#2 Circuit Court’s case guidance on administrative cases

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On August, 2016, the Supreme People’s Court (SPC) #2 Circuit Court issued a set of 30 case summaries (literally important points, 案例要旨)on administrative cases, selected from the many administrative cases heard in the first year and a half of operation.  The #2 Circuit Court hailed it as a new type of case guidance (审判新指南) in March, 2017. This type of case guidance is mentioned in my forthcoming article in the Tsinghua China Law Review.  Although this document does not have any formal status (at least yet) in the universe of SPC case guidance, it has been approved at a conference of administrative judges in Liaoning, Heilongjiang, and Jilin, and the rules it sets out should be considered highly persuasive to courts in those three provinces.

It is likely that these cases will provide background material for a more comprehensive judicial interpretation of the Administrative Procedure (Litigation) Law than the one issued shortly after the amended law was promulgated.  Some of these cases have also been incorporated into the SPC’s 10 model #2 Circuit Court cross-administrative region commercial and administrative cases. The document does not include a summary of the underlying facts, but some of the full case reports are found elsewhere.  Each case (most relate to land disputes) provides a glimpse into the behavior of local government vis a vis ordinary Chinese citizens and companies, the (limited) scope for review of administrative action under Chinese law, and the unusual legal issues in the review of administrative action. Brief commentary follows each case summary restatement.  on 1 April, Wang Cailiang, the deputy chair of the All China Lawyers Association, published Wechat commentary on administrative litigation and judicial reform.  Highlights of some of his comments follows the case summaries.

#5. Fan Chunsheng v. Heping District, Shenyang Government: issue–compulsory administrative act and administrative compensation case:

If the administrative organ illegally demolishes the plaintiff ‘s house, the compensation standard must not be lower than the compensation standard that the plaintiff may obtain according to the administrative compensation scheme. The plaintiff’s request for compensation must be upheld by the people’s court in accordance with the amount that can be obtained through the compensation scheme.

[The full text of the case is found here. It involved a man whose home was demolished. The court determined that the parties had not come to an agreement about compensation and the District Government had not gone through proper procedures to expropriate Mr. Fan’s property. The facts are similar to some of the model demolition cases released by the SPC several years ago.]

#16 Siping Haifeng Garden Real Estate Development Co. v, Siping (Jilin) People’s Government: issue–are government meeting summaries actionable?

A government meeting summary that is considered to be an internal government document setting out possible approaches in dealing with certain problems, but without a real impact on the rights and obligations of the parties, will be considered an administrative act that is not actionable. However, if the government uses the form of a meeting summary to make an administrative decision with legal effect, it is considered an actionable administrative action. The “externalization” of the meeting summary is necessary for the meeting summary to be actionable. Even if the contents of a meeting summary has been notified or delivered to the relevant parties, but if it remains a description of possible approaches, rather than an effective administrative decision, it will be considered a non-actionable administrative act with no real effect on the parties’ rights.

[The rule here indicates that is how the document is being used, rather than the form of document that determines whether a court can review it.]

#19, Zhang Qinghai v. Benxi Municipal Government–issue: is a decision by a provincial level government to expropriate land actionable

According the provisions of Article 30 (2) of the Administrative Reconsideration Law and Reply of the SPC to a question concerning  Article 30(2) of the Administrative Reconsideration Law, a decision by the State Council or provincial level governments concerning the expropriation of land and a related administrative reconsideration decision is considered acts of final decision and is not within the scope of cases than can be accepted under the Administrative Litigation Law.

[A brief search of some other jurisdictions reveals that this type of decision can be challenged under the law of some other jurisdictions: United States federal and state law and German law, for example].

#23, Han Yawen v. Zhaoyuan County, Heilongjiang People’s Government–issue: is an agreement not to petition (息诉罢访协议) actionable

An agreement not to petition between an administrative agency and a petitioner is an agreement with rights and duties under administrative law between an administrative agency with a petitioner to maintain social order and stability, in the public interest and in furtherance of administrative functions, according to the localism principle, the relevant government provides money or other benefits and should be considered a type of administrative agreement. When a people’s court accepts this type of case, it should review the legality of the content of the agreement according to law.

[Further background on the case found here. the SPC rejected Han’s application for retrial because the statute of limitations had lapsed).  (A form of agreement found here.  This 2011 book chapter mentions that these agreements could be challenged in theory, but the inclusion of this principle shows that petitioners often seek to challenge them, at least in the northeastern provinces.]

A summary of remarks by Wang Cailiang, on whether the amended Administrative Litigation Law, in effect for almost two years, will be able to make progress:

  1. On government interference:  “I can responsibly say that most grass-roots courts consciously or unconsciously play the role of a subordinate department of the local government…. in recent years when local governments promote the redevelopment of shantytowns, major projects, development zones, with which the local court also either actively or passively cooperates, there exists a conflict between the citizens right to administrative review (reconsideration) and litigation. Moreover, the Government on the one hand needs the court to give support in implementing the project; the other hand, the government wants to spend less money.  It creates an enormous obstacle to hearing administrative cases fairly and equitably.
  2. More hard work needed to resolving social conflicts (contradictions): in 2016, there were high numbers of administrative litigation and petitioning, with old and new issues, caused by housing condemnation, land expropriation, administrative enforcement…Affected parties sought to protect their rights through the courts,  and 225,000 administrative cases were accepted by the courts, with a clear increase of cases against county governments accepted by intermediate courts, and even the SPC had accepted over 2000 by the end of September. This has to do with the amended Administrative Litigation Law and clarity that county governments are the parties to expropriate land [under the relevant legislation], which means that the rate at which government is losing cases is rising, although the SPC hasn’t released 2016 data.  In July-August, 2016, documents issued by the State Council General Office and the SPC on administrative agencies responding to law suits has improved matters.  Also, under the new law, the reconsideration organ is the joint defendant with the original authority, so this changes the venue for these law suits, giving affected parties more hope…In 2016 there were major issues with demolition disputes after courts determine that administrative action by the court is illegal, some local governments reject the decisions and refused to take the initiative to correct the error, failure to make timely compensation to the plaintiff is very common…Even in cases where people should be prosecuted for criminal violations, not one has…
  3. There are too many wrongly decided cases–reasons–besides interference, professional competence of judges, traditional way of thinking of courts…
  4. Few administrative cases are resolved on time (he can tell this although the SPC has not released statistics),
  5. Some problems remain with the case registration system.
  6. He suggests proceeding on the rule of law route–promoting judicial reform and cross-administrative region courts; open up public opinion, so administrative litigation proceeds in the sunshine; having the SPC curb its tendency to issue judicial interpretations [this is entirely impractical, in my view]; and send the judges out of the case registration division and back to the trial divisions.
  7. He summarizes, but does not comment on remarks made by Meng Jianzhu (Meng), head of the Communist Party’s Central Political Legal Committee at a meeting on 29 March of the Leading Small Group on Judicial Reform with senior members of the political legal leadership (head of the Ministry of Public Security, presidents of the Supreme People’s Court and Procuratorate, Minister of Justice, etc.) that the targets of judicial reform (he means the political legal institutions, not just the judiciary) need to be achieved before the 19th Party Congress and admitting there have been difficulties in implementing some judicial reforms. Meng directed the authorities to research the problem and come up with practical solutions.
  8.  Wang concludes by saying that the specific goals in this round of judicial reforms have never been made public–how far it is to go, so the public does s not understand them, so it lacks societal supervision, understanding and support–the effectiveness of a reform that lacks public participation naturally will be reduced, and we must be concerned about this. (然而,这一轮司法改革的具体的目标在开始至今并没有公开,以致要走到哪一步社会不了解,从而缺少社会公众的监督与理解、支持。一个缺少公众参与的改革,效果必然大打折扣,这是我们不能不担心的.)

Judging from a limited sample (such as the report done by the #2 Circuit Court), at least some of the research and analysis that is being done within the political legal institutions is insightful and practical. But as President Trump has said about health care,  “It’s an unbelievably complex subject, nobody knew that health care could be so complicated.” The same can be said about reforming the Chinese judiciary.

 

Data from the Supreme People’s Court on administrative cases

Screen Shot 2016-04-01 at 6.46.11 PMWith the amendment of the Administrative Litigation Law and implementation of the case registration system in 2015, the number of administrative cases accepted by the Chinese court increased by 55%, to 299,765. The statistics provided only give a very partial picture of the distribution of cases. A search of cases for this post revealed that generally the decision of the government agency was upheld. This blogpost omits information on trademark cases because those are covered by the chinaipr.com blog.

Cases challenging city planning, condemnation, real estate registration: 35,726 cases, up 59%.  While the total number of cases upholding the government decision isn’t given, in most of the cases searched, the individual was unsuccessful, such as this one from Ningxia.

Cases challenging decisions by the public security authorities totalled 24,974 cases, up 72%.  China’s public security authorities exercise a broad scope of authority, including minor offenses that would be misdemeanor offenses in many other jurisdictions.    A quick search of the SPC database reveals many cases in which petitioners have challenged administrative punishments:

 Cases brought in various provinces, challenging the authority of the local public security authorities to impose administrative penalties on people for petitioning near Zhongnanhai, where state leaders live: in Jiangsu, a man sought a retrial in his challenge to the authority of the Yizheng (Jiangsu) public security;  in Shandong, a similar (unsuccessful challenge), as well as Hubei.

Challenges to family planning authority decisions or claims against that authority totalled 2188, down 56%. One of those was a case in Chongqing, involving a man claiming against the family planning authorities for surgery gone wrong.

New docketing procedures come to the Chinese courts

local court case filing office

local court case filing office

New docketing procedures (case filing) (立案) have come to the Chinese courts.  Chinese courts have a separate case filing divisions, which up until 1 May of this year acted as gatekeepers to courts.  They exercised their approval authority over cases in a non-transparent manner, which meant for litigants in Chinese courts that their cases could be and were rejected without having the opportunity to argue why they should be accepted.  Case filing divisions also were known to put troublesome filings aside, without issuing a rejection, or repeatedly asked for supplementary documents, seeking to drive away litigants by repeated formalistic demands.

More background is given in these blog posts and law review article.  It has been an ongoing problem for many years, provoking endless complaints and articles by ordinary people, lawyers, academics, and NGOs, and has been one of the issues driving petitioners to the streets.

The Supreme People’s Court (Court) leadership identified case filing as one of the needed reforms (and as one of the many contributing factors to the low prestige of the Chinese judiciary), even before the Third Plenum. Because of that, the Communist Party’s 4th Plenum Decision and the 4th Five Year Court Reform Plan flagged this as a priority.  (Unsurprisingly), the language in the two documents is almost identical:

  • Reform systems for courts’ acceptance of cases, change the case filing review system to a case filing registration system, and in cases that should be accepted by the people’s courts, ensure parties procedural rights by requiring filing when there is a case, and requiring acceptance where there is a lawsuit.
  • Change the case filing review system into a case filing registration system, making it so that for cases that should be accepted by the people’s courts, where there is a case it must be filed, and where there is a suit it must be accepted; safeguarding the parties’ procedural rights.

Litigants in line at the #1 Circuit Tribunal

In late April, the Court issued case filing regulations which address many of the longstanding problems that litigants and their lawyers faced:

Case filing divisions

  • refusing to accept complaints;
  • refusing to issue notices rejecting complaints;
  • repeatedly asking for supplementary materials.

The new rules require case filing divisions to accept filings of civil and criminal private prosecution cases (brought by the victim of a crime if the state refuses to prosecute, generally relating to minor crimes) on the spot if possible, provide templates for frequently used types of cases, and to respond within statutory deadlines.  Case filing divisions are directed to make requests for supplementary materials once. (The new administrative litigation law judicial interpretation, described in this earlier blogpost, contains similar provisions.) Litigants who encounter noncompliant behavior can file a complaint with the relevant court or the court above it.

Cases that the courts must refuse:

  1. Matters that endanger national security;

Rights activists have likely noticed that these carveouts are broad and flexible enough to keep out some cases that they might want to bring.

The take-up on the reform: some “Big Data”

According to Court statistics, in the first month since the regulations went into effect, there was a 30% jump in the number of cases accepted,(1.13 million), with most of them accepted immediately. The Jiangsu, Zhejiang, and Shandong courts accepted over 80,000 cases, with Beijing, Hebei, and other areas accepting over 40,000.

In particular:

  • the number of civil cases was up about 28%.
  • the number of administrative cases accepted was up 221% in comparison to last year (starting from a low base), with Tianjin cases up 752.40%,Shanxi, 480.85%,and Shanghai 475.86%, reflecting both the new case registration and new Administrative Litigation Law going into force.
  • Courts in Zhejiang found that fewer litigants were mediating their cases before filing suit (down 17%), and the success rate of mediation was down by 14%.  Does this mean a better outcome for litigants?  Closer analysis is needed.

Much of the press coverage has been about litigants filing cases themselves, rather than with the assistance of a lawyer or other legal personnel, but I haven’t seen statistics that address this.

Some more detailed data from Jiangsu province:

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Case filings in Jiangsu Province, by city

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Civil 60791, enforcement 25438, administrative 1980, private prosecution 256, state compensation 56

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May, 2015 cases accepted, by location

An evaluation after six weeks

Some thoughts about the case filing reform

  • It will mean more cases in the courts and greater stress for fewer judges and other judicial staff, to assist the many pro se litigants.
  • It should reduce the dissatisfaction level of some proportion of litigants with the court system, such as the anonymous staff from a Guangzhou car finance company quoted in a press report.
  • Violence against court personnel (like medical personnel), is another factor driving qualified and experienced people away, as described in these recent articles.  Will the reforms reduce the level of frustration of ordinary people with the court system, and reduce physical and verbal attacks on judicial personnel?  It is early days to say.
  • It does not resolve underlying issues such as local courts not wanting to offend local government or locally state-owned enterprises.  The 4th 5 Year Court Reform Plan identifies cross-jurisdictional courts as a solution, and pilot projects have started on this in various locations, including Beijing, but a comprehensive framework is not yet in place.
  • For the numerically small number of foreign litigants in the system, it does not change all the documentary requirements needed, such as notarization and legalization of documents and powers of attorney. It should make it easier for foreign invested companies to litigate.
  • As a Court spokesman suggested,  the rejection of many cases could come later, leading to greater pressure on the courts later on, from appeals, more requests for cases to be re-tried, and not ultimately reduce the number of petitioners.
  • It will inevitably lead to abuse of process and frivolous cases, such as the over-publicized case of a Shanghai man suing because of the stare of a TV star caused him spiritual damage. The Court is working on rules to address this.

Supreme People’s Court interprets the Administrative Litigation Law

20150427113046_78973On 27 April 2015, the Supreme People’s Court issued a judicial interpretation (English translation here) (27 articles) of the Administrative Litigation (Procedure) Law) (Administrative Litigation Law JI). Judge Li Guangyu, deputy head of the Administrative Tribunal noted that it is not intended to be comprehensive but to address major practical issues the lower courts will face as the law becomes effective.

It was not issued for public comment (there is no such requirement), but comments were solicited within the court system, as well as from the procuratorate, and other authorities, such as the administrative authorities (State Council Legislative Affairs Office and its local counterparts) and the National People’s Congress Legislative Affairs Commission (and its local counterparts).

This judicial interpretation sets out specific rules concerning judicial review of administrative action, filling in some of the blank spots, adding definitions and inserting some specific legal infrastructure (such as filing deadlines) into the Administrative Litigation Law.  It is relevant to:

  • Chinese individuals, companies (domestic and foreign-invested alike), and organizations seeking to challenge a broad range of government actions and decisionmaking;
  • Foreign governments and international organizations reviewing China’s undertakings to provide impartial and independent tribunals to review administrative action (as China did in its accession to the WTO) or negotiating investment protection and other treaties with the Chinese government;
  • Foreign companies, organizations, and individuals seeking to challenge Chinese government action.

The judicial interpretation addresses 10 major areas, but this post will highlight the following:

  • case filing;
  • requirement that a “responsible person” of an administrative agency to appear in court;
  • consolidated hearing of a related civil matter;
  • consolidated review of normative documents;
  • administrative agreements
  • consolidated hearing of a related civil matter.

Case filing

Article 1 of the judicial interpretation addresses  pervasive refusal by local courts to accept cases (and related problems)(recognized by all stakeholders), by:

  • directing courts to accept cases on the spot, if it is apparent that the complaint meet statutory requirements;
  • directs courts to respond within 7 days, if further review is required;
  • if a court still is unsure after 7 days, it is directed to accept the case.

Appearance by a responsible person

Although during the passage of the Administrative Litigation Law, much was made of the requirement in Article 3 that a “responsible person” appear in court, Article 5 of the Administrative Litigation Law JI clarifies that the head or deputy head of an administrative agency may appoint a representative to appear in court.

Administrative agreements

Article 11 of the Administrative Litigation JI seeks to address, in greater detail,  several issues: the definition of an administrative agreement, and  what to do about a breach of one.  In particular, it details how courts need to hear an aggrieved private party, when a government agency improperly terminates, amends, or fails to perform either:

  • land acquisition and condemnation agreement; or
  • a concession agreement.

The first has been a widespread underlying cause of protests, while the second must be resolved if private capital is to heed the call of the Chinese government is encouraging to participate in  public-private partnerships, civil-military partnerships, and other uses of private capital to operate public services.  Article 11 of the Administrative Litigation Law permits aggrieved private parties to challenge a government failure to perform, or decision to terminate unilaterally or amend a government concession agreements, land or housing expropriation and compensation agreements. In an indication of the the problem, on 6 May the National Development and Reform Commission , which has recently issued regulations on infrastructure concessions, issued a notice to government officials with several warnings including a reminder that concession agreements in force even if a senior government leader changes.

The interpretation also clarifies that a court can hear related civil claims, such as breach of contract or tort claims.

Review of normative documents

Article 53 of the Administrative Litigation Law permits a court to review the legality of a normative document (规范性文件) (often called red titled documents (红头文件)) when reviewing the legal of an administrative act (Under the Legislation Law, these documents have an uncertain status).  The Administrative Litigation Law JI adds some further procedural detail and requires a judge that considers a document incompatible with law to set out his reasoning in his judgment and permits a judge to set out suggestions regarding the document to the issuing authority, its counterpart at the next higher level of government, as well as the people’s government at the same level).

Jurisdiction

The judicial interpretation does not address the the issue of hearing administrative cases outside the area in which the case arose.  Reform in this area is mentioned in the Administrative Litigation Law itself, and some pilot projects are now underway, (and it is one of the measures listed in the 4th Five Year Judicial Reform Plan Outline), but no consensus has yet been reached on a new approach.

Afterward

Administrative Litigation Law scholars who have spotted errors this blogpost should feel free to use the comment function!

The Supreme People’s Court Encourages the Masses to Leave the Streets and Go Into the Courtroom: week ending 27 December

In the last full week of the year, the Court called on the masses to “believe in law, not petitioning” (信法不信访). To that end, the Court leadership publicized on Wechat (and through the press and the national court website) two initiatives:

  • Focusing on enforcement of 10 types of disputes  affecting the livelihood of ordinary people (涉民生案件) that it identifies as most likely to cause social disturbances;
  • Its views on the draft Administrative Litigation Law (行政诉讼法), shortly before the National People’s Congress issued its draft for public consultation.

In a five month initiative launched by telephone conference (a form of communication often used by the Communist Party), the Court is focusing on the enforcement of judgments in the following areas:

  • unpaid wages(particularly owed to migrant workers);
  • support payments (to the elderly);
  • child support;
  • alimony;
  • compensation payments (to the disabled or families of the deceased)
  • medical malpractice compensation;
  • traffic accident compensation; and
  • industrial accidents.

The Court has called on the lower courts to:

  • select cases for enforcement;
  • devote resources to the campaign;
  • use its database of judgment debtors and work with the People’s Bank of China Credit Reference Center to identify assets, so outstanding judgments can be enforced.

The Court has issued similar notices in previous years prior to Chinese New Year.  Judgments in these types of cases are often difficult to enforce for a number of reasons:

  • with China’s legal aid system inadequate for societal needs, migrant workers and other ordinary people have problems navigating the court system;
  • the enforcement system, in particular, is difficult for individuals to navigate;
  • although work has been done by both the court system and the State Administration of Industry and Commerce, the smaller companies that are the judgment debtors in many of these cases are skillful at disappearing without a trace and disguising their assets;
  • these cases are generally not priority cases for the enforcement divisions of local courts.

The intention is to avoid the yearly phenomenon of migrant workers demonstrating in the run up to Chinese New Year because their company bosses have disappeared and absconded with their unpaid wages.

Provincial high courts are tweaking the focus of the enforcement campaign to suit their local circumstances. The Gansu Province Higher People’s Court, for example, is focusing on 1300 cases that date as far back as 2011 and is working with the provincial Political Legal Committee and Finance Department to allocate more funds for those in particular difficulty.  The persons affected are fortunate if their case makes it onto the list, because for migrant workers, traffic accident victims, disabled workers, and others affected, justice delayed is justice denied.

Court officials may also have some self-interest in having these cases resolved locally, because some, when talking privately, mentioned that petitioners frequently surround the front gate of the Court.

The other initiative publicized by the Court to encourage the masses to avoid social disturbances is several of its proposed amendments to the Administrative Litigation Law.  Admitting that administrative cases are difficult from beginning to end, the Court i to focus on several major issues related to the refusal of courts to take administrative cases:

  • expanding the type of cases that the courts may accept (including government agencies infringing on private rights to land and other natural resources);
  • permitting parties to file cases orally;
  • implementing stricter procedures for case acceptance;
  • imposing more liability on courts that refuse to take cases.

In its statement, the Court mentioned that many cases involving government action as ones that should be resolved through the courts rather than through public protests.  Because of the structure of the local courts, in particular local courts being funded by local governments, it is not in the interest of the local courts that these cases receive a hearing. The court reforms announced late last year may eventually improve matters.