Abstract
Generally speaking, judicial deference is not a well-researched terminology in China. In another words, the judiciary in China had to defer to administrative organs rather than show their respects in a self-restraint way. One of the core issues in China’s judicial reforms that have been pushed forward in recent years is how to rationally arrange various governmental powers, to coordinate the relationships among the legislature, the administration and the judiciary, and to give full play to the institutional advantages of various powers. Moreover, with the gradual progress of judicial reform, it can be expected that judicial deference will inevitably become an important topic both in theory and in practice.
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Notes
- 1.
The English translation of the laws in this report referred to www.pkulaw.cn.
Article 2 of the Chinese Constitution states:
All powers in the People’s Republic of China belong to the people.
The National People’s Congress and the local people’s congresses at various levels are the organs through which the people exercise state powers.
The people administer state affairs and manage economic, cultural and social affairs through various channels and in various ways in accordance with the law.
- 2.
See Yang (2001a), p. 486.
- 3.
- 4.
See Cheng (2016), p. 15.
- 5.
In the Organic Law of People’s Court 1979, some specialized courts including martial courts, railway courts, maritime courts, and forestry courts, were established according to law. These special courts enjoyed the jurisdictions as other intermediate people’s courts, and thus the cases decided by the specialized courts could be appealed to the higher people’s courts at the provincial level.
- 6.
See Chen (2017), p. 4.
- 7.
In 2015, the SPC began to establish the itinerant courts in Shenzhen, Shenyang, Nanjing, Zhengzhou, Chongqing and Xian. These itinerant courts hear the cases within the respective circuit districts, which fall within the jurisdictions of the SPC according to the Civil Procedural Law, the Criminal Procedural Law and the Law of Administrative Litigation. See Fang (2017), p. 16.
- 8.
Article 51 of the Law of Administrative Litigation states:
A people’s court receiving a complaint shall docket it if it meets the conditions for filing a complaint as set out in this Law.
Where a people’s court is unable to determine on the spot whether a complaint meets the conditions for filing a complaint as set out in this Law, the people’s court shall receive the complaint, issue a written certification showing the date of receipt, and decide whether to docket the complaint within seven days. If the complaint does not meet the conditions for filing a complaint, the people’s court shall enter a ruling not to docket the complaint. The written ruling shall state the reasons for not docketing the complaint. The plaintiff may file an appeal against the ruling.
This provision in fact abolished the previous mechanism of the review at the stage of filing a case.
- 9.
Article 96 of the Law of Administrative Litigation provides with some remedies when the administrative organs refuse to execute the judgments, such as issuing a notice directly to the bank, levying the fines on administrative organs, publishing an announcement on this refusal, submitting a judicial advice to the superior organs, and imposing other punishments on the relevant officials.
- 10.
Prime Minister’s speech at the homepage of the State Council (2016). www.gov.cn/guowuyuan/2016-05/22/content_5075741.htm. Accessed 17 Dec. 2017.
- 11.
Prime Minister’s explanation on “Three Lists” at the homepage of the State Council (2014). www.gov.cn/guowuyuan/2014-09/10/content_2748393.htm. Accessed 17 Dec. 2017. Also see Zhang (2018), pp. 18–19.
- 12.
Article 123 of the Chinese Constitution states: “The people’s courts of the People’s Republic of China are the judicial organs of the state.”
- 13.
See Wang (2015), pp. 59–70.
- 14.
Article 127 of Chinese Constitution states:
The Supreme People’s Court is the highest judicial organ.
The Supreme People’s Court supervises the administration of justice by the people’s courts at various local levels and by the special people’s courts. People’s courts at higher levels supervise the administration of justice by those at lower levels.
- 15.
See Jiang (2013), p. 5.
- 16.
The courts cannot decide a case directly according to the Constitution.
- 17.
The rules of letter-and-visit complaint mechanism were given in the Regulation on Letter-and-Visit Complaint 2005 passed by the State Council.
- 18.
Article 44(1) of the Administrative Litigation Law states:
For administrative cases within the scope of cases accepted by the people’s courts, a citizen, a legal person, or any other organization may first apply to the administrative agency for reconsideration, and then file a complaint against the reconsideration decision with a people’s court; or directly file a complaint with a people’s court.
- 19.
Article 26(2) of the Administrative Litigation Law states:
For a case that has undergone reconsideration, if the reconsideration agency’s decision upholds the original administrative action, the administrative agency taking the original administrative action and the reconsideration agency shall be co-defendants; or, if the reconsideration agency’s decision modifies the original administrative action, the reconsideration agency shall be the defendant.
- 20.
Article 3(3) of the Administrative Reconsideration Law stipulates:
…reviewing the legality and appropriateness of any specific administrative acts being applied for administrative reconsideration, and drawing up decisions of administrative reconsideration.
- 21.
Article 6 of the Administrative Litigation Law states:
In the trial of administrative cases, the people’s courts shall examine the legality of administrative actions.
- 22.
Article 22 of the Administrative Reconsideration Law states:
Administrative reconsideration shall, in principle, examine the application in written. Except for the circumstances where the applicant makes a require or the office responsible for legal affairs of the administrative reconsideration organ deems it necessary, the administrative reconsideration organ may investigate facts among the organizations and citizens concerned and listen to the views of the applicant, the respondent of the application, and the third party.
For example, Article 41 of the Patent Law states:
The patent administrative department of the State Council shall form a Patent Re-examination Board. If any patent applicant is dissatisfied with the decision of the patent administrative department of the State Council on rejecting the application, it/he may, within three months as of receipt of the notification, appeal to the Patent Re-examination Board for review. The Patent Re-examination Board shall, after the review, make a decision and notify the patent applicant.
Where a patent applicant is dissatisfied with the review decision of the Patent Re-examination Board, it/he may, within three months as of receipt of the notification, bring a lawsuit with the people’s court.
- 23.
It is the most comprehensive electronic database of the journals and dissertations in China.
- 24.
See Gao (2006), pp. 142–149.
- 25.
See Wang (2013), pp. 93–99.
- 26.
See Yang (1999), pp. 72–77.
- 27.
This word would have many meanings, depending on the context.
- 28.
See Jiang (2011), p. 26.
- 29.
Article 12 of the Administrative Litigation Law states:
The people’s courts shall accept the following complaints filed by citizens, legal persons, or other organizations:
-
(1)
A complaint against any administrative punishment, such as administrative detention, suspension or revocation of a license or permit, ordered suspension of production or business, confiscation of illegal income, confiscation of illegal property, a fine, or a warning.
-
(2)
A complaint against any administrative compulsory measure, such as restriction of personal freedom or seizure, impoundment, or freezing of property, or administrative enforcement.
-
(3)
A complaint against an administrative agency’s denial of, or failure to respond within the statutory period to, an application for administrative licensing or any other administrative licensing decision made by the administrative agency.
-
(4)
A complaint against an administrative agency’s decision to confirm the ownership or the right to use any natural resource, such as land, mineral resources, water, forest, hill, grassland, wasteland, tidal flat, or sea area.
-
(5)
A complaint against a decision on expropriation or requisition or a decision on compensation for expropriation or requisition.
-
(6)
A complaint against an administrative agency’s refusal to perform, or failure to respond to an application for the administrative agency to perform, its statutory duties and responsibilities in respect of protecting personal rights, property rights, and other lawful rights and interests.
-
(7)
A complaint claiming that an administrative agency has infringed upon the plaintiff’s autonomy in business management, right in the contractual operations on rural land, or right in operations on rural land.
-
(8)
A complaint claiming that an administrative agency has abused its administrative power to preclude or restrict competition.
-
(9)
A complaint claiming that an administrative agency has illegally raised funds or apportioned expenses or illegally required performance of other obligations.
-
(10)
A complaint claiming that an administrative agency has failed to pay consolation money, minimum subsistence, or social insurance benefits according to the law.
-
(11)
A complaint claiming that an administrative agency has failed to perform according to the law or as agreed upon, or illegally modified or rescinded, an agreement, such as a government concession agreement or a land and building expropriation compensation agreement.
-
(12)
A complaint claiming that an administrative agency has otherwise infringed upon personal rights, property rights, or other lawful rights and interests.
In addition to those as set out in the preceding paragraph, the people’s courts shall accept administrative cases which may be filed as prescribed by laws and regulations.
-
(1)
- 30.
Article 98 of the Law on Legislation states:
An administrative regulation, local regulation, autonomous regulation, separate regulation, or rule shall, within 30 days of issuance, be reported to the relevant authority for recordation in accordance with the following provisions.
- 31.
Article 70 of the Administrative Litigation Law states:
Where the alleged administrative action falls under any of the following circumstances, a people’s court shall enter a judgment to entirely or partially revoke the alleged administrative action, and may enter a judgment to require the defendant to take an administrative action anew:
-
(1)
Insufficiency in primary evidence.
-
(2)
Erroneous application of any law or regulation.
-
(3)
Violation of statutory procedures.
-
(4)
Overstepping of power.
-
(5)
Abuse of power.
-
(6)
Obvious inappropriateness.
-
(1)
- 32.
See Jiang (2015), p. 409.
- 33.
See Gu (1989), p. 27.
- 34.
Wang, Hanbin (1989). The Explanation of the Draft of Administrative Litigation Law of the People’s Republic of China. http://www.npc.gov.cn/wxzl/gongbao/1989-03/28/content_1481184.htm. Accessed 30 Nov. 2017.
- 35.
See Ying (1999), pp. 61–62.
- 36.
This is the mainstream viewpoint in most textbooks and books in China. For example, see Jiang and Liang (2009), p. 34.
- 37.
There is no precedent mechanism in China. The judgments passed by the higher courts do not have legally binding effects on lower courts. However, due to the reform of publication of judicial decision and accountability of judges, the judgments by the same courts or higher courts are de facto highly persuasive.
- 38.
Guangdong Higher People’s Court (2015) Admin. Final No. 121.
- 39.
Zhongmu People’s Court of Zhengzhou, Henan (2016) 0122 Admin. First No. 89; Zhengzhou Intermediate People’s Court (2016) 01 Admin. Final No. 955.
- 40.
Beijing First Intermediate People’s Court (2000), First Inter. Admin. First No. 118; Beijing Higher People’s Court (2001), High. Admin. Final No. 7.
- 41.
See Zhou and Gao (2001), p. 99.
- 42.
(2016) Supreme People’s Court Administrative Complaint No. 775.
- 43.
Article 5. Emphasis is given by this author. In practice, the courts usually did not distinguish the application from direct reference. The former has a higher legal effect than the latter in theory.
- 44.
Article 3 of the Resolution of the Standing Committee of the NPC on the Improvement of Legal Interpretation 1981 stated that “[i]nterpretation of questions involving the specific application of laws and decrees in areas unrelated to judicial and procuratorial work shall be provided by the State Council and the competent departments.”
- 45.
See Yang (2008), p. 255.
- 46.
See Yin (1992), p. 32.
- 47.
This law was passed by the Standing Committee of the NPC and named as a regulation before its amendment in 2005. It had been heavily criticized by the scholars that its name was not the formal style of “law”.
- 48.
The SPC Gazette, No. 1, 2003.
- 49.
See Shao Zhongguo v Huangpu Monitoring Bureau on Working Safety, the SPC Gazette, No. 8, 2006.
- 50.
467 U. S. 837 (1984).
- 51.
Guiding Case No.6 issued by the SPC.
- 52.
Emphasis is given by this author.
- 53.
The SPC (2017) SPC Admin. Retr. No. 2245.
- 54.
See Liang (2017), p. 538.
- 55.
Article 28 (1)(3)(5) of Administrative Reconsideration Law.
- 56.
See Xin (2014), p. 20.
- 57.
The SPC (2017) SPC Admini. Retr. No. 309.
- 58.
The SPC (2017) SPC Admini. Retr. No. 2213.
- 59.
The SPC (2017) SPC Admini. Retr. (actively) No. 13.
- 60.
The SPC Gazette, No. 10, 2013.
- 61.
The SPC Gazette, No. 5, 1999.
- 62.
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223.
- 63.
Article 70.
- 64.
Article 73.
- 65.
Article 74.
- 66.
Article 75.
- 67.
Article 76.
- 68.
Article 77.
- 69.
Article 78.
- 70.
Article 71.
- 71.
See Lehner (1983), pp. 627, 631.
- 72.
See Zhang (2011), p. 142.
- 73.
The SPC (2016) SPC Admin. Retr. No. 2621.
- 74.
(2017) Jiangsu Admin. Final No. 294.
- 75.
See Yang (2001b), p. 96.
- 76.
See Geng (2013), p. 97.
- 77.
See Daly (2012).
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Gao, Q. (2019). Deference to the Administration in Judicial Review in China. In: Zhu, G. (eds) Deference to the Administration in Judicial Review. Ius Comparatum - Global Studies in Comparative Law, vol 39. Springer, Cham. https://doi.org/10.1007/978-3-030-31539-9_5
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