Citizens v. Mandarins: Administrative litigation in China

China Quarterly

Volumn , Issue 152, 1997, Pages 832-862

  Pei, Minxin ^a  

^a NONE

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EID: 0002174193     PISSN: 03057410     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0305741000047573     Document Type: Article

References (68)

1. See Anthony Dicks, "The Chinese legal system: reforms in the balance," The China Quarterly, No. 119 (September 1989), pp. 540-576; Pitman Potter (ed.), Domestic Law Reforms in Post-Mao China (Armonk, NY: M. E. Sharpe, 1994); and Stanley Lubman, China's Legal Reforms (New York: Oxford University Press, 1996).
2. See Anthony Dicks, "The Chinese legal system: reforms in the balance," The China Quarterly, No. 119 (September 1989), pp. 540-576; Pitman Potter (ed.), Domestic Law Reforms in Post-Mao China (Armonk, NY: M. E. Sharpe, 1994); and Stanley Lubman, China's Legal Reforms (New York: Oxford University Press, 1996).
3. See Anthony Dicks, "The Chinese legal system: reforms in the balance," The China Quarterly, No. 119 (September 1989), pp. 540-576; Pitman Potter (ed.), Domestic Law Reforms in Post-Mao China (Armonk, NY: M. E. Sharpe, 1994); and Stanley Lubman, China's Legal Reforms (New York: Oxford University Press, 1996).
4. See Gong Ruixiang (ed.), Fazhi de lixiang yu xianshi (The Ideal and Reality of the Rule of Law) (Beijing: Zhongguo zhengfa daxue chubanshe, 1993).
5. Susan Finder, "Like throwing an egg against a stone? Administrative litigation in the People's Republic of China," Journal of Chinese Law, Vol. 3, No. 1 (Summer 1989), pp. 1-28; Pitman Potter, "The Administrative Litigation Law of the PRC: judicial review and bureaucratic reform," in Potter, Domestic Law Reforms in Post-Mao China, pp. 270-304; Song Bing, "Assessing China's system of judicial review of administrative actions," China Law Reporter, Vol. 8, Nos. 1-2 (1994), pp. 1-20.
6. Susan Finder, "Like throwing an egg against a stone? Administrative litigation in the People's Republic of China," Journal of Chinese Law, Vol. 3, No. 1 (Summer 1989), pp. 1-28; Pitman Potter, "The Administrative Litigation Law of the PRC: judicial review and bureaucratic reform," in Potter, Domestic Law Reforms in Post-Mao China, pp. 270-304; Song Bing, "Assessing China's system of judicial review of administrative actions," China Law Reporter, Vol. 8, Nos. 1-2 (1994), pp. 1-20.
7. Susan Finder, "Like throwing an egg against a stone? Administrative litigation in the People's Republic of China," Journal of Chinese Law, Vol. 3, No. 1 (Summer 1989), pp. 1-28; Pitman Potter, "The Administrative Litigation Law of the PRC: judicial review and bureaucratic reform," in Potter, Domestic Law Reforms in Post-Mao China, pp. 270-304; Song Bing, "Assessing China's system of judicial review of administrative actions," China Law Reporter, Vol. 8, Nos. 1-2 (1994), pp. 1-20.
8. Lawsuits against government officials and agencies had been filed and tried even before the passage of the ALL, but the number of such cases grew dramatically after the passage of the law.
9. These 236 cases include 189 from a series of textbooks for Chinese judges. They are collected in Zhongguo shenpan anli yaolan (Selected Major Trial Cases in China); this series is edited by Zhongguo gaoji faguan peixun zhongxin (The National Training Centre for Senior Judges) and the Law School of the People's University; it is published by Zhongguo renmin gongan daxue (The Chinese People's Public Security University) Publishing Company. The 189 cases were from Zhongguo shenpan anli yaolan (hereafter ZSAY) (1992, 1993, 1994, 1995). Forty cases were published in Renmin fayuan anli xuan (Selected Cases from the People's Court), Nos. 11-15 (Beijing: Renmin fayuan chubanshe, 1995). Seven cases were published in Zhongguo falu nianjian (Law Yearbook of China), various years.
10. Liu Jinghuai, "Min gao guan you fa keyi" ("The legal basis for private citizens to sue government officials"), Liaowang 29 October 1990, p. 14.
11. Also see Potter, "The Administrative Litigation Law of the PRC," pp. 274-76; Finder, "Like throwing an egg against a stone?" pp. 8-10.
12. Also see Potter, "The Administrative Litigation Law of the PRC," pp. 274-76; Finder, "Like throwing an egg against a stone?" pp. 8-10.
13. Liu Jinghuai, "Min gao guan you fa keyi," p. 14.
14. The CCP Politburo reportedly held two special meetings on the ALL. Peng Zheng, the chairman of the National People's Congress, strongly supported the ALL. Interview with the head of the Institute of Law at the Shanghai Academy of Social Sciences, May 1997.
15. The Chinese title of this law is "Zhonghua renmin gongheguo zhi an guanli chufa tiaoli." It gave the Chinese law-enforcement authorities broad powers to impose penalties (including administrative detention) on Chinese citizens.
16. For a brief discussion on this development, see Tong Shuisheng, "Min gao guan beiwanglu" ("A memo on citizens suing officials"), Falü yu shenghuo (Law and Life), No. 82 (October 1990), p. 20.
17. At the end of 1988 there were 1,400 administrative tribunals; in 1990 the number rose to 2,638. Xinhua yuebao, No. 534 (April 1989), p. 36; Liu Jinghuai, "Min gao guan you fa keyi," p. 15.
18. At the end of 1988 there were 1,400 administrative tribunals; in 1990 the number rose to 2,638. Xinhua yuebao, No. 534 (April 1989), p. 36; Liu Jinghuai, "Min gao guan you fa keyi," p. 15.
19. According to Wang Hanbin, the chairman of the Judiciary Committee, the NPC received commentaries on the law from 130 government agencies and courts and only 300 commentaries directly from private citizens. Xinhua yuebao, No. 534 (April 1989), p. 36.
20. Henan, Guangdong, Sichuan and Tianjin were mentioned in Liu Jinghuai's report. Liu Jinghuai, "Min gao guan you fa keyi," p. 15.
21. Yang Haikun, "Baituo xingzheng susong zhidu kunjing de chulu" ("A solution to the besieged administrative litigation system"), Zhongguo faxue (Chinese Legal Science), No. 3 (1994), p. 51; Potter, "The Administrative Litigation Law of the PRC," pp. 287-290; Finder, "Like throwing an egg against a stone?" pp. 27-28.
22. Yang Haikun, "Baituo xingzheng susong zhidu kunjing de chulu" ("A solution to the besieged administrative litigation system"), Zhongguo faxue (Chinese Legal Science), No. 3 (1994), p. 51; Potter, "The Administrative Litigation Law of the PRC," pp. 287-290; Finder, "Like throwing an egg against a stone?" pp. 27-28.
23. Yang Haikun, "Baituo xingzheng susong zhidu kunjing de chulu" ("A solution to the besieged administrative litigation system"), Zhongguo faxue (Chinese Legal Science), No. 3 (1994), p. 51; Potter, "The Administrative Litigation Law of the PRC," pp. 287-290; Finder, "Like throwing an egg against a stone?" pp. 27-28.
24. The official text of the ALL can be found in Xinhua yuebao, No. 534 (April 1989), pp. 32-36; an English translation is available in China Current Laws, Vol. 1, No. 9 (October 1989), pp. 6-16. The references to the text of the ALL in this article are mostly based on this translation.
25. The official text of the ALL can be found in Xinhua yuebao, No. 534 (April 1989), pp. 32-36; an English translation is available in China Current Laws, Vol. 1, No. 9 (October 1989), pp. 6-16. The references to the text of the ALL in this article are mostly based on this translation.
26. For detailed analysis of the provisions of the ALL, see Potter, "The Administrative Litigation Law of the PRC," pp. 276-281; Finder, "Like throwing an egg against a stone?" pp. 11-27.
27. For detailed analysis of the provisions of the ALL, see Potter, "The Administrative Litigation Law of the PRC," pp. 276-281; Finder, "Like throwing an egg against a stone?" pp. 11-27.
28. See Potter's excellent analysis of the limits of the ALL, in "The Administrative Litigation Law of the PRC," pp. 282-87.
29. See, for example, Gong Ruixiang, Fazhi de lixiang yu xianshi.
30. The 1994 data for several provinces are unavailable. We use the data for 1993 and 1992 for Le provinces to estimate their share of ALCs. Our estimates show that Tianjin's share (based on 161 ALCs in 1993) was 0.78% with a differential of - 0.72; Shanxi's share (631 in 1993) was 2.2% with a differential of - .03; Jiangsu's share (906 in 1992) was 3.3% with a differential of - 2.55. The number of cases accepted for trial by individual provinces seemed slightly to exceed the number given by the Supreme People's Court.
31. Zhongguo falü nianjian (1994), p. 236; Zhongguo falü nianjian (1995), p. 847.
32. Zhongguo falü nianjian (1994), p. 236; Zhongguo falü nianjian (1995), p. 847.
33. Hunan nianjian (Hunan Yearbook) (1995), p. 88; Shandong nianjian (Shandong Yearbook) (1995), p. 844.
34. Hunan nianjian (Hunan Yearbook) (1995), p. 88; Shandong nianjian (Shandong Yearbook) (1995), p. 844.
35. Renmin ribao, 22 March 1996, p. 3.
36. Court cases provide some clues as to what are labelled under the "other" category. They include the following: cases against the bureau of standards, against the patent bureau, against local governments on matters other than land use or zoning, against tax collection agencies, against the supervisory agencies of state-owned enterprises, and against the bureau of civil affairs.
37. Tang Yongjin, "Yichang jingqiaoqiao de geming" ("A quiet revolution"), in Gong Ruixiang, Fazhi de lixiang yu xianshi, p. 60.
38. Zhang Shuyi and Zhan Zhongle, "Qiantu guangming, daolu quzhe" ("Bright future and tortuous road"), in Gong Ruixiang, Fazhi de lixiang yu xianshi, pp. 113, 121.
39. Compared with the data for previous years, the number of dismissed cases in 1995 might be too high.
40. Few court decisions change original administrative actions because the ALL restricts the court's authority to modify administrative actions. Such actions may be revised only when administrative penalties are deemed "clearly unjust."
41. See cases nos. 11, 12, 13, 22, 35 in Yaolan 1992; nos. 15, 23, 38, 43, 44 in Yaolan 1993; nos. 47, 59 in Yaolan 1994; nos. 10 and 30 in Yaolan 1996.
42. Yang Haikun, "Baituo xingzheng susong zhidu kunjing de chulu," p. 51; Zheng Hangsheng (ed.), Report on Social Development by Renmin University of China, 1994-1995 (Beijing: Renmin daxue chubanshe, 1995), p. 68.
43. Yang Haikun, "Baituo xingzheng susong zhidu kunjing de chulu," p. 51; Zheng Hangsheng (ed.), Report on Social Development by Renmin University of China, 1994-1995 (Beijing: Renmin daxue chubanshe, 1995), p. 68.
44. This claim was based on a report on the implementation of the ALL conducted by the Sichuan Supreme People's Court. It was cited in Tang Yongjin, "Yichang jingqiaoqiao de geming," pp. 43-44.
45. For cultural agencies, the court upheld their administrative actions in 20% of the lawsuits in 1992, 12.5% in 1993, 9.2% in 1994 and 11.4% in 1995 while revoking their administrative actions in 22% of the cases in 1992, 26.7% in 1993, 17% in 1994 and 16.2% in 1995. The court upheld the actions of public hygiene agencies in 16.3% of the cases in 1993 and 17.2% in 1994, while revoking their actions in 18% of the cases in 1993 and 13% in 1994. Zhongguo falü nianjian (1994), p. 1029; (1995), p. 1065; (1996), p. 959; Renmin fayuan nianjian (Yearbook of the People's Court) (1992), p. 839.
46. Because the sample includes many lawsuits against industrial and commercial administrations, the share of the suits filed by private entrepreneurs and firms might be larger than in a random sample. However, the information in Table 9 shows that only 11 private entrepreneurs and firms were plaintiffs in cases against industrial and commercial administration, indicating that the selection bias is not too severe in this sample. In terms of the outcome of the suits, private firms and entrepreneurs won 25 cases (53%), obtained partial favourable rulings in six cases (13%), lost 12 cases (26%), and withdrew in four cases (three cases were withdrawn after the defendants revoked the disputed actions).
47. The previously cited 1992 study based on primary research reported similar findings. Of the 96 plaintiffs surveyed, about 19% reported that their economic status was "relatively poor or poor"; 68% reported that their economic status as "average." Tang Yongjin, "Yichang jingqiaoqiao de geming," p. 7.
48. Tang Yongjin, "Yichang jingqiaoqiao de geming," p. 35.
49. Ibid. p. 29.
50. According to two Chinese researchers, most peasants were unwilling to spend money on legal representation. Zhang Shuyi and Zhan Zhongle, "Qiantu guangming, daolu quzhe," p. 117.
51. The data on the number of lawyers in China were obtained in Zhongguo falü nianjian (1994), p. 1045; (1995), p. 1079; (1996), p. 975.
52. The data on the number of lawyers in China were obtained in Zhongguo falü nianjian (1994), p. 1045; (1995), p. 1079; (1996), p. 975.
53. The data on the number of lawyers in China were obtained in Zhongguo falü nianjian (1994), p. 1045; (1995), p. 1079; (1996), p. 975.
54. Zhongguo falü nianjian, 1993, 1994, 1995.
55. In addition to lack of economic resources, Chinese peasants have less access to legal counsel because there are very few lawyers in the countryside.
56. The following text is based on "Administrative Procedure Law," China Current Laws, Vol. 1, No. 9 (October 1987), p. 10.
57. Before the implementation of the Law on State Compensation on 1 January 1995, citizens could not sue the state for damages.
58. Potter, "The Administrative Litigation Law of the PRC," p. 288.
59. Finder, "Like throwing an egg against a stone?" p. 28.
60. Potter's insight on the "legality" focus of the ALL is invaluable in understanding why it was enacted and how it was implemented. Potter, "The Administrative Litigation Law of the PRC," p. 288.
61. Zhan Zhongle, "Xingzheng susongfa shishi xianzuang yu fazhan fangxiang diaocha wenjuan baogao" ("Report on the survey on the implementation and trends of the ALL"), in Gong Ruixiang, Fazhi de lixiang yu xianshi, p. 280.
62. Tang Yongjin, "Yichang jingqiaoqiao de geming," p. .11.
63. Ibid. p. 59.
64. Ibid. p. 14.
65. See Pitman Potter, "Riding the tiger: legitimacy and legal culture in post-Mao China," The China Quarterly, No. 138 (June 1994), pp. 325-358; Edward J. Epstein, "Law and legitimation in post-Mao China," in Potter, Domestic Law Reforms in Post-Mao China, pp. 19-55.
66. See Pitman Potter, "Riding the tiger: legitimacy and legal culture in post-Mao China," The China Quarterly, No. 138 (June 1994), pp. 325-358; Edward J. Epstein, "Law and legitimation in post-Mao China," in Potter, Domestic Law Reforms in Post-Mao China, pp. 19-55.
67. Potter, "Riding the tiger," pp. 325-26.
68. According to a 1992 poll, 88% of the ordinary people surveyed said that they had heard about the ALL. Tang Yongjin, "Yichang jingqiaoqiao de geming," p. 10.