believe that the chief official appearing in
court will help ease the antagonism between the two parties in the litigation, settle the
administrative dispute appropriately, enhance the sense of the chief official to conduct
administration in accordance with law, and identify and solve the problems of
administrative enforcement of law. In a certain sense, this practice also symbolizes
administrative organ’s respect for the judiciary and honor for the rule of law. 30
Opponents argue that chief executive appearing in court is a mere formality, does not
solve practical problems, and may even cause unnecessary stress and troubles to the
court.
The second draft amendment once provided: “The chief official of the respondent
administrative organ should appear in court. If the chief official cannot appear in court,
29 It is stipulated in the “Opinions of the State Council on Strengthening the Construction of a Government
Ruled by Law” (Guo-Fa [2010] 33) that “the chief official of an administrative organ shall appear in court
initiatively for major administrative lawsuits.”
30 For discussions on administrative organ’s chief official appearing in court, please refer to LV Shangmin,
“Should the Chief Executive Appear in Court? In Between the Judicial Technology, Power and Function,”
Administrative Law Review, 4th issue, 2009; ZHANG Zhiyuan, “Study on the Rule of Chief Executive Appearing
in Court in Administrative Litigations,” Law Science Magazine, 3rd issue, 2013.
26 he may also entrust an appropriate employee to appear in court.” Some people and NPC
deputies were not satisfied, arguing that the provision of “may also” entrust other
employees to appear in court does not have binding force to the chief official. In the
last deliberation, the language “may also” was then changed to “should”. Thus after
revision, article 3.3 reads as: “The chief official of the administrative organ against
which the complaint is filed shall appear in court to respond to the complaint. If the
chief official is unable to appear in court, a relevant employee of the administrative
organ shall appear in court.”
The “chief official” here includes the leader and deputy leader of the administrative
organ. The provision “shall appear in court to respond to the complaint” is a principle,
which in fact mainly relies on the internal regulation and evaluation of the
administrative organ to materialize it. Whether the chief official of an administrative
organ shall appear in court depends to a large extent on the work schedules and case
estimation of the administrative organ. The court may advise the chief official of an
administrative organ to appear in court in particular cases. Generally speaking, the court
shall not demand an administrative organ to explain why its chief official is unable to
appear in court, investigate whether the reasons are tenable, or force the chief official
to appear in court. But in any case, an administrative chief must entrust a relevant
employee, instead of merely entrusting an attorney outside the administrative organ, to
appear in court when he or she is unable to appear in court. This is the bottom line of
the amended law. The amended law also allows, in addition to not prohibiting the chief
official from appearing in court, an administrative organ to entrust one to two legal
representatives to appear in court at the same time.
2. Reconsideration Organ Demanded to be the Defendant
It may be the most controversial provision with the most remarkable and far-reaching
impact in this Amendment that the reconsideration organ shall be the defendant.
There is a set of internal relief channel in the administrative system in China in addition
27 to administrative litigation. A party may in principle apply to the administrative organ
at the next higher level for reconsideration if he or she disagrees with an administrative
organ; if the decision is made by a department of a local government, the party may
also apply to the local government for reconsideration. The Legal Affairs Office of a
reconsideration organ is actually the one that undertakes reconsideration work though
the decision is made in the name of the reconsideration organ. A party may, in general,
sue to the court if he or she does not accept the reconsideration decision.
In theory, administrative reconsideration should become the main channel to solving
administrative disputes due to its simple procedure and low cost, whereas in reality it
has only achieved very poor effect. First of all, reconsideration organs have handled a
small number of cases, even fewer than litigation cases. Administrative reconsideration
cases would be even fewer but for the provisions of some laws or regulations that there
must be reconsideration before administrative litigation. Moreover, the proportion of
reconsideration decision in favor of applicants (including revocation, modification,
ordered performance or confirmed illegality of administrative action) has been dropped
all the way from 30% before the enforcement of the Administrative Reconsideration
Law to less than 10% in recent years; whereas the proportion in favor of administrative
organs has been rising all the way to and sustains more than 60%. Reconsideration
organs then got a notorious byname: “sustaining agency”. The low proportion of
reconsideration decisions in favor of the applicants in turn dampened the common
people’s confidence in the reconsideration system and hindered them to resort to
reconsideration.
There are many different reasons for the insufficient effect of administrative
reconsideration but one provision of The Law can hardly absorb itself from the blame.
According to that provision, which party of a case shall be the defendant when a party
does not accept the reconsideration decision depends on how the reconsideration organ
decides on the dispute: when it decides to sustain the original administrative action, the
reconsideration organ shall not be the defendant; when it decides to modify the original
28 administrative action, the reconsideration organ shall be the defendant. In practice, a
reconsideration organ that decides to modify the original administrative action often
fall between two stools because it will not only offend its counterpart that has decided
the administrative action, but also “poke up the third party”, and it shall also be the
defendant. Hence, reconsideration organs try to sustain administration actions for the
sake of saving trouble. The unusually high proportion of reconsideration decisions that
sustain the original administrative actions can be attributed to the very bad facilitation
of the aforesaid provision.
There are two ways to get rid of the predicaments: one is to stipulate that no
reconsideration organ shall be defendant, and the other is to stipulate that all
reconsideration organs shall be defendant. Those who argue for the first one state that
reconsideration organs are the judge over the dispute and it is an international common
practice that a judge shall not be defendant. Once they are required to be defendant,
reconsideration organs will have a great burden of court appearance and disputes cannot
be effectively solved in the end. Those who argue otherwise state that administrative
reconsideration is an internal procedure for supervision and error correction within the
administrative system, and as part of the administrative system reconsideration organ
should assume administrative responsibilities. Under the Chinese system, only when
they are required to be defendant shall reconsideration organs be impelled to take on
responsibilities. On this issue, scholars are divided in opinion, government legal affairs
departments unanimously oppose the idea of making reconsideration organs defendant,
the masses and NPC deputies scream for making reconsideration organs defendant, and
the court also believes that making reconsideration organs defendant will help settle
disputes.
The Amendment of The Law made a decision on this issue that a reconsideration organ
shall nonetheless be defendant whether they decide to sustain or modify the original
administrative action. Different from the idea of some scholars, the Amendment
stipulates that the reconsideration organ and the administrative organ of the original
29 administrative action shall be co-defendants if a reconsideration organ decides to
sustain the original administrative action. The design of this rule has caused many
complex technical problems including but not limited to court jurisdiction, defendant’s
response and way of judgment. The effect of implementation will be discussed
afterwards.
C. Unachieved Proposals for Amendment
Although the legislature has made a lot of efforts, many problems are still not resolved,
falling below the expectation of some judges, scholars and the public, which include
expanding the scope of accepting cases, establishing public interest litigation, defining
review power over regulations and adjusting the judicial system. The goal of the
legislature in general is to solve the practical problems of administrative trial, not to
expand the function of administrative litigation in the State governance.
1. Rather Limited Expansion of Accepting Cases
The Amendment has made some efforts to expand the scope of accepting cases. It has
firstly added several types of actionable cases to the original eight stipulations to expand
it to twelve. Among them is to bring administrative organ’s contract action into the
scope of accepting cases in the name of “agreement”. That is indeed a rare breakthrough.
Secondly, as the fallback provision of the circumstances listed above, the rights to be
protected have been expanded from “other personal right and property right” to other
lawful rights and interests. Thirdly, “the administrative actions taken by an organization
that is empowered by law, regulation or rule” has also been brought, by way of
describing the concept of administrative actions, into the adjustment scope of law and
scope of accepting cases by the court. These stipulations have provided basis and
reserved space for future extension of the scope of administrative litigation.
However, provisions on case accepting scope still follow the original list mode and the
clause that the court does not accept the case remains untouched. Firstly, administrative
organ’s normative documents are still not brought into the scope of accepting cases; the
30 court can only review indirectly related normative documents while reviewing the
effectiveness of specific administrative actions. The court may rule in a particular case
at maximum that the related normative document does not apply but may not declare it
null and void. Secondly, the justiciability of management actions such as recruitment,
dismissal and discharge of civil servants are not affirmed. Thus, civil servant
management is still exempted from lawsuits. Thirdly, the justiciability of some new
types of rights such as the right to work, the right to education and the right to a healthy
environment remains to be interpreted. Compared with the original judicial
interpretations of the Supreme People’s Court, the scope of accepting cases of
administrative litigation is not substantially expanded in the aspect of legal norms.
All the above shows that the principle of rule of law that “All legal disputes shall be
settled at court” has not been recognized. In reality, the statement on administrative
litigation in the decision of the Fourth Plenary Session of the 18th CPC Central
Committee also attaches more emphasis to the solution of “difficulties in getting an
administrative lawsuit registered, adjudicating administrative cases and executing court
decisions”, instead of giving full play the important role of administrative litigation in
government ruled by law. At present, people still cannot expect too much of the
administrative litigation function.
2. Public Interest Administrative Litigation Still Missing
Public interest administrative litigation should have been an extension of the functions
of administrative litigation to facilitate administrative litigation to supervise
administrative organs and maintain the public law order; and even to make
administrative litigation a public forum for promoting institutional changes. The
academics strongly demands public interest administrative litigation. Some scholars
have suggested in vain that social organizations initiate public interest administrative
litigations. On one hand, social organizations in China are still not well developed; on
the other hand, the authorities still have reservation about the development of social
organizations and doubt about social organizations’ involvement in public interest
31 litigation.
The 18th CPC Central Committee mentioned in its decision adopted at the Fourth
Plenary Session, “exploring the establishment of a public interest litigation system
where the people’s procuratorate initiates the legal proceedings.” Although the people’s
procuratorate have great enthusiasm for this, the government legal affairs department
expressly opposes the idea that the people’s procuratorate acts as the plaintiff of
administrative cases. The Legal Affairs Office of the State Council points out that an
administrative organ itself is the representative of public interest, thus it does not
conform to the Chinese system that the people’s procuratorate initiates legal
proceedings against an administrative organ and the people’s court makes a judgment.31
Some scholars are also concerned about the actual effect of the people’s procuratorate’s
initiation of public interest litigation. The current people’s procuratorate of China, like
the people’s court, does not enjoy a guaranteed independence to exercise its function
and power. Even if the law empowers it to initiate public interest litigation, the people’s
procuratorate may not be able to initiate more than a few in years. It will not help much
to establish a system as such. Because there were too many differences on this issue,
the Amendment did not provide for this and the problem is left for further exploration
in practice.32
3. The Power of Regulation Review is still to be Defined
The legal system of China is one with complicated levels, which frustrates even
domestic legal scholars and attorneys, not to mention foreign observers. In simple terms,
the National People’s Congress and its Standing Committee may enact laws, the State
Council may enact administrative regulations, local People’s Congress and its Standing
31 QIAO Xiaoyang (Chairman of the Law Committee of the NPC), “Report on the Opinions on Revisions of
the Decision of the Standing Committee of the NPC on Amending the Administrative Litigation Law of the PRC
(Draft)”, at the Eleventh Plenary Session of the 12th Standing Committee of the NPC on October 31, 2014.
32 On July 1, 2015, after the “Administrative Litigation Law Amendment” was promulgated, the Standing
Committee of the NPC authorized the Supreme People’s Procuratorate to Conduct a 2-Year Public Interest
Litigation Pilot Program in the Fields of Ecological Environment, Resources Preservation, State-owned Assets
Protection, Assignment of the Right to the Use of State-owned Land and Food and Drug Safety. Up to September,
2016, the pilot People’s Procuratorates filed 28 litigations of such sort in total.
32 Committee may enact local regulations, and State Council departments and local
governments with relatively higher status may enact rules. Among these forms, the
force of laws is higher than that of administrative and local regulations, and the force
of administrative and local regulations is, roughly speaking, higher than that of rules. It
is completely out of the question in China for the people’s court to review the
constitutionality of laws, while it has been legally affirmed that the people’s court has
the power to review the legality of rules and determine their application. At present, a
difficult problem is the inconsistency between regulations (especially local regulations)
and laws. The law has not explicitly provided whether the people’s court may exclude
directly the application of inconsistent local regulations. Once a judge declared in the
people’s court decision that the relevant local regulation was inconsistent with the law
and should not apply, and that caused herself a lot of trouble. 33 Along with the
continuous delegation of legislative power, 282 cities nationwide with the division of
districts will be delegated the power to enact local regulations,34 which makes it more
urgent for the people’s court to review local regulations.
However, there are different opinions on this issue. The majority of scholars propose
that the people’s court should have the power to independently decide on the application
of a local regulation in adjudicating individual cases. One opinion is that under the
Chinese system of the People’s Congress judges are appointed by the People’s Congress
at the same level, to which the people’s court is accountable. Therefore, the people’s
court cannot exclude on its own the application of a local regulation. If in adjudication
it has any doubt about the legality of a local regulation, the people’s court may suspend
the adjudication, and refer it to a competent organ according to relevant provisions for
judgment. The Amendment evaded this controversy and inherited the original
stipulation, that is, the people’s court must “base” its judgment on the law,
administrative regulation and local regulation. Controversies over this issue may still
33 WANG Hong, “How Could a Court Reproach the Regulation Enacted by the People’s Congress: Gansu
Provincial Higher People’s Court Reversed the Wrong Decision by Jiuquan People’s Court,” Beijing Youth Daily,
Oct. 27, 2000; TIAN Yi & WANG Ying, “A Judge’s Fate and ‘Debate on the Conflict of Legal Provisions””, 21st
Century Economic Report, Nov.17, 2003.
34 “282 Cities that are Divided into Districts to be Delegated Law-making Power,” Beijing News, Aug.26, 2014.
33 occur in the future.
4. Partial Adjustment to Administrative Adjudication System
Compared with the above improvement on administrative adjudication mechanism, the
reform on administrative adjudication system is probably of more decisive significance.
Administrative adjudication system, namely, what kind of judiciary shall adjudicate
administrative cases, has been deemed as the “No.1 issue” for amending The Law. If
the provision on this issue is not properly amended and judges do not have
independence and authority, the Amendment of The Law will get half the result with
twice the effort, and some clauses will become a decoration.
In the course of amending The Law, there have been a variety of proposals, including
establishing within the current court system administrative courts to specifically
adjudicate administrative cases.
35
The legislation has finally retained the current
system that there is an administrative division in people’s courts at all four levels but
made a lot of minor adjustments. The final revision is actually a mixture of various
proposals. The first is hierarchical jurisdiction. Any complaint brought against a county
government shall be referred to the intermediate people’s court. A superior court may
also hear a case under the lower court’s jurisdiction, but the superior court is forbidden
to hand a case under its jurisdiction to a lower court. In the second place, a lower court
may refer a case under its jurisdiction to a superior court for appointing another court
to hear the case. That leaves open the possibility of cross-regional jurisdiction. Finally,
the higher people’s court under the approval of the Supreme People’s Court may
determine a number of courts to exercise cross-administrative-regional jurisdiction over
administrative cases. That provides a basis for centralized jurisdiction and also leaves
open the possibility of establishing special administrative courts.
35 JIANG Bixin, “Research on China’s Administrative Adjudication System Reform,” Administrative Law
Review, 4th issue, 2013; MA Huaide, “The Aim of Administrative Adjudication System Reform Is to Establish
Administrative Court,” Journal of Law Application, 7th issue, 2013; HE Haibo, “On Reform of Administrative
Adjudication System,” China Law Review, 1st issue, March 2014.
34 The above provisions reflect the spirit of the Fourth Plenary Session of the 18th CPC
Central Committee of “reasonable adjustment of the administrative lawsuit jurisdiction
system”, which helps enhance the anti-interference capacity of administrative
adjudication. But because legislators have not made decisions on the judicial system,
there is still much space left in selecting the specific plan, and many issues remain to
be further explored in practice. The overall advancement of judicial reform measures
such as centralized management of the personnel, finance and materials of courts below
the provincial level will also influence the trend of the reform of administrative
adjudication system.
IV.
PRELIMINARY EFFECT OF THE AMENDMENT
It has been more than a year since the amended Administrative Litigation Law came
into effect in May 2015. Now, we can make a preliminary evaluation on the effect of
the amendment.
There are different perspectives for evaluating the amended Administrative Litigation
Law. From the perspective of institutional improvement, I would like to list three
indicators: (1) whether the amended law can effectively solve the “difficulty in getting
an administrative lawsuit registered” and make administrative cases increase by a large
margin, (2) whether it can effectively solve the “difficulty in winning an administrative
case” and make the ordinary people’s win rate rise significantly, and (3) whether it can
improve the relevant mechanism of administrative dispute resolution and make
administrative reconsideration cases increase and petition cases decrease.36
Statistics by the Supreme People’s Court, the Legal Affairs Office of the State Council
and the State Bureau for Letters and Visits on the situation of administrative litigation,
administrative reconsideration and petitions nationwide in 2015 provide an answer to
36
HE Haibo, “Suspense after the Administrative Litigation Law Amendment,” China Reform, 12th issue, 2014.
35 the above questions. It should be noted that the new Administrative Litigation Law
came into effect in May 2015, and there were only seven months for its application in
that year. Thus the statistics of year 2015 can not fully reflect the effect of the new Law.
Nevertheless, the statistics suffice to give us a glimpse of the effect.
A. Administrative Cases Increased by a Large Margin, and “Difficulty in
Getting an Administrative Lawsuit Registered” Greatly Alleviated
First instance administrative cases increased by 55% than 2014, reaching 220 thousand
pieces. In the history of Chinese administrative litigation system, this is the biggest
increase following the overall implementation of the Administrative Litigation Law in
early 1990s. Because the scope of accepting cases has not been largely extended in this
Amendment, thus only had limited influence on the increase of cases accepted, the
increase in the number has obviously resulted from the implementation of the
registration system. According to report, in the month the registration system began to
be implemented, first instance administrative cases that were accepted nationwide
attained a growth of 221% compared with the same period of last year, and 90%
complaints were registered on the spot.37 Although court’s refusal to register a case or
issue a ruling are still heard occasionally, the difficulty in getting an administrative case
registered has been greatly alleviated. The number of first instance administrative cases
is expected to increase substantially on the basis of 2015 in 2016.
The surge of administrative cases in quantity will provided new opportunities for
lawyers. Trial lawyers of administrative litigation (including government lawyers) are
at the threshold of a new period in development. However, it has brought in a short term
tremendous pressure to courts’ adjudication and administrative response. Merely from
January to September in 2016, the Supreme People’s Court received more than 2 000
new administrative cases, which is surely unprecedented and probably unimaginable.38
37 LUO Shuzhen, “The Supreme People’s Court Announced the First-month Implementation of the Amended
Case Registration System: Number of Cases Registered Reached over a Million and 90% Registered on the Spot,”
People’s Court Daily, June 10, 2015.
38 ZHANG Wei, “The Supreme People’s Court Will Accept and Hear More Than 3000 Pieces of Administrative
Cases This Year,” Legal Daily, Oc. 17, 2016.
36 Because it is difficult to immediately recruit in-staff personnel, the judges and
government legal staff in position suddenly face a greatly increased burden.
Figure 1: National Statistics on the Number of Administrative Cases Accepted and
Heard over the Years
Case Number (thousand)
250
Cases of First Instance
200
Cases of Second Instance
150
100
50
0
83
85
87
89
91
93
95
97
99
01
03
05
07
09
11
13
15
Year
It is not clear how many disputes and what disputes should have been settled in the
people’s court but failed in entering the court proceedings. It is not entirely clear at
present what administrative management areas the newly accepted cases mainly
involve and what nature the alleged administrative actions is. These issues require
specific research. The statistics over the years show that public security cases once
occupied the first place and declined continuously later to the third place; but the
proportion rose in the last two years, the reason of which remains to be identified. Cases
involving urban construction and resources have been the largest number of two types
of lawsuits for consecutive ten years, accounting for more than 30% of the total (see
Fig.2). House demolition and land expropriation have become the social disputes of
great contention at the moment, and the people’s court have actively engaged in settling
the hot disputes.
Fig.2: Proportion of Administrative Lawsuits in Several Major Areas of Administrative
Management
37 Proportion（％）
Public Security
Urban Construction
Land and Resourses
Labor
50
45
40
35
30
25
20
15
10
5
0
87
89
91
93
95
97
99
01
03
05
07
09
11
13
15
Year
Among the types of administrative actions, administrative penalty is still the first major
category, but the proportion of cases involving administrative penalty has been
declining continuously in recent years and dropped to 11% in 2015. It is worth noting
that several types of traditional administrative actions (including administrative penalty,
administrative licensing, administrative adjudication, administrative coercive measures,
administrative inaction, administrative compensation) altogether account for less than
30% (see Fig.3). It is worth studying what the “other” cases out of the statistics are in
the end.
Fig.3: Proportion of Administrative Lawsuits Involving Several Major Types of
Administrative Actions
30
Administrative
Penalty
25
20
Administrative
Adjudication
15
Administrative
Liscecing
10
Coesive
Measure
5
Administrative
Inaction
0
98 99 00 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15
The Case Registration System has brought some new problems while solving the
38 “difficulty in getting an administrative lawsuit registered”. A small number of citizens
filed a large quantity of complaints which included many trivial, repetitive and
practically meaningless complaints. For instance, a party filed, in order to get more
compensation for demolition and relocation, tens of hundreds of complaints on
government information disclosure so as to force the government to sit at the
negotiating table. We cannot identify the proportion of the above litigation from the
statistics, but many courts are deeply bothered by the trend of litigation abuse. Judges
tell honestly that these lawsuits have taken up too much of the judicial resources but
cannot solve practical problems. Courts have begun to limit such lawsuits and their
initiative has been recognized by the Supreme People’s Court.39
B. Plaintiff Win Rate Slightly Rose, and “Difficulty in Adjudicating
Administrative Cases” Began to Improve
The implementation of Case Registration System has brought the difficult task of
solving administrative disputes into the people’s court from outside it. How the people’s
court will deal with the turbulent disputes is the biggest suspense. From the past
experience, the people’s court usually mobilized plaintiffs to withdraw or flatly rejected
complaints to respond to the excessive pressure of case adjudication, and plaintiff win
rate sometimes declined rather than rose. In this regard, the people’s court has done
pretty well in the past year.
To begin with, plaintiff withdrawal rate has dropped sharply. Plaintiffs’ withdrawal used
to be the main way to close cases, even more than court decisions. Plaintiff withdraw
rate experienced two radical changes in the past thirty years, and the highest was
respectively 57% (1997) and 50% (2012); accordingly, cases that were closed in ways
other than court decisions reached more than 70% at one time. The high withdrawal
rate reflects the court’s “difficulty in deciding administrative cases”. Along with the
39 “Written Verdict on Administration by Gangzha District People’s Court, Nantong City, Jiangsu Province,” 21
Gang-Xing-Chu-Zi (2015); “Gangzha People’s Court of Nantong City Takes the Lead in Regulating Abuse Action
on Government Information Disclosure,” Xinhua Net Jiangsu http://www.js.xinhuanet.com/201502/28/c_1114472215.htm; Gazette of the Supreme People’s Court, 11th issue, 2015.
39 adjustment of judicial policy, plaintiff withdrawal rate kept declining in the last three
years, and even reached 21.6% in 2015, the lowest since the implementation of the
Administrative Litigation Law 1989 (Fig.4). Moreover, the rate of plaintiff withdrawal
after the defendant administrative organ modified the alleged administrative action –
the plaintiff actually won the case – has also risen somewhat (Fig.5).
Fig.4 Proportion of Non-decision including Plaintiff Withdrawal, Dismissal and
Transferal
Withdrawl
70
dismissal
Proportion（％）
60
Transferral
50
40
30
20
10
0
87
89
91
93
95
97
99
01
03
05
07
09
11
13
15
Year
Fig.5: Proportion of Plaintiff Withdrawal after the Defendant Administrative Organ
Modifies the Alleged Administrative Action
60
Withdrawal after the Alleged Action Modified
Proportion（%）
50
40
30
20
10
0
93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15
Year
Next, the rate that the people’s court finds in favor of the plaintiff has risen slightly. We
cannot think simply that the higher the plaintiff win rate the better, but in the present
actual context of Chinese administrative law enforcement and administrative
adjudication, the plaintiff win rate is still a valid index of fair trial according to law by
40 the people’s court. The rate that the people’s court finds in favor of the plaintiff has
once reached 24% in history, but it declined evidently afterwards. The entire judicial
system underlined “grand mediation” a few years ago, and the plaintiff win rate once
dropped to less than 8%. It has risen slightly in the recent two years, and reached 13.3%
in 2015 (Fig.6). This indicates that the amended Administrative Litigation Law has
played a positive role in protecting citizens’ rights. We are not sure, however, how many
plaintiffs out of plaintiff’s win cases have received substantive relief, and the disputes
have been solved substantively. There is still space for the plaintiff win rate to rise
further in the future, referring to the aforementioned experience of Zhejiang Taizhou
and Henan province.
Fig.6: Proportion of First Instance Case Decisions in Favor of Plaintiff and Defendant
Rule for Defendant
80
Rule for plaintiff
No rulings
Proportion（％）
70
60
50
40
30
20
10
0
87
89
91
93
95
97
99
01
03
05
07
09
11
13
15
Year
In addition, the proportion of court decisions to dismiss the lawsuit has increased
significantly, accounting for 18.2% of cases closed (Fig.4). It is not surprising that the
proportion of court decisions to dismiss the lawsuit after trial increased, taking into
account that the people’s court has lowered the threshold for filing a case after the
implementation of the Case Registration System and many cases that did not meet the
conditions for lawsuit filing have been received. Compared with the proportion of court
ruling to reject the complaint, the proportion of court decisions to dismiss the lawsuit
is still a bit higher. The court only ruled to reject 8 983 complaints in 2015, which was
equal to 4.1% of the cases accepted. It is necessary for the people’s court to improve
41 case registration in the future and rules to reject at the very beginning complaints that
obviously do not meet the conditions for acceptance, including complaints that
evidently abuse litigation. Rejection at the very beginning is more cost saving than
dismissal afterwards. The public needs to accept the fact that the Case Registration
System does not mean to cancel the conditions for acceptance or “whatever complaints
shall be accepted”.
C. Administrative Reconsideration Achieves Better Effect but the “Main
Chanel” Role has not been Brought into Full Play
Administrative dispute settlement is a big basket and dispute settlement mechanisms - administrative litigation, administrative reconsideration and petition -- should be
reasonably allocated. Administrative reconsideration should, for the reason of its
simplicity, speed and inexpensiveness, accept and solve in theory the majority of
administrative disputes and become the “main channel” of administrative dispute
settlement. Administrative litigation should, for the reason of its strictness and authority
in fact-finding, law application and implementation procedure, become the last relief.
Petition should, as an informal channel of dispute settlement, handle a small number of
administrative disputes and complement the other mechanisms. An ideal ratio of
administrative reconsideration, administrative litigation and petition should be
100:10:1, roughly speaking; but in reality it has been quite the opposite.
The poor effect of administrative reconsideration mainly attributes to its system, but as
aforementioned, the following provision of The Law was also problematic: if the
reconsideration organ decides to sustain the original administrative action, the party
concerned may only sue the original administrative organ that has taken the alleged
administrative action; if the reconsideration organ decides to modify the original
administrative action, the reconsideration organ shall be the defendant. Then the
amended Administrative Litigation Law provides: whether the reconsideration agency
decides to sustain or modify the original administrative action, the reconsideration
organ shall be the defendant. There has been much controversy over the above provision
42 in the academic circle.
The 2015 statistics shows the positive response to the above provision by the
reconsideration organ. At first, the long-term increase of reconsideration decision to
sustain the original administrative action (including dismissal of application for
administrative reconsideration) stopped and there was apparent decline for the first time;
and administrative reconsideration decisions in favor of applicants ended its continuous
decline over the years, and exceeded 13% for the first time in a decade (Fig.7). In the
meanwhile, administrative reconsideration cases continued the momentum of growth,
which reached close to 150 thousand pieces (Fig.8). The provision that the
administrative reconsideration organ shall be the defendant has promoted to some
extent the conscientious fulfillment of reconsideration duties and protection of citizens’
rights by the administrative reconsideration organ. It may also play a role reversely in
future reform on the administrative reconsideration system and amendment of the
Administrative Reconsideration Law. It takes a longer time to see how the effect will
be exactly.
Fig.7: Closure of Administrative Reconsideration Cases Nationwide Over the Years
Proportion (%)
Sustain
Modify
Others
80
70
60
50
40
30
20
10
0
99
00
01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
Year
Fig.8: Number of Administrative Reconsideration Cases Nationwide Over the Years
43 Case Number (thousand)
180
application
160
Acceptance
conclusion
140
120
100
80
60
40
20
0
98 99 00 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15
Year
While the proportion of administrative litigation and administrative reconsideration
rose, the proportion of petition declines. Statistics from the State Bureau for Letters and
Visits show that petitions nationwide declined by 7.4% in 2015, going to the Capital
City Beijing for petition declined by 6.5%, and the number of collective petition also
declined. 40 Although we cannot simply attribute the decline of petitions to the
improvement of administrative litigation and administrative reconsideration systems,
the unimpeded channel of the above two has indeed, considering that the vast majority
of petitioned matters relates to administrative organs, played a certain role in petition
decrease.
CONCLUSION
The 2014 Amendment of the Administrative Litigation Law has made a powerful
response to the “difficulties in getting an administrative lawsuit registered, adjudicating
administrative cases and executing court decisions”. After the amended Administrative
Litigation Law came into effect, the acceptance of first instance administrative lawsuits
increased sharply, and the plaintiff win rate also rose in the same time. The function of
administrative litigation has been improved in settling disputes, which has promoted
40 BAI Yang, “State Bureau for Letters and Visits: Increment and Stock of Petitions Nationwide in 2015 Both
Declined,” Xinhua Net at http://news.xinhuanet.com/legal/2016-01/24/c_1117876355.htm.
44 the reform of the administrative reconsideration and petition mechanisms. In general,
the Amendment of the Administrative Litigation Law has achieved the desired results
of the legislators and administrative litigation in China is embracing the best ever period
in its history.
The set target of this Amendment is very humble. The Amendment has aimed at solving
the “three difficulties”, and thus it has not attached importance to expanding the
functions of administrative litigation. The people’s court review of normative
documents, collateral review of local regulations and acceptance of public interest
litigation have all been evaded. The biggest problem that has been restricting
administrative litigation, namely, full guarantee of the independence and authority of
administrative trial, has not been solved either by the Amendment, and that will depend
on the overall advancement of judicial and political reform. The deep-seated problem
that has troubled administrative litigation for years still exists, and administrative trial
still faces difficult future.
Compared with administrative law enforcement and judicial practice, legislation is the
key factor and major symbol of the development of law. The Amendment of the
Administrative Litigation Law shows the efforts to promote the rule of law in this era,
but also reflects the multi-stages and limitations of the process of the rule of law in
China. If there is a gap between the law and our expectations, that is because there is a
gap between the times we are in and the future we look to. We appeal and we criticize,
because we still cherish an ideal.
45 Field Notes From the Far
East: China’s New Public
Interest Environmental
Protection Law in Action
by Yanmei Lin and Jack Tuholske
Yanmei Lin is an Associate Professor of Law and Associate Director at U.S.-Asia Partnerships for
Environmental Law at Vermont Law School. Jack Tuholske is Director of the Vermont Law School
Water and Justice Program and a Technical Advisor to the Partnerships program.
Judicial Interpretation on Environmental Civil Public
Interest Litigation, which is a powerful sword, has been
made. We hope this sword can cut through the dirty
stream and clean the grey smog air. It will be like a sword
of Damocles that hangs above the polluters.
—Justice Zheng Xuelin, Director of
Environment and Resources Law Tribunal,
Supreme People’s Court, January 7, 20151
I.
Introduction
On May 15, 2015, the Nanping Intermediate People’s
Court in Fujian Province conducted the first-ever Chinese trial involving environmental civil public interest
litigation.2 The case, which concerned resource destruction
and environmental restoration related to an illegal mining
site, was heard under China’s new Environmental Protection Law (EPL),3 a strongly worded mandate that includes,
among other potentially far-reaching provisions, a right
of standing for nongovernmental organizations (NGOs)
to bring environmental cases. While China’s long-term
commitment to environmental protection through judicial
action is not yet clear, this case, and others still pending,
may one day be seen as a pivotal turning point in Chinese
1.
2.
3.
See Zheng Xuelin, Spending Ten Years Polishing a Sword and Showing It Today, http://mp.weixin.qq.com/s?__biz=MzAxODA5MjIzNA==&mid=203
515662&idx=1&sn=2ad0d4217bfb1bb14355e52706d0f9fa#rd.
See Te-ping Chen, Environmental Trial Tests Beijing’s Nerve on Pollution,
Wall St. J., May 18, 2015, available at http://www.wsj.com/articles/
environmental-trial-kicks-off-in-china-1431939272.
Environmental Protection Law (promulgated by the Standing Comm.
Nat’l People’s Congress on April 24, 2014, effective Jan. 1, 2015) (China),
available at http://www.npc.gov.cn/huiyi/lfzt/hjbhfxzaca/2014-04/25/content_1861320.htm.
9-2015
environmental litigation, akin to landmark U.S. cases in
the 1960s and early 1970s such as Sierra Club v. Morton4
and Calvert Cliffs Coordinating Comm. v. Atomic Energy
Comm’n5 that heralded a sea change in U.S. environmental
protection and established the role of the courts in enforcing environmental laws.
The widespread failure of Chinese environmental law
to stem pollution and destruction of natural resources
is well-documented. 6 As one author notes, “China is
responsible for a third of the planet’s greenhouse gas output and has sixteen of the world’s twenty most polluted
cities. Life expectancy in the north has decreased by 5.5
years due to air pollution, and severe water contamination and scarcity have compounded land deterioration
problems.”7 China has allowed private tort law claims for
4.
5.
6.
7.
405 U.S. 727, 2 ELR 20192 (1972). A classic “lose-the-battle-win-the-war”
paradigm, the decision opened the door to NGO standing to sue based
on noneconomic injury and gave litigants a simple road map for standing
that endures to this day, despite occasional attempts by more conservative
justices to rein in environmental litigation.
449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971). Circuit Judge J. Skelly
Wright’s admonishment that the National Environmental Policy Act
(NEPA) (42 U.S.C. §§4321-4370f, ELR Stat. NEPA §§2-209) “is not a
“paper tiger” and “promises a flood of litigation,” proved prescient. 449 F.2d
at 1111, 1114. Calvert Cliffs and a few other early decisions paved the way
for NEPA to become the backbone of U.S. environmental law, to serve as
a catalyst and conduit for public participation, and to foster far-reaching
judicial oversight of federal agency environmental review. Notwithstanding
a string of defeats at the hands of the U.S. Supreme Court, NEPA remains
a highly effective public interest litigation tool. See Michael C. Blumm &
Keith Mosman, The Overlooked Role of the National Environmental Policy Act
in Protecting the Western Environment: NEPA in the Ninth Circuit, 2 Wash.
J. Envtl. L & Pol’y 193 (2012).
See generally Erin Ryan, The Elaborate Paper Tiger: Environmental Enforcement and the Rule of Law in China, 23 Duke Envtl. L & Pol’y F. 183
(2014).
Beina Xu, China’s Environmental Crisis, http://www.cfr.org/china/chinasenvironmental-crisis/p12608 (last visited Apr. 25, 2014).
NEWS & ANALYSIS
45 ELR 10855
45 ELR 10856
ENVIRONMENTAL LAW REPORTER
pollution victims for about three decades 8; yet, courts
remained reluctant to permit NGOs to sue on behalf
of the public interest for natural resource damages and
restoration.9
However, over the past three years, the National People’s Congress has reformed both China’s civil procedure
and environmental protection laws, opening the door to
NGO participation in enforcing the environmental laws.
In December 2014, the Supreme People’s Court (SPC)
gave its blessing to the new EPL through a formal interpretation of the law, which became effective in January 2015.10
Since that time, multiple cases have been filed under the
new law by China’s leading NGOs, occasionally with local
NGOs as co-plaintiffs.11 The case in Nanping Intermediate
People’s Court was the first to go to trial. Because of the
broad scope of the requested relief, including restoration,
loss of ecological services, and attorneys fees, the court’s
final decision could stimulate a sea change for Chinese
environmental protection.
Reading the tea leaves of Chinese environmental law is
complicated. Yet, the central government is acutely aware
of both the enormous and devastating environmental problems the country faces, and the difficulties in enforcing
environmental laws at the local level.12 Thus, the country
has ample motivation to foster a Chinese-style rule-of-law
approach to rein in polluters.13 NGOs play a critical role in
the enforcement of environmental laws in Western countries.14 For the moment, the Chinese government appears
willing to see if the fruits of public interest environmental
law can achieve success in China too.15
This Comment begins with a short discussion of the
development of Chinese environmental civil litigation
and the courts over the past decades. We then provide
an overview of China’s new EPL, focusing on sections
that promote standing and access to information. We
8.
9.
10.
11.
12.
13.
14.
15.
China’s General Principle for Civil Law, first adopted in 1986, provided a
legal basis for tort liability claims. In 2001, the SPC promulgated Several
Issues Related to Civil Litigation that included provisions on environmental
private tort cases, such as shifting the burden of proof on causation.
Robert Percival & Huiyu Zhao, The Role of Civil Society in Environmental
Governance in the United States and China, 24 Duke Envtl. L. & Pol’y F.
142, 171 (2014).
Barbara Finamore, New Weapons in the War on Pollution: China’s Environmental Protection Law Amendments, http://switchboard.nrdc.org/blogs/
bfinamore/new_weapons_in_the_war_on_poll.html.
Liu Qin, China Court to Hear 30m Yuan Air Pollution Lawsuit, https://www.
chinadialogue.net/article/show/single/en/7790-China-court-to-hear-3-myuan-air-pollution-lawsuit (last visited Mar. 25, 2015).
Agence France-Presse, China Vows to Fight Pollution “With All Our Might,”
Guardian, Mar. 5, 2015, available at http://www.theguardian.com/environment/2015/mar/05/china-vows-to-fight-pollution-with-all-our-might;
see also Debra Tan, The War on Water Pollution, http://chinawaterrisk.org/
resources/analysis-reviews/the-war-on-water-pollution/.
See generally Ryan, supra note 6, at 221-25.
Public interest environmental litigation has blossomed into a strong and
widespread legal community in the United States since the 1970s. For example, the NGO Earthjustice’s website lists more than 75 full-time attorneys, plus an equal number of supervisory, media, and policy personnel on
staff. See http://earthjustice.org/about/staff (last visited July 2, 2015). Other
national, regional, and local NGOs employ several hundred additional fulltime public interest attorneys. We estimate that there are 400-500 private
attorneys who work on public interest environmental cases.
See Percival & Zhao, supra note 9, at 143-79.
9-2015
conclude with a detailed examination of the Nanping
case, including observations from the lead attorney and
others involved with the case, and some thoughts about
the future of environmental public interest litigation in
China.
II.
First Steps: China’s Experiment With
Tort Suits Against Polluters
Suits between private parties for damages to health and
property from industrial pollution appeared in China in
the late 1980s.16 Styled as traditional tort claims for damages, these suits resulted in money damages of modest
proportions.17 While an in-depth discussion of environmental tort law is beyond the scope of this Comment, the
difficulties of using tort law to remedy pervasive pollution
problems provides a backdrop for understanding why public interest suits are an important component of using the
legal system to protect the environment.
Tort law has been and remains a means of holding polluters legally accountable. However, tort law has inherent
weaknesses as a means for remedying pervasive pollution
problems, and those weaknesses are amplified by structural
problems in China’s legal system.18 The first weakness stems
from the nature of tort law itself. Cases focus on a specific
problem and proceed on a random, ad hoc basis, with varying results. While it is true that the deterrent value of tort
law may prompt polluters to modify their behavior to avoid
liability, the process is slow and the results are uncertain.
Even large judgments and punitive damage awards may
equate to only a fraction of a single year’s profits for a large
multinational corporation. Consequential damages can be
limited in scope and difficult to prove. Injunctive relief is
not ensured.
American environmental tort law has evolved considerably. Large pollution-related tort judgments and settlements in the United States are routine and run into the
hundreds of millions of dollars. The availability of significant punitive damage awards by juries adds to the heft of
tort suits. For example, the Exxon Valdez Alaskan oil spill
litigation resulted in a judgment of approximately $507
million for Alaskan natives, fishermen, and others suing
over the loss of fish resources. Attorneys also secured a $2.5
billion punitive damage award, later reduced by the U.S.
Supreme Court to $500 million.19 A trial judge in California ordered three companies to pay $1.15 billion dollars into the state’s Childhood Lead Poisoning Prevention
16. Private tort litigation against polluters in China was first provided for in the
civil liability principles of Article 124 of the General Principles of the Civil
Law in 1986, and Article 41 of the 1989 EPL. The 1989 EPL was originally
enacted in 1979 on a trial basis and then reaffirmed in 1989.
17. Adam Moser & Tseming Yang, Environmental Tort Litigation in China, 41
ELR 10895-99 (Oct. 2011).
18. Id. at 10897-98.
19. Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008). Writing for a divided
Supreme Court in this controversial opinion, Justice David Souter expressed
concern about the “stark unpredictability” of punitive damage awards, and
limited such damages in maritime cases to an amount equal to the actual
damages. Id. at 499.
9-2015
NEWS & ANALYSIS
Branch in 2014 based on a public nuisance theory.20 In
California alone, numerous groundwater contamination
suits have led to decades of litigation and settlements in
the hundreds of millions of dollars.21 The story embodied
in the popular book and movie A Civil Action has been
replayed throughout courtrooms in the United States;
environmental tort actions do hold polluters liable and
result in significant damage awards.
Further, many states permit restoration damages under
common-law principles,22 and those restoration damages
can greatly exceed consequential damages for property loss
in cases of soil and groundwater contamination. For example, in Sunburst School District No. 2 v. Texaco, Inc., the
Montana Supreme Court upheld a damage award of $16
million, though actual nuisance and wrongful occupation
property damages were less than $1 million.23 Pollution
prevention is now a cost of doing business, and accordingly,
practices in many industries have changed. Moreover, tort
liability is now complemented by statutory environmental
laws permitting citizen suits, such as the Comprehensive
Environmental Response, Compensation, and Liability
Act (CERCLA).24
China’s initial foray into holding polluters legally
accountable was premised on private tort law. However, the
inherent problems in using private tort law to address pollution and destruction of natural resources are amplified
in China by its limited court system, vaguely worded laws,
and lack of legal tradition.25 Thus far, judgments have been
modest and remedies have been difficult to enforce. Even
the largest damage award in the Rongping Joint Chemical
Plant case in Fujian Province in 2005 did not solve the
environmental problems that caused the pollution.26 Yet,
the Chinese government is acutely aware of the huge cost
that pollution is taking on the country, and the growing discontent among citizens who must bear these costs.
20. People v. Atlantic Richfield Co., No. 788657 (Santa Clara Cnty. Super. Ct., filed Mar. 23, 2000). The decision is currently under appeal. For a summary of the litigation, see http://blog.pacificlegal.org/
plf-files-amicus-brief-california-lead-paint-case/.
21. See, e.g., https://en.wikipedia.org/wiki/Hinkley_groundwater_contamination ($333 million settlement (the Erin Brockovich litigation)); http://www.
pe.com/articles/site-685565-epa-perchlorate.html ($11 million settlement).
22. See Restatement (Second) of Torts §929.
23. 165 P.3d 1079 (2007). The terms of the jury’s damage award were complicated. “The jury awarded Sunburst compensatory damages of approximately $16 million. The jury’s special verdict included awards of $170,000
for wrongful occupation of property, $371,000 for constructive fraud,
$350,000 for the costs of environmental investigation, and a single award of
$226,500 for private nuisance, public nuisance and constitutional tort.” Id.
at 1085.
24. 42 U.S.C. §§9601-9675, ELR Stat. CERCLA §§101-405. See 42 U.S.C.
§6972.
25. See Alex Wang, The Role of Law in Environmental Protection in China: Recent
Developments, 8 Vt. J. Envtl. L. 195, 202-05 (2007).
26. Id. at 212-19. In Zhang Changiian v. Pingnan Rongping Chemical Plant (the
Rongping Case), the Fujian High Court issued a judgment of 680,000RMB
as property damage to 1,721 plaintiffs in Pingnan Village and an order to
“stop harm.” But the chemical plant did not cease operation; instead, it
expanded production and obtained an environmental impact assessment
approval for its expansion in 2009, four years after the judgment. According
to a blog entry by Zhang Changjian, the lead plaintiff, the chemical plant
continued posing harm to the plaintiffs’ community. See Zhang Chanjian,
http://blog.sina.com.cn/s/articlelist_1210028007_1_1.html.
45 ELR 10857
Thousands of public protests over environmental problems
occur each year, and the government has openly noted failures in environmental protection.27
III. Seeds of Change: Public Interest Law in
China
Chinese NGOs first filed public interest pollution cases
beginning in 2009. Friends of Nature, China’s oldest registered NGO, filed test cases that did not seek tort damages for individuals, but instead damages for loss of natural
resources and restoration of the environment.28 These cases
achieved some success29; however, considerable barriers
to public interest litigation remained. China established
specialized environmental courts, but their jurisdiction remained murky. Courts could simply refuse cases
that were politically sensitive. Unlike the United States
where lifetime-tenured federal judges provide an alternative forum to state and local courts, Chinese courts at the
county and provincial level remain susceptible to the same
political pressures that stymie enforcement of environmental laws and implement the pervasive mandate from the
central government for gross domestic product growth.30
The central government began addressing these barriers. On August 31, 2012, the Standing Committee of
the National People’s Congress adopted amendments to
China’s Civil Procedure Law that, for the first time, allow
“governmental agencies and relevant organizations stipulated by laws” to initiate lawsuits for “acts that harm the
public interest,” including environmental pollution.31 The
new provision appeared to open the door to case filings by
NGOs as a “relevant organization stipulated by law.”
However, Chinese environmental courts still refused to
accept cases from NGO plaintiffs seeking direct enforcement of environmental laws. One high-profile case, a suit
against the Shenhua Coal to Liquid and Chemical plant
for allegedly causing both water pollution and desertification on a massive scale, was rejected through a phone call
to the plaintiff’s attorney.32 The All China Environmental
Federation, an NGO affiliated with the Ministry of Environmental Protection, had several similar but less sensitive
suits rejected. Chinese courts were reluctant to accept cases
based on the change in the Civil Procedure Law without
27. See Wang, supra note 25, at 200 (noting that in 2005, more than 50,000
public protests over environmental issues occurred, and cataloguing official
government statements about the lack of enforcement of environmental
laws).
28. Jessica Scott, Cleaning Up the Dragon’s Fountain: Lessons From the First Public Interest Lawsuit Brought by a Grassroots NGO in China, 45 Geo. Wash.
Int’l L. Rev. 727-30 (2013).
29. For a more thorough discussion of these early cases, see, e.g., Wang
Canfa, Plaintiffs for China’s Environmental Public Interest Litigation
and the Controversy, http://article.chinalawinfo.com/Article_Detail.
asp?ArticleID=63899#; Yanmei Lin, Development of Environmental Public
Interest Litigation in China: Seven Test Cases Studies, in 5 China Envtl. Y.B.
(2011).
30. See Ryan, supra note 6 at 215-16.
31. Civil Procedure Law art. 55 (2012) (China).
32. See Yanmei Lin & Shaobo Hu, Environmental Civil Public Interest Litigation:
Empowering Chinese Environmental NGOs to Fight Against Pollution, China
Environment Series 13 (Wilson Center forthcoming fall, 2015).
45 ELR 10858
ENVIRONMENTAL LAW REPORTER
9-2015
a clear definition from the central government of the term
“relevant organizations.”33 American-style public interest
law was not part of the judiciary’s legal vernacular.
Chinese environmental law shifted in a more profound
way in 2014, when the National People’s Congress published proposed revisions to the EPL.34 China’s basic environmental protection laws have been on the books since
1979, covering all major resources such as air, water, and
forests. However, the country’s burgeoning pollution problems and the difficulties with enforcement highlighted the
lack of an effective legal structure to control pollution.
The cost of pollution to human health, productivity, and
social stability did not escape the attention of the central government. The 2014 revisions were subject to two
years of intense debate and scrutiny, both within the party
and from NGOs that pushed for liberalized standing and
broader remedies to strengthen judicial enforcement.35
On April 24, 2014, the Standing Committee of the
National People’s Congress approved the amendments to
the EPL. The new law contains many groundbreaking provisions that can fundamentally change the role of courts
in environmental protection.36 For example, Article 58
provides that Chinese social organizations can bring suits
on behalf of the public interest in situations involving pollution or ecological damage if the organizations meet the
following two requirements: (1) they have registered with
the civil affairs departments at or above the municipal level
within the district; and (2) they have specialized in environmental protection public interest activities for five or
more consecutive years and have no record of any violations of law. The term “relevant organizations” in the Civil
Procedure Law is now clearly defined in a way to foster true
public interest litigation.
Further, the SPC issued an important judicial interpretation of Article 58 of the new EPL that strengthens
standing in environmental law. Entitled Interpretation
Regarding Certain Issues Related to Application of the Law
in Environmental Civil Public Interest Litigation (Judicial
Interpretation),37 it clarifies that Article 58 provides jurisdiction not only for past and ongoing harm, but also for
“imminent” future harm. The scope of eligible NGOs
with standing was clarified to include those registered at
the district of municipalities directly under the central
government, where many important Chinese environmental groups are registered, including Friends of Nature and
Nature University, both of which are registered at district
civil affair bureaus in Beijing. An official from the Ministry
of Civil Affairs estimates that approximately 700 NGOs in
China are now eligible to file environmental public interest
litigation.38
The new EPL contains numerous other provisions that
were given a strong interpretation by the SPC. While a
thorough discussion of the new law is beyond the scope
of this Comment, a few key provisions as interpreted by
the SPC bear mention. First, the SPC clarified that courts
have broad authority to remedy environmental harm that
extends beyond traditional tort money damages. These
remedies include issuing orders of “stop harm,” “cessation
of inference,” “elimination of danger,” “return of property,”
“restoration to original status,” and “damages.”39 The new
law provides for full restoration of a site to its pre-damage ecological condition and makes available damages for
interim losses of ecological functions between actual ecological damage and restoration.40 The Judicial Interpretation also allows a court to assess environmental damages
based on the economic benefits gained by the polluters
from noncompliance in cases where ecological environmental restoration costs are difficult to determine, such as
air pollution cases.41 While NGOs may not accrue financial benefit from litigation, recovery of expert witness costs
and fees is possible.
In addition, the SPC designates people’s courts of intermediate level or above as having jurisdiction in the first
instance over environmental public interest cases.42 This
jurisdictional arrangement helps prevent local protectionism where the local government would intervene in the
decision of the basic people’s court to accept cases in order
to shelter large polluters who support the local economy.43
33. Id.
34. For a cautious perspective on reading too much into changes in China’s
legal structure, see Carl Minzner, After the Fourth Plenum: What Direction
for Law in China?, China Brief, Nov. 20, 2014, at http://www.jamestown.
org/programs/chinabrief/single/?tx_ttnews%5Btt_news%5D=43105&cHa
sh=2e9d73833dfb58abb3e530acc76f4ca4#.VWTQGUfF8rU.
35. Id.
36. Tseming Yang, The 2014 Revisions to China’s Environmental Protection Law
(Oct. 16, 2014), at http://cgd.swissre.com/risk_dialogue_magazine/Environmental_liability/The_2014_Revisions_of_Chinas_Environmental_Protection_Law.html.
37. SPC, Interpretation Regarding Certain Issues Related to Application of the Law in Environmental Civil Public Interest Litigation, available at http://www.mca.gov.cn/article/zwgk/fvfg/
mjzzgl/201501/20150100756493.shtml [hereinafter Judicial Interpretation].
38. Hong Liao, Deputy Chief of Social Organizations Management Division at
the Ministry of Civil Affairs, gave this estimate in response to a journalist’s
question at a press conference organized by the SPC to release the Judicial
Interpretation on Environmental Civil Public Interest Litigation on Jan. 7,
2015. The transcript for the press conference is available at http://www.
chinacourt.org/article/subjectdetail/id/MzAwNEjJM4ABAA%3D%3D.
shtml.
39. Judicial Interpretation, supra note 37, art. 18.
40. Id. arts. 20-21.
41. Id. art. 23.
42. Id. art. 6.
43. See Rachel Stern, From Dispute to Decision, China Q., 206, 294-312 (June
2011).
44. Friends of Nature, Fujian Green Home v. Xie Zhijin et al. (Nanping Interm.
People’s Ct. filed Dec. 21, 2014), on January 1, 2015, Nanping Intermedi-
IV. New EPL in Action:The Nanping Case
A.
Background
On December 21, 2014, Friends of Nature, a Beijing-based
environmental NGO and one of the oldest independent
NGOs in China, and Fujian Green Home, a local environmental NGO established in 1998, filed a complaint
against four individuals in the Nanping Intermediate People’s Court, seeking cleanup and restoration of an illegal
mining site.44 The complaint alleged that three individual
9-2015
NEWS & ANALYSIS
defendants purchased a mining claim from a fourth defendant, and then carried out mining activities at the Hulu
Mountain Sand Base Hengxing Stone Factory without
receiving a permit from the Land and Resources Bureau.
The three individuals carried out mining activities from
2008 to 2010 and again in June 2011 without obtaining
permits for occupation of wooded land and extension of
the mining right in Hulu Mountain in Nanping City of
Fujian Province, despite the repeated demands from the
local Land and Resources Bureau to stop their activities.
Prior to the civil action, the Yanping District Procuratorate successfully brought criminal charges against the
three individuals. The assessment report conducted by the
Fujian Tianxian Judicial Appraisal Institute concluded
that the three individuals destroyed 18,890.6 mu (approximately 3.112 acres) of wooded land.45 In July 2014, the
three individuals were sentenced to 14-18 months’ imprisonment after being convicted of illegally occupying agricultural land.
However, the harm to the area’s vegetation and ecological system as a result of the illegal mining operation
remained unaddressed. In December 2014, representatives
of the NGOs and their lawyers conducted a joint investigation of the site and interviewed local officials from both the
Forestry Bureau and the Land and Resources Bureau. They
also reviewed the judgment against the three individuals in
the criminal case and consulted experts on the costs and
methods to restore the damaged site.
Based on the evidence, interviews with officials, and evidence collected from the site visit, the two NGO plaintiffs
filed their environmental public interest litigation against
the four individuals under the new EPL, invoking the
standing provisions of Article 58. Friends of Nature was
represented by Xiang Liu, one of China’s most experienced
environmental lawyers, while Anxin Wu represented the
local NGO Fujian Green Home.46 On January 1, 2015, the
same day that the newly amended EPL became effective,
the court accepted the case as the first public interest case
brought under the law.
The NGO plaintiffs sought remedies for restoration
of the two hectares (approximately 4.9 acres) destroyed
by mining, including: (1) cleaning and restoring the site;
(2) ordering the defendants to retain a competent entity
to assess the cost and develop the plan for cleanup and
restoration of the damaged site and implement the plans
accordingly; or, if the defendants failed to do so, ordering
the defendants to pay the third parties who have regulaate Court accepted the case (Nan Min Chizi No. 38) (copy of Complaint
on file with authors).
45. Mu is a Chinese unit of land. While the area of land in this case is relatively
small, it is a steep hillside and the mine left a significant scar. Still, the harsh
penalty for the relatively small disturbance seems signficant.
46. Xiang Liu is the Huanzhu Law Firm’s managing attorney, and is registered as
a lawyer at the Shanghai Jinzhuan Law Firm. Anxin Wu, Beijing Huanzhu
Law Firm’s fellow, is registered as a lawyer at the Hubei Longzhong Law
Firm. The Huanzhu Law Firm is a public interest environmental law firm
affiliated with the Center for Legal Assistance to Pollution Victims, which
was founded by Prof. Wang Cangfa, one of China’s leading authorities on
environmental law who has been at the forefront of efforts to use the legal
system to address pollution problems.
45 ELR 10859
tory responsibilities to clean up and restore the site; and
(3) recovery of costs and litigation fees including attorneys
fees. The NGO plaintiffs added Nanping Yanping District
Land and Resources Bureau and the Forestry Bureau as the
third parties.
On April 19, 2015, Friends of Nature and Fujian Green
Home submitted an application to modify the remedies
to be consistent with the provisions in the new Judicial
Interpretation issued by the SPC.47 The modified remedies
included a three-month time frame on restoration, cleanup,
and restoration costs of 1,101,900 Renminbi (RMB), loss
of interim “ecological services” valued at 1,340,000RMB,
and itemized attorneys fees, expert witness fees, and travel
costs for both plaintiffs.
B.
Trial in Nanping Intermediate People’s Court
Attorneys for the NGO plaintiffs as well as three of the
defendants (without counsel) appeared in Nanping Intermediate People’s Court on May 15, 2015, for the Chinese
equivalent of a trial for civil liability and damages for the
illegal mining. Unlike previous environmental damage
cases where plaintiffs sought compensation for personal
injuries, the thrust of this case was to obtain damages for
loss of ecosystem services and restoration of the damaged
mining site. Key evidence from the plaintiffs included the
criminal case judgment, the judicial assessment about the
scope of the damaged site conducted during the criminal
prosecution, and the corrective orders issued by the local
Land and Resources Bureau. Despite apparent clear liability, the case presented issues of first impression under the
new EPL.
Underneath the veneer of a seemingly simple case (the
defendants had already been convicted of criminal liability for the same acts), five novel and complex legal issues
needed to be resolved: (1) whether Friends of Nature met
the legal requirements for standing (the NGO plaintiff had
registered as China Culture Academy Green Institute with
the Ministry of Civil Affairs in 1999, then registered as
Beijing Chaoyang District Friends of Nature Environmental Research Institute in May 2010); (2) whether the defendants’ mining activities constituted ecological destruction
harming the public interest for which they should bear joint
and several tort liability48; (3) whether the requested remedies were reasonable and should be the methods by which
the defendants would bear the tort liability; (4) whether
the new EPL, effective January 1, 2015, applied retroactively to the defendants’ actions during 2008-2010; and
(5) whether the two government agency third parties had
legal responsibilities to clean up and restore the site if the
defendants failed to do so; the two parties objected to the
47. An application to modify and add claims to Friends of Nature, Fujian Green
Home v. Xie Zhijin et al. submitted by the plaintiffs to the court on April 19,
2015 (copy on file with the authors).
48. Public interest law is still considered in the overall context of tort law in
China. Defendants are always private entities, unlike public interest law in
the United States, where government entities are often taken to court for
failing to enforce the law.
45 ELR 10860
ENVIRONMENTAL LAW REPORTER
9-2015
plaintiffs’ proposed remedies to order them to clean up and
restore the site.
Key evidence the NGO plaintiffs provided to support
their remedies claim included an initial assessment report
by Beijing China Forestry Assets Appraisal Company.
Two experts who worked for that company, and a scientist
from Xiamen University, collected the initial data from the
destroyed site including tree species, soil damage, extent of
damaged vegetation, and the site’s value as wildlife habitat. These experts were present at the trial and provided
expert testimony on their data-collection methods and
conclusions.
Both parties examined the witnesses (who did not
include the parties themselves). Three judges also questioned the experts extensively from the bench on the basis
for their opinions. The plaintiffs’ attorneys presented oral
argument and introduced the evidence.
In addition to opinions presented by their attorneys, the
defendants individually presented their version of the facts
and arguments verbally, without any supporting documents or witnesses.49 Their chief argument was that mining activities were legal, based on verbal permission given
by local authorities to begin mining while the permits were
being processed. They argued that similar mines in that
area had not received permits but were allowed to operate.
Because the defendants intended to restore the damaged
site once the mining was completed, they claimed the mining was a reasonable use of resources, was undertaken at
the urging of local authorities, and was not an act of ecological destruction.
During the trial, the plaintiffs’ lead attorney, Xiang
Liu, presented arguments on the five key legal issues. First,
although Friends of Nature had registered under a different legal status due to changes of social organization regulations in China, ample evidence, including the decisions
and minutes of the board of directors of the NGO and
annual reports and records the plaintiffs provided, showed
that the NGO had specialized in environmental protection public interest activities for more than five consecutive years and thus met the standing requirement. Second,
it was clear that defendants’ “illegal mining activities”50
caused the destruction of the natural wooded land and was
an act of ecological destruction that resulted in harm to
the forest and wildlife habitat. Verbal permissions by local
authorities, if there were any, did not change the illegal
nature of the defendants’ activities. Whatever the relationship between the mining companies and local governments, it should not exempt them from civil liability under
national environmental laws.
Third, the requested remedies for restoration of the
damaged site and compensation for the interim losses of
ecological function were based on Article 20 of the Judicial Interpretation, and the methods of the assessment used
in this case were recommended by the Ministry of Environmental Protection51: thus, the plaintiffs used accepted
methodologies to prove the public interest natural resource
damages. Fourth, because the ecological harm has not been
remedied and continues impacting the public interest, the
defendants should bear civil liability even though their acts
of ecological destruction were carried out from 2008 to
2010, prior to the enactment of the new EPL. Finally, the
third parties are government agencies that have responsibilities to protect the forest and determine proper land use;
thus, those governmental third parties should supervise
the restoration work undertaken by the defendants and
implement the restoration plan with the money paid by the
defendants if the defendants failed to complete the restoration remedies on time.
At the conclusion of the trial, the presiding judge
allowed the defendants to submit new evidence within
15 days, based in part on the fact that one defendant
was still in prison. On June 5, 2015, the court held a
second hearing to examine the new evidence submitted
by the defendants.52 To support their defense that they
had received verbal permission to mine, the defendants
presented copies of local authorities’ official documents
that investors of mining would receive policy benefits so
that they can start mining immediately while applying
for permits.
The defendants also made a new argument that they
would have received all the permits required by law if the
Hefei-to-Fujian high-speed railroad did not pass through
the Hulu Mountain where the mining site is located.
The railroad was lawfully permitted, and the railroad
company was required to pay compensation to ongoing
activities that had to be halted because of construction.
Because they had not yet received compensation from the
railroad construction company, the defendants claimed
that they would not be able to implement the remedies
even if the court found them liable for the restoration
damages. The plaintiffs contested the new evidence and
restated their argument that permission from the local
governments did not change the fact that the defendants
had violated China’s national forest protection law by
causing harm to the natural forest.
At the conclusion of the hearing, the court did not
announce a judgment. However, based on conversations
with the judge following the hearing (such ex parte communications are not unlawful or unusual in China), the
plaintiffs believe a final decision will be forthcoming in the
near future.
49. This description of the trial in Nanping Intermediate People’s Court is provided by the Comment’s co-author Yanmei Lin, who was present in the
courtroom and observed the proceedings. The court provided a real-time
record of the trial to the public through its official Sina Weibo account, a
social media in China.
50. The defendants conducted mining without permits and transferred mining
rights without approval.
51. Ministry of Environmental Protection, Recommended Methods for Evaluation and Assessment of Environmental Damages, MEP Gen. Office No. 90
(2d ed. 2014) (in Chinese), available at http://www.mep.gov.cn/gkml/hbb/
bgt/201411/t20141105_291159.htm.
52. The description of the second court hearing is provided by Comment coauthor Yanmei Lin, who was present in the courtroom and observed the
proceedings.
9-2015
V.
NEWS & ANALYSIS
A “Road Less Traveled” No More?
The importance of the Friends of Nature case in Nanping
Intermediate People’s Court in terms of defining the role
of Chinese courts in environmental protection was noticed
by Western media as well.53 And the Nanping case is only
one of at least 15 public interest environmental cases that
have been filed under the new EPL as of July 2015.54 The
outcome of these cases will provide a critical measure of
whether the Chinese government is serious about allowing
NGOs to participate in the enforcement of China’s new
EPL.
Significant barriers remain. Some NGOs are reluctant
to use the courts at all, due to frustration with years of
refusal by environmental courts to even accept cases,55
difficulties in enforcing remedies, and fears of reprisals.
In China, NGOs must be officially registered (that is to
say, approved) by local governments and must undergo an
annual good-standing check. NGOs, in particular local
NGOs, might risk their registration status by bringing
controversial cases.
Another barrier is lack of access to information. While
we were working with the Environmental Law Clinic at
Southwest China Forestry University in Kunming, we
witnessed repeated resistance by local Environmental
Protection Bureaus to obtaining basic information such
as environmental impact assessments and water quality
monitoring data. The new EPL tries to remedy this longstanding problem by mandating that government agencies
provide access to information.56 The language in Article 53
is clear and direct:
Citizens, legal persons and other organizations shall have
the right to obtain environmental information, participate
and supervise the activities of environment protection in
accordance with the law. The competent environmental
protection administrations of the people’s governments at
various levels and other departments with environmental
supervision responsibilities shall disclose environmental
information pursuant to the law, improve public participation procedures, and facilitate citizens, legal persons
53. See, e.g., Chen, supra note 1; Sui-Lee Wee, In China, a Fight to Save a Forest Tests Toughened Environment Law, Reuters, Feb. 10, 2015, available at
http://www.reuters.com/article/2015/02/10/us-china-environment-lawsuit-idUSKBN0LE2PJ20150210; China Landmark Environmental Lawsuit
Trial Begins, http://blackstonetoday.blogspot.com/2015/05/china-landmark-environmental-lawsuit.html.
54. Judge Bi Dongsheng from the Supreme People’s Court mentioned that 15
environmental public interest cases have been accepted in China as of July
20, 2015, in his opening remarks to an annual conference of China Environment and Resources Law Society in Shanghai. See Xu Hui, Courts Accepted 15 Environmental Public Interest Cases Since the Environmental Protection Law Came Into Effect, Shanghai Legal Daily, July 20, 2015, available
at http://newspaper.jfdaily.com/shfzb/html/2015-07/20/content_114428.
htm.
55. See Wang, supra note 25. We do not mean to imply that all courts refuse to
accept cases. At a recent presentation to government and business leaders in
Kunming regarding the new EPL, Judge Wang Xianghong of the Kunming
Environmental Court remarked that “the courthouse door is open” and expressed surprise at the paucity of cases that had been filed in her court.
56. See Yang, supra note 36.
45 ELR 10861
and other organizations to participate in, and supervise,
environmental protection work.57
The Judicial Interpretation also creates a presumption
in favor of the plaintiff if a defendant does not disclose
information.58 However, the new EPL lacks clear enforcement mechanisms for access to information; recalcitrance
by local governments to sharing information is deeply
engrained and will not change quickly.
Yet another barrier is the lack of resources to hire attorneys and fund public interest environmental litigation.
There is but one public interest environmental law firm in
China, the Huangzhu Law Firm in Beijing. Some NGOs,
like Friends of Nature, have staff attorneys. But funding
for public interest litigation remains a barrier. China lacks
a tax structure similar to Internal Revenue Code §501(c)(3)
that incentivizes private charitable donations to NGOs and
has been so critical to the funding of Western environmental NGOs such as Earthjustice and the Natural Resources
Defense Council.
Enforcement of environmental law in the United States
also benefits from fee-shifting citizen suit provisions in
many environmental laws59 and from the Equal Access to
Justice Act60 for legal challenges under the Administrative
Procedure Act.61 Fee-shifting creates a level playing field in
the courtroom: Large industries can afford corporate counsel; NGOs often cannot. Attorneys fees have been awarded
in Chinese tort cases. The Nanping case and others will test
whether public interest NGOs can also recover fees. As in
the United States, it will take time to develop yardsticks for
measuring recovery of attorneys fees based on factors such
as appropriate hourly rates and reasonableness of amount
of attorney time billed.62
We began this Comment by noting that reading the
tea leaves of China’s legal system is difficult. Our cautious
optimism about environmental public interest litigation is
57. Environmental Protection Law (China), supra note 2, art. 58.
58. In Article 13 of the Judicial Interpretation, the SPC creates a presumption
in favor of the plaintiff if a defendant refuses to provide information to the
plaintiff about pollution from a facility, stating:
If law, regulations, and rules stipulate that the defendant should
have the information or there is evidence proving that the defendant has the information but refuses to provide it, and the plaintiff
claims that the relevant information is not in favor of the defendant, the people’s court may infer that the assertions of the plaintiff
have been established.
See Judicial Interpretation (China), supra note 37, art. 13.
59. Examples include the Clean Air Act (CAA), 42 U.S.C. §§7401-7671q, ELR
Stat. CAA §§101-618, see 42 U.S.C. §7604; the Clean Water Act (CWA),
33 U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607, see 33 U.S.C.
§1365; and the Endangered Species Act (ESA), 16 U.S.C. §§1531-1544,
ELR Stat. ESA §§2-18, see 16 U.S.C. §1540(g).
60. Equal Access to Justice Act, 28 U.S.C. §2412.
61. 5 U.S.C. §§501 et seq.
62. In Article 22, the Judicial Interpretation provides that “where plaintiff requests defendant to afford testing and appraisal fees, reasonable attorney fees
and other reasonable costs related to the litigation, people’s courts should
support it.” See Judicial Interpretation (China), supra note 37, art. 22. Article 58 of the new EPL prohibits NGOs from profiting from environmental
public interest litigation, see Environmental Protection Law (China), supra
note 2, art. 58; and Article 34 of the Judicial Interpretation further clarifies
that such prohibition applies to NGOs seeking illegal economic benefits by
accepting properties from third parties or other methods, see Judicial Interpretation (China), supra note 37, art. 34.
tempered with a realism that courthouse doors can close
as quickly as they have opened. Moreover, the above-noted
structural barriers are formidable. Perhaps even more
important, key issues regarding damages and remedies will
have to be resolved by test cases like the Nanping mining
case. As with test cases in the United States, we believe
that these early cases will go a long way toward shaping the
future of environmental public interest litigation in China.
The path forward is far from certain.
Still, the 2014 EPL, strengthened by the SPC’s Judicial Interpretation, has enabled NGOs to bring the first
true public interest environmental litigation. NGOs have
a much stronger seat at the table of environmental governance. Many of the leading Chinese environmental
NGOs are eager to use these new legal tools.63 Moreover,
the structure of the new law, coupled with the Judicial
Interpretation, makes it a strong tool to change the localcentral government, regulated-regulator political dynamic
that could deepen the rule of law in China. The central
government appears willing to tackle its serious pollution
challenges in a new fashion, with rule of law according to
Chinese principles. The degraded status quo is unacceptable to the Chinese people.
With the Nanping mining case and other test cases,
environmental public interest litigation might be “sharpened and shaded as a powerful tool” to correct environmental abuses, in the words of Chief Justice Zheng Xuelin,
Director of the Environment and Resources Law Tribunal
of the SPC. Such a tool certainly has been a key element
in the development of U.S. environmental protection over
the past four decades. We believe the timing is ripe for a
similar development in China.
63. We note that the rise of public interest litigation is occurring in other parts
of the developing world that confront similar problems of horrendous pollution and lax and/or underfunded government enforcement of existing
environmental laws. See, e.g., Jona Razzaqye, Public Interest Environmental Litigation in India, Pakistan and Bangladesh (2004).
45 ELR 10862
ENVIRONMENTAL LAW REPORTER
9-2015
The Future of China’s Legal System | ChinaFile
11/29/16, 5:25 PM
Viewpoint (/reporting-opinion/viewpoint)
(https://www.chinafile.com/sites/default/files/assets/images/article/featured/28201.jpg)
Greg Baker—AFP/Getty Images
A security guard checks a car entering the courtyard of the Great Hall of the People in Beijing during a meeting on March 2, 2015. The Great Hall of the People is the venue for meetings of China’s
Communist Party-controlled legislature, the National People’s Congress, with ‘rule of law’ high on the agenda last year.
The Future of China’s Legal System
A ChinaFile Presents Transcript
AUGUST 11, 2016
(/#facebook)
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(https://www.addtoany.com/share#url=https%3A%2F%2Fwww.chinafile.com%
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I
n early August, Beijing held
(http://www.wsj.com/articles/chinas-anti-western-show-trials1470848088) show trials of four legal activists—a disheartening
turn for those optimistic about legal reform in China. What are
the prospects for the development of the rule of law in China under
Communist Party Secretary Xi Jinping? How do law and politics
intersect in Chinese life? Has China’s legal system become more
resilient, predictable, and/or independent since Xi assumed leadership
in late 2012? And how does one gauge progress in this area?
https://www.chinafile.com/viewpoint/future-of-chinas-legal-system
Neysun A. Mahboubi
(/contributors/neysunmahboubi)
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On April 28 in New York City, ChinaFile and the Asia Law and Justice
Program at the Leitner Center at Fordham University Law School cohosted a conversation on these questions. Asia Society’s Matt
Schiavenza moderated, and the University of Pennsylvania’s Neysun
Mahboubi and Fordham’s Carl Minzner provided commentary.
Following is an edited transcript of their discussion. —The Editors
Matt Schiavenza: There’s a lot of evidence that Xi Jinping has
consolidated political power to an extent not seen in China for
decades. In fact, some say that he is the most powerful Chinese leader
since Chairman Mao. This has implications for many areas, not least of
which is law. Over the last couple of decades, the Communist Party has
described implementing a legal system as a goal. Now the question is:
Is Xi's ascension to power undermining attempts for the rule of law,
how is it changing the Communist Party’s approach to jurisprudence,
and what’s going to happen next?
Neysun Mahboubi: Well, it's a great pleasure to be here and to see
my good friends and colleagues, Carl Minzner and Marty Flaherty, and
to do a second round of a public dialogue that Carl and I started at
Penn maybe about a month ago, which was itself rooted in private
conversations that we’ve had over some time. Now, China is a very
complex place, there are lots of different things going on, and in many
ways where you sit is where you stand, so we tend to see things more
from the perspective of whatever particular aspects we’ve been
focusing on—which of course isn’t to say there aren’t other things
going on as well. I think on the whole, Carl and I probably agree more
than we disagree, but we focus on slightly different things, so we’ve
found a rich conversation in the shades of difference between what
we’ve each looked at most closely. Overall, one might say that my take
has tended to be more optimistic, while Carl’s has tended to be more
pessimistic, and we’ve had a productive dialogue out of that difference.
Of course, there are a lot of negative things going on in China right
now, I certainly can’t and won’t deny that. I generally agree with pretty
much everything that I expect Carl will be saying here. This is a very
troubling period in many respects. Indeed, the Foreign NGO law
(http://www.nytimes.com/2016/04/29/world/asia/china-foreignngo-law.html?_r=0) was just passed today. That’s certainly something
we should talk about, that’s going to be concerning—and not just for
its implications for foreign NGOs per se, but perhaps even more so for
its wider implications for Chinese domestic NGOs. And even with
respect to those things I’m going to talk about in a moment, that have
seemed more positive to me, there have been some recent negative
developments. For example, Xi Jinping lately has been emphasizing
ideological training among judges in the court system, in a way that
seems contrary to some of the more positive aspects of the legal reform
story I will be highlighting. Given the more negative things that have
been happening with increasing force more recently, I’ve started to feel
like the more positive aspects that I tend to emphasize are ever more
aspirational than strictly descriptive. But I’m still trying to hold on to
some slender reeds, notwithstanding the strong countervailing winds.
I still think that they’re worth highlighting, that there’s some
significance to them.
(/contributors/neysunmahboubi)
Neysun A. Mahboubi is a Research Scholar of
the Center for the Study of Contemporary
China at the University of Pennsylvania, as
well as a Lecturer in Law at Penn Law School.
His primary academic...
More (/contributors/neysun-mahboubi)
Carl Minzner
(/contributors/carlminzner)
(/contributors/carl-minzner)
Carl Minzner is Professor of Law at Fordham
University. An expert in Chinese law and
governance, Minzner has written extensively
on these topics in both academic journals and
the popular press. His...
More (/contributors/carl-minzner)
Matt Schiavenza
(/contributors/mattschiavenza)
(/contributors/matt-schiavenza)
Matt Schiavenza is a China-focused writer
When this new leadership team of Xi Jinping and Li Keqiang came
and journalist and Associate Editor at The
into power a few years ago, to me and others who focus on Chinese law
Atlantic, where he oversaw the China
Channel. A graduate of Columbia University’s
and legal institutions it seemed that there was a new breath of positive
School of International and...
energy brought to bear on the legal system and its development. The
More (/contributors/matt-schiavenza)
preceding period under Hu Jintao and Wen Jiabao was one in which,
especially in its latter stages, there seemed to be a lot of movement
away from prioritizing law and legal institutions as mechanisms for governance and resolving disputes
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generally. Carl is well known for having authored an influential piece on China’s so-called “turn against
law (http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1004&context=faculty_scholarship)”
during those years, in which he described many of the pullbacks from formal law and legal institutions, in
favor of more politicized mechanisms of dispute resolution and governance. Ben Liebman at Columbia
also has written about the same problems and dynamics under the rubric of “populist legality
(http://www.hup.harvard.edu/catalog.php?isbn=9780674060630&content=toc).”
So, when Xi Jinping and Li Keqiang first came to power, a lot of us noticed that their language about law
and legal institutions sounded different from what we’d been hearing lately up to that point. And then
their legal personnel appointments also seemed different from those under Hu Jintao and Wen Jiabao.
The easiest example is that of the President of the Supreme People’s Court (SPC). During the later Hu
Jintao/Wen Jiabao era, the president of the SPC was Wang Shenjun, a former police official who didn’t
really seem to care that much about legal values or legal institutions. By contrast, the president of the SPC
under Xi Jinping and Li Keqiang, Zhou Qiang, while certainly a politician who had worked his way up
through the political ranks, nonetheless is a law school graduate who trained with that famous first
graduating class from the Southwest Institute of Politics and Law after the Cultural Revolution, is deeply
embedded in the legal community, and has close ties to many of the reformist figures of that community.
That is just one appointment, of course, but there were many appointments like that throughout the legal
system, right after Xi Jinping and Li Keqiang took over in 2012, that seemed to be promising, in terms of
professional legal values. And then there was the Third Plenum of the 18th Central Committee in
November 2013, which focused on economic issues, but included in its Communiqué and Decision some
language about law and the judiciary in particular that also seemed promising. And then the Fourth
Plenum, in October 2014, was the first plenum in the history of the Chinese Communist Party to focus on
the topic of the “rule of law.” The lengthy Decision that was issued subsequently went into quite great
detail about judicial reform and also administrative law reform.
To be sure, the language of the Fourth Plenum Decision
(https://chinacopyrightandmedia.wordpress.com/2014/10/28/ccp-central-committee-decisionconcerning-some-major-questions-in-comprehensively-moving-governing-the-country-according-to-thelaw-forward/) is so technical and even obscure that, if you don’t know what the drafters were referring to,
you might think it was just verbiage. But, in fact, much of this language, and especially in the chapters on
judicial reform and administrative law reform, ties very closely to specific items that legal reformers had
been pushing for on the ground for many years up to that point. On first reading, this appeared to suggest
there was a new degree of high-level policy support for such legal reform efforts. At the same time, the
Fourth Plenum Decision also features a lot of language about the leadership of the Party over the legal
system, and that, obviously, was troubling to many observers when the document was released. It seemed
clear that recurring references to the leadership of the Party was in tension with the more appealing
language elsewhere in the document about the importance of judicial independence and governance
under law. Still, for those of us who were slightly more optimistic, or trying to be optimistic, our
perspective was that the leadership of the Party was a given in the current environment. Maybe the
drafters didn’t need to repeat it so many times, but anyway that was never going to be called into question
by this document. All the very specific references to concrete, technical legal reforms, however, seemed
genuinely promising and worthy of attention.
Let me give you just a few examples of what I’m talking about. In the section on judicial reform, there is
reference to making hearings the centerpiece of adjudication, and to providing more structural
independence for front-line judges, perhaps lessening direction by higher-level officials or by so-called
“adjudication committees” within the court system. There is also language about reducing interference by
outside parties and political actors, even establishing a mechanism for reporting such instances. And there
is language about developing new types of institutions such as “circuit courts” to handle challenging crossregional cases. Similarly, in the section on administrative law—the law that has to do with how
government has to make decisions—there is language about rooting administrative power in law, about
enhancing public participation and openness in government decision-making, and about reducing
administration discretion, that all connects directly and specifically to efforts by Chinese administrative
law reformers in recent years.
Subsequent to the Fourth Plenum, there was some movement in the legal system generally that seemed
consistent with the kind of language I’ve been highlighting. For example, there were a lot of references in
the Fourth Plenum Decision to lawsuits against the government and how litigants have faced difficulty in
getting their cases accepted, or heard, or ruled on—or getting judgments in their favor actually enforced.
The Decision was very clear about these dilemmas. So it seemed promising when, a couple of months after
the Fourth Plenum, the legislative framework for suing the government in China, the Administrative
Litigation Law
(http://chinalawtranslate.com/%E8%A1%8C%E6%94%BF%E8%AF%89%E8%AE%BC%E6%B3%95https://www.chinafile.com/viewpoint/future-of-chinas-legal-system
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%EF%BC%882015%EF%BC%89/?lang=en), was revised, and in ways that appeared on its face to
strengthen it, to make the possibility of more fair and effective adjudication of lawsuits against the
government somewhat more likely. Around the same time, there were directives that the court system
accept more administrative cases, to move to a scenario where courts wouldn’t be exercising quite so
much discretion as to which cases they could accept, they’d more or less have to accept all cases filed and
try to rule on them. And, since then, the number of cases—generally, but especially in administrative law,
which tended to be a sphere where courts wouldn’t accept difficult cases—has gone up.
Altogether, the number of administrative litigation cases almost doubled last year, from about 150,000 to
about 250,000. That seems to indicate that there really was high-level political support for moving more
cases from government or politicized dispute resolution to legal dispute resolution by the courts. All of
this has seemed positive. What I’m going to emphasize most in concluding these opening remarks is that
there remain a lot of things where we’re going to have to just wait and see how they turn out. For example,
whether the increase in administrative law cases continues to go up, whether courts are really able to rule
more fairly, and without interference, whether the circuit courts really become functional, etc. This is all
somewhat up in the air right now, and a lot of the negative story that runs beside all this, which Carl will
elaborate on, does cut against the possibility of these things working out down the line. I think that’s fairly
clear. But one aspect of overall picture that I think is easy to pinpoint as a real positive is that a lot of these
technical reforms that seem promising on their face are being pushed forward by legal professionals
within this system, who were brought into being by the development of the Chinese legal system over the
30 years since the Cultural Revolution; who have been trained not just in Chinese law schools but also
abroad in the U.S. and other foreign law schools; and who have a deep sense of legal values and the
autonomy of law that is different from whatever may be driving the top leadership’s approach to law and
legal institutions.
So, even if you could say that a lot of the language about law and legal institutions that comes from Xi
Jinping and the top leadership may be more in the nature of trying to strengthen institutions in order to
secure Communist Party rule, or to make authoritarian governance more effective or more efficient, even
if that’s the case, the people who are populating the legal system—the judges, the professors, the officials
within the National People’s Congress—those people have a different set of values and ideas about the
significance of law and legal values. It has seemed to me that the space afforded by the positive language
of the Fourth Plenum Decision, and the rhetoric about law and legal institutions associated with that, has
given that group of people some additional scope to push things forward. Indeed, those are the kinds of
people who participated in the drafting of the Decision, who put in all that technical language that I’ve
been highlighting. And so that to me is ultimately the cause for hope, that people like that exist and have
space to function within the system. As we all know, China is fragmented and there are a lot of different
things going on, and these people don’t necessarily share the same values, or hold the same approach to
law and legal institutions that the top leadership does, and they do have some space to push things
forward. Now, whether or not that’s enough to overcome the more negative aspects of the story, I don’t
know. But at least there’s some grounds for hope.
Carl Minzner: Thanks both to the Asia Society and the Leitner Center for organizing today’s event, and
thanks to all of you for attending. As Neysun mentioned, we’ve enjoyed going back and forth with him
privately over these issues for a while, so it’s sort of fun to now do it publicly. My basic take is that in terms
of law and politics, I think China is clearly moving into a darker era. Naturally when I say that, the first
thing people think about is the increasing state repression that is being directed at a range of actors: civil
society activists, public interest lawyers, journalists and the like, etc. China is experiencing the most
sustained domestic political repression crackdown since Tiananmen Square. For all of those who hoped
that China was going to move in a more liberal and more open direction, that’s depressing. But that’s
actually not the main thrust of my talk today. Rather, when I say that China is actually entering a darker
era, I mean that what we’re seeing is the steady erosion (http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2630824) of the authoritarian rules of the game that have held sway since the beginning of
the reform era.
For all the problems associated with the existing regime, as some of those other things start to give way,
you’re going to see something potentially much, much worse emerge. Now, not everyone agrees, so let me
start off with the argument on the other side. This isn’t to say that this is an argument that Neysun is
advancing, but there are other folks out there who are making this argument. Their argument runs
something like this: since Xi Jinping’s rise to power in 2012, there has been a strand of opinion both in
China but also abroad arguing the following: sure, Xi Jinping is tough, he’s harsh, he’s riding roughshod
over state and society alike, what with the anti-corruption campaign and the domestic political
crackdown. But tough times call for a strong leader, and Xi is addressing the dangerous weakness that
characterized the Hu Jintao administration. He’s centralizing power, and at the end of the day he’s
building new institutions to govern China. Sure, these are going to be highly illiberal, they’re going to be
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strengthening authoritarianism. But regardless of what you normatively think of these trends, they reflect
the renewal of China’s authoritarian state. These arguments aren’t just coming out of Chinese state media;
you find them in some foreign scholars as well, from figures such as Professor Paul Gewirtz with respect to
the legal system, and from Professor Fu Hualing at HKU with respect to Party anti-corruption organs. Nor
are these arguments without support. If you were going to try to make the best argument on their behalf,
this is what you would do.
With respect to the judiciary, you would point to recent efforts to:
Establish circuit tribunals of the Supreme People’s Court in regional centers like Shenzhen and
Shenyang.
Create cross-jurisdictional tribunals that cut across existing administrative boundaries.
Decouple control over local court funding and personnel decisions and vest it with provincial courts.
With respect to the disciplinary apparatus, you would point to efforts to:
Strengthen the power of the central disciplinary committee by establishing offices in all central-level
Party organs and SOEs.
Increase the control of the central disciplinary committee over provincial disciplinary chiefs.
Increase the numbers and power of disciplinary personnel at the central level.
You could point to all of those things and you could say they reflect a clear effort to centralize power. And
you would be absolutely correct in this. And you could try to go one step further and say that what these
represent is an evolution of a new, more institutionalized, centralized form of authoritarian rule. But no,
that is one step too far. What’s taking place now is fundamentally different, and there are three reasons for
this.
The first is that some of those reforms that I just talked about aren’t really about building up institutions.
Instead, they’re about seizing control of particular bureaucratic apparatuses for the greater exercise of
personal power. You can’t confuse greater centralization and concentration of power in the hands of an
individual with greater institutionalization of authoritarian rule. The domestic security apparatus is one
example. In the late Hu Jintao era around 2010, the domestic party political-legal apparatus emerged as
this vast terrain, this sprawling apparatus, a fiefdom that was under control of the former security czar.
Since Zhou Yongkang was taken down, that power has been taken over by Xi Jinping personally. The
creation of the new National Security Commission has absorbed that prior turf. This means that Xi
Jinping is at the top of that particular commission via his intermediary, Meng Jianzhu. But that’s Xi’s turf,
and it’s not responsible to existing Party institutions such as the Politburo Standing Committee. Rather, it
answers to Xi himself.
Or, you could look more carefully at what has taken place in the Party disciplinary apparatus. Scholars
who had looked at the evolution of these organs up until 2012 had found a steady trend towards
centralizing control over the disciplinary commissions in the hands of Party standing committees, and had
observed (since 1992) a greater professionalization of their mandate, with the Disciplinary Inspection
Committees increasingly focused on anti-graft work rather than rectification of political errors. Sounds
like healthy institutionalization, right?
Well, now consider what you have seen since 2012: centralization of control in the hands of Wang Qishan
and Xi Jinping, and an expanded effort to use the disciplinary apparatus to go after not just corruption,
but sloth, failure to act, being disloyal to the top leadership (i.e. Xi), or voicing improper comments or
political opinions.
That’s a reversion to an earlier pattern. A pattern in which the discipline committees are being used as a
political tool to shake the entire Party apparatus. And this is being accomplished not by the organic
growth of institutional channels of monitoring and control, but by central inspection groups that
periodically sweep into given government and Party organs and put the fear of God (or Xi) into people.
That’s a devolution away from institutionalized governance, not progress towards it.
(/conversation/rule-fear)
Conversation (/conversation)
02.18.16
‘Rule by Fear?’
(/conversation/rule-fear)
Eva Pils, Taisu Zhang & more
The second point that I would make is that at the same time as we
are seeing the seizure of key bureaucratic high ground, we are also
witnessing the breakdown of the partially institutionalized elite
political norms that had developed during the reform era. The
takedown of Zhou Yongkang, for example, is simply the most
obvious. That’s a flagrant violation of prior reforms that exempted
former Politburo Standing Committee members from prosecution.
The machinations currently surrounding the power base of Hu
Jintao, and the China Youth League, his former base, and that of
Jiang Zemin, China’s former top leader of the ’90s and early 2000s,
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suggest that these efforts may further expand. Similarly, the
discussion that maybe term and age limits that developed under the reform era might be loosened to
permit Wang Qishan or Xi Jinping to stay on after they would be expected to retire suggest that maybe
this progression of breaking particular partial institutionalized norms could continue even further.
The third point that I would make is that I think the actual mechanisms by which power is being exercised
vis-à-vis society at large are increasingly sliding towards de-institutionalized channels. Take a look at
some of the other trends we’ve seen in recent years. Again, all of these break with post-1978 patterns:
The cultivation of a budding cult of personality around the central leader.
The pivot away from the Communist Party’s own prior revolutionary or socialist roots in favor of a
more ethnocentric, ethno-nationalist ideology rooted in history, religion, and Confucianism.
The revival of Mao-era tactics such as televised confessions or unannounced disappearances of state
officials and civil society activists, inducing what Minxin Pei has termed the “rule by fear
(http://www.chinafile.com/conversation/rule-fear).”
Those three things taken together, fear, ideology, personal charisma, these aren’t about institutionalized
rule. For those of you who read Max Weber, that’s actually the antithesis of what an institutionalized
bureaucratic rule looks like.
I think the entire reform era of the Chinese party-state’s effort to build more institutionalized systems of
rule is being reversed. What is happening is that this failure to push political reform in an earlier period is
now leading the entire system to cannibalize itself and its prior political institutionalization.
Note that this isn’t the same thing as saying that Xi is the new Mao. If you were an optimist, you would
note that there are still important differences. For all of the centralization of power that’s going on, you
still don’t see him calling the people out onto the streets to engage in Maoist style mass movements. Until
you go to that step, you really can’t say that this is full-blown Maoist. Now, if you’re a pessimist, you might
say that we haven’t seen that yet. You would note that you can’t get to mass movements until you’ve
cultivated a cult of personality, established heavy control over the media, centralized power to a sufficient
degree, etc. Moreover, it’s more likely that you might start to get things like that happening when you see
the economy really hit a wall, for example, or when Xi starts to run into significant difficulties imposing
his will on a recalcitrant bureaucracy. In such a situation, resorting to that last step of then going back to
the streets in a Maoist style mass movement might not only be conceivable, but it actually might also be
entirely rational behavior from Xi Jinping’s own perspective.
In closing, let me just say to people who say “well, that can’t possibly ever happen, politics in China has
become too institutionalized in recent decades, you could never see the rise of a populist demagogue along
the lines of the past,” I would just simply ask, “have you seen what’s happened to the Republican Party
over the last year?” Stuff like this does happen. Anyway, I’ll stop there and I look forward to the
discussion.
Matt Schiavenza: Thank you very much, Neysun and Carl. As a non-legal-expert, one thing that strikes
me is that we have the anti-corruption campaign. If you think about it, in a way, the anti-corruption
campaign is in theory designed to move against personal power, designed to hold officials accountable
towards a system of ethics, towards a system of laws, towards a system of something. And yet, the cynical
take on China is that the anti-corruption campaign that Xi Jinping has launched with great fanfare is
simply a way for him to consolidate political power, to sideline his adversaries within the Party. Neysun, I
was intrigued by your description of how the professionalization of the legal system has continued in spite
of Xi’s power play. I wanted to ask how you see that. Will the anti-corruption campaign have any payoff
towards creating stronger institutions, or is it simply a nice way for Xi to get rid of his enemies?
Neysun Mahboubi: I’m going to take that bait to some extent. But I’m going to start by talking about
something else, if that’s ok. As I was listening to Carl’s presentation, which I agree with to a great extent, it
struck me that there was one particular issue that might be a good place to highlight our slightly different
perspectives. That is centralization of court funding. So, Carl rightly said that one of the things that was
going to come out of the Fourth Plenum Decision—and that is emphasized in these judicial reform pilots
in a number of cities including Shanghai—is trying to move the funding of local courts up from the
localities where they’re situated.
(/viewpoint/china-and-end-ofViewpoint (/reportingopinion/viewpoint)
reform)
05.26.16
Now, this has been an issue for as long as we’ve been looking at
Chinese law under the C.C.P. The fact that local courts and judges
are dependent on local governments for their funding, and also for
their appointments, has seemed to be a major reason why local
courts have tended to be subservient to the wishes of local
governments. And so, for a long time, judicial reformers had been
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talking about how it would help the independence of courts to have
the funding (and appointments) of local judges at least go up to the
provincial level, but ideally go up to the central level. This is
something that was touched upon in the Supreme People’s Court’s
reform program during the administration of former SPC President
China and the End of
Xiao Yang. Under the current administration, this has been a focus
Reform (/viewpoint/chinaof discussion about judicial reform, not just in the pilot areas but
and-end-of-reform)
also more generally. So now we’re seeing, at least in some areas, not
Thomas Kellogg
necessarily centralization, but at least efforts to situate funding and
appointments at the provincial level. For example, in Shanghai, they’re working to have the funding and
appointments for local courts come from the Shanghai municipal government.
Of course, this policy shift comes with its own issues. One of the most interesting aspects is that local
judges often don’t necessarily want to be more independent, because independence also comes with
responsibility, which may not be good for them under the current setup where they’re subject to discipline
for so-called “wrongful decisions,” as Carl has also written about. And, putting aside the question of
whether local judges want more decisional autonomy, there’s also an element where local judges are
worried that their overall compensation packages are going to be lower, when coming from the provincial
or central government, than if they come from the local government.
But putting those issues aside, overall this policy shift seems consistent with long term efforts to secure
the independence of local courts and judges. When I look at it, I think, “Well, this is something that
reformers have been trying to push for a long time, and there seems to be some movement here and that’s
good. This would support greater strengthening of the judicial apparatus, creating more autonomy for
legal institutions generally.” And if I understand Carl correctly, he may be more inclined to put this under
the rubric of, “This overall centralization is mostly oriented towards personalization of rule.” I don’t want
to speak for him, but my impression is that Carl wouldn’t necessarily think that this is quite as positive of
a story, in terms of institutionalization or developing the judiciary, as I see it. To him, it’s linked more to
the overall dynamics of increased personalized rule. And I can’t disagree with that as a general matter, but
it’s hard for me not to see movement on this one particular issue as at least somewhat positive, after all
these years of seeing well-meaning legal reformers advocate for it.
As for the anti-corruption campaign, I do think anti-corruption clearly has become politicized. Maybe it
was always politicized, but I think in the initial phases of it some of us were hoping that the efforts of the
discipline inspection commissions would, over time, become more professionalized, and the targets would
be chosen in a less political way. If we really got into the weeds of it, I’m sure there’s still some ground for
hoping for some possibility of that, but on the whole it does seem fairly clear that this anti-corruption
drive has become deeply political. Perhaps it always was, but that is even clearer now.
Who gets targeted and why is often hard to disentangle from political reasons. If we really got into it, we
might see different levels. Are the people who are getting caught up in this at the higher levels chosen for
political reasons? Probably. But at the lower levels, is there some element where people are being targeted
because, in some sort of objective sense, they’re more corrupt than someone else? Maybe. I think one of
the dilemmas of this is that, speaking a bit broadly, but I think rightly, it’s very hard to be an official in
China and not be at least a little corrupt. It’s embedded in the nature of being an official there. And others
have written and talked about this. It’s just part of how you navigate that system. You can’t really do it
unless there’s some element of corruption. So, in that sense, all officials can be subject to anti-corruption
campaigns or crackdowns. Why one or another gets targeted, I mean, is there some corruption that is
“worse” than others? Perhaps, objectively, some corruption involves a higher amount, and so that official
is the one who is punished? Or does it have more to do with who is on the wrong side politically? It’s hard
to escape the conclusion that it’s more the latter.
Carl Minzner: I’ll pick up on that. Actually, I don’t totally disagree with Neysun with respect to court
funding. I think the overall trajectory of Beijing’s efforts is to figure out tools by which it can re-centralize
control over the system. Chinese authorities are interested in figuring out how to make courts more
independent from local interest groups, even if there is no interest in making them independent from
Party control.
The other point I would make is that China is not a monolith; there are many people in the system
speaking with different voices. Certainly what’s happened since 2012 within the Supreme People’s Court,
is that the legal technocrats have been put back in control, and so you’re seeing a different set of policies
that are being pursued within the court system itself. Five years ago, I was quite negative on what was
happening within the court system. Trends during the late Hu Jintao era were very negative. As you
mentioned, Party hack Wang Shengjun was head of the Supreme People’s Court. That reflected the
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influence of Zhou Yongkang’s apparatus within the Party political apparatus. But at that point, trends in
Chinese politics more generally were more unclear. Back in 2011, the negative trends I was seeing were
curtailed within the political-legal apparatus.
Now in 2016, what I see is that things within the court system itself may be going in an interesting
direction, but the much broader atmosphere is positively toxic. How long can court reform last if the
broader atmosphere is going toxic?
And to go to Matt’s initial question, this shows up or is reflected in the anti-corruption campaign. I think
one way people look at the anti-corruption campaign is they say it’s only about taking on Xi’s opponents.
Other people say it’s all about anti-corruption. Actually, both of them are right. On the one hand, what you
see is that at the top of the system is the striking out of key people associated with Zhou Yongkang or
others who might challenge Xi’s power. But at the bottom, you’re actually seeing a wide range of other
cadres simply being yanked out. The guy who was around on Wednesday after the conference and now
he’s gone and we don’t know where he went, that’s the type of sentiment that’s taking place with the lower
level people. And one of the interesting questions is: Why does the Chinese system need to resort to such
measures? I think that gets to the key question: They didn’t build up other political institutions earlier on,
so when it comes to needing to purge the system of corruption, what levers does Beijing reach for? It
doesn’t have anything else, so it has to reach back into the grab bag of policies drawn from the 1950s, and
then suck up the destabilizing consequences of people being uncertain now about “Am I going to
disappear after Wednesday’s lunch like that other guy?”
Matt Schiavenza: One of the things I found interesting in a recent paper of yours, is that you talk about
certain authoritarian states like Singapore. One of the reasons is that you say Singapore has a relatively
successful version of authoritarianism is because its officials are well compensated; they have a strong
incentive to cooperate. My question is, looking at this new phase we are in, in Chinese communism, if
you’re an official, have the rules of the game changed? Do you know what to do? How is this uncertainty
going to play out? Are people going to be as invested in the system if the system seems to be less certain?
I’m curious what the implications are not only for the Zhou Yongkangs at the top but also for the more
rank and file Party officials throughout the country. Are they scared?
Carl Minzner: Yeah, I think that’s exactly what’s happening. The rules of the game in the ’80s or ’90s
were just do what we want and you can get rich too. There was money flowing in the system, there were
rewards flowing in the system. Now that’s shifted. What’s really happening now, the crackdown on excess,
is not necessarily a bad thing. But the uncertainty coming from the crackdown, and the removal of the
economic levers, is starting to change the calculus for mid-level bureaucrats. It’s leading to a range of
different behaviors. On the one hand, you’re seeing some people hide behind their desks—not do anything
too dramatic and try not to get into trouble. If I stick my head out and actively fulfill x mandate or y
mandate, maybe I’ll get my supervisor upset, maybe I’ll get my rival upset. People start to freeze up. The
other thing it leads people to do is to try to get money and children out of the country. Look at real estate
in New York or Vancouver, and you can see a large amount of money leaving the system. That’s partially
because people are getting one foot out of the door.
Neysun Mahboubi: I completely agree that one of the reactions of local officials, to the anti-corruption
campaign, has been to become much more cautious. A lot of the dynamic driving economic development
up to this point had been local officials trying to do things to get attention, to distinguish themselves—
sometimes with projects that weren’t necessarily good ideas, like building ghost malls. And a lot of that
has really been shut down now, and to a degree where Li Keqiang has been giving speeches suggesting
that local officials aren’t doing their jobs, are being too cautious.
Also, one thing which is clear to me and I think to all observers is that there was a high-level
determination by Xi Jinping and his power base that the Party had lost control—over the economy,
society, politics—and they wanted to re-assert the Party. That’s clearly something that’s been going on
over the past few years: remobilization of Party apparatuses throughout the system, even in places like the
educational institutions, universities in particular, which have always seemed to be one of the bastions of
real hope in China.
Now, the subject of this panel is the direction of legal reform in this overall context. But this sort of
exchange makes me start to think that possibly an even more significant discussion—which I’m not sure
either one of us is in the best position to talk about—is what the direction is for economic reform. Because
that seems to be increasingly an issue, and an issue that is possibly even deeper than the legal reform
questions. After all, the revitalization of Party control and restricting the space for people to be innovative
or entrepreneurial, whether it’s officials or others in society, that’s not necessarily good for economic
development. At a very high level of abstraction, sometimes people suggest that Xi Jinping and his
advisers determined that reassertion of Party control is the most important thing—and even if economic
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reform or economic development suffers because of it, that’s okay because they have to reassert Party
control, that has to be the driving dynamic. So it will be interesting to see if this economic slowdown starts
to impede on the approach that Xi Jinping and his advisors have been taking.
Carl Minzner: Right. I think that’s the big question. One of the characteristics of the last 30 years is that
everything we’ve seen has been under a regime of double-digit growth. What happens when things slow
down? The optimists think that China is currently slowing down to under 6.5 percent growth going
forward long term. The pessimists would say you could have a really sharp dive within a year or two. At
that point, what happens when you face that situation?
Neysun Mahboubi: Professor Flaherty talked about Andrew Nathan, and it made me think, in the
context of this discussion, that Professor Nathan has these two articles that sort of book-end each other.
One was on “authoritarian resilience (https://muse.jhu.edu/article/38546)” in 2003, and the second in
2009 was on “authoritarian impermanence
(http://www.journalofdemocracy.org/sites/default/files/Nathan-20-3.pdf).” So which one is it? His
authoritarian resilience argument is that this has turned out to be a fairly sophisticated, adept
authoritarian party that can figure out how to release steam where it needs to release steam, enhance
repression where it needs to enhance repression, keep up economic growth to a certain degree, that
altogether helps it to maintain power in a way that people had not been expecting authoritarian parties to
be able to do. And I understand that his “authoritarian impermanence” article in 2009 doesn’t completely
walk back from that, but it does suggest that this is all brittle, and not capable of withstanding a major
exogenous shock. There could be a lot of different possibilities, like major economic catastrophe. We just
don’t know if the Chinese Communist Party—with all the different things it has been doing, all the
different innovations in repression or maintaining control that it’s been pioneering—can withstand a
severe economic shock. I don’t think we know that, and we may find out, frankly.
Matt Schiavenza: The question of resilience is an interesting one. One thing that’s struck me over the
last few years, is in 2010 to 2011 you had a raft of editorials from people, Eric X. Li and Daniel Bell
discussing the Chinese political system as a plausible alternative to liberal democracy that’s systematized,
that produces results, that is less susceptible to the torpor and the issues we have in American or
European systems of governance. Has Xi’s ascension to power forced us all to rethink our assumptions? Is
the Chinese Communist Party and the Chinese system of government winging it, is it kind of making
things up as it goes along in a certain way? Is the Xi period of establishing a lot of personal control an
aberration? Is this the new normal? Or is he going to be just an unusually powerful leader and will his
successor revert back to Hu Jintao status?
Carl Minzner: That’s an interesting question. There’s this whole group of observers. I don't know how to
describe them, but it’s the people who believe in the myth of the technocratic super state. I run into a lot of
Europeans who are disgruntled with all the problems of their democracies, and they ask a lot of questions
along the following lines: can you teach us how the Chinese Communist Party rules the country so
effectively, because we need to adopt that for Europe. That narrative is something that I’ve seen over the
last few years. I think it’s tied to China’s rapid economic growth. I think it’s also tied to a perception that
China has stable elite rule capable of planning for the long term, that isn’t governed by four-year election
cycles, that can sort of think 20 or 30 years ahead. I think that view is now starting to run into challenges.
Once they see that Zhou Yongkang has just gone to prison for life, and mid-level bureaucrats are cowering
in fear as a result of the anti-corruption campaign, things are starting to look a little less like the
technocratic narrative people want to tell. Currently, some folks are still saying, “Well, you know, perhaps
Xi needs to do this, but at the end of the day he’s highly educated and the next generation is highly
educated, so everything is going to be okay.” People are just now batting around ideas about what is taking
place in China, but I don’t think a clear consensus has been formed yet.
Neysun Mahboubi: The only thing I’d add to that is in relation to Daniel Bell and Eric X. Li. I do think
there is an audience for their views. It’s pretty obvious that Western multi-party democracies have a lot of
issues. We live in one that, clearly, is exhibiting a lot of issues right now. And so, it’s one thing to promote
democratization generally, or even multi-party democratization, but there’s a really well-founded
reluctance to say that the particular forms of institutions and rules that we’ve developed in, for example,
the United States are the best you could possibly come up with and have to be copied exactly. So that is
one ground for listening to what Bell and Li have to say. The second ground is that the daily reality of
Chinese governance simply does not fit the caricature of “this is just repression all the way through.”
There is a lot of actual responsiveness, and accountability, and politics. There’s something that I hope
many of you have seen, there’s a documentary made about the mayor of Datong that I think won some
award at Sundance, and then on the New York Times website they did a 13-minute brief version of it
(http://www.nytimes.com/2016/04/26/opinion/manufacturing-chinas-future.html?_r=1), an “op-doc.”
It’s really cool. If you have 13 minutes to spare, it’s a good use of 13 minutes. It definitely illustrates that in
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this authoritarian and in many ways repressive atmosphere, there is actual politics and citizen pressure,
political responsiveness, there’s all this stuff going on, so if you know that, then you’ll also be interested in
what Eric X. Li and Daniel Bell have to say. The problem is that they both take it way too far, in my
opinion.
Carl Minzner: Neither of them is a Chinese citizen.
Neysun Mahboubi: Well that too. But they take what could be a more moderate approach, along the
lines of “these institutions you have in the West have problems, and there are some aspects of this
[Chinese] system that aren’t horrible,” and turn it into something that to me sounds like “this is a much
better model” or “this is a model that other places should study.” There are just too many issues in China,
I think, that are so palpable, that it makes the latter approach fundamentally problematic. But it is still
worthwhile to think of those first two points: there are flaws in our own systems, and the Chinese system
is not a caricature, there are things going on there that are not just repression and darkness all the way
down.
Martin Flaherty (Fordham Law School): There was sort of an initial disconnect between your two
presentations and the sort of poor idea of which way legal reform is going or not in China. Your
subsequent discussion bridged that a little but I would like you to bridge it more. So here’s the friendly
critique and question. For you Neysun—and we’ve had these kinds of discussions over the years—there is
an element of forest for the trees in concentrating on the rhetoric for the Third Plenum, etc. in light of
everything else that’s going on. But even within the legal world, and this is something that I think both of
you would assume knowledge on, but this should not proceed without some discussion of the crackdown
on lawyers
(http://www.abajournal.com/magazine/article/chinas_latest_crackdown_on_lawyers_is_unprecedented_human_rights_monitors)
the fact that lawyers are being tortured, disappeared, etc. This may be a little bit of a mean analogy, but if
you’re focusing on these possible sources of hope for legal reform, at some level it strikes me that this is a
good analysis of a performance of the play Our American Cousin, but there’s this thing called the Lincoln
assassination that occurred at the same time that you’re not talking about, right? And so granted that
there may be, and you qualify it, etc. But I think there needs to be some sort of relationship and
acknowledgement between signs for hope, and signs for real concern, to put it mildly, that are happening
not just more generally with regards to crackdown on the Internet and personalized rule, but within the
legal system itself. And it seems to me one of the core things is the crackdown on not just weiquan (rights
protection) lawyers but really any kind of lawyer and also latent civil society groups like Yirenping, which
five years ago were lauded as examples of social reform and now they’re just in the wilderness. So that’s
my challenge to you, is within the world of law, balancing how you weigh the sources for hope you’re
pointing to with all of this other stuff. You allude to the fact that okay, there are 19 references that the
Party is above the law, but there are 19 references that the Party is above the law. So for you Carl, I guess
my question, or sort of critique, friendly amendment, would be that I think I entirely agree with you about
the phenomenon of deinstitutionalized personalization of rule under Xi, with perhaps the possible
exception of the law. There I might just resort to the old bromide, and what may unite the both of you, is
what Xi is really doing going back to the old idea of rule by law? Right? So one way that I might unite both
of your remarks, is that Xi is looking at the law and the legal system as one tool in the overall project of
strengthening and revitalizing Party power, and strengthening and revitalizing his rule, but it just so
happens in this one area, that some degree of institutionalization is a good thing, and that would account
for some of the hopeful signs and contextualize. But it would also account for the way that law seems to be
a little different than some of these other areas you’re talking about.
Neysun Mahboubi: That’s very helpful. I have two main points in response. One is that I do think our
respective takes need to be integrated. If I’m painting a somewhat optimistic picture of legal
developments, it could be that Carl would even concede a lot of that, but then say “well, look at all these
negative things that are swirling around it, the context of the legal system is more negative.” So, even if
Carl wanted to concede that some of this stuff within the legal “silo” is positive, his argument seems to be
that it’s surrounded by all this other negative stuff that can overwhelm it. And that could well be the case.
But in terms of whether that judgment is well founded that there is some positive stuff going on in the
legal system—if it’s indeed looking at the play as opposed to the assassination—I think the dimension of it
that is most significant, as I articulated earlier, is that which has to do with the legal professionals who are
in the system. There’s a continuity there: these are people who have been doing this before Xi and Li,
before Hu and Wen, and who have been fighting these battles in different ways for a long time.
And I can make it more concrete by talking about something that I look at very specifically, which is the
development of an administrative procedure law in China. If you’ll indulge me a few moments on
administrative law and it won’t drive people to the exits, in the U.S. we have this law, the Administrative
Procedure Act (APA), that sets default rules for how agencies should make decisions, and also provides for
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judicial review if decisions are made unlawfully. So there’s been this drive on the part of legal reformers in
China to develop a Chinese version of the APA, that in some ways is rooted in the early 1980s and was
fitfully advanced through the 1990s and reached a certain point in 2004 where legal reformers got an
actual draft submitted to the National People’s Congress. And it died there, because politically this seemed
too difficult to do, to have a default law that set fairly rigorous standards for how government agencies in
China should make decisions, in a context where, for political purposes, it made sense for agencies to have
more discretion. What the legal reformers then proceeded to do, as a way to move the ball forward, was to
find local officials interested in pioneering, in their respective localities, administrative regulations that
were modeled after the law the reformers wanted at the national level. And the first of these localities to
issue such an administrative procedure regulation
(https://www.law.yale.edu/system/files/documents/pdf/Intellectual_Life/CL-PPHunan_APA_Bilingual.pdf) was Hunan province, which was then run by Zhou Qiang, who as I mentioned
is now the president of the Supreme People’s Court—it illustrates that he’s embedded with this legal
reform community. So legal reformers were able to get Hunan province, and a few other localities as well,
to pass these local administrative regulations that are basically what they were trying to secure at the
national level. Their approach here is that, if they can get enough local areas to do this, it could put
pressure on the national level to have a national administrative procedure law.
Now, this whole impetus, this whole desire, is not Xi Jinping’s goal or Hu Jintao’s goal, this is legal
professionals who care about values that have to do with the law, which are separate from “rule by law” or
leadership of the Party, trying to advance fairness and justice in the country. And they’ve been doing this
for a long time. In the Fourth Plenum decision, there’s language that supports in a very technical way
some of the things that they’re trying to do at the local level and then build up, and so that gives them
further space to do it. That’s the part that seems positive to me. That these people exist, and then there
may be aspects of the environment that give them more space to push things forward. But, at the end of
the day, I am still reminded of the critique that as admirable as these people are, and as inspiring as it is
that they keep trying to push forward these types of reforms, it may be that the larger dynamic—“the
assassination of president Lincoln”—is still the dominant story, and it would be hard for the efforts of legal
reformers on their own to really create a more fair and just legal system. That’s very plausible. And it is
truly ironic that, as the Party is talking about the development of the legal system, at the very same time it
is also cracking down on lawyers. There is such a palpable disconnect here, it’s hard to get past that.
Carl Minzner: I can try to respond and bridge both your question and Neysun’s comments. Back in the
’80s and ’90s, when Chinese authorities themselves raised the mantra of rule by law up to a central point
in the Party slogan, they opened space that permitted a range of different people room to maneuver. Once
you start to invoke that line, all those people we know who are involved with legal reform, they’ve drunk
the Kool-Aid, and they start going on and believe that they can start working on a range of different issues.
Some go into the state. And they start working from the top down, building the roof of the rule-of-law
house. And then you also have the people who are not going into the state apparatus, people like the
activist lawyers, and they’re going in and trying to work from the bottom up, building the walls and this
stuff at the bottom. Precisely because the whole rule-of-law space is somewhat undefined, you have got
this gray zone, there’s space for both groups to work on things. The Party itself doesn’t have a strong
narrative in the late ’90s and early 2000s regarding what is permissible on these points.
What happens over the last 10-15 years is that grey space constricts. The Party decides that it is okay with
the folks working on issues from the top-down; but then they close down the space for the guys building
the walls and working from the bottom-up. They throw a lot more resources, especially in the last few
years, at the people working on the roof. Does this count as institution building or not? To answer that,
you need to figure out whether you believe that houses with Chinese characteristics only need the roof.
Just maybe, if you start removing the walls and support structures, just maybe there’s a real problem
associated with the building of your house. It depends what you think about that.
Audience Member: I’m curious to know if there’s anything to be learned from understanding the
dynamics of China’s pipeline of lawyers and looking at who young lawyers are, who’s attracted to the legal
profession, and what do they end up doing after their education? So I guess the question is what impact
the changes you’re describing could have on what that pipeline looks like, and also what are the chances
that an emerging generation within the legal profession might change direction one way or the other.
Neysun Mahboubi: That’s a great question, and there’s so much there it would be hard to give a
comprehensive answer. But two thoughts that immediately came to mind: first, even just by the metric of
“what are Chinese LL.M. students in US law schools like these days?” you can see a definite difference
between the kinds of students you saw 8-9 years ago, who were the products of Chinese law schools then,
and the kinds of students you see now. There's palpably less sophistication among current Chinese LL.M
students, frankly, about the problems of authoritarian rule in China. There's more reluctance, for example,
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11/29/16, 5:25 PM
to attend talks by someone like [activist legal scholar] Teng Biao
(http://www.chinafile.com/contributors/teng-biao), because he’s a more politicized figure, and theirs
seems to be a more career-focused orientation. The students are here to get a degree, get a job. Those are
just my impressions, but I think probably will hold up for a lot of U.S. law schools. This all seems to be
evidence that there has been a real shift in the openness of discussion within Chinese law schools.
Another example is that the types of people who were the most popular law professors eight or nine years
ago in China are not necessarily the popular professors these days. The types of Chinese law professors
who are edgy, pushing against the system, etc., their classes used to be filled with students. And that’s no
longer as much the case. Now, the law professors who tend to be a little more conservative in their
orientation, those are the people who tend to get large student turnout. That’s again just my impression,
but another basis for my suggesting that Chinese law schools are less the incubators for really reformist
thinking among students that they may have been eight or nine years ago. And it’s possible that, with the
revitalization of the Party apparatus within Chinese universities, this trend is only going to accelerate. So
what you’re seeing, even in the top law schools in China, is that the graduates are basically people who
aren’t challenging the system as much but who are interested in making money, finding jobs in foreign law
firms or Chinese law firms, and to me that’s troubling. Is that really so different from what we’re seeing in
U.S. law schools? I’m not sure, that’s another discussion I suppose.
Audience Member: I was wondering if I could ask you about the impact of environmental litigation on
legal reform? We’ve seen many lawsuits and protests concerning the environment and it appears that the
government is allowing some information to be shared to a certain extent, as long as some boundaries are
set. What do you see as the impact of these kinds of authorized environmental lawsuits on the effect of
reform? Do you think this is a cause for optimism, or do you think that this litigation will remain fairly
localized instead of being rolled into affecting the system?
Neysun Mahboubi: Well, the environmental area has seemed to be an area in which the central
government has given some space for actors to bring lawsuits and do advocacy to try to improve things,
because the leadership knows that people are upset about the environment and leaders themselves have
experienced the environment as a negative thing. So, in a lot of ways, the environmental sphere has
seemed to be a more open sphere than some of the others. Within that context, these environmental
lawsuits are a good example of what I’ve been trying to highlight—which is, pockets of legal development
that seem authentic and driven by factors that are not simply a question of advancing instrumental
authoritarian rule, and have some potential for hope. I would add that to the list of the types of things that
I was referring to earlier.
Now, we could come up with a test: Are environmental lawsuits brought? Yes, they are. Are they
successful? To a large degree, many are. So what else would we be looking for? Your comment suggests
that we see these more at the local level, so you’re suggesting there should be lawsuits that are brought
against provincial or national authorities, or cross-regional? If we are in fact seeing more environmental
lawsuits at the local level, and if environmental lawsuits are successful—in the sense that they are actually
working to shut down polluting factories, or get compensation for people who have experienced pollution
—that all seems like a positive development in and of itself. Maybe we want more, maybe we want the
responsibility for environmental degradation to be handled by even higher levels. But just that on its own,
to the extent that it’s true, seems like a positive development. It fits the narrative I was trying to tell about
pockets of legal development that are withstanding the overall negative turns in Chinese politics.
Carl Minzner: My students can correct me on the following point—there are a few in the audience—we’ll
see if I can remember this correctly. We had a class a few weeks ago from Alex Wang, from UCLA, one of
the top U.S. experts on China’s environmental issues. He said that when he was at the Natural Resources
Defense Council in China running its China environmental law and governance program, there were two
different programs he was pushing. One was environmental lawsuits. The other was information
transparency. If I remember what he said, he said that he didn’t think that the environmental lawsuits had
produced as much of an impact. In contrast, I think he said that efforts to promote more transparent
information was what ultimately had begun to create pressure on the state. The state had, in fact, in the
past couple of years, begun to alter, policy-wise, how they were addressing environmental issues. But I
don’t think he was saying it because of the environmental lawsuits. There was a web app…
Audience Member: That had factories showing what emissions there were, and which ones were over
the legal limit. You could easily access that.
Carl Minzner: And that would then create popular pressure. In some ways, you could tell a story about
how it’s interlinked, because citizens are using open government information and pushing for
transparency within the system. But I don’t think he had flagged the court system, the legal litigation, as
the key channel by which it is happening. I think the interesting comparison is to the Minimata Bay
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The Future of China’s Legal System | ChinaFile
11/29/16, 5:25 PM
litigation from the 1970s in Japan. Compare that with China today—because my understanding is that the
environmental litigation in that case in Japan in the 1970s triggered a fundamental institutional shift
within the Japanese bureaucracy. I think that would be an interesting comparison. My impression was
Alex was saying it wasn’t so much the courts that had been the trigger; it had been the more diffuse
popular sentiment.
Audience Member: Professor Minzner, is there a possibility of a greater checks and balances system in
China? I mean similar to the United States? Or a checks and balances system like a division of power not
democracy, or not necessarily a voting or election system, maybe some kind of balance or one sector of the
government not having a trump card if you will, to do whatever it wants?
Carl Minzner: That’s an interesting question. That’s something that Chinese authorities themselves are
kind of grappling with. They’ve definitely ruled out multi-party democracy. And even allowing
constitutional checks on Party power seems to be off the table. So the interesting question is: Is there
something else that you could come up with that would work in the same way? That would resolve the
problems they’re trying to address without raising deeper political questions. I think that’s an interesting
thing to think about China’s own history, to think about its institutions. Can you come up with something
else? With respect to Marty and Neysun, the interesting question is do you need lawyers for rule of law?
Can you come up with a system where the legally trained and honest people within the system work within
the apparatus and they can get stuff done, but they don’t actually need lawyers and the bar? Let’s just
throw this out there: Do you think it’s necessary to have lawyers?
Neysun Mahboubi: I’ll get to the lawyers too, but just initially as a response to the question, I think
something I’ll run through, especially for those who aren’t as familiar with China, it’s important to
emphasize there is institutional differentiation among institutions of the Chinese government. So there’s
the National People’s Congress, there’s the State Council, there’s the court system, there’s the
procuratorate, there’s the discipline inspection apparatus, and all of these institutions have their own
turfs, and there are actual bureaucratic battles. I think sometimes we can get this impression of China as
this monolithic, unitary place, but there’s actually quite a lot of . . . I would even say “checks and balances”
going on between those institutions. The problem is that what unites them all is the Party. As long as
that’s the case, as long as the Party infuses all of that, obviously there will be limits to full checks and
balances. But there are still going to be fights. There are people in the National People’s Congress who are
pissed off at what the State Council is trying to do, or people in the State Council who are pissed off at the
Supreme People’s Court’s issuing judicial interpretations. These are genuine fights. But, real checks and
balances are hard with the Party being so deeply enmeshed in all of these institutions. In the 1980s, there
were some efforts—reaching up to the very highest level, with then General Secretary of the C.C.P. Zhao
Ziyang—towards separating the Party and the government. Around 1987-1988, the Plenum of the Party
Congress at the time actually openly discussed that topic, and we’re clearly not in that age anymore. One
of the lessons drawn from the Tiananmen Square incident was that’s a bad idea, and the Party has gone
fully in the other direction.
Carl Minzner: And the Soviet Union, too.
Neysun Mahboubi: Right, and the Soviet Union crackup influenced that as well. So then you say, “well,
are there going to be checks and balances within the Party?” There was a time when people like Cheng Li
at Brookings were talking about multi-party factions within the Party, different groups within the Party,
elections within the Party, etc. I’m not really sure that that stuff is gone. I mean, there seems to be one
faction now that’s winning. So that’s where that’s going.
As far as the lawyers, we could have spent a lot of time talking about the crackdown on lawyers, and all the
problems associated with that. What’s really interesting is there’s this document that was issued just a few
months after the crackdown intensified over the summer. It was a guiding opinion
(http://chinalawtranslate.com/lawyers-practice-rights/?lang=en) from the Supreme People’s Court,
Supreme People’s Procuracy, and the Ministry of Public Security, on the protection of the practice rights
of lawyers. So there’s an irony there. But when you read that document, it’s not just some well-meaning
document that says lawyers should be allowed to do this, should be allowed to do that, shouldn’t be
constrained in their activities. When you read it really carefully, you get the image of “we want wellbehaved, in-a-circumscribed-box lawyers who...”
Carl Minzner: “...don’t show up in front of the jail to protest, and aren’t disseminating open letters.”
Neysun Mahboubi: Exactly. They don’t want that. They want lawyers to be like, “okay, here are my
documents, now I get to see my client, etc.” There’s this effort to take lawyers and put them in this very
clean box, and say “that’s what we want.” But maybe that’s not enough, and maybe we need the lawyers
who fight more.
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Page 13 of 14
The Future of China’s Legal System | ChinaFile
11/29/16, 5:25 PM
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Page 14 of 14
12/7/2016
China’s Open Government Project
Jamie P. Horsley
•
The Chinese State Council, with policy support from the Chinese Communist Party
(CCP) has been gradually and consciously “reinventing” China’s governance style
from command-and-control model to service orientation more suitable to a
(socialist) market economy
•
As part of this, Party and State leaders endorsed the goal of establishing lawbased, open, participatory and accountable government over a decade ago – and
have continued to deepen and expand the scope of the initiative
•
On government side, this includes “administration in accordance with law”
initiative; the CCP counterpart is “governing in accordance with law” as reflected in
October 2014 CCP “Decision on Comprehensively Promoting Governing the
Country in Accordance with Law”
– Decision set forth important principles of legality, fairness, transparency,
participation and accountability, as well as President Xi Jinping's theme of
restraining power with a "cage of regulations"
– Reaffirmed principle that “disclosure the norm, non-disclosure the exception”
1
China’s Open Government Project
•
Following local experimentation, State Council adopted in 2007 China’s first
records access statute, the Regulations on Open Government Information (OGI);
apply to government agencies in the central government down to township level
•
The Law on Legislation passed by the national legislature, the National People’s
Congress, in 2000 called for the public to participate in lawmaking and government
rulemaking through various channels, including hearings, workshops and seeking
written opinions
– Established the legal basis for development of congressional and government
notice-and-comment procedures
•
In addition to rulemaking, State Council has identified another area of government
activity they call “major decision-making,” covering policymaking and decisions on
major projects; procedures including transparency, public participation and legality
review being developed for this administrative activity
•
Other areas of “open government” being developed include open executive
meetings and providing explanations of legislation, policies and other decisions, as
well as feedback to public comments received on drafts
2
1
12/7/2016
Open Government Information (OGI)
•
State Council OGI Regulations took effect May 1, 2008
•
Require disclosure:
– Proactively of broad categories of government-held information
– On request by citizens, legal persons or other organizations, subject to
“3 needs” test: showing of information’s relation to requester’s own
production, livelihood or scientific research
•
Government to respond to requests within 15 business days of delivery
•
Exemption for state secrets, commercial secrets and personal privacy
– Disclosure may not endanger state security, public security, economic
security or social stability
•
Governments and departments at each level to establish OGI office,
publish catalogue of kinds of information they hold, and compile annual
report by March 31 each year
3
Open Government Information (OGI)
•
Requesters can appeal or sue if do not receive timely response or their
rights and interests have otherwise been injured
•
Public response to new “right to know” was immediate and widespread,
with OGI requests, appeals and lawsuits being filed nationwide and
reported by Chinese media within the first month of implementation
•
Requesters include retirees, villagers, lawyers, academics, social
organizations, media, ordinary citizens seeking information about matters
of personal concern – social benefits, land use, government fees – and
public interest
•
Combined with complementary legal and policy developments, OGI
Regulations set in motion a dynamic of bottom-up civic activism and topdown responsiveness, new forms of interaction between government and
society in China
4
2
12/7/2016
Open Government Information (OGI)
•
Government agencies at all levels reportedly proactively release some 30
to 40 million records annually, numbers of information requests increasing
– Annual OGI work reports posted online by 57 central government
departments recorded a total of nearly 150,000 information requests filed in
2015
– 433,000 requests are reported for 2015 by 30 provincial-level governments
– Statistics for lower level government and agencies difficult to compile
•
•
Governments at central and provincial levels reported 22,000
administrative appeals over OGI issues in 2015; OGI more than 50% of
appeals in many agencies
China’s Supreme People’s Court reports from 2011-2014, courts
throughout China received roughly 30,000 OGI cases of first instance
– 5,000 OGI cases filed across the country in 2013 alone
– Number of OGI lawsuits more than tripled in 2015, to roughly 16,000 lawsuits
•
State Council revising OGI Regulations: concern about pushback due to
burden on agencies and courts
5
OGI promoting spread of transparency value throughout Chinese
official institutions
• State Council promoting publication of agency powers and responsibilities
lists to inform public the scope and limits of what they can do; timely
government responses to incidents and issues of public concern, with
explanations as well as action; improvement of E-Government
•Congressional openness – tied to public participation in lawmaking, auditing
of hearings and meetings, press spokespersons, etc.
• “Judiciary in the Sunshine”
– Open trials in principle, some broadcast online
– Making court decisions public online for first time, searchable
database with over 20 million cases (over 28,000 on OGI) and growing
– Online platforms provide information about case processing and
enforcement of judgments
• CCP – websites, spokespersons, other new practices, 2013 rulemaking
agenda, including drafting of Open Party Affairs Regulations
6
3
12/7/2016
Public Participation - Lawmaking
•
Rapid development of OGI supported new channels for Chinese public to
participate in legislative and policymaking processes
•
Consultative traditions and principles as basis for participatory legislation:
– Mao’s “mass line” of “from the people to the people”
– Farmer participation in rural undertakings
– 1982 Constitution: all power belongs to Chinese people, who are to
administer state affairs and manage economic, cultural and social
affairs through various channels
•
Party October 2000: “expand citizens' participation in political affairs in an
orderly way”
•
Legislation Law adopted 2000 as revised 2015 calls for open and
participatory legislative process, provides for notice-and-comment
lawmaking and government rulemaking
7
Public Participation - Lawmaking
•
NPC lawmakers subject to political “leadership” of CCP and State Council
pressure, leading to “rubber stamp” image
•
Yet, in post-Mao PRC, has become platform for debating and mediating
policy disputes
•
CCP call for “scientific” and “democratic” lawmaking, including:
– Enlisting expert advice and, more recently,
– Incorporating public input, including from scholars, business
associations, social organizations
•
NPC may be only national legislature worldwide that uses notice-andcomment lawmaking
8
4
12/7/2016
Public Participation - Lawmaking
•
Draft laws now to be published for comment after 1st and 2nd readings
– Normally a minimum 30-day comment period
– Online at: http://www.npc.gov.cn/npc/flcazqyj/node_8195.htm
– Accompanied by explanations of drafts, including major comments
received and changes made
– Major changes may still be made in original deliberated draft, e.g., in
2013 Environmental Protection Law, 2016 Charity and Foreign NGO
Laws
•
NPCSC adopted 5 new laws in 2015, all published for comment once
•
NPCSC revised 37 laws (38 if separate out 2 education laws)
– 5 published 2 times, 6 published once
– But 27/28 revisions not published for comment, permissible if
“technical,” limited and non-controversial revisions
9
Public Participation - Rulemaking
•
Legislation Law provides NPC can empower State Council to draft national
regulations in absence of existing law
– Examples are OGI Regulations, Major Decision-making Regulations
– When time ripe, experience obtained, State Council may request to
draft law
•
Agency rulemaking follows similar process as legislature but not same
detail in Legislation Law on public participation in rulemaking
– Opinions to be widely listened to
– Such channels as workshops, expert justification meetings, hearings
may be used and drafts to be published for comment unless exempted
•
State Council issued implementing regulations on regulation and rule
making processes in 2001; to be updated per 2016 legislative plan
•
Meanwhile, detailed procedures governed by policy or normative
documents, not enforceable by public
10
5
12/7/2016
Public Participation – Rulemaking
•
Drafts to be published for comment on SCLAO or agency website,
generally for 30 days
– Unless SC decides not to publish
– Reasons for non-publication of drafts: state and commercial secrets,
privacy, national security or foreign exchange and currency policy
determinations, sensitive social issues
– Many agencies publish for only 10-15 days
– Drafts usually accompanied by explanation
•
SCOLA encourages feedback but no formal mechanisms yet
– Electronic comment system to help organize and analyze comments
•
SCLAO website: http://www.chinalaw.gov.cn/article/cazjgg
– Doesn’t provide numbers of comments or comments themselves
– Need to register in order to access
11
Public Participation - Rulemaking
•
Central government agencies to follow similar procedures
– Some have issued own rulemaking procedural rules, e.g., China FDA,
Ministry of Environmental Protection (both rulemaking, general PP in
environmental matters 2015 measures)
•
Local governments may adopt own procedures
– First was Guangzhou Municipality Procedures on Public Participation
in Rulemaking , adopted 2006, revised 2010
– More recently, Gansu Province adopted 2013 Measures on Public
Participation in Local Legislation, applicable to local legislature
•
Social organizations, enterprises, public institutions or citizens may report
to NPCSC any administrative regulation or local regulation, etc. they
believe contravenes Constitution or law
•
But no right to sue State Council or local governments/government
agencies over a rulemaking (considered “abstract act”) or, to date, an
enforceable “right to participate” in rulemaking
12
6
12/7/2016
Public Participation - Rulemaking
Other arenas for rulemaking:
•
State Council and local governments beginning to seek public input on
legislative agendas
•
Central Military Commission to develop and apply military rules per its
own procedures
•
Supreme People’s Court and Procuratorate interpretations on specific
application of law are to be reported to NPCSC within 30 days
– SPC publishes regulations and draft interpretations for comment
•
CCP “inner-Party regulation” rulemaking (technically, these are “normative
documents”)
– 2013 regulations call for Party member and, where draft measure
impacts public interest, general public participation
13
Public Participation - Rulemaking
•
Reform plans for rulemaking:
•
CCP-State Council December 2015 Outline on Building Rule of Law
Government (2015-20) calls for:
– Better use of workshops, expert justification, hearings and
questionnaires on important and controversial matters
– Publishing draft regulations and rules, like laws, generally for not less
than 30 days, unless confidential
– Strengthening communication with public
– Improving feedback mechanism on handling of public’s comments
14
7
12/7/2016
Public Participation - Decisionmaking
•
•
•
•
Seen as a distinct area of government action, involving major
policymaking, planning, project decisions, etc.
Goal is “scientific and democratic” decision-making
– Example is more public participation in drafting 13th five-year plan
– Another is PP in environmental impact assessment process (garbage
incinerators, chemical plants)
Has been handled ad hoc, with great leader discretion and frequently
unhappy local residents
• Leading to many protests, failed decisions, waste ,and environmental
degradation
CCP Charter revised in 2012: CCP to persist in “scientific, democratic and
law-based governance” and CCP itself to practice “democratic and
scientific” decisionmaking
15
Public Participation - Decisionmaking
•
•
•
•
•
CCP and State Council have issued series of opinions calling for more
legalized procedure (including 4th Plenum Decision), including:
– public participation
– expert “justification”
– risk assessment by independent experts
– legality review
– collective decision-making after deliberation
Plus transparency throughout and retrospective evaluation
Included these requirements as part of “scientific and democratic”
decision-making in 2013 revision of State Council Work Rules
State Council is drafting Interim Regulations on Major Administrative
Decision-making Procedures
Many provincial and municipal governments have adopted decisionmaking provisions, as stand-alone rules or part of local APAs, but difficult
to get compliance
16
8
12/7/2016
Public Participation - Decisionmaking
CCP-State Council December 2015 Framework for Building Rule of Law
Government (2015-20) sets forth goals for decisionmaking process:
• Improve law-based decision-making procedures
• Improve public participation:
– Seek comments
– Hold discussions with stakeholders
– Use opinion polls and surveys
– Provide feedback on suggestion adoption and reasons
• Increase information disclosure and explanations: February 2016 CCPState Council Open Government Opinions call for
 advance disclosure system where drafts of all major decisions affecting
public’s interests are made public, unless confidential
 Stakeholder attendance at executive meetings discussing major
decisions
17
Open Government
•
The February 2016 Open Government Opinions observed that ensuring
that power is exercised “in the Sunshine” is necessary to realizing socialist
democratic politics, enhancing the country’s governance capacity,
strengthening the state’s credibility and protecting the people’s rights to
know about, participate in, express themselves about and supervise
government action
•
Open government is also recognized therein as an important means to
achieve economic and social development, stimulate social innovation
and market vitality, and better address the concerns and needs of society
•
As experience under the OGI Regulations has demonstrated, granting the
Chinese people the necessary legal tools is possibly the most effective way
to enforce and strengthen these new open government values of
transparency, public participation and accountability
18
9