Nearly 30 years have passed since the Administrative Litigation Law of China was promulgated in 1989. During the past decades, administrative litigation in China has developed and changed rapidly. However, a lot of people in China, Asia and the world still consider China’s administrative litigation with a view to decades ago.
The promulgation of the Administrative Litigation Law of China initiated an age of “common people suing government”, following reforms and the opening up of the nation. However, in China, a firmly-rooted belief of “government prevails” has lasted across thousands of years. Many people still do not like litigation. These people firmly believe that “bureaucrats shield each other”, and so they avoid being involved in any administrative litigation.
In fact, in China, not all judgments of “common people suing government” cases are adverse to the people. In recent years, a lot of cases tell us that a government defendant in an administrative litigation may also lose, not only in major centres such as Beijing and Shanghai, where the implementation of law is relatively mature, but also in certain second or third-tier cities. As more and more judgments in Chinese courts are accessible to the public, it’s not difficult to find precedents supporting the common people in litigations posted on courts’ official websites.
After decades of construction, China’s legal system has been greatly improved. With the promulgation of various administrative laws and regulations, administrative functions of the government at all levels are becoming more and more standardized. The central government is paying more attention to the construction of a society with a rule of law. In recent years, there are special official documents (usually called “red head documents”) that require governments and departments at all levels to engage professional lawyers as legal counsel. Legal services procurement has also become an indispensable part of government procurement.
After more than 20 years of development, the new Administrative Litigation Law of China was promulgated in 2014. Compared with the original Administration Litigation Law, the new law grants the “normal people plaintiffs” in an administrative litigation more rights. One of the biggest bright spots of the new law is the adoption of a “registration system” for filing an administrative litigation, which means that the court must file an administrative litigation as long as the plaintiff provides basic supporting documents.
The new law has greatly reduced the threshold for filing an administrative litigation. It’s reported that in the six months since the law was implemented, the number of administrative litigations has multiplied in many courts.
“Despising procedures and focusing substantiality” is a major drawback of China’s judicial system.
Although both Chinese criminal litigation law and Chinese civil litigation law require legitimate procedures, in practice, Chinese courts are considerably tolerant towards procedural illegalities, for example, illegally obtained evidence can still be used as evidence in court for cross-examination. Also, in civil litigations the evidence provided over the term of adducing evidence can also be used as evidence in the court for cross-examination.
In addition to the requirement of performing official duties according to law, the Administrative Litigation Law of China requires that administrators strictly abide by the procedures as stipulated in laws and regulations when performing their official duties. Legitimate procedures have also been regarded as an important criterion in administrative judicial trials. In a number of administrative litigations, the government has lost simply because it failed to provide evidence that it had provided the plaintiff with a written notice in advance.
Most people know little about administrative litigation. The number of people who file administrative litigation cases is relatively small, and the number of administrative cases is far less than criminal and civil litigation cases. In despite of this, it is undeniable that, to a certain extent, administrative litigation cases have played a catalytic role in promoting the construction of China’s administrative legal system in recent years.
As legal counsel for some government departments in Shanghai in recent years, the author’s firm has represented government in dozens of administrative cases. In the process of dealing with some cases, the author has had pity for some “common people” plaintiffs. Many cases indicate that the plaintiff lost the case only because of a lack of understanding of the specificity of administrative litigation and administrative procedures. It is better for plaintiff’s lawyers in administrative litigations to have some experience in serving the government. As people say: “know yourself and know your enemy.”
CHEN WUXIONG is a founder and life partner, and PETER LI is a senior associate at Boss & Young in Shanghai
12th-15th Floor, 100 Bund Square,
100 South Zhongshan Road,
Huangpu District, Shanghai
Tel: +8621 2316 9090
Fax: +8621 2316 9000