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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
by HAN Jian and WEN Yanhua
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In China, the system of administrative remedies mainly consists of three mechanisms: administrative reconsideration,1 administrative litigation,2 and administrative compensation.3
Citizens,4 legal persons and other organizations may seek administrative remedies if they consider their rights and interests to have been violated by the act of an administrative body in China.
Foreign nationals, foreign enterprises and foreign organizations have the same rights and obligations as Chinese citizens, enterprises and organizations in any proceedings in pursuit of administrative remedies in China;5 nevertheless the principle of reciprocity applies in administrative proceedings, so that China will not recognize rights of a foreigner, a foreign enterprise or a foreign organization broader than the protection given its citizens, legal persons or other organizations to resort to administrative remedies by their State of origin.6
Citizens, legal persons and other organizations enjoy reciprocal rights and obligations in relation with the executive branch of government and the agencies through which it carries out administrative acts.
Parties harmed by an unlawful act undertaken on behalf of an administrative agency may claim administrative remedies.
Administrative agencies refer to those exercising administrative functions and powers, that assume independently liabilities arising from the exercise of their administrative functions and powers and that enjoy rights and bear obligations toward parties affected by their acts.7
The definition of an administrative agent includes not only administrative agencies of the State but also the bodies or organizations to which are attributed administrative functions and powers by law or by decisions of administrative organs.
1.1.1. Administrative organs
Administrative organs are established in accordance with the constitution and organic laws. Administrative organs include the State Council (i.e. the cabinet of the central government), the ministries,8 committees9 and agencies10 under the State Council, the local governments at various levels,11 the departments under local governments,12 and the detached organs of local governments.13
Administrative organs are the principal administrative agents. Administrative remedies of all types are usually sought against administrative organs.
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1.1.2. Other bodies or organizations authorized by laws or mandated by administrative organs
In accordance with laws or regulations, some bodies or organizations, that are not administrative organs, may undertake administrative acts within the scope of their authorizations, for example, the police, the Trademark Review Board, the China Securities Regulatory Commission and their subsidiary institutions.
An administrative organ may entrust bodies or organizations to exercise certain administrative functions and powers. The mandated body or organization then undertakes administrative acts in the name of the mandating organ.
Administrative acts may be divided into specific and abstract acts. The distinction is significant in ascertaining the availability of remedies and their scope.
China’s existing laws and regulations contain no definitions of specific and abstract administrative acts.
1.2.1. Specific administrative acts
In its Trial Opinions on Several Matters concerning the Implementation of the Administrative Legislation Law of 1991, the Supreme People’s Court (SPC) defined in article 1 specific administrative acts as unilateral acts directed at a particular citizen, legal person or organization concerning their rights and obligations carried out by administrative organs of the State, their officers, by organizations authorized by laws and regulations, or organizations or individuals authorized by administrative organs when acting in the exercise of their administrative functions in the management of a particular matter.
But this document was repealed and replaced in 2000 by the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law, in which there is no definition of specific administrative act.
Scholars in China provide explanations of specific administrative acts in their works. For instance, they are defined as:
“Lawful acts carried out by administrative organs in the course of exercising administrative functions and powers, which concern specific matters and affect the rights or obligations of citizens, legal persons or organizations.”14
Others define specific administrative acts as “measures undertaken in conformity with legally binding administrative norms and rules by administrative agents aimed at a particular matter or person.”15 [Page1054:]
One of the purposes of enacting the Administrative Reconsideration Law was to clarify the meaning of “illegal or improper specific administrative acts”. Accordingly, to qualify under the Law, claimants must invoke the infringement of lawful rights and interests by a specific administrative act.16 The Administrative Procedure Law provides that:
If citizens, legal persons or any other organizations consider that their lawful rights and interests have been infringed upon by a specific administrative act of an administrative organ or its personnel, they shall have the right to bring a suit before a people’s court in accordance with this Law.17
Although the term “specific administrative act” is not used in the State Compensation Law, its provisions obviously apply only to specific acts because it requires that the litigious administrative acts have been carried out by administrative organs “in the exercise of their administrative functions and powers” and that they infringe upon personal rights of citizens or upon property rights. The types of acts that may ground personal claims are set down as follows:
Claims involving property rights may be based on any of the following administrative acts:
Accordingly I n Chinese law, and except in special circumstances stipulated by law, the administrative acts that can give rise to administrative remedies must be of the specific nature stipulated above.
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Concretely, specific administrative acts include:
1.2.2. Abstract administrative acts
The Administrative Procedure Law stipulates that disputes over abstract administrative acts are outside the scope of application of administrative remedies, while the Administrative Reconsideration Law provides that an applicant may only petition for review of abstract acts in connection with an application for administrative reconsideration of a specific administrative act. The people’s courts may not accept cases brought to challenge administrative regulations, rules, decisions or orders of general application.20
Abstract administrative acts refer to norms promulgated by administrative organs for repeated application in individual cases. They are characterized by their universal binding force, their continuous effect and their repeated applications.
In practice, abstract administrative acts include administrative regulations,21 rules,22 local rules,23 and other decisions or orders enacted and promulgated by administrative organs.
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Not all normative documents may ground applications for administrative review. According to the Administrative Reconsideration Law, only measures of the departments under the State Council, those of local governments at or above the county level and of their departments, and those of the governments of towns or townships, which are the basis of a specific administrative act, may support applications for administrative review in connection with an application for reconsideration of specific acts considered to be illegal.24 Rules of the departments and commissions under the State Council, and of the local people’s government are subject to other laws and administrative regulations.25
1.2.3. Options with respect to administrative remedies
Administrative reconsideration and administrative litigation are separate remedies and they may not be claimed simultaneously.26 Compensation may be claimed either solely or in connection with applications for administrative reconsideration or administrative lawsuits.
Both the legality and appropriateness of any specific administrative act may be submitted for administrative reconsideration while administrative litigation is confined to issues of legality.
In certain particular circumstances, claimants must first apply for administrative reconsideration and only after that decision is rendered may an administrative suit be brought before a people’s court,27 unless the law provides that the reconsideration decision is final.28
Where an application for administrative reconsideration is not a prerequisite to bringing an administrative suit, a claimant in an administrative dispute may petition either the people’s court or the administrative reconsideration organ.
If a claimant first files for administrative reconsideration, then brings an administrative suit in the people’s courts during the prescribed reconsideration period without withdrawing the application for reconsideration, the people’s court will dismiss the case.29
An application for administrative reconsideration will be turned down if it is submitted to an administrative reconsideration organ after a people’s court has accepted a case regarding the same dispute.30
Unless otherwise provided by law, claimants that are not satisfied with an administrative reconsideration decision may bring a suit before the people’s courts.
Cases concerning the ownership of, and rights to use, natural resources31 and the levying of charges 32 must first be submitted for administrative reconsideration. In these cases, if the administrative reconsideration organ refuses to accept the application or fails to make a decision within the prescribed time limit, the claimant may bring a suit before the people’s courts upon receipt of a written decision or within 15 days after expiration of the time limit for administrative reconsideration.33
Claimants of administrative compensation must first seek satisfaction from the organ allegedly liable, and then they may claim compensation in conjunction with applications for administrative reconsideration or in connection with administrative lawsuits.34
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The modern system of administrative reconsideration in China was established in 1991 with the adoption of the Regulations on Administrative Reconsideration issued by the State Council.35 In 1999, the Standing Committee of the NPC adopted and promulgated the current Administrative Reconsideration Law governing the procedure of administrative reconsideration in general.36
Where the lawful rights and interests of citizens, legal persons and other organizations, whether Chinese or foreign, are violated by a specific administrative act in China, they may apply for administrative reconsideration in accordance with the Administrative Reconsideration Law.
There are no charges for filing applications.
The costs of administrative reconsideration proceedings are included in the government’s budget.37
The concept of an administrative reconsideration organ is different from that of an administrative office for reconsideration.
An “administrative reconsideration organ” is an administrative organ that accepts applications for reconsideration and conducts reviews of specific administrative acts according to law and renders a decision. They are set up inside administrative organs and conduct their affairs under their aegis.38
Administrative offices for reconsideration are not administrative bodies.39 Examples of such offices are the Patent Re-examination Board and the Trademark Review and Adjudication Board.
2.2.1. Types
Administrative organs for reconsideration fall into the following categories.
The first category includes people’s governments, comprising all local governments, except for governments at the level of townships and towns, that undertake administrative reconsideration. The central government (State Council) generally would not undertake reconsideration as a matter of course, but might be called upon to reconsider decisions of its subordinate departments or of governments at the province level.
In the second category are the departments of people’s governments at all levels. Administrative departments at higher levels supervise administrative acts carried out by lower levels, and have the power to reconsider specific administrative acts carried out at lower levels.
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Finally, some administrative organs are managed from the centre down to local levels, for example, the administrative organs for finance, customs, foreign exchange control, national taxation and the State security organs.
In such management systems, only the administrative organ at the next level up may reconsider specific administrative acts.
The administrative offices for reconsideration are divided into three types:
government offices in the same activity at the next level up, for example, the legal offices of the governments at the provincial and municipal levels may reconsider decisions of the legal sections of the governments at the district level;40
2.2.2. Duties
Administrative reconsideration organs are responsible for correcting all errors so as to ensure that administrative organs implement accurately the laws and regulations, and abide by the principles of lawfulness, fairness, openness, timeliness, and convenience.41 Administrative offices for reconsideration handle day-to-day matters on behalf of administrative reconsideration organs. They perform the following duties:
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Article 12 (1) of the Administrative Reconsideration Law stipulates that:
An applicant, who refuses to accept a specific administrative act of the departments under local people’s governments at or above the county level may apply for administrative reconsideration to the people’s government at the same level; an applicant may also apply for administrative reconsideration to the competent authority at the next higher level.
According to the Administrative Reconsideration Law, jurisdiction over administrative reconsiderations is allocated as follows:
Applicants may also file for administrative reconsideration to the local people’s government at the county level in the locality where the specific administrative act occurred, which, within seven days from the day of receipt, transfers the application to the competent administrative reconsideration organ and informs the applicant thereof.52
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As to a specific administrative act of a department under the State Council, or of a people’s government of a province, autonomous region, or municipality directly under the central government, an applicant files for administrative reconsideration with the department or government that undertook the specific act.53 Where the applicant disagrees with the administrative reconsideration decision, it may apply to the State Council for a final ruling or bring a suit before the people’s courts.54
2.4.1. Admissibility for administrative reconsideration
In general, administrative reconsideration organs accept applications that challenge the legality or appropriateness of a specific administrative act.
A citizen, a legal person or any other organization may submit an application for administrative reconsideration with respect to the following specific administrative acts:55
Challenges to the legality of abstract administrative acts on the basis of which a specific administrative act was undertaken must be presented along with the application for administrative reconsideration.56
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2.4.2. Inadmissibility for administrative reconsideration
Not all disputes arising from the acts of administrative organs are submitted to administrative reconsideration. Disputes that are only partially administrative should be resolved through other means.
Disputes accepted by arbitration tribunals or by the people’s courts remain civil disputes.
Civil claims of administrative organs are submitted to arbitration if there is an agreement to this effect or they are brought before the people’s courts, but they may not be submitted for administrative reconsideration.57
In mediation, administrative organs help parties to reach an agreement through persuasion and education, and these efforts do not give rise to administrative acts subject to reconsideration.58
A review of China’s legislation reveals that only a few administrative organs have the power to adjudicate civil disputes, such as in the fields of environmental protection and patent infringement.59
Disputes arising from “administrative sanctions or any other personnel measures carried out by an administrative organ” may not be submitted for administrative reconsideration.60 In this context, “administrative sanction” refers to disciplinary measures adopted by administrative organs against civil servants who violate the law or disciplinary rules; and “any other personnel disposition” refers to specific decisions with respect to civil servants,61 except administrative sanctions adopted by administrative organs for their internal personnel management. Dissatisfied personnel cannot apply for administrative reconsideration but may file appeals in accordance with the applicable laws and administrative regulations.62
2.5.1. Applicants
Applicants for administrative reconsideration are usually citizens, legal persons or other organizations that consider that their lawful rights and interests have been violated by a specific administrative act.
Administrative reconsideration may be pursued on behalf of deceased parties by their near relatives.63 Where parties have limited or no capacity for civil conduct, their legal representatives may apply for administrative reconsideration on their behalf.64
Where a legal person or any other organization that has the right to apply for administrative reconsideration terminates, the successor to its rights may apply for administrative reconsideration.65
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2.5.2. Respondents
Respondents in administrative reconsideration include those administrative organs and other bodies or organizations authorized by laws or mandated by administrative organs that undertook the contested administrative acts.66
2.5.3. Third parties
Any citizen, legal person or other organization that has an interest in a specific administrative act against which an application for administrative reconsideration has been filed may request to join the proceedings as third party.67
Both the applicant and the third party are entitled to appoint agents to participate in administrative reconsideration proceedings.68
The principle of “no trial without complaint” is followed in administrative reconsideration proceedings. Parties subject to administrative acts, and who consider their rights and interests to have been infringed by specific administrative acts, may apply for administrative reconsideration. Solicited administrative reconsideration organs should accept applications that are in conformity with the requirements of admissibility.
In cases of administrative reconsideration, both the deadlines and the conditions of service of administrative reconsideration documents are governed by the relevant stipulations of the Civil Procedure Law. In calculating deadlines under the Administrative Reconsideration Law, “day” refers to working days when the number of days in question is five or seven,69 but otherwise the word means calendar day.
2.6.1. Applications for administrative reconsideration
2.6.1.1. Limitation period for filing applications
Except where the law stipulates otherwise, or in the event of force majeure or other special circumstances, the time limit within which an application for administrative reconsideration must be filed with a competent organ is 60 days from the day when the applicant received notice of the challenged specific administrative act.70
2.6.1.2. Forms of application
Applications for administrative reconsideration may be presented orally or in writing, which is the most common manner of filing. To file an oral application, applicants must present themselves in person. Applications may not be filed by telephone. Administrative reconsideration organs record oral applications on the spot and request that the applicants sign, seal or put their fingerprints on the written records.
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2.6.1.3. Contents of applications
Applications for reconsideration include basic information about the applicant, information about the respondent,71 the specific claim to be reconsidered, the main facts and reasons for reconsideration, and any other relevant material.
Claims must be specific, and the amounts of compensation sought should be clearly stated. Applicants may not confine their statements to expressions of dissatisfaction or accusations of violations of law, but must specify requests or amounts of compensation claimed. The recital of the facts and the statement of the claims include the time and content of the challenged specific administrative act and the cause on which the claim is grounded.
2.6.1.4. Acceptance of applications
After receiving an application for administrative reconsideration, the administrative reconsideration organ first reviews whether the application meets the legal conditions for admissibility and whether other recourses that exclude administrative reconsideration have been started.
If any administrative reconsideration organ accepts an application, no other such organ may accept the same case. Several administrative laws or regulations provide that applicants must choose between litigation and administrative reconsideration for resolving administrative disputes, and consequently administrative reconsideration organs operating under such laws should not accept applications concerning disputes that have already been brought before a people’s court.
If an application is not conform with the admissibility requirements, the administrative reconsideration organ should send a written notice of dismissal to the applicant within five working days after receiving the application.72 If an application complies with the legal requirements, except that it does not fall within the jurisdiction of the administrative reconsideration organ seized of the matter, the organ informs the applicant where to apply.73
If the applicant considers that the rejection is not proper, an appeal may be brought before an administrative organ at the next higher level, which may reverse the rejection and send the case back to the administrative reconsideration organ originally seized of the matter for a decision, or it may itself decide the matter.74
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2.6.2. Examination of applications for administrative reconsideration
During the period of administrative reconsideration, the execution of the specific administrative act is not suspended unless one of the following circumstances occurs:75
Within seven days from acceptance of an application, the administrative reconsideration organ sends a duplicate to the respondent. The latter must reply in writing within ten days from the date of receipt, and provide the evidence, grounds, and other relevant documents, based on which the specific administrative act was carried out.76
The applicant and the third party are entitled to consult all the materials submitted by the respondent except for those involving State secrets, business secrets, or the private affairs of individuals.77
The administrative reconsideration organ, in principle, examines applications on the basis of documents. At the request of the applicant, or where the administrative reconsideration organ considers it necessary, investigations of the facts are conducted and hearings are held.78
In administrative reconsideration proceedings, the respondent is forbidden to collect evidence directly from the applicant or any other organizations or individuals concerned.79
At any time before a decision of administrative reconsideration is rendered, the applicant may withdraw its request by notice containing its reasons, whereupon the reconsideration proceedings are terminated.80
Where applications for reconsideration involve reviews of abstract acts listed in the Administrative Reconsideration Law, the examination of challenged specific administrative acts will be suspended until the challenge to the abstract provisions is settled.81 In such events, administrative reconsideration organs must render their decisions within 30 days. If the solicited administrative reconsideration organ does not have the authority to review the disputed provisions, the case is transferred within seven days to a competent administrative organ. The latter is obliged to render a decision within 60 days.82
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Where an administrative reconsideration organ considers that the abstract provisions on which the challenged specific administrative act was carried out are illegal, the reconsideration is suspended until the debate about the abstract provisions is settled.83 In such cases, the administrative reconsideration organ with authority must review the disputed provisions within 30 days. Where an administrative reconsideration organ seized of a dispute has no authority to review the disputed abstract provisions, it must transfer the case to the duly authorized State organ within seven days.84
2.6.3. Burden of proof
The Administrative Reconsideration Law provides that the respondent to the application must reply in writing within ten days from receipt of the duplicate of the application form or the copy of the transcript of acceptance, and must indicate the evidence and the grounds for its decision and communicate any relevant documents lest the specific administrative act be considered to be unfounded and therefore quashed.
As regards the burden of proof borne by the applicant, there is no clear stipulation provided in the Administrative Reconsideration Law. In practice, it does seem incumbent upon the applicant to present evidence in relation to the case. Were it only to make a favourable impression in the proceedings, it behooves applicants actively to collect relevant evidence to present to the administrative reconsideration organ.
2.6.4. Decisions on administrative reconsideration
After examining the application, and the reply of the administrative office that carried out the contested administrative act, the administrative reconsideration organ renders a decision.
2.6.4.1. Types of decision
After examination, if the administrative reconsideration organ concludes that:
it renders a decision sustaining the challenged specific administrative act.85
Where the respondent is found to have failed to perform its statutory duties, it will be required to accomplish them within a fixed time.86
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If a specific administrative act is vitiated by the ambiguity of the essential facts, by the inadequacy of the evidence, by erroneous application of the law, by violations of legal procedures, by excesses of authority or abuses of powers, or where it is manifestly inappropriate, the disputed act is declared to be illegal, is modified or quashed and the administrative organ may be ordered to undertake certain acts within a specified time.87
Where the respondent fails to answer in writing, or fails to provide evidence, arguments and other relevant materials, the challenged specific administrative act will be deemed to be unsubstantiated and will be quashed.88
Where an administrative reconsideration organ considers a specific administrative act to be illegal or inappropriate, it may alter the challenged act to redress the error. There are two preconditions for such a decision. First, the facts must be so clear and the evidence so conclusive that no investigation is necessary. Second, the challenged administrative act’s inappropriate content must be alterable without cancelling the act as a whole.89 Decisions by administrative reconsideration organs to alter a specific administrative act represent new specific administrative acts that replace the challenged acts. This new decision may in fact satisfy both parties.
Generally, if the specific administrative act is altered, or is confirmed as illegal, the respondent is ordered to undertake a specific administrative act within a fixed time and it may not, based on the same facts and grounds, reiterate the original decision.90
Where illegal specific administrative acts have caused irreparable harm such that their mere cancellation might be futile, the administrative reconsideration organ may make a finding of infringement of the rights and interests of the applicant due to the illegal exercise of administrative authority, which may then serve as a basis for the applicant to require administrative compensation.91
An applicant may join a request for compensation with the application for administrative reconsideration. Where damages are due in accordance with the State Compensation Law, the administrative reconsideration organ, simultaneously with its decision to annul or to alter the specific administrative act or to declare illegal the specific administrative act, orders the respondent to pay damages according to the law.92
When specific administrative acts relating to money or property, such as those imposing fines, raising funds, confiscating property, charging levies against property, apportioning charges, and those entailing the sealing up, seizing, or freezing of property, are declared illegal and are annulled or altered, the administrative reconsideration organ orders the respondents to return the property, to lift the measures for its sealing, seizure, or freezing, and to pay compensation.93
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2.6.4.2. Time limits for rendering decisions
Except where the law provides otherwise, administrative reconsideration decisions must be rendered in writing within 60 days from the day of acceptance of the application.94
Where an administrative reconsideration organ fails to make a decision within the statutory time limit because of the matter’s complexity, the authority hierarchically above the administrative reconsideration organ may approve a thirty-day extension of the deadline, of which notice must be given to the applicant and to the respondent.95
If the administrative reconsideration organ fails to make a decision prior to the expiration of the statutory time limit, the applicant may bring a suit before the people’s courts within 15 days from the expiration of the time limit.96
2.6.4.3. Validity and execution of reconsideration decisions
Decisions of administrative reconsideration organs must be given legal effect and must be strictly implemented by applicants, respondents and third parties.
Once the written decision on administrative reconsideration is served, it is legally effective.97
Applicants may not petition for fresh administrative reconsideration on the same matter.
Applicants dissatisfied with the administrative reconsideration decision may bring an administrative suit before the people’s courts within 15 days from receipt of the decision.98
Where an applicant neither executes a decision of administrative reconsideration, nor brings a suit against it before the expiration of the statutory time limit, and where the administrative reconsideration decision is final, administrative organs may enforce their decisions or may apply to the people’s courts for compulsory execution measures.99
Once the decision is served upon the respondent, it is obligated to implement its provisions. If the respondent fails without sufficient cause to do so, the administrative reconsideration organ or any competent administrative organ at the next higher level may order it to perform the decision within a fixed time.100
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The principal legislation with respect to administrative litigation in China is the Administrative Procedure Law of 1990, which is supplemented by the Provisions of the SPC on Several Problems concerning the Trial of Administrative Compensation Cases of 1997, the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law of 2000 and the Rules of the SPC on Several Problems concerning Evidence in Administrative Litigation of 2002. Moreover, the people’s courts may also refer to the relevant provisions of the civil procedure law.101
The people’s courts, in accordance with the law, independently exercise their power to adjudicate administrative cases, and they are expected to disregard any interference by administrative organs, by public organizations or by individuals.
The people’s courts establish administrative divisions for handling administrative cases.102
The parties to an administrative suit have equal legal positions and equal rights in the debates.103
In administrative proceedings, the people’s courts sit in panels, they hold trials that are open to the public and they apply the rule of a single appeal.
The procedures for revising administrative judgments are similar to those applied in civil litigation.
Based on the facts and the law, the people’s courts determine the legality of specific administrative acts.104 Except for special circumstances, such as when an administrative sanction is “manifestly unfair”,105 the people’s courts do not examine abstract administrative acts, or their appropriateness, both of which are the domain of administrative reconsideration organs.
To qualify as admissible before the people’s courts, suits under the Administrative Procedure Law must concern:106
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Apart from such cases, the people’s courts may also accept other administrative suits when expressly provided by other laws and regulations.
In accordance with the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law, in addition to claims for administrative compensation, the people’s courts may accept suits for administrative compensation brought by claimants not satisfied with administrative reconsideration decisions.107
The following matters are explicitly excluded from the scope of administrative litigation, both by the Administrative Procedure Law and by the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law:108
The administrative divisions established at various levels of the people’s courts conduct the trials of administrative law cases.110
With respect to any administrative case, the determination of jurisdiction of first instance depends on the application of hierarchical and territorial criteria.
3.3.1. Hierarchical jurisdiction
The basic people’s courts have jurisdiction as the courts of first instance over administrative cases unless other provisions are stipulated by law.111
The basic people’s courts are the judicial apparatus at the lowest level and they are established in every district of China. In most cases, the locality of the basic court is not only the place where both plaintiff and defendant are located, but also the place where the disputed administrative act is carried out. The basic courts’ exercise of jurisdiction of first instance makes the parties’ participation in administrative litigation more convenient and economical and thus favours the early resolution of disputes.
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The intermediate court has jurisdiction as court of first instance over:
“Serious and complex cases” refer to those in which the defendant is the government at the level of the county or higher, to those in which the basic court is not suited to conduct the trial, those involving multiple or class actions that have serious social consequences, serious cases involving foreign interests or those involving the Hong Kong SAR, the Macao SAR or the Taiwan district, and other cases considered by the people’s courts to be serious or complicated.113
The high people’s courts serve as courts of first instance over serious and complicated administrative cases in the areas within their jurisdiction,114 that is those within the scope of a province, autonomous region or municipality under direct central administration, when the circumstances are complex, the coverage of the case is widespread or its consequences are significant. In practice, the high people’s courts accept few administrative cases on first instance.115
The SPC only exercises its jurisdiction as court of first instance over the most serious and complex cases which mainly include cases having a major influence on the whole country and foreign-related administrative cases having major international implications.
3.3.2. Territorial jurisdiction
Territorial jurisdiction circumscribes how courts at the same level apportion cases among themselves.
Territorial jurisdiction is divided into general territorial jurisdiction and special territorial jurisdiction.
3.3.2.1. General territorial jurisdiction
The location of the administrative body source of the challenged act is one criterion for determining the jurisdiction of the people’s courts over cases of first instance. Jurisdiction over administrative cases is invested in the people’s courts in the locality of the administrative organ that initially carried out the specific administrative act. However, for cases in which an administrative reconsideration organ has made an alteration to the original specific administrative act, jurisdiction may also be exercised by the people’s court in the locality of the administrative reconsideration organ.116
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Alterations to original administrative specific acts cover the following circumstances:
3.3.2.2. Special territorial jurisdiction
Special territorial jurisdiction consists of exclusive jurisdiction and concurrent jurisdiction.
The application of exclusive jurisdiction is limited to cases of real property. An administrative suit regarding real property is subject to the jurisdiction of the people’s court in the place where the real property is located.118 Administrative suits regarding real property in practice mainly concern ownership of, or rights to use, real property, the demolition of buildings or other constructions, or pollution of real property.119
Concurrent jurisdiction signifies that two or more people’s courts may exercise jurisdiction over the same administrative case. The plaintiff has the option of choosing either, and the first to receive the complaint is deemed to be the plaintiff ’s choice.120
Problems of concurrent jurisdiction mainly arise in connection with reconsidered cases in which a specific administrative act has been altered by an administrative reconsideration organ, or in connection with compulsory administrative measures restricting personal freedom.121 For the former, the plaintiff may choose the people’s court either in the locality of the administrative organ that initially carried out the specific administrative act or in the locality of the administrative organ conducting the reconsideration; and for the latter, the plaintiff may choose its local people’s court or that of the place where the respondent is located.122
Citizens whose freedom is restricted and any citizen, legal person or other organization whose property has been seized or confiscated may bring a lawsuit before the people’s court where the defendant or plaintiff are located.123
3.3.3. Jurisdiction by order
Jurisdiction by court order is a necessary supplement to attributions of jurisdiction by law to solve problems arising in special cases, which can be classified into referrals, designations of jurisdiction and transfers of jurisdiction.
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3.3.3.1. Referrals of jurisdiction
If a people’s court concludes that a case that it has accepted is not within its jurisdiction, it must refer the case to the people’s court that does have jurisdiction.124
The people’s court to which the case has been referred may not refer it to another people’s court on its own initiative.125
3.3.3.2. Designations of jurisdiction
A people’s court at a higher level may designate a particular people’s court to exercise jurisdiction over a case:
A designated people’s court does not have authority to refer the case to other people’s courts.
3.3.3.3. Transfers of jurisdiction
People’s courts at higher levels have the authority to directly adjudicate administrative cases over which people’s courts at lower levels have jurisdiction as courts of first instance.126
People’s courts at higher levels may also transfer administrative cases over which they themselves have jurisdiction as courts of first instance to people’s courts at lower levels for trial.127
If a people’s court deems it necessary for an administrative case of first instance under its jurisdiction to be adjudicated by a people’s court at a higher level, it may refer the question to such court.128 Such cases generally are so important, complex, technical or intertwined that it would be improper for a people’s court at a lower level to adjudicate them. Were such cases not to be accepted by people’s courts at the higher level, they would still be decided by the people’s court originally seized of the matter.
3.3.4. Challenges to jurisdiction
Parties may challenge the jurisdiction of the court, but must do so in writing within ten days from receipt of the notice of action. The court will examine the objection and decide whether to transfer jurisdiction over the case.129
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3.4.1. Plaintiffs
Citizens, legal persons and any other organizations that consider that their rights and interests have been infringed upon by the specific administrative act of an administrative organ or its personnel may bring suits before the people’s courts in accordance with the Administrative Procedure Law.130
3.4.1.1. Standing of plaintiffs
According to the Administrative Procedure Law and the Interpretations by the SPC, in order to have standing to bring administrative claims before the courts, complainants must be citizens, legal persons or any other organizations subject to an administrative act and has infringed their rights and interests.
Any person with a legal interest in the specific administrative act may bring an administrative suit or join one in process.131 Legal interests of plaintiffs arise when a specific administrative act actually affects their rights. Typical circumstances in which citizens, legal persons or other organizations bring administrative suits include the following:
The SPC has set down the following guidelines on how parties are represented in administrative litigation.
Where partnership enterprises bring suits before the people’s courts, the plaintiff is the enterprise identified by its registered name and the partner executing the affairs of the enterprise acts as its representative in the action.
Where other organizations that are not legal persons bring suits before the people’s courts, the person principally in charge of the organization acts as its representative in the suit and otherwise the person who is chosen to be in charge of the enterprise’s action may act as its representative for that purpose.
When there are more than five plaintiffs in any one case, they should choose a single representative to act on their behalf; if no representative is chosen within the prescribed time limit, the court may designate a representative.133
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In the case of sino-foreign joint enterprises, whether they are equity joint ventures or cooperative ones, where a party considers that the rights and interest of the enterprise or their own rights and interests as party to the venture are infringed by a specific administrative act, it may bring an administrative suit in its own name.134
When holders of rural land-use rights consider that specific administrative acts affect collectively owned land, they may bring suits in their own names.
When an enterprise that is not State-owned is struck from the register, terminated, merged, partitioned or sold, or its vertical affiliation is altered by an administrative organ, the enterprise or its legal representative may bring suit.135
The general meeting of shareholders or the board of directors of a joint stock company may challenge specific administrative acts that infringe on the company’s managerial decision-making power by bringing suit in the company’s name.136
3.4.1.2. Transfers of claims
The right to bring an administrative suit may not be transferred except:
3.4.1.3. Agents
Agents in administrative litigation are either statutory agents, judicially appointed agents or authorized agents.
Those who exercise rights on behalf of citizens having no civil capacity are called statutory agents.
Statutory agents do not derive their powers from the principal’s will or from the agent’s will, but from the stipulations of law. According to the Administrative Procedure Law, where citizens have no capacity to take part in administrative litigation, their statutory agents act on their behalf in the suit. Citizens without civil capacity probably have more than one statutory agent and, to avoid prevarication among the statutory agents, the Administrative Procedure Law provides that if statutory agents try to shift their responsibilities onto each other, the court may appoint any of them.140
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Although there are no stipulations about appointed agents in the Administrative Procedure Law or other laws, the people’s courts appoint agents for citizens who lack the capacity to bring or defend lawsuits and for whom there are no statutory agents, or, for those whose statutory agents are prevented from exercising their rights.
The status of appointed agent is different from that of statutory agent. Judicially appointed agents may only dispose of their principals’ substantial rights subject to the supervision and examination of the people’s courts. If an act of an appointed agent is illegal and harms the principal’s interests, it will be deemed void.
Parties and legal representatives may appoint agents in administrative litigation proceedings. A lawyer, a public organization, a near relative of the citizen bringing the suit, a person recommended by the unit to which the citizen bringing the suit belongs, or any other citizen approved by the court, may be mandated as an authorized agent.141
Only lawyers who are members of Chinese law firms may be appointed by foreign nationals, stateless persons and foreign organizations as their authorized agents in administrative litigation in China.142
Authorized agents are expected to produce signed or sealed appointments that clearly state the powers delegated.
Citizens who are unable to set down written appointments may appoint agents orally. The people’s court should verify oral appointments and place them on record. When a respondent administrative organ or other organ refuses, in violation of its duties, to assist the people’s court’s verification even though the liberty of the mandating citizen is restricted, the appointment is deemed to be effective. Where parties cancel or alter an appointment, they should notify the people’s court in writing, and the latter then informs the other parties.143
3.4.2. Defendants
Plaintiffs in administrative litigation must pursue the appropriate administrative organ, or else the court will instruct them to change defendants; if the plaintiff disagrees with the required change, the people’s court will dismiss the claim.
Where a claim against a specific administrative act is directly brought before a court, without going through administrative reconsideration, the administrative organ that carried out the specific administrative act is the defendant.144
When two or more administrative organs jointly carry out a specific administrative act, they may be joined as defendants.145
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If the organization is mandated by an administrative organ to conduct specific administrative acts, the mandating organ is pursued as defendant.
If the dispute was reconsidered and the original specific administrative act was confirmed by the administrative reconsideration organ prior to the administrative litigation, the organ that initially carried out the act remains the defendant in the subsequent administrative proceedings.
On the other hand, when administrative reconsideration organs amend a specific administrative act, they become the defendants in subsequent administrative litigation.146
Where an administrative reconsideration organ fails to render a decision within the statutory time limit, claims for its nonfeasance may be brought against it. However, if the claim is against the original specific administrative act, the administrative organ that initially undertook that act is cited as defendant.
As regards disbanded administrative organs that carried out specific administrative acts prior to their disappearance, the administrative organ that carries on the exercise of the former’s functions and powers assumes the defence of its acts in administrative litigation proceedings.147
3.4.3. Third parties
Citizens, legal persons and organizations with an interest in a specific administrative act may intervene as third parties in administrative proceedings. The people’s courts may also on their own initiative bring a party into the proceedings,148 for instance where the plaintiff refuses to add that party as defendant.149
Sometimes a specific administrative act affects two or more interested parties, but not all intend to bring a suit. If the people’s court accepts to hear the case, it notifies the other interested parties that may join the action or be joined as third parties. 150
3.5.1. General limitation periods
Different general limitation periods apply (i) to suits brought directly without reconsideration of a specific administrative act and (ii) to those brought after reconsideration.
With respect to disputes about specific administrative acts filed directly with the people’s courts without being reconsidered, and except as otherwise stipulated by law, suits must be brought within three months from actual knowledge of the contested administrative act.151
Citizens, legal persons or other organizations that have applied for administrative reconsideration must, except as otherwise stipulated by law, bring suit before the people’s courts within 15 days after expiration of the time limit for requesting reconsideration or within 15 days from receipt of the reconsideration decision.
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3.5.2. Special limitation periods
The SPC, in its Interpretations on administrative suits, has set down supplementary time limits that are applicable in special circumstances.
Suits about specific administrative acts must be brought within five years from the day of their occurrence, except for suits over specific administrative acts concerning real property, for which the limitation period is 20 years from their occurrence.152
Where, in carrying out a specific administrative act or making a reconsideration decision, an administrative organ fails to inform citizens, legal persons or other organizations of their rights or of the statutory time limits for bringing suits, those time limits run from the day that such parties knew or should have known of their rights of action or of the applicable limitation periods, subject to a maximum of two years from the day when they knew or should known the content of the specific administrative act or of the reconsideration decision.153
Where citizens, legal persons or any other organizations request administrative organs to perform their statutory duty but the latter fail to do so within 60 days from receipt of a notice to perform or within such other time limits as are stipulated by laws, regulations or notices, they may bring suits directly before the people’s courts.
In emergency circumstances, suits to obtain execution of statutory duties or protection of personal or property rights may be brought without awaiting the expiration of a notice to perform.154
Where suits are not brought within these limitation periods due to an event of force majeure or other reasonable grounds, the affected party must within ten days after termination of such event request an extension from the people’s court.155
Initially, the burden of proof is on the defendant.156 The defendant must produce the evidence and normative documents in accordance with which the specific administrative act has been undertaken. In the course of proceedings, the defendant is not allowed directly to collect evidence from the plaintiff or from witnesses.157 The time limit for a defendant to produce evidence is ten days from receipt of a copy of the claim. If the defendant fails to furnish evidence or does so late without justification, it may be deemed to have no support for the contested specific administrative act. Defendants prevented from respecting the prescribed time limits by events of force majeure, or that furnish other reasonable explanations, may file a written application with the people’s court within ten days from receipt of the copy of the claim to obtain an extension of the deadline to furnish evidence.158
The plaintiff must demonstrate the illegality of the contested specific administrative act.159
In an administrative proceeding based on the defendant’s nonfeasance, the plaintiff must prove its losses arising from the defendant’s infringement.160
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Plaintiffs and third parties must produce their evidence before the people’s court opens its first hearing of the matter, or sooner if the people’s court has set down a date for exchange of evidence.161 Failure to furnish evidence within the prescribed time limit will be regarded as renunciation of the right to produce any.
In the administrative proceedings, a people’s court has the authority to request the parties to produce evidence, as well as to obtain evidence from the relevant administrative organs, other organizations or citizens.162
Where evidence is destroyed or lost, or it where might subsequently be difficult to obtain, the parties may apply to the court for conservatory measures. The court may also on its own initiative order measures to preserve such evidence.163
3.7.1. Claims, acceptances and adjudications
To commence administrative proceedings, the plaintiff must file a claim with a competent people’s court. The defendant or defendants, the claims and their factual bases must be clearly stated.164
The people’s court must decide whether to accept to adjudicate a case within seven days from receipt of a claim. Dissatisfied plaintiffs may appeal.165
Where the acts of a party or other causes render a specific administrative act or an effective ruling by a people’s court unenforceable or difficult to enforce, the people’s court may, at the request of a party or of its own initiative where necessary, order measures for the preservation of property. Dissatisfied parties may apply for review but the execution of the order is not suspended.166
The plaintiff is not allowed to add claims after a copy of the claim has been served on the defendant, unless there are legitimate reasons acceptable to court.167
During administrative litigation proceedings, the execution of the contested specific administrative act will not be suspended unless:168
Administrative lawsuits are heard and decided by panels of judges comprised of judges, or of judges and lay assessors. Panels must be constituted of an odd number of at least three members.169 Except for cases involving State secrets or private affairs of individuals, or as otherwise stipulated by law, the trial of administrative cases must be conducted in public.170
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Generally, the people’s courts do not conduct conciliation while handling administrative disputes, except as regards claims for compensation between private parties.171
During hearings, the panel of judges notes the presence of the parties, hears the participants in the proceedings, and organises the debates.
After deliberating in private, the judges render a ruling or judgment that is read at a public hearing.
A people’s court of first instance must render its judgment within three months from placing a case on file. If there are special circumstances justifying an extension of the time limit, the basic court or intermediate court handling the case of first instance must report to the high people’s court for approval of the extension. Where a high court is of first instance, the extension of the time limit must be approved by the SPC.172
3.7.2. Judgments of first instance
When handling administrative cases, the people’s courts apply Chinese laws and administrative regulations on substantial matters. Local decrees are applicable to administrative cases within the corresponding administrative areas. When administrative cases are heard in local autonomous areas, the people’s courts also apply the relevant ordinance on autonomy and the ordinances of the local autonomous area.173
In addition, the people’s courts apply administrative rules and local rules promulgated in accordance with the Legislation Law.174
If a people’s court considers the provisions of local rules to be inconsistent with those of the administrative rules, or if it considers the stipulations of the administrative rules to be inconsistent with each other, it will send a report to the SPC for referral to the State Council for interpretation or for a ruling.175
After hearing the case, if it is found that the evidence supporting a specific administrative act is conclusive, that the application of the law and regulations to the act is correct, and that the applicable legal procedures have been respected, the claim is denied.176
A specific administrative act, which is vitiated due to inadequate evidence, errors of law or procedure, excess or abuse of powers, is set aside in whole or in part. The administrative organ may be required to carry out appropriate administrative acts.177
If it is convinced that a defendant has failed to perform or delayed the performance of a statutory duty, a fixed time for performance of the duty may be stipulated in the judgment.178
Where an administrative sanction is manifestly unfair, it may be amended.179
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Where execution of the defendant’s statutory duty has lost all practical significance, a people’s court may render a declaratory judgment that the contested specific administrative act is illegal or invalid under the circumstances. 180
If a party refuses to accept a judgement of first instance, it must appeal to the people’s court at the next higher level within 15 days from the day when the judgement is served. If a party refuses to accept an order on first instance, it must appeal to the people’s court at the next higher level within ten days from the day when the order is served. All judgements and orders of first instance that have not been appealed within the prescribed time limit become effective.181
The people’s courts of second instance conduct a comprehensive examination of the legality of both the judgement of first instance and the challenged specific administrative act.182 If the people’s court considers the facts clearly ascertained, it may decide the appealed case.183 Where the facts are disputed or the people’s court of second instance considers them not clearly ascertained, a hearing is held.184
If the party adds a new claim for administrative compensation during the second instance, the court may conduct conciliation. If the conciliation fails, the party needs to bring a new action for the administrative compensation.185
The people’s court is expected to render a final judgment on an appealed case within two months from the day of receiving the appeal. Extensions of the time limit necessitated by special circumstances must be approved by a high court and extensions of the time limits for handling cases over to a high court must be approved by the SPC.186
3.8.1. Orders
Where the facts are not clearly ascertained in the original judgment or the evidence is insufficient, or where a violation of the statutory procedure has vitiated the original judgment, the court of second instance may render an order to rescind the original judgment and remit the case to the original court for retrial.187 The panel for retrial before the original court is comprised of different judges.188 The parties may appeal against the judgment or order rendered in a retrial of their case. 189
Where an order of first instance refusing to accept a case or dismissing a plea is erroneous and where the case satisfies the requirements for admissibility, the people’s court of second instance cancels the order on first instance and it either sends the case back to the people’s court of first instance or it hears the case directly.190
3.8.2. Judgments on appeal
Where the facts were clearly ascertained and the law and regulations are correctly applied by the court of first instance, the appeal court confirms the original judgment and dismisses the appeal.191
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If the facts were clearly ascertained by the court of first instance but the law and regulations were incorrectly applied, then the original judgment is amended.192
Where the facts are not clearly ascertained in the original judgment or the evidence is insufficient, or a violation of the statutory procedure may have affected the validity of the original judgment, the court of second instance amends the judgment directly.193
In amending judgments of first instance, appeal courts also render judgments with respect to the challenged specific administrative acts.194
3.9.1. Execution of a specific administrative act
In principle, during proceedings in which specific administrative acts are contested, their implementation is not interrupted unless so ordered by the people’s courts upon petition of the plaintiff alleging that execution of the specific administrative act would cause irremediable losses (provided its suspension would not cause harm to public interests) or that suspension is required by laws or regulations.195
Where a citizen, a legal person or any other organization neither brings a suit nor performs the specific administrative act during the period prescribed by laws, the administrative organ may enforce the act according to law and apply to a people’s court for enforcement.196
The application for enforcement must be filed within 180 days from expiration of the time limit to bring a suit, otherwise the people’s court may reject the application.197
Within 30 days from receipt of the application from the administrative organ, the administrative division of the people’s court examines the legality of the specific administrative act and decides whether to enforce it.198
Where a specific administrative act is manifestly devoid of factual or legal foundation, or violates the law, thus infringing the rights and interests of the concerned party, the people’s court will dismiss applications for its enforcement.199
3.9.2. Execution of definitive judgements, orders and conciliation statements
Despite a party’s challenge to an administrative act before a people’s court or its appeal against a judgment validating such acts, their execution may not be suspended.200 In the event of a party’s failure to execute as required, the other party may apply to the people’s court for compulsory measures of enforcement.201
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Citizens must file their applications for enforcement within one year, whereas administrative organs, legal persons and other organizations have 180 days.202 The time limit for the application is counted from the last day of the period of performance specified by the executory documents. Where no specific period of performance is so specified, it is calculated from the date of service of the executory document. The people’s courts will not accept overdue applications unless there are legitimate reasons.203
Under normal conditions, the people’s courts of first instance are responsible for enforcing executory documents, but in appropriate cases, they may refer matters of execution to courts of second instance which may, when compulsory enforcement is decided, act themselves, or they may refer the case back to the courts of first instance for implementation.204
3.9.3. Suspension or termination of enforcement
In the Administrative Procedure Law, there are no stipulations regarding suspension or termination of enforcement measures.
In judicial practice, and by application of the Civil Procedure Law, the following circumstances justify suspension of enforcement measures:205
Also, based on the Civil Procedure Law, under any of the following circumstances, the people’s courts will order termination of enforcement:206
An order to suspend or terminate execution measures becomes effective immediately after being served on the parties concerned. Orders of suspension or termination of execution measures must contain the reasons therefor.
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Unless otherwise stipulated by law, the Administrative Procedure Law applies to foreign nationals, stateless persons and foreign organizations that are engaged in administrative litigation in China.207
If there are differences between Chinese laws and the international treaties signed by China or to which it has acceded, the stipulations of the latter prevail.208
In administrative litigation proceedings, foreign and Chinese parties enjoy equal rights and obligations. However, if the courts of a foreign country impose restrictions on the administrative litigation rights of Chinese citizens or organizations, the Chinese courts will apply the principle of reciprocity.209
Foreign parties are allowed to appoint agents ad litem in an administrative suits in China. Only “lawyers of a lawyers organization of the PRC” may be appointed as agents ad litem in administrative litigation proceedings.
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A framework for administrative compensation was created in 1994 with the adoption of the State Compensation Law and its subsequent interpretations by the SPC.210 Some departments under the State Council have issued supplementary rules relating to administrative compensation.211
Only illegal specific administrative acts may give rise to an administrative liability to provide compensation. Administrative acts that are not illegal but that damage lawful interests may only give rise to administrative reconsideration. The protection of the law is not available to illegal interests.
Applications for compensation must clearly state basic information about the claimant, and they must specify the claims, their factual bases and grounds.212
Claims for compensation may be brought by citizens, legal persons or other organizations213 that consider a specific administrative act to be illegal and to have caused them harm.
Where a citizen claimant has died, his/her successor or other relative with a maintenance relationship may claim compensation.214 When claimants that are legal persons or other organizations cease to exist, their successors may claim compensation originally due to them.215
Administrative organs have the duty to compensate for infringements by their officials rights and interests that cause damage.216
When two or more administrative organs exercise jointly administrative functions and one of their acts infringes upon rights and interests, they all have the duty to provide compensation for harm caused.217 Claimants may demand full compensation from any of the organs jointly liable.218
Mandating organs are liable to compensate for the harm caused by infringements of rights and interests arising from acts of organizations carrying on their activities under their mandate.219
Where an organ with a duty to compensate has been abolished, the administrative organ that continues to exercise its functions and powers assumes this liability; where there is no such successor, the liability is assumed by the administrative organ responsible for the dismantlement.220
In cases of administrative reconsideration, the administrative organ that carried out the original injurious act is the organ liable to provide compensation; however, if the outcome of the reconsideration increases the unlawful damages, the reconsideration organ is liable for compensation to the extent of the aggravation.221
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Under the State Compensation Law, a claimant seeking compensation must first address its claim to the concerned administrative organ, or may include its demands for compensation with its application for administrative reconsideration or in its claims in administrative litigation proceedings.222
There are three modes for a claimant to claim compensation. First, with respect to a specific administrative act that has been declared illegal and that has caused damage, the claimant may file a separate claim for compensation. The separate claim for compensation is presented to the concerned administrative organ.223 If the administrative organ rejects the claim or the claimant is not satisfied with the amount of compensation offered by the organ, it may bring a suit for administrative compensation before a people’s court.224 Secondly, administrative compensation may be claimed in an application for administrative reconsideration. Administrative reconsideration organs may in their reconsideration decisions order administrative bodies to compensate the harm caused by their infringements of claimants’ rights and interests. Thirdly, claims for administrative compensation may be presented along with administrative suits before the people’s courts. The people’s courts will decide the matter of compensation in their judgments or rulings.
The State Compensation Law requires that the illegality of the contested administrative act be declared before compensation may be claimed.225
Whether a specific administrative act violated the law may be decided through administrative reconsideration or administrative litigation.
Claimants in cases rejected by administrative reconsideration organs or by the people’s courts, or that have lost the right to file an application for administrative reconsideration as well as the right to bring an administrative suit, may still request satisfaction from the authorities responsible for the contested act.226
During administrative reconsideration or litigation, the defendant administrative organ or its higher administrative organ sometimes admits on its own initiative the illegality of the challenged administrative act.
Whatever the form of the affirmation, so long as the administrative act is affirmed illegal by competent authorities, the claimant may base his/its claim for administrative compensation on this affirmation.
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Claimants are entitled to compensation when administrative organs or members of their personnel in the exercise of their functions infringe upon their personal rights such as:227
Claimants are entitled to compensation when administrative organs or members of their personnel in the exercise of their functions infringe upon their property rights such as:228
The State Compensation Law and the Administrative Procedure Law stipulate certain exemptions for administrative organs from liability for compensation.
In general, acts of State, abstract acts, internal administrative acts, individual acts irrelevant to the exercise of the administrative functions of the administrative organ, self-inflicted harm, or other circumstances provided by law, may exempt the responsible administrative organs from liability for compensation.229
Acts of State are those carried out by the highest administrative organization of the State and they constitute the State’s determination in matters such as national politics, international relations and national safety.
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The Administrative Procedure Law and the State Compensation Law exclude abstract acts of administrative subjects from the scope for administrative compensation. Some scholars consider that even damage caused by abstract acts should be compensated if the other conditions are satisfied and they recommend that such a compensation mechanism be created.230 The above view is supported by the following reasons:
Internal administrative acts such as deployment of manpower, promotion or demotions, and welfare allotments, etc. should be classified as management acts within administrative organs’ internal affairs, which are outside the scope of the administrative reconsideration and administrative litigation legislation.
Whether an act is related to the exercise of administrative functions is determined in the light of the time of the act, the place of its occurrence, the identities of the parties and the nature of their behaviour, and other relevant facts.231
The other principal circumstances that might engender exemptions from administrative liability for compensation include events of force majeure, acts of rescue, and errors of third parties.
If a specific administrative act is illegal but has not caused damages to the claimant, no liability for administrative compensation arises, though the persons actually responsible may face internal disciplinary proceedings.
Claimants must demonstrate a cause and effect relationship between the contested administrative act and the event of harm for which they are claiming compensation.
1 The Administrative Reconsideration Law was adopted at the Ninth Meeting of the Standing Committee of the Ninth NPC on April 29, 1999, it was promulgated on the same date and it entered into effect as of October 1, 1999.
2 The Administrative Procedure Law was adopted by the Second Session of the Seventh NPC on April 4, 1989, it was promulgated on the same date and it entered into effect as of October 1,1990.
3 The State Compensation Law was adopted at the Seventh Meeting of the Standing Committee of the Eighth NPC on May 12, 1994, it was promulgated on the same date, and it entered into effect as of January 1, 1995.
4 The term “citizen” is used in the Administrative Reconsideration Law, but this term actually means “individual”.
5 Article 41 of the Administrative Reconsideration Law, article 70 of the Administrative Procedure Law and Article 33 of the State Compensation Law.
6 Article 71 (2) of the Administrative Procedure Law, article 33 (2) of the State Compensation Law.
7 Jiang Mingan ed., Administrative Law and Administrative Litigation Law, Law Press, Beijing, China, 2006, p. 88.
8 For example, these include the Ministry of Foreign Affairs, the Ministry of Commerce, the Ministry of Construction, etc.
9 The Committee of Development and Reformation affords an example.
10 These include the People’s Bank of China (PBOC), the General Customs Administration, the State Administration for Industry and Commerce, and the State Intellectual Property Office.
11 In addition to the central level of government with nationwide scope and responsibilities, there are four levels of local governments in China: governments at the provincial level, including the governments of the provinces, of the autonomous regions and of the municipalities under direct administration of the central government; governments at the prefecture level, including the governments of the cities composed of districts and the governments of districts; governments at the county level, including the governments of cities without districts, the governments of counties, and the governments of the districts directly under a city at the prefecture level; governments at the town level, including the governments of towns and townships.
12 For example, these would include any Public Security Bureau, Labor Bureau, Cultural Bureau.
13 There are three kinds of detached organs: prefecture administrative offices, district offices at county level and sub-district offices at town level.
14 Bi Kezhi, On Administrative Remedies, Beijing University Press, Beijing, China, 2005, p. 144.
15 Jiang Mingan ed., Administrative Law and Administrative Litigation Law, Law Press, Beijing, China, 2006, p. 121.
16 Articles 1 and 2 of the Administrative Reconsideration Law.
17 Article 2 of the Administrative Procedure Law.
18 Articles 2 and 3 of the State Compensation Law.
19 Article 6 of the Administrative Reconsideration Law.
20 Article 12 (2) of the Administrative Procedure Law.
21 According the article 56 of the Legislation Law, the State Council enacts administrative regulations in accordance with the Constitution and national law. The Legislation Law was adopted by the Third Session of the Ninth NPC on March 15, 2000 and entered into effect on July 1, 2000.
22 According to the article 71 of the Legislation Law, the various ministries, commissions, the PBOC, the Auditing Agency, and any body directly under the State Council exercising regulatory functions, may enact administrative rules within the scope of its authority in accordance with national law, administrative regulations, as well as decisions and orders of the State Council.
23 According to the article 73 of the Legislation Law, the people’s government of a province, autonomous region, and municipality directly under the central government or a major city may enact local rules in accordance with national law, administrative regulations and local decrees of the province, autonomous region, or municipality directly under the central government.
24 Article 7 of the Administrative Reconsideration Law.
25 According to article 35 of the Ordinance with respect to the Recording of Regulations and Rules of 2001, where any social group, enterprise or non-enterprise institution or citizen deems that administrative rules are not consistent with administrative regulations, it may make a written proposal to the State Council for review. The legal office of the State Council is responsible for the review. Where any social group, enterprise or non-enterprise institution or citizen deems that the local rules are not consistent with laws or administrative regulations or that they contravene any laws at a higher level, it may make a written proposal to the government of the concerned province or autonomous region for review. The legal office of the government is responsible for the review. In addition, according to article 90 of the Administrative Procedure Law, where any social group, enterprise or non-enterprise institution or citizen deems that an administrative regulation, local decree, autonomous decree or special decree contravenes the Constitution or a national law, it may make a written proposal to the Standing Committee of the NPC for review, and the operations office of the Standing Committee must study the proposal, and where necessary, it forwards it to the competent special committees for review and comment.
26 Article 16 of the Administrative Reconsideration Law.
27 Article 30 (1) of the Administrative Reconsideration Law. Such would be the case for infringements on ownership of and rights to use natural resources, such as land, mineral resources, rivers, forests, mountains, grasslands, unreclaimed land, beaches, maritime waters.
28 Article 30 (2) of the Administrative Reconsideration Law. Administrative reconsideration decisions made by the people’s governments of provinces, autonomous regions and municipalities directly under the central government to confirm ownership of and rights to use natural resources, such as land, mineral resources, rivers, forests, mountains, grasslands, unreclaimed land, beaches, maritime waters are final rulings.
29 Articles 34 and 35 of the Interpretations of the PC on Several Problems concerning the Implementation of the Administrative Procedure Law.
30 Article 16 (2) of the Administrative Reconsideration Law.
31 Article 30 (1) of the Administrative Reconsideration Law. However, according to the Reply of the SPC on the Application of Article 30 (1) of the Administrative Reconsideration Law, this requirement does not apply to such specific administrative acts as administrative penalties and compulsory administrative measures concerning the ownership of or rights to use natural resources.
32 Article 64 of the Customs Law was adopted on January 22, 1987 replacing the Provisional Customs Law of April 18, 1951, but it was radically amended in anticipation of China’s Accession to the WTO, by the Decision regarding Revision of the Customs Law adopted at the 16th Meeting of the Standing Committee of the Ninth NPC on July 8, 2000.
33 Article 19 of the Administrative Reconsideration Law.
34 Article 9 (1) of the State Compensation Law.
35 These Regulations were promulgated by the State Council on December 24, 1990 and cancelled on October 1, 1999 by the Administrative Reconsideration Law.
36 Some ministries and commissions under the State Council have promulgated administrative rules based on the Administrative Reconsideration Law, such as the Administrative Reconsideration Measures of the China Banking Supervision Commission of 2004, the Administrative Reconsideration Measures of the Ministry of Commerce of 2004, and the Administrative Reconsideration Measures of the State Intellectual Property Office.
37 Article 39 of the Administrative Reconsideration Law.
38 Article 4 of the Regulations on Administrative Reconsideration issued by State Council in 1991, amended in 1994.
39 Article 41 of the Patent Law and articles 32 and 33 of the Trademark Law 1984. The Law was adopted at the Fourth Session of the Standing Committee of the Sixth NPC on March 12, 1984; it was amended by the Decision Regarding the Revision of the Patent Law adopted at the 27th Session of the Standing Committee of the Seventh NPC on September 4, 1992; and it was amended for the second time by the Decision Regarding the Revision of the Patent Law adopted at the 17th Session of the Standing Committee of the Ninth NPC on August 25, 2000. The Law Trademark Law was adopted at the 24th Session of the Standing Committee of the Fifth NPC on August 23, 1982, revised for the first time by the Decision on the Amendment of the Trademark Law adopted at the 30th Session of the Standing Committee of the Seventh NPC, on February 22, 1993, and revised for the second time by the Decision on the Amendment of the Trademark Law adopted at the 24th Session of the Standing Committee of the Ninth NPC on October 27, 2001.
40 Some local governments set up independent working offices for administrative reconsideration, which coordinate their work with the legal offices of the governments.
41 Article 4 of the Administrative Reconsideration Law.
42 Article 7 of the Administrative Reconsideration Law. The provisions that may be reviewed by administrative reconsideration organs are those issued by the departments under the State Council, those of local people’s governments at or above the county level and their departments, and those of the governments of towns or townships. The above provisions do not include the rules of departments and commissions under the State Council and the rules of local governments. Review of these rules is subject to special laws and administrative regulations.
43 Article 3 of the Administrative Reconsideration Law.
44 Article 12 (2) of the Administrative Reconsideration Law.
45 Article 13 (1) of the Administrative Reconsideration Law.
46 Article 13 (2) of the Administrative Reconsideration Law.
47 Article 15 (1) of the Administrative Reconsideration law.
48 Article 15 (2) of the Administrative Reconsideration law.
49 Article 15 (3) of the Administrative Reconsideration law.
50 Article 15 (4) of the Administrative Reconsideration law.
51 Article 15 (5) of the Administrative Reconsideration law.
52 Article 18 of the Administrative Reconsideration Law.
53 Article 14 of the Administrative Reconsideration Law.
54 Article 14 of the Administrative Reconsideration Law.
55 Article 6 of the Administrative Reconsideration Law.
56 Article 7 of the Administrative Reconsideration Law.
57 Article 8 (2) of the Administrative Reconsideration Law.
58 For example, article 53 of the Trademark Law provides that as for trademark infringements, the department responsible for industry and commerce may provide mediation over the compensation due; if mediation is not successful, the party may bring a suit before the courts in accordance with the Civil Procedure Law.
59 See article 41 of the Environmental Protection Law. A dispute over the liability for compensation or the amount of compensation, at the request of the parties, may be settled by the competent department of environmental protection administration or another department invested by law with power to conduct environmental supervision and management. Article 57 of the Patent Law provides a patent holder or any interested party has the option of petitioning the administrative authority for patent affairs for an order to cease an infringing act immediately.
60 Article 8 of the Administrative Reconsideration Law.
61 For example, the decisions on promotion or degradation in official posts, encourage and reward, appointment and removal, training, post alternation, salary and welfare, discharge, retirement and resignation, etc.
62 Article 8 of the Administrative Reconsideration Law.
63 Article 10 of the Administrative Reconsideration Law.
64 Article 10 of the Administrative Reconsideration Law.
65 Article 10 of the Administrative Reconsideration Law.
66 Articles 10 (4), 13 (2) and 15 of the Administrative Reconsideration Law.
67 Article 10 of the Administrative Reconsideration Law.
68 Article 10 of the Administrative Reconsideration Law.
69 Article 40 of the Administrative Reconsideration Law.
70 Article 9 of the Administrative Reconsideration Law. The new deadline is counted from the day when the obstacle to filing is removed.
71 The information of respondent includes the name, the address, the name of legal representative, the post, etc.
72 Article 17 of the Administrative Reconsideration Law.
73 Article 17 of the Administrative Reconsideration Law.
74 Article 20 of the Administrative Reconsideration Law.
75 Article 21 of the Administrative Reconsideration Law.
76 Article 23 of the Administrative Reconsideration Law.
77 Article 23 of the Administrative Reconsideration Law.
78 Article 22 of the Administrative Reconsideration Law.
79 Article 24 of the Administrative Reconsideration Law.
80 Article 25 of the Administrative Reconsideration Law.
81 Article 26 of the Administrative Reconsideration Law.
82 Article 26 of the Administrative Reconsideration Law.
83 Article 27 of the Administrative Reconsideration Law.
84 Article 27 of the Administrative Reconsideration Law.
85 Article 28 (1) of the Administrative Reconsideration Law.
86 Article 28 (2) of the Administrative Reconsideration Law.
87 Article 28 (3) of the Administrative Reconsideration Law.
88 Article 28 of the Administrative Reconsideration Law.
89 Zhou Chengxin & Zhong Xiaoyu ed., A Course in Administration according Laws by Civil Servants, China Legal Press, Beijing, China, 2003, p. 244.
90 Article 28 of the Administrative Reconsideration Law.
91 For instance, a building is compulsorily dismant led by the competent administrative department of land in a violation of procedure, or an omission period of the administrative organ is so long that a decision of performing duty has no practical meaning for the applicant.
92 Article 29 of the Administrative Reconsideration Law.
93 Article 29 of the Administrative Reconsideration Law.
94 Article 31 of the Administrative Reconsideration Law.
95 Article 31 of the Administrative Reconsideration Law.
96 Article 38 of the Administrative Procedure Law 1990; article 19 of the Administrative Reconsideration Law.
97 Article 31 (3) of the Administrative Reconsideration Law.
98 Article 38 of the Administrative Procedure Law.
99 According to article 33 of the Administrative Reconsideration Law, if a specific administrative act is confirmed, the respondent may enforce the decision or apply for compulsory execution to the people’s courts; if a specific administrative act is decided to be altered, it is the administrative reconsideration organ that enforces the decision or applies to a people’s court for compulsory execution.
100 Article 32 of the Administrative Reconsideration Law.
101 Article 97 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law 2000.
102 Article 3 of the Administrative Procedure Law.
103 Articles 7 and 9 of the Administrative Procedure Law.
104 Articles 4 and 5 of the Administrative Procedure Law.
105 For example, according to article 54 (4) of the Administrative Procedure Law.
106 Article 11 of the Administrative Procedure Law.
107 Articles 4 and 5 of the Provisions of the SPC on Several Problems concerning the Trial of Administrative Compensation.
108 Article 12 of the Administrative Procedure Law and article 2 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
109 The Criminal Procedure Law was adopted by the Second Session of the Fifth NPC on July 1, 1979, with effect as of January 1, 1980 and it was amended pursuant to the Decision on Amending the Criminal Procedure Law adopted by the Fourth Session of the Eighth NPC on March 17, 1996 that entered into effect on January 1, 1997.
110 According to the article 6 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law, the administrative trial divisions are responsible for adjudicating the administrative litigation cases, and the application filed by the administrative organs for enforcement of specific administrative acts alongside.
111 Article 13 of the Administrative Procedure Law.
112 Article 14 of the Administrative Procedure Law.
113 Article 8 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
114 Article 15 of the Administrative Procedure Law.
115 Article 15 of the Administrative Procedure Law.
116 Article 17 of the Administrative Procedure Law.
117 Article 7 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
118 Article 19 of the Administrative Procedure Law.
119 Yu An ed., Jurisprudence of Administrative Litigation, Law Press, Beijing, China, 1977, p. 115.
120 Article 22 of the Administrative Procedure Law.
121 Article 17 of the Administrative Procedure Law.
122 Article 18 of the Administrative Procedure Law.
123 Article 9 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law. If the immovable involved in the case lies across two or more districts, the claimant may choose among them.
124 Article 21 of the Administrative Procedure Law.
125 Article 21 of the Administrative Procedure Law.
126 Article 23 of the Administrative Procedure Law.
127 Article 21 of the Administrative Procedure Law.
128 Article 21 of the Administrative Procedure Law.
129 Article 10 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
130 Article 24 (1) of the Administrative Procedure Law.
131 Jiang Bixin, Developments of China’s Administrative Litigation System, Jincheng Press, Beijing, China, 2001, p. 33.
132 Article 13 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
133 Article 14 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
134 Article 15 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
135 Article 17 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
136 Article 18 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
137 According to article 11 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law, “near relatives” refer to spouse, parents, son, daughter, brother, sister, grandfather, grandmother, grandchild and any other relatives in a dependency or maintenance relationship.
138 Article 24 (2) of the Administrative Procedure Law, article 11 (2) of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
139 Article 24 (3) of the Administrative Procedure Law.
140 Article 28 of the Administrative Procedure Law.
141 Article 29 of the Administrative Procedure Law.
142 Article 73 of the Administrative Procedure Law.
143 Article 25 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
144 Article 25 of the Administrative Procedure Law.
145 Article 25 of the Administrative Procedure Law.
146 Article 25 of the Administrative Procedure Law.
147 Article 25 of the Administrative Procedure Law.
148 Article 27 of the Administrative Procedure Law.
149 Article 23 (2) of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law
150 Article 24 of the Interpretation of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
151 Article 39 of the Administrative Procedure Law.
152 Article 42 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
153 Article 41 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
154 Article 39 of the Interpretations of SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
155 Article 40 of the Administrative Procedure Law.
156 Article 32 of the Administrative Procedure Law.
157 Article 33 of the Administrative Procedure Law.
158 Article 1 of the Rules of the SPC on Several Problems concerning the Evidence in Administrative Litigation.
159 Article 6 of the Rules of the SPC on Several Problems concerning the Evidence in Administrative Litigation.
160 Article 27 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
161 Where the plaintiff or third party invokes a reasonable ground, the date for communicating evidence may be extended by the people’s court.
162 Article 34 of the Administrative Procedure Law.
163 Article 36 of the Administrative Procedure Law.
164 Article 41 of the Administrative Procedure Law.
165 Article 42 of the Administrative Procedure Law.
166 Article 48 (1) and (2) of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
167 Article 45 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
168 Article 44 of the Administrative Procedure Law.
169 Article 46 of the Administrative Procedure Law.
170 Article 45 of the Administrative Procedure Law.
171 Article 67 of the Administrative Procedure Law. Liu Heng, Study on Administrative Remedies System, Law Press-China, Beijing, China, 1998, p. 191.
172 Article 50 of the Administrative Procedure Law.
173 Article 52 of the Administrative Procedure Law.
174 Article 53 of the Administrative Procedure Law.
175 Article 53 of the Administrative Procedure Law.
176 Article 54 (1) of the Administrative Procedure Law.
177 Article 54 (2) of the Administrative Procedure Law.
178 Article 54 of the Administrative Procedure Law.
179 Article 54 of the Administrative Procedure Law.
180 Article 57 (2) of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
181 Article 58 of the Administrative Procedure Law.
182 Article 67 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
183 Article 59 of the Administrative Procedure Law.
184 Article 67 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
185 Article 71 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
186 Article 60 of the Administrative Procedure Law.
187 Article 61 (3) of the Administrative Procedure Law.
188 Article 69 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
189 Article 61 of the Administrative Procedure Law.
190 Article 68 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
191 Article 61 of the Administrative Procedure Law.
192 Article 61 of the Administrative Procedure Law.
193 Article 61 of the Administrative Procedure Law.
194 Article 70 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
195 Article 44 of Administrative Procedure Law.
196 Article 66 of the Administrative Procedure Law.
197 Article 88 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
198 Article 93 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
199 Article 95 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
200 Article 62 of the Administrative Procedure Law.
201 Article 83 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
202 Article 84 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
203 Article 84 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
204 Article 85 of the Interpretations of the SPC on Several Problems concerning the Implementation of the Administrative Procedure Law.
205 Article 234 of the Civil Procedure Law; Bi Kezhi, On Administrative Remedies, Beijing University Press, Beijing, China, 2005, p. 376.
206 Article 235 of the Civil Procedure Law; Bi Kezhi, On Administrative Remedies, Beijing University Press, Beijing, China, 2005, p. 376-377.
207 Article 70 of the Administrative Procedure Law.
208 Article 72 of the Administrative Procedure Law.
209 Article 71 of the Administrative Procedure Law.
210 The Provisions of the SPC on Several Problems concerning the Trial of Administrative Compensation Cases of 1997.
211 The relevant administrative rules include the Measures of the PRC Customs on Administrative Compensation of 2006 adopted by the Customs Department, the Measures of the Civil Aviation Administrative organs on Administrative Compensation of 2003 adopted by the China General Administration of Civil Aviation, and the Measures of Organs of Industry or Commerce Administration on Administrative Compensation of 1995 adopted by the SAIC.
212 Article 12 of the State Compensation Law. If the claimant is a citizen, his/ her basic information must include their name, sex, age, employer and address; and if the claimant is a legal person or any other organization, its basic information includes its name and address, and the name and title of its legal representative or main person in charge.
213 Article 6 of the State Compensation law.
214 Article 6 of the State Compensation law.
215 Article 6 of the State Compensation law.
216 Article 7 of the State Compensation law.
217 Article 7 of the State Compensation law.
218 Article 10 of the State Compensation Law.
219 Article 7 of the State Compensation law.
220 Article 7 of the State Compensation law.
221 Article 8 of the State Compensation Law.
222 Article 9 of the State Compensation Law.
223 The administrative organ liable for compensation refers to the organ that carried out the specific administrative act that has given rise to compensation or to which are attached the persons who carried it out. See article 68 of the Administrative Procedure Law.
224 Article 67 of the Administrative Procedure Law. According article 13 of the State Compensation Law, the administrative organ obliged to provide compensation must within two months from receipt of the application pay compensation in accordance with the State Compensation Law; where the organ fails to pay within the prescribed period, or where the claimant is not satisfied with the amount of compensation, the claimant may, within three months from the day of expiration of the said period, bring an action in a people’s court.
225 Article 9 (1) of the State Compensation Law.
226 See Bi Kezhi, On Administrative Remedies, Beijing University Press, Beijing, China, 2005, p. 472.
227 Article 3 of the State Compensation Law.
228 Article 4 of the State Compensation Law.
229 Article 12 of the Administrative Procedure Law and Article 5 of the State Compensation Law
230 Yang Jiejun & Wen Jinfeng, Administrative Remedy Law, Nanjing University Press, Beijing, China, 1997, p. 23; Jiang Qunhua & Zhang Yunping, On Administrative Compensation Liability of Illegal Normative Documents, in Journal of Huazhong University of Technology (Social Science), China 2004, Vol. 4.
231 Ma Huaide, Theory and Practice concerning State Compensation Law, China Law Press, Beijing, China, 1994, p. 91-95.