On 1 April 2014 the Organizing Committee of Engineering Cost Guangdong Provincial Contest (“Organizing Committee”), which is organized by the Department Education of Guangdong Province (“GD Education Department”), higher vocational colleges and enterprises in engineering industry and other entities, issued a notice that Glodon Software Co. Ltd (“Glodon”) was appointed as the sole software provider for the “Provincial Contest” according to document issued by the Ministry of Education of PRC (“Ministry of Education”). On 26 April 2014, Shenzhen THsware Hi-Tech Co.Ltd (THsware”) brought an administrative lawsuit against the GD Education Department to Guangzhou Intermediate People’s Court, and required the court to decide that the appointment of sole software provider by the Education Department is illegal. On 2 Feb 2015, Guangzhou Intermediate People’s Court ruled for THsware that the appointment of sole software provider by the Education Department is illegal. Soon after the first instance decision, the Education Department and Glodon jointly appealed to Guangdong Higher People’s Court. Now, the case is still in the process of second instance trial.
In addition to the core issue as whether the appointment of sole software provider by the GD Education Department constitutes administrative monopoly, the parties also argue on issues of litigation procedure for this administrative monopoly case. For purpose of this paper, the issues of litigation procedure mainly focus on the following three aspects:
First of all, whether a normative document of law can be brought for judicial review? The GD Education Department argued that the document of Ministry of Education and other related documents are internal circular documents, which therefore are not actionable and do not fall within the scope of judicial review. The GD Education Department’s view is not correct. It is actionable as long as a normative document of law meets two conditions at the same time: it has already been externalized; the plaintiff has brought action to request for judicial review on specific administrative act together with the document based upon.
The act of the Education Department to designate a certain software provider is concrete application of the document of Ministry of Educationand other related documents. Even though such documents have never been published to the public, the application by the Education Department has made them externalized. Under this circumstance, the plaintiff is entitled to require the court to review the legality of the act of the Education Department together with the externalized document of the Ministry of Education and other related documents based uponin accordance with the Administrative Litigation Procedure Law.
The second is the legal standing of the plaintiff. Glodon argued that the choice of software provider has no interest of law with the plaintiff, and Thsware thus does not have the legal standing as a plaintiff in this case. This view is not valid in administrative procedure for a case of administrative monopoly. In a case of administrative monopoly, the administrative agency does not specify any name of the parties which interests are harmed, but it still causes to eliminate fair competition. Therefore, in such case, even though the plaintiff is not direct subject of a specific administrative act, it may still have legal standing as a plaintiff due to its interests have been harmed or will possibly be harmed commercially. In the case-filing system established by the new Administrative Procedure Law, the court has more discretion in deciding the standing of the plaintiff.
The third is identification of defendant. In this case, the GD Education Department argued that all signatures on the documents involved are the “Organizing Committee” aforementioned, therefore the lawsuit brought against the GD Education Department is wrong in subject, and thus request the court to dismiss the plaintiff’s claim. However, the GD Education Department’s cannot be supported. Unlike administrative reconsideration, the identification of defendant in administrative lawsuit adopts the principle of substantial review instead of formality review. Seal or signature is not the only element to consider when the court examines the standing of defendant. Article 20 (1) of the Interpretations of the Supreme People⊙s Court on Certain Issues Concerning the Implementation of the Administrative Procedure Law of the People⊙s Republic of Chinaprovides: “where a party brings an action due to dissatisfaction with a specific administrative act conducted by an organization which is established and vested with administrative functions by an administrative agency and is not able to bear legal liability in its own name, the administrative agency which established the organization must be the defendant and bear the legal consequences. ”. The context of the judicial interpretation above does not conflict with the new Administrative Litigation Procedure Law, and thus shall continue to be valid. Accordingly, the GD Education Department, as an administrative agency which established the “Organizing Committee” meets the requirements for a defendant in the administrative litigation.
In conclusion, administrative proceeding for a case of administrative monopoly is an emerging type of action, in which there are a lot of common procedural issues worthy of paying attention. We will keep watching in this area.