In 2018, the author encountered a problem that is common in litigation when dealing with a complicated administrative litigation dispute, i.e. the plaintiff (the owner) did not recognize that the defendant (expropriation department) had served it with relevant documents.
Since the implementation of the new Administrative Procedure Law (the first amendment) in 2014, the expropriation, expropriation decision and its compensation decision dispute had been explicitly included in the scope of administrative litigations. Therefore, the service of process in the above-mentioned case leads directly to a new problem: service of process in administrative procedures.
Among the major administrative laws in China, such as the Administrative Law, the Administrative Review Law, the Administrative Penalty Law and the Administrative Compulsion Law, there is no specific provision on service of process. According to the provisions of the above-mentioned administrative law, provisions on service of process of Civil Procedure Law could be applied.
Can rules on service of process in civil procedures be fully duplicated in administrative procedures? The answer is no. Regarding the provisions of the Civil Procedure Law on service of process, the documents to be served shall be litigation documents from the court, and the subject of service is the court. Except for the provision that service of process in the Civil Procedure Law could be applied, there is no specific provision on service of process in the Administrative Procedure Law.
Besides the government administrative departments, the subject of the service may involve public institutions and even enterprises (such as the expropriation company), and the documents to be served are far more than the litigation documents from the court in administrative litigations.
Legislation of service of process in administrative procedures. Since the service of process in civil procedures cannot be copied in administrative procedures, the rules on service of process in civil procedure cannot answer all the questions in administrative procedures for the process and subject differences.
How to cope with the problem of deficiency of rules on service of process in administrative procedures. (1) It is necessary to enact special legislation on service of process in administrative procedures. First, although it is possible to make up for the fact that service of process in administrative procedures has not yet been enacted in various situations by amending the above-mentioned main administrative laws, such situations are endless. We not only need to unify various complicated rules on service of process from different administrative departments, but also to establish the legal spirit of service of process in administrative procedures from the legislative perspective.
Second, administration according to laws is one of the basic principles of administrative law. Specific legal provisions will be more of a directive to government departments in practice in law. However, it is undeniable that due to the complexity of the administrative organs, unified legislation on service of process in administrative procedures will inevitably encounter obstacles and difficulties.
(2) Concerning the legislation of service of process in administrative procedures, the author considers discussing it in two ways. First, as far as different administrative departments might hold their own requirements and understandings, it might be better to consider establishing a unified standardized system on service of process in administrative laws and regulations by the State Council, and then to formulate local implementation rules by the local government.
Second, consider legislation in terms of law and judicial interpretation to add specific provisions of service of process by revising current administrative laws and regulations, and then to further enrich and improve the content of service of process through the revision of relevant administrative judicial interpretation by the Supreme People’s Court.
Service of process in administrative procedures in practice. Let’s refer back to the case mentioned at the beginning of the article, that is, the owner did not recognize that the expropriation department had served it (in fact, the owner to be served refused to receive the documents).
The expropriation department served the owner according to article 86 of the Civil Procedure Law. The difference is that the judicial interpretation requires the presence of staff from the residents’ committee or the village committee as the witness, while in this case, the expropriation department invited the staff from the street office as the witness, and served the owner.
Finally, the court supported the expropriation department on this issue. However, the service process in this case is not universal. As long as the legislation service of process in administrative procedures is still under discussion, in order to reduce the risk of losing a lawsuit, the author recommends applying the provisions of the civil law and regulations regarding the service of process.
Peter Li is a partner at Boss & Young in Shanghai
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