On 1 November 2014, the PRC National People’s Congress (“NPC”) passed the decision on amending the Administrative Procedure Law of the PRC (“Administrative Procedure Law”). The amendments (“Amendments”) will come into effect on 1 May 2015. This is the first amendment ever made to the Administrative Procedure Law since its issuance in 1989. Since it is a law about “people suing authorities”, the Amendments have attracted wide attention from both professionals and the general public and media.
According to the Vice-Chairman of the Legislative Affairs Commission of the Standing Committee of the NPC, the Amendments are aimed to solve the difficulties for people to sue authorities. Over the years, criticism has been focusing on the difficulties in filing an administrative law suit in practice, in having an administrative case heard and decided without undue influence and in enforcing a court judgment. We summarize below some major changes will be brought about by the Amendments:
1. Scope of Administrative Law Suits
The scope of admissible cases has been broadened. Decisions regarding the ownership or right of use on natural resources such as land, mines, water, forests, mountains, grassland, wasteland, sea etc. are decisions on confiscation and expropriation and compensation for such confiscation and expropriation, abuse of administrative power to rule out or restrict competition, illegal fund raising or cost allocation by administrative organs as well as failure of administrative organs to issue the lowest life guarantee fee or social security fee are all included into the scope of acceptable cases. Since the types of administrative cases which are admissible are expressly listed in the law, the increase of the items to the list reduces the possibility of courts to refuse a case by claiming it is not expressly stipulated by statutory law.
2. Registration of Law Suits
Before the Amendments, the Administrative Procedure Law stipulated that when a People's Court receives a bill of complaint, it shall, upon examination, file a case or decide to reject the complaint within 7 days. If the plaintiff refuses to accept the decision, he may appeal. In practice, sometimes the Court neither registers the case nor issues a notice of refusal, but simply tells the plaintiff to go back and wait for further notification which could take weeks or even months. The plaintiff will not receive any written document which can serve as an evidence for appeal.
The Amendments clearly change this situation. They add that the People’s Court shall issue a receipt notice with the date of acceptance upon receipt of the bill of complaint and decide whether to register the case within 7 days. In case the registration conditions are not met, a decision of refusal to register the case shall be issued. The reason for such refusal shall be indicated on the letter of decision. In case the plaintiff refuses to accept the decision, he may appeal. The Amendments make sure that in case the Court needs some time to decide whether to register the case, a receipt indicating that the plaintiff has submitted the documents must be delivered to the plaintiff at the time when the Court receives the bill of complaint. This ensures that the plaintiff can further seek remedy with the notice of refusal or the receipt notice.
3. Oral Hearings and Judgments
Since an administrative case is under the jurisdiction of the People's Court in the locality of the administrative organ which initially issued the specific administrative act, it is difficult for the local court to disregard influences coming from the local governments which actually finance the local court. The newly added Article 15 stipulates that the intermediate People's Courts shall have jurisdiction as courts of first instance over law suits against administrative acts made by departments under the State Council or by the People's Governments above county level. The newly added Article 18 stipulates that after approval of the Supreme People’s Court, the High People’s Court can determine that a People’s Court has jurisdiction on cases outside of its administrative region according to the actual situation of the oral hearing and judgment. These clauses are intended to reduce undue influences from local governments in law suits against them.
4. Presence of Authority in Oral Hearings
In administrative court proceedings, representatives from the administrative organ usually do not attend the oral hearing. As a result, the plaintiff can only exchange arguments with the lawyer of the administrative organ who neither knows the detailed administrative work nor can make any substantial decision. The Amendments add that the person in charge of the administrative organ which is being sued shall be present at the oral hearing. In case he or she cannot be present, he or she shall entrust a corresponding staff of the administrative organ to be present. This enables a plaintiff who sues an administrative authority to confront the in-charge official or other personnel of the administrative organ in court directly and can make oral hearings more efficient.
Before the Amendment, if an authority refuses to comply with a judgment, a fine of RMB 50 to RMB 100 per day will be levied on the authority. In practice this is transfer of tax payers’ money from the account of one government to another without creating any real incentive for the authority to comply with the judgment.
The Amendments provide that if an authority refuses to comply with the judgment, a fine of RMB 50 to RMB 100 per day will be levied on the person in charge at the authority instead of the authority. This creates a strong incentive for the in-charge person at the authority to make sure that the judgment is implemented. The Amendments also provide that if bad social influence is caused, the in-charge person and other directly responsible persons may be detained.
Over the years, the total number of administrative law suits in China has constantly remained at a very low level compare to the total number of civil law suits. Although the number of administrative law suits has increased from only 85,760 in 2000 to 129,583 in 2012, it is still considerably less than the number of civil law suits which doubled from 2000 to 2012 and reached 7,316,463 in 2012. The Amendments aim at overcoming the practical difficulties which plaintiffs so far face in administrative law suits and at making legal framework more integrate and enforceable. As to whether and how the Amendments will be implemented in practice remains to be seen.