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1992 (108) 札泣.Q- JUDICIAL REVIEW OF ADMINISTRATION IN THE PEOPLE'

S REPUBLIC OF CHINA Jyh-pln Fa and Shao-chuan Leng ScltoolofLAW OUM如of MARylANd q、 Occasional Papers/Reprint Series in Contemporary Asian Studies General Editor: Hungdah Chiu Executive Editor: Chih-Yu Wu Associate Executive Editors: Andrew Stone Su Yun Chang Managing Editor: Chih-Yu Wu Editorial Advisory Board Professor Robert A. Scalapino, University of California at Berkeley Professor Gaston J. Sigur, George Washington University Professor Shao-chuan Leng, University of Virginia Professor J. S. Prybyla, The Pennsylvania State University Professor Bih-jaw Lin, Institute of International Relations, National Chengchi University, Republic of China Professor Toshio Sawada, Sophia University, Japan Professor Gottfried-Kar1 Kindermann, Center for International Politics, University of Munich, Federal Republic of Germany Professor Choon-ho Park, International Legal Studies, Korea University, Republic of Korea All contributions (in English only) and communications should be sent to Professor Hungdah Chiu, University of Maryland School of Law, 5∞ West Baltimore Street, Baltimore, Maryland 21201-1786 USA. All publications in this series reflect only the views of the authors. While the editor accepts responsibility for the selection of materials to be published, the individual author is responsible for statements of facts and expressions of opinion con- tained therein. Subscription is US $22.∞ for

6 issues (regardless of the price of individual issues) in the United States and $28.∞ for Canada or overs个s. Check should be addressed to OPRSCAS. Tel.: (410) 328-3870 FAX: (410) 328-4045 Price for single copy of this issue: US $5.∞. ISSN 0730-0107 ISBN 0-925153-19-2 Reprinted with revision by the authors and the permission of Case Westem Reserve Joumal of Intemational Law:

23 Case 恢Res. J. Int'

[ L.. No.

3 (1991), at 447. JUDICIAL REVIEW OF ADMINISTRATION IN THE PEOPLE'

S REPUBLIC OF CHINA. Jyh-pin Fa and Shao-chuan Leng TABLE OF CONTENTS Page 1. Introduction [科7] 11. Historical Background

2 [判8] 111. Legislative Process

6 [451] IV. The Administrative Procedure Law

7 [452] Organization of Procedure

7 [452] Scope of Review

9 [455] Object of Review

11 [456] Proceedings and Judgment

13 [458] Tortious Liability

14 [459] V. Conclusion and Outlook

16 [460] Appendix 1: Chinese Text of the People'

s Republic of China Administrative Procedure Law

19 Appendix 11: Administrative Procedure Law in Effect for One and a Half Years: Mixed Blessing and Sadness (Excerpts)

36 ? Reprinted with revision by the authors and the permission of Case Western Reserve Journal of International Law,

23 Case 阪Res. J. Int'

[ L.. No.

3 (1991),的447. Further topical articles may be found in

23 Case. W. Res. J. Int'

[ L.. No.

3 (1991). Original page number of the article appears in brackets. Appendices

1 and

11 added by the General Editor of this series. JUDICIAL REVIEW OF ADMINISTRATION IN THE PEOPLE'

S REPUBLIC OF CHINA Jyh-pin Fa* and Shao-chuαn Leng** 1. INTRODUCI10N Since 1979, the People'

s Republic ofChina (PRC) under the lead- ership of Deng Xiaoping has taken steps to institute law reform and to develop socialist legality with Chinese characteristics. l Obvious旬, this policy is c10sely linked to China'

s ∞mmitment to the program of four modernizations. The PRC needs a formallegal system to ensure a secure environment, essential to the successful development of its economy. China must project itself as a stable and order1y society with relevant laws to protect the interests and rights of foreigners in order to expand external trade, import advanced technology, and at- tract international inv的tment. Deng said in ear1y 1986: We must use two hands to ca叮y on the four modernizations: grasping ∞n? struction with one hand and grasping the legal system with the other.

2 It is in the area of its legislative output that the PRC has pro- ceeded with surprising speed. In the last decade, the National People'

s Congress (NPC) and its Standing Committee have promulgated eighty laws, twenty amendments, forty regulatory decisions. During the same period, the State council has issued some 9∞ administrative reg- ulations and decrees whi1e the authorities at the provinciallevel have adopted over

1 ,α)() locallaws and regulations.3 Despite the tragic oc- currence of the harsh crackdown on the pro-democracy demonstrators in Tiananmen Square on June 4, 1989, the Chinese government has pledged to continue its open-door policy toward the outside wor1d ? Professor and Chairman of the Law Department, National Chengchi University, Taipei, Taiwan, Republic of China. ?? Compton Professor ofGovemment and Chairman of the Committee of Asian Stud- i筒, University of Virginia. 1. Xiang Chienyi, et al. , Making an Effon ω Establish a Socialist Legal 句Istem with Chinese Characteristics, HONGQI (RED FLAG) 8-12,

18 (Feb. 1, 1984). 2. Zhang Zhong缸, Democracy, the Legal System, and High-Level Civilization, Renmin Ribao (People'

s Daily), April 21,

1986 at 2. 3.

33 BEIJING REV.

21 (No.31, 1990). (1)

2 CONTEMPORARY AsIAN STUDIES SERIES and remained active in enacting new laws and regulations.4 Among the major enactments in Deng'

s China are the implemen- tation of pro臼durallaws. The first enactment was the Criminal Pro- cedure Law, adopted in 1979.5 The second one was the Civil Procedure Law (for trial implementation only), enacted in 1982.6 The most recent enactment w品the Administrative Procedure Law, which was adopted by the NPC on April 4, 1989, and came into force on October 1, 1990.7 Thus, a complete modern system of procedural jus- tice was implemented in the ∞urse of a single decade. In China, a country without a tradition of private citizens suing the governme帅, and where the all-powerful position of the state has always been em- phasized, the historical significance of this new law is apparent. More- over, the law was enacted at a time when the pro-democracy demonstrations in Tiananmen were demanding, among other things, a c1ean and responsible governmental crackdown on offi.cial profiteering and other coπupt and illegal behavior.8 The new law, if fully imple- mented, wi11 help check public offi.cials'

abuse of power in the future. This artic1e wi11 review the historical background and drafting process of this new legislation. The major characteristics of the new Administrative Procedure Law wi11 then be outlined and analyzed. Finally, the artic1e wi11 make a preliminary ass的sment of the law and the outlook for the future. 11. HISTORICAL BACKGROUND The PRC'

s legal system has been influenced in varying degrees by Chinese heritage and Communist ideology. Concerning administra- tive litigation, no such experience is found in the Chinese legal tradi- tion. Certainly, imperial China had an elaborate system of appeals to allow for the review of criminal sentences by higher authorities, in- c1uding the emperor himself. A unique censorial institution had the power and duty to watch, scrutinize, and criticize the conduct of al1 members of the offi.cialdom. However, following the traditional reluc- tance to resort to the courts, the Chinese were even more hesitant to 4. See officials'

reports before the NationaJ People'

s Congress in Fazhi Ribao(Legal System Daily), March 凹,

1990 at 1;

Wu Naitao, The Or:信ins

01 the Chinese Legal 砂'

stem,

33 BEIJING REV.23-27(No.38,1990). 5. Renmin Ribao (P的ple'

s Daily), July 2, 1979, at 1. 6. Id., Mar. 9, 1982, at 1. 7. Id., Apr. 5, 1989, at 1. 8. For the Tiananmen demonstrations, see general,秒, A. Nathan, CHINA'

S CRISIS 171-192 (1990);

L. FEIGON, CHINA RISING: THE MEANING OF TIANANMEN (1990). JUDICIAL REVIEW OF AOMINISTRATION

3 risk incurring severe punishment by complaining about official abuse or injustice. Despite the review system and the censora妞, the tradi- tional administrative system in China never developed individual rem- edies of the kind long-established as a matter of routine in the West.9 In modem China, the Nationalist govemment promulgated a Law of Administrative Proceedings in 1932. However, when the PRC was established in 1949, the Communist govemment abolished this and al1 other Nationalist law immediately.lO If Chinese tradition of- fers little background or experience with r的pect to administrative liti- gation, socialist ideology and practi臼are equally deficient in this regard. Judicial control over administration, corollary of the separation of powers, has always been anathema in socialist countries, where the unity of state power is a supreme, guiding principle.11 This assump- tion was the basis of the c1aim that in socialist states, administrative agencies could not be guilty of abuses against individuals because the interests of individuals and the govemment were identical and there was no room for ∞nftict between them. This is what Trotsky meant when he said that the workers could not defend themselves against the workers.

12 Therefore, it is not su中rising that although the possibi1ity of a private citizen bringing a govemment department to court was recog- nized in the PRC as early as

1949 in the Common Program13 and in the Constitution of 1954, these provisions are more political-philo- sophical declarations than legally binding norms. No serious consid- eration was given to the necessaηmachinery or enforcement process for such action. It was inconceivable that anyone would dare to bring such a case to a people'

s court or that the court would entertain it. Unti1 闪闪nt旬, the only avai1able safeguards against the abuse of pub- 9. Dicks, Administrative Law in INTROOUCIION TO CHINESE LAW

56 (B. Weng &

H. Chang s., 1987). For traditional Chinωe law and judicial practice, see D. BODDE and C. MORRIS, LAW IN IMPERIAL CHINA (1967);

S. VAN OER SPENKEL, LEGAL INSTITUTIONS MANCHU CHINA: A SOCIOLOGICAL ANALYSIS (1962). 10. S. LENG &

H. CHIU, CRIMINAL JUSTICE IN POST-MAO CHINA (1985), at 11. For English text of the administrative law of the Chin臼e Nationalist governme肘, see

2 A COMPILATION OF THE LAWS OF THE REPUBLIC OF CHINA 41-47(1971). 11. 0曲, Judicial Review o[Administration in the U.S.S. R. ,

1989 PUB. L. 111, 112. 12. Ludwikows蚣, Judicial Review in the Socialist Legal 砂'

stem: Cu ent Develop- ments,

37 ........