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ABSTRACT
In China, it is difficult for an independent monitoring body to control administrative power. For power control mechanisms to work, the established power structure in China must be fully considered. The administrative reconsideration reform and non-lawsuit administrative execution reform, which have received much attention in China in recent years, show two different ways of thinking about power control. The dual-defendant system in the administrative reconsideration reform has a distinctly local character, whereas the non-lawsuit administrative execution reform tends to be more in line with the world’s mainstream model of independent judicial supervision. Comparing their results, the dual-defendant system has achieved an unexpected success, whereas the non-lawsuit administrative execution system has suffered setbacks. Summarising the successes and failures in practice revealed that the cross-control mode of administrative power embodied in the dual-defendant system in administrative reconsideration reform has cleverly configured the pressure of responsibility on different supervisory bodies, prompting each body to actively perform its supervisory duties. In contrast, the independent monitoring model emphasised in the non-lawsuit administrative execution reform neither strengthens the pressure of responsibility on monitoring entities nor brings actual benefits to them, so the reform is ultimately unsustainable. The conclusions of this comparison may provide lessons for similar institutional designs in China or other developing countries.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 David S. Rubenstein, ‘Relative Checks: Towards Optimal Control of Administrative Power’ (2010) 51 William and Mary Law Review 2169, 2174.
2 Shen Kui, ‘Administrative Self-Regulation and the Rule of Administrative Law in China’ (2018) 13 University of Pennsylvania Asian Law Review 1, 5.
3 See Caitlin E. Schultz, ‘Placing Power in the Cage of Law: Judicial Independence in China’ (2016) 44 Capital University Law Review 393, 421. Ji Li, ‘The Power Logic of Justice in China’ (2017) 65 American Journal of Comparative Law 95, 121.
4 Xin He, ‘The Politics of Courts in China’ (2017) 2 China Law and Society Review 129, 131.
5 Randall Peerenboom, ‘Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in the People’s Republic of China’ (2001) 19 Berkeley Journal of International Law 161, 214.
6 He Xin, ‘Ideology or Reality? Limited Judicial Independence in Contemporary Rural China’ (2004) 6 Australian Journal of Asian Law 213, 223.
7 See Ying Xing, ‘Petition Relief as a Special Administrative Relief’ (2004) 3 Faxue Yanjiu (Chinese Journal of Law) 58, 67.
8 The central ministry’s management includes oversight of its subordinate’s personnel, finance, and routine work.
9 Unlike federal countries such as the United States, China’s administrative agencies are usually under the dual leadership of the government at their level and their counterparts at a higher level. For example, a provincial public security department is under the dual leadership of the provincial government and the Ministry of Public Security, whereas a municipal public security bureau is under the dual leadership of the municipal government and the public security department of the province in which the city is located.
10 The reason why local governments are not active in the fight against counterfeit goods is that these goods are often produced by businesses that provide tax revenue for local governments.
11 See Guo wu yuan ban gong ting guan yu tiao zheng da zhong cheng shi gong shang xing zheng guan li de tong zhi (Notice of the General Office of the State Council on the Adjustment of the Administration System for Industry and Commerce in Large and Medium-Sized Cities) (23 May 1994).
12 See Du Wanping, ‘Reflections on the Implementation of Vertical Management in China’s Environmental Departments’ (2006) 3 Zhong guo xing zheng guan li (Chinese Public Administration) 99, 100.
13 See Chen Zewei, ‘A Cold View of Government Vertical Management’Liao wang xin wen zhou kan (Outlook Weekly)(Beijing, 13 December 2006) 30.
14 ‘Double defendant’ means the administrative reconsideration agency and the agency that performed the original action should act as codefendants when the original action is disputed in court, as described later in this paper.
15 The application made by the citizens here is similar to the lawsuit they filed in administrative litigation.
16 This refers to the department of the higher government that manages the same affairs. In China, there are roughly corresponding departments at each level of government, such as the Ministry of Education under the State Council, the Department of Education under the provincial government, and the Education Bureau under the municipal government.
17 This refers to the government at the same level. The government at this level has the authority to unify and manage its various departments.
18 Vertically managed agencies have a special nature. Because they are not under the authority of the local government in the horizontal dimension, only their vertical superiors have the power of reconsideration. For example, if a citizen is not satisfied with the decision of a municipal tax office that is subject to vertical management, they can only apply for reconsideration to the tax office of the province in which the municipality is located, not to the municipal government.
19 See Article 44 of the ALL of the People’s Republic of China.
20 He Haibo, Administrative Litigation Law (China Law Press 2016) 27.
21 In Chinese, this term is identical to the Peace Preservation Association, which was a local puppet organization during the War of Resistance Against Japanese Aggression (1937–1945).
22 The ineffectiveness of administrative reconsideration has led many citizens to abandon this remedy and opt for administrative litigation or the petition route. Some scholars argue that the judiciary and petition department have misplaced their roles and have taken on responsibilities that should not be theirs. See Zhou Hanhua, ‘Judicial Reform of China’s Administrative Reconsideration System’ (2004) 2 Faxue Yanjiu (Chinese Journal of Law) 146, 146–147.
23 Quan guo ren da chang wei hui guan yu jian cha zhong hua ren min gong he guo xing zheng fu yi fa shi shi qing kuang de bao gao (Report of the Standing Committee of the National People's Congress on the Inspection of the Implementation of the Administrative Reconsideration Law of People's Republic of China). This report was released at the sixth meeting of the Standing Committee of the 12th National People’s Congress on 23 December 2013.
24 Ibid.
25 Ibid.
26 Section 25 of the ALL.
27 Ibid.
28 See Zhan Zhongle, ‘On Some Issues of the Revision of China’s Administrative Reconsideration Law’ (2013) 1 Xing zheng fa xue yan jiu (Administrative Law Review) 31, 36. Qing Feng and Zhang Shuihai, ‘Reflection on the Issue of Administrative Review Agencies as Defendants in Administrative Litigation’ (2013) 1 Xing zheng fa xue yan jiu (Administrative Law Review) 9, 10. Wang Qingbin, ‘On the Perfection of China’s Administrative Reconsideration Committee System’ (2013) 2 Xing zheng fa xue yan jiu (Administrative Law Review) 15,19. Jiang Ming’an, ‘On Some Institutional Innovations of the New Administrative Litigation Law’ (2015) 4 Xing zheng fa xue yan jiu (Administrative Law Review) 12, 18.
29 See Article 26 of the ALL (2014).
30 See Shen Fujun, ‘Review of the Co-Defendant System of Reconsideration Agencies’ (2016) 6 Fa Xue (Legal Science) 108, 109. Zhang Xiaoqing and Zhang Bo, ‘On the Improvement of the New Administrative Litigation Law and the Response of Administrative Reconsideration Agencies’ (2016) 6 Xue Shu Jiao Liu(Academic Exchange) 117, 117–118.
73 All data herein are from the Ministry of Justice of the People’s Republic of China.
31 Zhu Xiaofeng, ‘Local Practice and Legislative Suggestions on the Reform of Administrative Reconsideration System: Based on the Impact of the Modification of Administrative Litigation Law on Administrative Reconsideration System’ (2016) 5 Xing zheng fa xue yan jiu (Administrative Law Review) 63, 65.
32 Based on the wishes of the respondents, the agencies to which they belonged are not disclosed.
33 For example, in a small seminar held at China University of Political Science and Law in 2019, competent officials from the Ministry of Justice expressed doubts about the dual-defendant system based on cost concerns. ‘Where does the "dual defendant" system of administrative reconsideration lead?’(Institute of Rule of Law of CUPL, 11 May 2019) http://fzzfyjy.cupl.edu.cn/info/1223/10463.htm accessed 12 July 2022.
34 This is based on interviews conducted by the author of this article in an informal setting. Usually, few people in formal research settings will tell the truth, and knowledge of the real situation often requires recourse to informal settings, such as dinner parties.
35 For example, in a public report, representatives of Fushun County in Liaoning Province stated that the work of building a law-based government would be incorporated into performance management and assessed at the end of the year. The result of the assessment should be linked to performance bonuses.Li Ping, ‘Fushun County People's Government's Report on the Construction of Rule of Law Government in 2019’ (Fushun County People’s Government, 1 July 2020) http://lnfsx.gov.cn/ins.asp?s=18&i=9430 accessed 13 July 2022.
36 See Xu Yunkai, ‘On the Functional Positioning of Administrative Reconsideration in the New Era and Its Evaluation System’ (2019) 6 Xing zheng fa xue yan jiu (Administrative Law Review) 26, 29. Zhao Deguan, ‘The Positioning and Prospects of the Administrative Reconsideration System in the New Era’ (2019) 5 Xing zheng fa xue yan jiu (Administrative Law Review) 75, 77.
37 Fang Jun, ‘On the Definition of the Nature and Function of Administrative Reconsideration: The Change of the Legislative Purpose of Administrative Reconsideration in China’ (2020) 6 He nan cai jing zheng fa da xue xue bao (Journal of Henan University of Economics and Law) 10, 16.
38 See Jin Guokun, ‘Administrative Reconsideration Committee: A Breakthrough in the Administrative Reconsideration Dilemma’ (2009) 6 Guo jia xing zheng xue yuan xue bao (Journal of the Chinese Academy of Governance) 24, 24–25.
39 See Yu Qi, ‘Examination of the Effectiveness of the System of Review Organs as Co-Defendants’ (2018) 6 Zhong guo fa xue (China Legal Science) 194, 212.
40 In China, the judicial administrative agencies, which are responsible for legal affairs, have more limited social management powers and therefore, are considered weak.
41 These are usually housing demolition and land acquisition cases related to local governments’ vital interests.
42 See the court representative’s speech at a seminar on the revision of the ARL. ‘Seminar on "Amendments to the Administrative Reconsideration Law" was successfully held in Beijing’ (Institute of Rule of Law of CUPL, 29 April 2022) http://fzzfyjy.cupl.edu.cn/info/1021/14044.htm accessed 12 July 2022.
43 See Pan Qiao ‘Double Defendant System Leads to Hot Debate’ Min zhu yu fa zhi shi bao (The Democracy and Legal Times) (Beijing 12 December 2020) 3.
44 This is based on statements made by officials of the NPCSC’s Legislative Affairs Committee on a nonpublic occasion. Although there were no further official reports on the direction of the ARL as of this writing, this information is highly credible in light of Chinese political practice.
45 In China’s ALL promulgated in 1989, the execution system is stipulated in Article 66: ‘If a citizen, legal person or other organization does not file a lawsuit against a specific administrative act within the legal period and does not perform the duty, the administrative agency may apply to the people’s court to execute it, or execute it in accordance with the law directly.’
46 See Article 13 of the Administrative Coercion Law of the People’s Republic of China.
47 See Sun changluan, ‘Chengdu Demolition and Self-immolation Case: the Deceased's Desire to Live is Strong and Her Ex-husband Denies Illegal Construction’ (SOHU, 6 December 2009) http://news.sohu.com/20091206/n268711514.shtml accessed 14 June 2022.
48 See ‘Media details self-immolation incident in Yixuan, Jiangxi’ (SINA, 1 October 2010) https://news.sina.com.cn/c/sd/2010-10-01/232721209417.shtml accessed 14 June 2022.
49 Tang Yingjie, ‘Can Judicially Enforced Demolition Get Out of the Expropriation Dilemma?’ (2016) 6 Fa Xue (Legal Science) 66, 70.
50 Ibid 72.
51 Li Canyuan, ‘Thoughts on the Difficulty of Enforcement in Administrative Non-Lawsuit Execution eCases’ (Chinacourt,11 October 2014) http://hnyyzy.chinacourt.gov.cn/article/detail/2014/10/id/1468920.shtml accessed 16 June 2022.
52 See Yang Jianshun, ‘Judicial Adjudication, Separation of Adjudication and Compensation for Expropriation: A Discussion of the Power Game of the Regulations on the Expropriation and Compensation of Houses on State-Owned Land’ (2011) 6 Fa lv shi yong (Journal of Law Application) 14, 23. Wang Huawei, ‘The Reform of the Non-Lawsuit Administrative Execution System: The Separation of Ruling and Execution Model as a Path’ (2014) 9 Zheng zhi yu fa lv (Political Science and Law) 102, 105.
53 The subtext is that the court's decision should not lead to any violence.
54 Urgent Notice of the Supreme People’s Court on Resolutely Preventing Vicious Incidents Caused by the Execution of Land Acquisition and Housing Demolition Decisions (issued by the SPC on September 9 2020).
55 Guan yu ban li shen qing ren min fa yuan qiang zhi zhi xing guo you tu di shang fang wu zheng shou bu chang jue ding an jian ruo gan wen ti de gui ding.
56 Tang Yingjie, ‘Can Judicially Enforced Demolition Get Out of the Expropriation Dilemma?’ (2016) 6 Fa Xue (Legal Science) 66, 74.
57 See Report on the Review of Administrative Non-Lawsuit Execution Cases in Shanghai Yangpu District Court for 2019-2020, Report on Administrative Litigation in Guangdong Province for 2020, and Report on Judicial Review of Administrative Cases in Nanyang City Court, Henan Province for 2019.
58 Chen Junliang, ‘Study on the Non-Lawsuit Administrative Execution’ (The People’s Court of Wanyuan County, 10 February 2021) http://dzwyfy.chinacourt.gov.cn/article/detail/2021/02/id/5809645.shtml accessed 16 June 2022.
59 For example, the administrative authorities in Xinghua City, Jiangsu Province, through the Chinese People's Political Consultative Conference (CPPCC) members, have submitted their opinions to the courts in local CPPCC meetings, asking them to improve the efficiency of administrative enforcement. See Xinghua CPPCC Proposal (2020) No. 364.
60 See Eric C. Ip, ‘Judicial Review in China: A Positive Political Economy Analysis’ (2012) 8 Review of Law and Economics 331, 333.
61 In a city, the head of the public security department usually also serves as deputy mayor, which reflects a higher political status.
62 Ying Xing, ‘Petition Relief as a Special Administrative Relief’ (2004) 3 Faxue Yanjiu (Chinese Journal of Law) 58.
63 See Xiang Miao and Yu Jianxing, ‘How Does Justice Influence the Policy Process? Based on a Comparative Analysis of Cases at the Centre of Local Governments’ (2022) 2 Gong gong xing zheng ping lun (Journal of Public Administration) 78, 82–88.
64 According to China’s ALL and Supervision Law, courts and supervisory commissions do not have the power to declare laws, rules, and regulations invalid.
65 See Shen Kui, ‘A New Path to Solve the Troubled Administrative Approval Reform’ (2014) 2 Faxue Yanjiu (Chinese Journal of Law) 20, 21–23.
66 This occurs under the requirement of the construction of a law-based government.
67 This was also introduced in the 2014 amendments to the ALL (see Article 24[4]).
68 Some studies in China have shown that officials often behave in a responsibility-averse manner. See Wen Hong, ‘Analysis and Countermeasures of Local Government’s Responsibility Avoidance Behaviour in the Management of Emergencies’ (2013) 6 Zheng zhi xue yan jiu (Cass Journal of Political Science) 52, 53. Fang Fujian, ‘Study of Responsibility Avoidance Under Accountability’ (2014) 5 Guang dong xing zheng xue yuan xue bao (Journal of Guangdong College of Administration) 11, 12–15.
69 ‘Institutional interest' is defined as the interest of the judicial institution. See Ji Li, ‘The Power Logic of Justice in China’ (2017) 65 American Journal of Comparative Law 95, 121.
70 As mentioned, the failure of the judicial and administrative authorities to abolish the dual-defendant system by amending the ARL was due to the fact that the proposed amendment conflicted with the existing ALL, and the legislature preferred to keep the existing system stable and required the reconsideration authorities to accept the current institutional arrangement.
71 See Kong Xiangstean, Wang Ding, and Yu Jiming, ‘Research Report on the Pilot Work of Administrative Public Interest Litigation by Procuratorial Organs’ (2017) 5 Xing zheng fa xue yan jiu (Administrative Law Review) 87, 88–90.
72 The Chinese legislature is better understood, from a practical point of view, as a professional body responsible for legislation.