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UPDATED: May 6, 2014 NO. 14 APRIL 3, 2014
Harnessing Officials
Amendment to the Administrative Procedure Law emphasizes people's right to sue government agencies
By Yin Pumin


The people's right to sue government agencies and officials should be protected by the introduction of more detailed rules, according to a draft amendment to the Administrative Procedure Law.

The law, which defines procedures to challenge government agencies in court, is to be revised for the first time this year since it was enacted on October 1, 1990, according to this year's work report of the Standing Committee of the 12th National People's Congress (NPC), China's top legislature. Zhang Dejiang, Chairman of the NPC Standing Committee, delivered the report at the Second Session of the 12th NPC on March 9.

While praising the law for once playing an important role in solving disputes, Xin Chunying, Vice Chairwoman of the Legislative Affairs Commission of the NPC Standing Committee, said that citizens now face many obstructions in suing governments.

"When citizens, legal persons or other organizations have disputes with governments or government workers, the latter are often unwilling to be defendants and courts are reluctant to accept and hear such cases, leading many citizens to try to solve their disputes through petitions," Xin said.

The need to revise the Administrative Procedure Law has become increasingly urgent since it's difficult for the people to have their administrative suits accepted by the court and tried fairly, she said.

Although legal experts admit the law in practice does not work well, they attach great importance to its symbolic value. Wang Hanbin, former Vice Chairman of the NPC Standing Committee, who participated in drafting the law, once hailed it as "a democratic milestone."

"Thanks to this law, common people get a chance to understand that regulating the publicly authorized power of the state is the essence of rule of law," said Ma Huaide, Vice President of the Beijing-based China University of Political Science and Law.

A toothless law

Since its enactment, the Administrative Procedure Law has ignited many burning questions.

For example, the law stipulates that a citizen, a legal person or a civic organization has the right to file a lawsuit against a concrete administrative action by an administrative organ or its personnel that has infringed upon his or her or its lawful rights and interests. But it says courts shall not accept actions initiated by citizens, legal persons or other organizations concerning administrative rules and regulations, or decisions and orders with general binding force that are formulated and promulgated by administrative organs.

Ma said that during the research for amending the Administrative Procedure Law, many experts called for the inclusion of abstract administrative actions in the scope of valid lawsuits.

"As more administrative decisions are implemented through abstract administrative actions, such as raising prices and restricting traffic, it's urgent to include those abstract behaviors in the law to effectively supervise and limit them," Ma said.

So far, the law has not been applied to litigation involving basic citizen rights to education, government information or demonstration. The law says citizens, legal entities or other organizations can launch administrative litigation proceedings only when their personal and property rights have been harmed.

In Ma's opinion, citizens should start administrative litigation if they feel their legal interests and rights have been violated by an administrative agency or its personnel in the course of administrative activities.

Chinese courts at various levels processed 1.91 million first-instance administrative lawsuits between 1990 and 2012, or less than 100,000 per year. Plaintiffs won less than 17 percent of the cases, according to the Supreme People's Court, China's highest judicial organ.

In contrast to the low number of administrative trials, a huge number of administrative disputes never make it to courts. Each year, for example, the State Bureau for Letters and Calls under the State Council, which handles petitions of citizens, receives up to 10 million public grievance cases, a fair number of which are administrative disputes. Apart from that, media reports of power abuse and procedure infringements by local authorities are on the rise.

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