Review of Government Action – The Role of Administrative Law in China: a Foreign Perspective Vivienne Bath Senior Lecturer in Law, Faculty of Law, Sydney University Director, Centre for Asian and Pacific Law

What is administrative law? Separate area of law Deals with government bodies engaging in administration – that is, public work and management and the provision of public services Elements: work of a public nature; activity authorised by law and in accordance with law; element of compellability of action of government body

Scope of Administrative Law Deals with: Law of administrative organs – establishment of administrative bodies; powers of public officers Administrative behaviour – exercise of power; manner; procedure; principles and provisions Administrative relief – includes administrative reconsideration and procedure

Laws Administrative Litigation Law of the PRC 1989 中华人民共和 国行政诉讼法 State Compensation Law of the PRC 1994 中华人民共和国国 家赔偿法 Law of the PRC on Administrative Punishments 1996 中华人 民共和国行政处罚法 Law of the PRC on Administrative Supervision (1997) and Implementing Regulations (2004) 中华人民共和国行政监察法 ; 中华人民共和国行政监察法实施条例 Administrative Reconsideration Law (1999) 中华人民共和国 复议法 Administrative Licensing Law 2003 (effective 1 July 2004) 中 华人民共和国行政许可法

Features of the system General principle: “administration in accordance with law” 依法行政 Provision of right of appeal against administrative action – through lawsuit or administrative reconsideration Limitation of rights to impose punishments (particularly detention) Right to compensation for individuals affected by administrative act Supervision of administrative agencies Controls over rights of agencies to impose licensing and approval requirements

Coverage - Administrative Litigation Can bring claim when “legitimate rights and interests” infringed by a specific administrative act Right to claim limited to infringement of personal or property rights No conciliation except in relation to damages Court bound to apply law, administrative rules and regulations as basis.

Causes of Action and Remedies Annulment or requirement for defendant to undertake administrative act again: Inadequacy of evidence Erroneous application of law or regulations Violation of legal procedure Exceeding authority Abuse of power Obvious inappropriateness of specific administrative act In case of delay, court may set fixed time for performance of obligations Amendment of “obviously unfair” administrative sanction

Remedies Action against offending administrator if has violated administrative discipline – report to higher authorities, or transfer of case for criminal action Compensation under State Compensation Law

Themes Imposition of strict time limits Execution of specific administrative act generally not suspended except in special circumstances Concern to preserve distinction between administration and criminal action Emphasis on personal as well as agency liability for infringements

Administrative Licensing Law Provides for Publicity, fairness and impartiality in the grant of licences, permits, etc. Limitations of circumstances in which a licensing requirement can be imposed Controls over independence of local government in imposing requirements Prevention of abuses and fund-raising opportunities

Does the system work? Relatively small number of administrative cases and administrative reconsideration cases 2004: increase of 4.7% of administrative cases from 2003 (92,192 from 88,050) BUT more than 90,000 case in 1998 and more than 100,000 in 2002 Percentage of overall cases low – between 1% to 2% of total caseload Success rate: not particularly high Administrative action to implement Administrative Licensing Law – revocation of large numbers of administrative licences Draft anti-monopoly law contains section restricting and controlling local protectionism

Issues Close relationship of administrative bodies and business – subsidiaries under government bodies; guanxi, etc. Lack of independence of supervisory bodies Discretion powers of administrative bodies in relation to rule-making power and interpretation Apparent lack of success of administrative reconsideration system

Issues Lack of awareness of rights Fear of retaliation Weakness of administrative supervision system (strengthened partly by 2004 regulations) Criticisms of procedure (draft documents issued by Supreme Court in 2004 to improve procedures)

Conclusions Objective of “administration in accordance with law” Gradual strengthening of legal regime in relation to administrative rights Difficulties from local powers; weak courts; social issues relating to local authorities Improvement likely to be gradual