Politics of administrative litigation in contemporary china

In the first place, the number of administrative litigation cases accepted by courts has increased steadily after the institution of administrative litigation was formally set up in 1990

Chapter 1 Introduction

BACKGROUND

On April 4, 1989, the People's Republic of China adopted its first Administrative Litigation Law (ALL) at the Second Session of Seventh National People’s Congress Under this law, a legal redress system was established and came into effect on October 1, 1990 in China Citizens can sue the governments for their infringement of their lawful rights and interests The promulgation and enforcement of the ALL has been perceived as a crucial step in “China’s long march toward rule of law”,1 because

it established the first system of judicial review in China to restrain the arbitrary power of government

However, in the context of authoritarian China, implementing the ALL is not an easy task On one hand, the government departments are not willing to be sued and try to handicap the impartial law enforcement by all possible means On the other hand, due to the existing institutional arrangements, the courts are constrained by the governments and thus do not have the power and courage to challenge them Consequently, the ALL has encountered serious and wide-ranging problems since implementation Many of the Chinese citizens are not familiar with the use of legal measure and confrontation with authorities for protecting their interests Many of the

1 See Randall Peerenboom, China’s Long March toward Rule of Law，(Cambridge: Cambridge University Press, 2002).

state officials are not used to answering to the citizens, being examined by the courts, and abiding by the laws In general, the individuals are all too weak and loosely organized to protect themselves; the state officials are still all too powerful and well established to be challenged; and the legal system is still not sufficiently well established to provide relief When litigation is to be pursued, there are, indeed, many obstacles to be overcome, high costs to be paid, and great risks to be taken

Figure 1.1 Number of Administrative Litigation Cases of First Instance 1988-2001

Yet, fourteen years' practice of the ALL shows that it has made steady and significant progress in many aspects since its enforcement in 1990 despite of the resisting governments and imperfect institutional arrangements In the first place, the number

of administrative litigation cases accepted by courts has increased steadily after the institution of administrative litigation was formally set up in 1990 In the past,

citizens suing government was very unusual Even under the sanction of the Civil Procedure Law of 1982, the pursuit of administrative litigation was very difficult and the number of the filed cases remained rare But when the ALL began to take effect

in 1990 and administrative litigation courts were set up at all levels specifically responsible for accepting and hearing administrative litigation cases, the first hearing administrative cases surged by 30 per cent to 13006 in 1990 and by 97 per cent to

25667 in 1991 (see Figure 1.1) In particular, 40 per cent of the 1990’s annual total, i.e 5258 out of 13,006 cases, were received from October to December when the Law took effect, which represented a 96 per cent increase over the same period in the previous year.2 It indicates that the citizens did have great expectation when administrative litigation was promulgated in 1989 and were eager to make use of it when it became effective in 1990 The rise slowed down to five per cent and two per cent in the following two years, suggesting there were indeed operational problems that were unrecognized before but soon manifested when the institution was put into effect Yet, the annual growth rate picked up again from 25 per cent in 1994 to 49 per cent in 1995, and 52 per cent in 1996 during the years of rapid economic growth After two years’ gentle growth, the accepted cases decreased to 97569 in 1999 and only 85760 in 2000 But in 2001, the first hearing cases jumped up again to a head of

100921 Despite many underlying problems and a zigzag development, it is undeniable that the magnitude of growth has been very substantial over a span of thirteen years, i.e almost ten-fold increase from 9,934 cases in 1989 to 100,921 cases

2 Ren Jianxin, “1990 Work Report of the Supreme People’s Court at the Fourth Plenum of the 7 th National People’s

Congress,” Gazette of the PRC Supreme People’s Court, No 2, (1991), pp 42-49

in 2001 As a matter of fact, more and more numbers of the citizens are using the new institution to protect their lawful rights and interests The substantial increase in the number of accepted cases indicates that the ALL has not been left as just a window display but has indeed opened up a new era in the relationship between the state and individual in China since 1990.

In the second place, the types of the accepted administrative litigation cases, as shown in Table 1.1, have expanded rapidly since 1990 It indicates that the ALL has broadened its role in protecting the citizens from various types of governmental infringement During the years before and immediately after the establishment of the ALL, the types of administrative litigation were limited to the government acts in the fields of public security and lands administration only.3 These two types of litigation are related to personal subsistence and survival.4 Therefore, it is fair to say that only the fundamental interests and rights were protected under the ALL in the early years

of implementation The administrative lawsuits have rapidly extended into the fields other than public security and land administration since 1993 In 1997, the scope of accepted administrative litigation cases had expanded to more than 50 categories, covering almost all fields of public administration.5 It is obvious that the administrative litigation has developed from serving only two kinds of administrative

3 It was to process an administrative lawsuit of public security that the first administrative tribunal was founded in Gu Luo County of Hunan province Later-established courts were also occupied mostly by the same type of cases and the cases of land dispute between government and the citizens as well.

4 The sued acts in the field of public security involve birth control, personal liberty as well as political rights In the field of land administration, the lawsuits involve arable land distribution, house demolition and clearance, and so on.

5 Law Yearbook of China, 1998, pp.134 Some other kinds of administrative litigation cases like statistic, technology supervision are not listed in Table 1.1 Among all the administrative cases accepted in 1990, public security and lands cases each contributed to around one third of the total, but the two had fallen to only 15 percent and 16 percent respectively

in 1999 In contrast, “other” types of cases had increased from 34 percent to 53 percent over the same period

complaints in the past, to a wide range of protection to the citizens in the PRC recently It also suggests that the Chinese citizens are readier to resort to administrative litigation on a diverse range of issues involving their individual rights and interests apart from sheer survival.

Table 1.1 Types of Administrative Litigation Cases of First Instance 1990-2001

Data Source: Law Yearbook of China 1991-2002 (% added, 100 ± 1 per cent).

In the third place, the increasing probability of citizens' winning over governments in courts shows that the reliability of the ALL as a legal relief for the encroached has been improved significantly in the past fifteen years The Figure 1.2 shows the change of percentage that the sued administrative acts have been upheld by courts in the first hearing from 1988 to 2001 It can be learned that the rate of winning suits by the governments has dropped steadily over the fourteen years of implementation In

1988, there was 49 percent of chance for government agents to uphold their acts in the courts After a decade of continual decrease, the governments' chance of winning

Year Public Security Lands City Building Forestry Industry &Commerce Transport Others Total Cases /% Cases /% Cases /% Cases / % Cases /% Cases /% Cases /% Cases

judicial support bottomed out in 1997 at only 13 percent Although the chance has increased with gentle slope since 1998, it may be attributed to the fact that the governments have realized the power of the ALL and endeavored to adjust their behavior to meet at least the requirements set by the laws.

Figure 1.2 Percentage of Upheld Cases 1988-2001

As a matter of fact, many officials admitted that they were more careful in exerting administrative power because of the law In recent years, most of the government organizations have established legal advisory branch in order to reduce possible unlawful acts These evidences illustrate the real impact of the ALL on bureaucracies has increased significantly Besides, despite the percentage of upholding cases has fallen over years; the rate of withdrawn cases by plaintiffs has remained uncommonly high One may thus argue that the institution has not been performing

very well in resolving conflicts between the state and the citizens But, if the data are examined elaborately, we can find that this is not the whole story The data in Figure 1.3 show the changes in the percentage of withdrawn cases over the past fourteen years Despite the very high withdrawing rate of cases by plaintiffs, it has dropped dramatically from the highest rate of 57 percent in 1997 to 31 percent in 2001 Furthermore, among those withdrawn cases, there were approximately 38 percent withdrawn after the defendants rescinded the disputed administrative actions to the satisfaction of the plaintiffs.6 In such cases, though the lawsuits filed by citizens under the ALL were given up mid-way, it generated substantial reciprocal benefits for the plaintiffs This result shows that the ALL may help resolving the administrative dispute between the state and citizens even without bringing the lawsuits to trial

To sum up, although the adverse environment has created various problems for the enforcement of the ALL and has prevented the institution of administrative litigation from doing what it could and should do, an undeniable fact is that the ALL has survived and played an increasingly important role in restraining government power

as well as protecting rights of ordinary citizens The gradual developments of the ALL, including the consistent and dramatic rise in terms of both the number and scope of administrative cases accepted, the falling in the percentage of rulings in favor of state agencies, indicate that the ALL is being consolidated as a legal

6 Minxin Pei, "Citizens V Mandarins: Administrative Litigation in China," The China Quarterly, No 152 (Dec.,1997).pp

832-62.

institution in China

Figure 1.3 Percentage of Withdrawn Cases 1988-2001

RESEARCH QUESTION AND ITS SIGNIFICANCE

The ongoing consolidation of the ALL 7in China raises an interesting question that the author wants to explore in this thesis project: what accounts for the consolidation

of the newly emerged ALL? In other words, why and how is a legal institution that aims to restrain the government power feasible to work and develop in an authoritarian state like China? More abstractly, why and how can an institution survive and develop in the environment not conducive to its evolution?

7 The concept of “consolidation” in this thesis is defined as a process that the law becomes increasingly viable and credible

Answering the above question has both practical and theoretical significance: Practically, it will provide some policy implications for China’s construction of

“socialist democracy and the rule of law” The rule of law is set as one of the most important targets of China’s political reform In 1997, the 15th Congress of the Chinese Communist Party announced that “China adopts governance according to law and will be constructed as a socialist country of rule of law”; in 1999, this statement was incorporated into the constitution as an amendment Nevertheless, to achieve this goal in China, where there is no full-fledged democracy and legal culture, many obstacles have to be overcome An essential problem to be urgently solved is how to build a credible and viable legal institution to work out the rule of law This study will shed some lights on the mechanisms of legal institution building

in authoritarian context Thus, a clear and logically consistent explanation to the research question will certainly provide important policy implications for China’s successful transition towards “the rule of law”

In addition, this study is theoretically significant as well Firstly, it will complement the inadequate studies on the politics of the rule of law in China While the existing studies emphasized the institutional features and performances of the ALL, the mechanisms that make the law work and develop over time in authoritarian China have been inadequately addressed This study will complement the existing literature through filling this needed niche Moreover, this study will better our understanding

of transition to the rule of law in authoritarian context through the case of

administrative litigation Current analysis of China’s movement towards rule of law focus on the judicial reform and the law enactment However, in authoritarian China, where there is no tradition of rule of law, the legal institution, which are transplanted from the western tradition may not be able to work and sustain Therefore, to understand China’s transition towards the rule of law, we need to explain the mechanisms that facilitate consolidation or development of the legal institutions The last but not the least significance of this study is that it aspires to contribute new view

to the literature of institutionalism The change and persistence of institution have attracted much academic attention and constitute an essential research topic in the literature of institutionalism Yet, the issue that has been inadequately addressed is why and how an institution can evolve in the adverse context This study explores this problem through the case of Chinese legal institution consolidation It aims to illustrate how the interplay between the institution and the actors makes the institution develop in an incompatible environment

LITERATURE REVIEW

Although the development of the ALL, as mentioned above, has not attracted sufficient academic attention from the students of Chinese politics, it cannot be denied that some significant literatures have been contributed by both legal scholars and political scientists The author believes that it will be helpful to look at the accumulation of the literature on this topic as a whole It can be learned from the

literature that the existing studies on the ALL center on two aspects one is the textual analysis on the legislative features of the ALL, the other is the assessment of its performance

The Structure of the ALL and Its Potential Effectiveness

Most works in this line of study are to assess the potential effectiveness of the ALL based on the textual analysis of the legal provisions They try to answer the following questions: what is the structure or features of the ALL? Whether or to what extent the ALL has the potential to restrain the discretionary power of government and protect the lawful interests and rights of citizens?

It appears that scholars are at variance with the potential effectiveness of the new law Susan Finder is one of the scholars who are optimistic with the effectiveness of the ALL In her introductory paper, Susan Finder discussed the issues of availability

of judicial review, time limits, adjudication of the administrative litigation, and the scope of review Based on the analysis of the legal provisions, she argued that the ALL “may prove to possess far greater potential than expected.” It may serve to put

an increasingly broad range of administrative actions under judicial review and have the potential to balance the power between the citizens and the government as well 8

Pitman B Potter’s assessment is more comprehensive with the notice of the inherent tension between the law’s provisions supporting judicial review and the various

8 Susan Finder, "Like Throwing an Egg against a Stone? Administrative Litigation in the People's Republic of China,"

Journal of Chinese Law, Vol.3, No 1 (Summer, 1989).pp.1-28.

problems undermining such support He argued that the ALL, on one hand, provides broader opportunities for judicial review over administrative actions through the supporting provisions on the scope of cases accepted; the types of parties that may file lawsuit or that may be compelled to appear as defendants; trial procedures and enforcement; and the tort damage remedies On the other hand, the ALL contains a number of problematic provisions that dilute the effectiveness of judicial review as well These, as he enumerated, includes: 1, conceptual uncertainties about the distinction between administrative litigation and ordinary civil litigation; 2, limits on the scope of review and the range of matters subject to review under the ALL; 3, limits on the power of the courts to revise administrative decisions; 4, ambiguities regarding court jurisdiction and refusal of cases; 5, restrictions on judicial suspension

of administrative decisions, secrecy of hearings and procuracy review He believed that the effectiveness of the ALL would depend on the outcome of the inherent tension of the ALL.9

Hon S Chan, however, emphasized the inability of judiciary to control discretionary powers over the administration He characterized the ALL as “a street-level management law”, meaning that the ALL sets the limits for judicial control on administrative operation through restricting the jurisdiction of courts to the questions

of legality and the scope of judicial review to the specific administrative acts These limits make it difficult to control the institutionalized form of the abuse of powers

9 Pitman B Potter, The Administrative Litigation Law of the PRC: Judicial Review and Bureaucratic Reform, in Pitman B Potter (ed.), Domestic Reforms in Post-Mao China (Armonk, NY: M E Sharpe, 1994).pp 270-304.

Because of the existence of an informal structural network -Guanxi Wang, the abuse

of power in China “involves not merely acts of an individual but also acts of individuals at different levels of the hierarchy in administrative authorities”, thus,

“holding street-level bureaucracies responsible through court rulings means challenging the whole of administrative operations.”10

This stream of studies depicted the basic structure or features of the new law and assessed its potential effectiveness But this line of study, featured by the textual analysis, fails to provide insights to the operation of the institution in reality This issue, however, is emphasized by the other line of study, which concerns the operation of the ALL in reality

The Operation of the ALL in Reality

In contrast, the studies on institutional operation of the ALL highlights “the law in action” rather than “the law on the books” Most of the studies on this aspect are designed as empirical study to explore how the institution works in reality and why However, scholars take different approaches to such questions

In 1991 and 1992, Gong Xiangrui and his coworkers conducted the first empirical study on the implementation of the ALL.11 In this study, they used cross-national survey data to assess the public perception of the ALL and relied on two case studies

10 Hon S Chan, "Judicial Review and Control over Administrative Discretion in the People's Republic of China," Review

of Central and East European Law, Vol 18, No 2, (1994), pp.135-63.

11 Gong Xiangrui (ed.), Fazhi De Lixiang Yu Xianshi (The Ideal and Reality of the Rule of Law ), (Beijing: China

University of Law and Politics Press, 1993).

to investigate how the ALL was implemented at the grass-roots level This study provided rich empirical observations and thus contributed the following basic information to our understanding of the institution: first, the ALL had made some significant achievements in terms of increased case acceptance, strengthened legal consciousness, governance according to the enhanced law, and the improved quality

of judgment; second, due to the political and institutional constraints, the ALL was faced with serious problems of the scarcity of administrative case and the high rate of case withdrawing Nonetheless, this study has its weaknesses as well It suffers from unreliable polling, insufficient data and not in-depth analysis

Compare to the 1992 study, Minxin Pei’s study is more systematic Using official national data on administrative litigation during 1986-96, he systematically analyzed the increase of administrative litigation lawsuits, regional variation, scope of administrative litigation and the outcome of the litigation Based on the analysis, he provided an overall description and preliminary explanation for the patterns that the ALL is implemented Then, he showed how the law works in reality by examining who sues, who sues whom, sues for what kind of administrative violations and what plaintiffs get on the evidence of 236 available court cases After that, he concluded that “although the constraints of China’s closed political system seriously limit the effectiveness of the ALL, the institution of judicial review of administrative actions

is gradually being consolidated.” This consolidation process indicates that the institution of administrative litigation evolves through “a process of mutual

adaptation -new institution adapt to the existing political system and its constraints and the existing political system adapts to the new norms and rules stipulated and embodied in the new institutions” and follows the logic of path-dependency Minxin Pei’s study is contributive in the sense that it figured out the patterns that the ALL works in reality and proposed a plausible explanation for the consolidation of the newly built institution of administrative litigation However, there are two defects in his study First, the 236 cases he relied on are not randomly selected The non-random selection, as he himself realized, may cause the problem of selection bias Second, this study lacks the dynamic perspective and thus fails to explain the political process of administrative litigation Some important questions like how the law is mobilized by citizens and intervened by state actors and how the interaction among key actors shape the outcome of the administrative litigation are left unanswered.12

The recent research by Kevin A O’Brien and Lianjiang Li paid respect to the above questions by examining the dynamics of administrative litigation in rural China With rich empirical evidences, O’Brien and Li not only enumerated the tactics that the litigants and their targets employed both in and out of court but also depicted the vivid scenario of political struggle at each stage of litigation They found that local officials often attempt to preempt, derail or undermine administrative lawsuits by blocking the access to official documents and regulations, pressuring the courts to

12 Minxin Pei, “Citizens v Mandarins: Administrative Litigation in China”, China Quarterly, No 152, (Dec., 1997), pp

832-62.

reject cases, failing to appear in court or perjuring themselves, discrediting attorneys, and intimidating litigants However, villagers also fight back by drawing in sympathetic elites such as people’s congress deputies and the media, and mobilizing collective appeals even staging public protestors According to their observation, the mobilization in administrative litigation, “seldom involves a choice between recourse

to the law or to other strategies, but recourse to the law and to other strategies”

Thus, they concluded that administrative litigation provides a useful window on Chinese state-society relations and on the interplay of legal and political mobilization In addition, they suggested that “should more villagers incorporate administrative litigation into their repertoire of contention, a reform designed to extend the life of an authoritarian regime may play a part in nudging China a step closer to rule of law.” Needless to say, this study enriched our knowledge of China’s administrative litigation as it offered an in-depth description of the dynamic process

of administrative litigation But, it did not provide compelling explanation to the questions needed to be answered, for example, why citizens are willing to go to court

to file lawsuits despite the presences of costs and the risks? Under what condition can the plaintiffs obtain the favorable rulings even if their targets have exerted influence on the courts? 13

In short, the existing studies analyzed the legislative features of the ALL and evaluated the performance of the institution in reality Most scholars, either by

13 Kevin J O'Brien and Lianjiang Li, "Suing the Local State: Administrative Litigation in Rural China," The China

Journal, No 51 (Jan., 2004) pp 75-96.

textual analysis or by empirical examination, noted that the institution of administrative litigation is being consolidated The question that has insufficiently explained is why the institution of administrative litigation can survive and develop

in authoritarian China This study tries to construct a theory to answer explain this insufficiently addressed question

ANALYTIC FRAMEWORK AND CENTRAL ARGUMENT

Then, what accounts for the consolidation of the ALL in authoritarian China? To give

an answer, this study stresses the importance of the fragmented authoritarian context and the endeavor that citizens have paid in the legal battles The argument proposes that the consolidation of the ALL in China results from citizens' perseverant efforts

of exploiting the legal-political space that is embedded in the fragmented authoritarian regime The causal link between the two explanatory factors and the explained consequence is outlined in the theoretical framework shown in the Figure 1.4

This framework includes the fragmented authoritarianism as contextual variable because it has not only shaped the judicial behavior of courts but also conditioned the litigation behavior of citizens as well On the one hand, authoritarian institution arrangements have deprived courts of judicial independence and confronted courts with various non-judicial pressures But on the other hand, the fragmentation of the

Party-state has also presented a political-legal space that can be exploited by citizens

to facilitate their legal battles

Figure 1.4 Analytic Framework of the Study

In China, courts are inferior to executives in political hierarchy and dependent upon governments in some important aspects of everyday operation like finance, personnel and material resources supply Consequently, when dealing with administrative lawsuits, courts have to consider their relationship with governments and thus losing courage and power to challenge the governments Besides, in authoritarian China, court is not really being treated as a judicial institution dealing with legal affairs In fact, it has long been regarded as an “instrument” of the Party-state.14 Courts are subjected to the leadership of the Party and often burdened with various extra-judicial responsibilities such as maintaining social stability, serving core policies of the Party-state and assisting local economic development Without insulation from

14 Lubman argued that although efforts have been paid to legal reform, the bird of Chinese legal institution still remained in

the cage of the Party-state See Stanley B Lubman, Bird in a Cage: Legal Reform in China after Mao, (California:

Stanford University Press, 1999).

Fragmented Authoritarianism

Citizen Activism

Judicial Behavior

political control, courts, when deciding an administrative litigation case, have to take into account the possible political consequence that certain ruling may bring about Finally, court system in authoritarian China is organized and administered like

a bureaucratic organization.15 Judges are responsible to their higher-ranked supervisors; lower-level courts are answerable to the courts at higher-level Under such a hierarchical structure, judges are restrained by various intramural administration regulations When they decide administrative litigation cases, concerns regarding promotion, performance, and adjudication responsibility often carry great weight Due to the institutional constraints of the authoritarian regime, courts are exposed to extra-judicial pressures imposed by governmental, political as well as internal administration authorities As a result, judicial decision on administrative adjudication is not simply based on legal norms but contingent upon the pressure structure that is defined by the propensity of the involved authorities

Although authoritarian regime has constituted an impediment to the impartial enforcement of the ALL, it still leaves possibility for citizens winning over the government under the law The reason is that the fragmentation of the Party-state provides a checking mechanism in administrative adjudication When local governments try to obstruct judicial review over their illegal acts, higher-level authorities or other branches of local authority, depending on their judgment on the situation, may intervene the judicial process and press the courts to dispose the

15 This is referred as “bureaucritization of court system” by some Chinese scholars See among others, He Weifang,

“Zhongguo sifa zhidu de liangge wenti”, (Two Problems of Chinese Judicial System ), Social Sciences in China, No 6,

(1997), pp 117-130.

disputes justly Chinese Party-state is not a homogeneous entity but rather a fragmented system with diverse actors pushing from different directions.16 Vertically, the Party-state at different levels have diverging policy concerns and thus often moving in opposite ways Generally, lower level Party-states pay more attentions to

local economic interests and administrative achievements (zhengji) They are thus

more likely to transgress the rule of law and exert wrongful influence on courts to side-step legal responsibilities On the contrary, higher level authorities concern socio-political stability and legitimacy more than lower level Party-states do Therefore, they have stronger incentive to promote the rule of law and maintain public credibility Horizontally, different sections of the Party-state, in order to intensify their organizational capacities or to expand clarified jurisdictions, tend to compete with each other for power Although communist China has never adopted power separation system, some reforms on administration-Party division, People's Congress restructuring, and media commercialization have intensified the functional differentiation among the state agencies In order to enhance their own authority, these state agencies are ready to exercise power over others under certain conditions

The framework also stresses the importance of citizen's efforts to exploit political space for consolidating the ALL Citizen activism is relevant because in

legal-16 This point draws on the insight of Joe S Migdal's “state-in-society” approach to the study of state, in which he argues

that state should not be assumed as a holistic entity with all parts move in the same direction See, Joe S Migdal, State in

Society: Studying How States and Societies Transform and Constitute One Another, (New York: Cambridge University

Press, 2001)

In this thesis, I borrow Lieberthal's “fragmented authoritarianism” to term this characteristics of the Chinese Party-state but the meaning of the term in this thesis is different from that of Lieberthal's original concept For Lieberthal's concept of

“fragmented authoritarianism”, see Keneth G Lieberthal and David M Lampton, Governing China: Bureaucracy, Politics,

and Decision Making in Post-Mao China, (Berkeley: University of California Press, 1992).

order to win over the powerful governments, citizens must exert significant influence

on courts to prevent them from favoring the established power In their legal battles, citizens have not only been active in legal actions but also paid great efforts to mobilize political supports This effort of dual mobilization may help to shift the pressure structure that courts confronted in judging litigation cases and thus leading

to the litigation outcomes that favor citizens The patterns that how citizens' efforts influence the judicial behavior in administrative adjudication are given in Figure 1.5

Figure 1.5 Citizen Activism and Judicial Behavior in Administrative Adjudication

Legally Active Legally Inactive

a number of reasons First, other branches or levels of political authorities may not intervene in judicial process because citizens' inaction does not provide them any incentive Furthermore, citizens' feebleness in legal mobilization may render courts a nerve to pervert the law Without political and legal restraints, courts only confronted

with pressures from the governments, therefore, the judgments favoring governments are most likely to be made in this situation.

In the second scenario, where citizens are active in legal mobilization but not political effort, courts are prone to mediate the administrative disputes partly in favor

of the citizens The rationale for this mode of judicial behavior is that it is safe On one hand, courts can avert confrontation with governments while they are appeasing citizens' complaints On the other hand, there is no responsibility for any misjudging cases when the cases do not enter judicial process at all

In the third scenario, citizens do not focus on legal actions, instead, they pay more efforts either to mobilize sympathetic support from political authorities or to exert political pressures on courts directly Under such condition, the court's rulings are contingent upon the effectiveness of citizens' political efforts If citizens successfully mobilize sympathetic supports from political authorities and get them intervene in judicial process, courts will be pressed to support citizens' claims If not, courts may simply refuse to accept the lawsuits or favor the sued

Courts are most likely to dispose administrative lawsuits in favor of citizens when they are active in both legal mobilization and political action This dual mobilization makes difference firstly because legal mobilization may enrich citizens' legal knowledge and help them obtain resources necessary to achieve litigation success, thus, their capacity to assert rights in court will increase significantly For the second

reason, by taking political actions, citizens maybe able to attract sympathetic support from other political authorities and thus impose political pressures on judicial decision makers

The above analytic framework suggests that it is feasible to consolidate the ALL in authoritarian China because citizens have paid great efforts to exploit the legal-political space embedded in the fragmented Party-state It implies that legal institution building in authoritarian context relies heavily on the driving forces in both society and the state

RESEARCH METHOD AND DATA SOURCES

This study is not a contextual analysis of the ALL but an empirical study on the politics of administrative litigation It tries to uncover the mechanisms that make the ALL feasible to be consolidated in authoritarian China Given the presented above theoretical framework, the author believes that configurative case analysis is a suitable approach to this study because the deep descriptions generated in configurative analysis make it possible to probe into the logic of the interaction among legal institution, political elites and ordinary citizens.17

This study relies heavily on event data In order to collect primary data, the author

17 Configurative case study emphasizes the thick description of a small number of cases so that the consumer of the research will be able to comprehend the logic of political life in that limited number of settings About configurative case

study, see A Lijphart, “Comparative Politics and the Comparative Method”, American Political Science Review, Vol 65,

(1971), pp 682-93

conducted a two-month fieldwork in Wuhan, a capital city located in the central part

of China During the fieldwork, I conducted 41 in-depth interviews with the people who had got or were getting involved in administrative litigation The interviewees include judges, lawyers, legal scholars, plaintiffs, and government officials In order

to guarantee the reliability of data, I tried to compare the accounts of interviewees with those of others on the same events In addition to the interview data, I copied numerous archival materials including indictments, attestation, written judgment, as well as some official intramural documents I also used a number of secondary data source from websites, newspapers, and journals

ORGANIZATION OF CHAPTERS

Chapter One offers an introduction to this research It includes the research question, topical literature review, theoretical framework, and research methodology Chapter Two examines the efforts that have been paid in building the institution of administrative litigation It tries to explain why and how the ALL was able to emerge

in authoritarian China Chapter Three analyzes the government attitude towards administrative litigation and how government obstructs the enforcement of the ALL Chapter Four explains the institution settings of people's court and the logic of judicial behavior in administrative litigation Chapter Five addresses citizen activism

in administrative litigation It shows how citizens pursue legal justice under the ALL Chapter Six concludes the study by discussing some theoretical and policy implications

Chapter 2 Building the Institution of Administrative Litigation

Restraining the discretionary power of the government by law is not an easy task In fact, China has paid great efforts in building up the institution of administrative litigation To understand consolidation of the administrative litigation law, the process of institution building should be firstly appreciated This chapter was thus devoted to the analysis of why the ALL was able to emerge in authoritarian China and how the state promotes the implementation of the law

RATIONALE OF INTRODUCING THE ALL

China’s administrative litigation system was created in the course of the post-Mao reform It was the political and economic changes generated by the reform that gave the impetus to the birth of the institution First of all, the policy taken by the post-Mao leaders towards the rule of law laid the foundation of the emergence of administrative litigation Many of the post-Mao leaders had experienced the calamity

of Cultural Revolution Because of the ubiquitous violation of individual rights, the capricious and arbitrary exercise of power, and the general collapse of law and order took place during the Cultural Revolution, Post-Cultural-Revolution leaders realized that restraining the arbitrary government power was necessary In 1978, Deng Xiaoping declared that, “democracy has to be institutionalized and written into law,

so as to make sure that institutions and laws do not change whenever the leadership changes or whenever the leaders change their views.”18 In the late 1978, the Third Plenum of the 11th Central Committee endorsed the policy towards constructing socialist democracy and the rule of law as the goals.19

With political elites taking the initiative, China began to reform its legal system.20The endeavor of legal institution building laid foundations of the emergence of the ALL in many ways: First, the infrastructural framework of modern legal institutions have been constructed up and a large number of laws have been promulgated, some

of which contain the provisions of judicial review In 1982, China promulgated the fourth Constitution The Constitution provided an article giving citizens the rights to remonstrate against the government and seek redress for grievances.21 Since then, many laws were drafted with provisions of allowing aggrieved people to challenge administrative actions or decisions in court For example, in 1982, judicial review provisions were included in article 38 of the provisional law on food hygiene.22

In addition, efforts have been paid to publicize citizen’s legal rights and duties The legal education tried to develop legal consciousness among both state officials and

18 Deng Xiaoping, Selected Works of Deng Xiaoping (1975-1982), (Beijing: Foreign Languages Press, 1984), p.18.

19 See Gazette of the Third Plenum of the 11th Central Committee of Chinese Communist Party, (1978).

20 About the efforts of legal institution building in reform China, see Stanley B Lubman, Bird in a Cage: Legal Reform in

China after Mao, (California: Stanford University Press, 1999), pp 138-72.

21 The Article 41 of Constitution of the People’s Republic of China (1982) states:

Citizens of the People’s Republic of China have the right to criticize and make suggestions to any organ or functionary Citizens have the right to make to relevant state organs complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state organ or functionary, but fabrication or distortion of facts with the intention of libel or frame-up is prohibited.

In cases of complaints, charges or exposures made by citizens, the state organ concerned must deal with them

in a responsible manner after ascertaining the facts No one may suppress such complaints, charges and exposures, or retaliate against the citizens making them Citizens who have suffered losses through infringement of their civil rights by any state organ or functionary have the right to compensation in accordance with law.

22 See the Provisional Law of the People’s Republic of China on Food Hygiene.

citizens Besides, the Party’s policy towards the rule of law encouraged some legal scholars to work on the study of administrative law and administrative litigation law During 1978-1982, there were more than 20 theses about administrative and administrative litigation law published in official newspapers or academic journals.23

It is fair to say that the academic works did make good theoretical preparation for the legislation of the ALL

Secondly, the increasing administrative disputes generated from the reform made it necessary to establish redressing system On one hand, the rapid development of private economy made more and more people have personal interest in challenging unfavorable administrative sanctions During the early years of the reform, millions

of individual household businesses had gone into operation In rural areas, the number of household business increased from 961,000 in 1981 to 10,342,000 in

1987 The total number of people employed in rural household business increased from 1,218,000 in 1981 to 16,660,000 in 1987, with a total business volume of 70.23 billion yuan and retail sales of 48.7 billion yuan (8.4% of national retail sales) The number of urban household business increased from 868,000 in 1981 to 3,383,000 in

1987, employing 1,056,000 in 1981 and 4,923,000 in 1987.24 In addition, many collective business service operations had been established for private profit and many smaller state-owned enterprises had been leased out to individuals or groups Before 1979, all commercial enterprises were state-owned As of early 1989, 81.9%

23 Jiang Ming-an, Xingzheng susongfaxue (Jurisprudence of Administrative Litigation Law), (Peking University Press,

1993), p.32.

24 See State Statistics Bureau, “Shishi he shuju: siying jingji” (Facts and Figures: The Individually Owned Economy),

Beijing Review, (Feb 27, 1989), pp 23-24.

of China’s 87,000 small and medium-sized commercial enterprises were run as contracted undertakings, had been leased out, or had had their ownership transferred.25 Foreign investors had also opened their business in China in various forms A corollary of the rapid development of private economy is that the number of individuals who have personal interest in challenging the government infringement increased On the other hand, the incentive and opportunity provided by the fiscal reform and the decentralization of administration gave rise to a variety of deviant administrative behaviors, most of which are at the expense of people’s personal rights and interests while enriching the government's gains.26 Because of the fiscal reform, local governments faced with the pressure of fiscal shortage; but the reform

of decentralization expanded their regulatory power over the society and economy Under such conditions, the governments often resort to their monopoly power and levy excessive and irregular charges on individuals and enterprises to raise the extra-budget revenues and maximize the gains A typical example is the so-called “three unruly actions” of various state agencies - namely, illicitly levied fines, imposed fees and apportionments In the rural areas, financial charges and levies have been growing since the early 1980s Although the government was alarmed of this problem and, as early as 1985, stipulated that charges (excluding taxes) on peasants could not be more than five percent of their annual income in total, the actual

25 Qiangmin and Liu Jianjun, “Zhuzhong shangye gaige” (Taking Stock of Commercial Reform), Beijing Review, (Dec 26,

1988), pp 17-18.

26 About deviant behavior of bureaucracy, see Xiaobo Lu, “From Rank-Seeking to Rent-Seeking: Changing Administrative

Ethos and Corruption in China”, Crime, Law and Social Change, No 32, (1999), pp.347-70, also see Yong Guo and Angang Hu, “The Administrative Monopoly in China’s Economic Transition”, Communist and Post-Communist Studies,

No 37, (2004), pp.265-80.

burdens on peasants are much heavier.27

The abuse of government power also reflected in the case of illicit road tolls and charges Roadways have become a source of revenue for government agencies in charge of road management, public health, taxation, tobacco, or the monopoly on salt In the name of highway safety, disease control, prevention of tax evasion and salt smuggling, the state agencies are quite efficient in imposing fines, fees or other charges along roadways In a small county of Hubei province, 16 different agencies once had check points charging some 30 fees along the two main inter-provincial highways.28 In some places, toll posts and check points were set up on average every 3.2 kilometers along roadways According to a report, in 1995 alone, 6,745 check points or toll posts nationwide were dismantled, a fifty percent reduction from the previous year.29

The wielding of state power has evoked the public resentments and engendered constant conflicts between the governments and citizens and thus threatening the social stability.30For the Party-state which took stability as an overwhelming issue, establishing the administrative litigation system became an urgent task As Tao Xijin,

a legal counselor, once stated, “currently, along with economic development, the

27 The statistics from the Ministry of Agriculture shows that, the fees, fines, project contributions, and apportionments

(tanpai) amounted to a nation-wide average 2.5 percent of individual peasants’ annual income in 1991, and there were

some 150 items of nation-wide payment in 1993

28 Renmin Ribao, (People's Daily), (December 5, 1995).

29 Fazhi Ribao, (Legal Daily), (January 20, 1996).

30 For example, the burdens imposed on peasants provoked the fierce political resistance in rural China See Thomas P

Bernstein, Taxation without Representation in Contemporary Rual China, (Cambridge, New York: Cambridge University Press, 2003) Also see Kevin J O’Brien, “Collective Action in the Chinese Countryside,” China Journal, Issue 48, (July,

2002), pp 139-54.

number of administrative disputes and administrative cases is continuously increasing If these disputes and cases are not handled in a timely and appropriate manner, it is bound to cause disorder in social-economic life, making it impossible for administrative management to be carried out smoothly.”31 For the citizens who wanted their personal interests and rights to be protected, it was a popular demand of enacting a law for people to challenge government infringement A survey shows that eighty percent of the respondents agreed the statement that “the enactment of the ALL is very timely”.32

In sum, the political and social changes generated from the reform, including the increasing administrative disputes and the policy towards the rule of law, provided both necessary and sufficient conditions for the emergence of the administrative litigation institution While the need was recognized and the preparation was made, a number of efforts were put into the creation of the new institution

EXPERIMENTATION OF ADMINISTRATIVE LITIGATION

The creation of the administrative litigation institution began with the judicial experiment based on the PRC Civil Procedure Law In March 1982, the fifth Standing Committee of the National People’s Congress promulgated the Civil Procedure Law (Interim) The article 3 of the law states that “this law applies to

31 Interview with Tao Xijin, see Susan Finder, “Like Throwing an Egg Against a Stone? Administrative Litigation in the

People’s Republic of China,” Journal of Chinese Law, Vol 3, (Summer 1989), No 1, pp.1-17.

32 Gong Xiangrui (ed.), Fazhi de lixiang yu shijian (The Ideal and Reality of the Rule of Law), (Beijing: China University

of Law and Politics Press, 1993).

administrative litigation cases that are legally stipulated to be tried in the People’s Court.” The legal implication of this article is profound First, laws can prescribe that the People’s Court accept and hear the administrative litigation cases Second, the People’s Court was granted the power to hear complaints as last resort against administrative decision pursuant to the Civil Procedure Law

With the power granted by the article 3, the People’s Court began to experiment with administrative adjudication In early years of the experiment, the scope of administrative cases accepted by the courts was limited to eight categories only This can be caused by two factors: on one hand, the Civil Procedure Law stipulated that the courts could only accept the administrative cases which are prescribed by law; on the other hand, during those years, there were very rare laws with prescription that the people's court could accept and hear relevant administrative litigation cases

Before 1986, all the administrative cases were heard by the economic tribunals because they were involved with the administration of economic affairs In September 1986 when the 17th Session of the 6th Standing Committee of National People’s Congress passed the PRC Punishment Regulation of Public Security Administration, the administrative litigation came into the field of public security administration This made it problematic for the economic tribunals to continue settling the administrative litigation cases since it is not only unreasonable in theory but infeasible in reality as well In order to solve this problem, some local courts

attempted to set up special administrative tribunals.33 This initiative of local courts was soon recognized by the Supreme People’s Courts In early 1987, the Supreme People's Court issued an order to establish administrative tribunal in people's courts

in some localities of the country After the ALL was enacted, there were 2638 administrative tribunals established by 1990 The grass-roots courts without administrative tribunal only account for less than twenty percent of the total number

of local courts.34 Needless to say, the establishment of administrative tribunals pushed the judicial experiment to a new stage

The initial experiment of administrative litigation, in spite of some limitations, contributed significantly to the formal establishment of the new institution Between

1983 and 1 October 1990 when the ALL came into effect, the courts accepted 35,973 administrative litigation cases, of which more than 27,000 were tried by special administrative tribunals.35 The practice of administrative adjudication helped to accumulate experiences for the coming legislation In addition, the establishment of administrative tribunals prepared an institutional infrastructure for the later implementation of the ALL

33 The first administrative tribunal was established in Guluo County, Hunan Province in late 1986 Beijing, Shanghai, Shenyang, Wuhan, Chongqing, and Shenzhen also established administrative tribunal early or late.

34 Ren Jianxin, “Implementing the ALL in Real Earnest, Striving to Inaugurate a New Stage for the Work of Administrative Adjudication”, Speech in the Working Conference of National Courts for Administrative Adjudication, September 13, 1990.

35 See interview with vice president of Chinese Supreme People’s Court, Ma Yuan: “Litigation Law Implementation

Basically Smooth,” Beijing Xinhua Domestic Service, 24 January 1991, in FBIS Daily Report - China, (23 January 1991),

at 39 And see, Yu Ma, “The Development of an Administrative Procedure System,” Renmin ribao, overseas edition, (19 October 1990), p 2, translated in FBIS Daily Report - China, (23 October 1990), at 27, 28.

ENACTMENT OF THE ALL

The formal work on the creation of administrative litigation system began in 1986, when the Legal Affairs Committee of the Standing Committee of the National People's Congress (NPC) was entrusted to begin consulting with experts and collecting experiences In October of the same year, a research group with 14 members was commissioned to research the issues concerned with the legislation of administrative law and administrative litigation law and prepared the preliminary draft for submission to the legislative as proposal

At the beginning, the group tried to draft a corpus-juris-like compendium of administrative laws, which includes administrative substantive laws, adjective laws and the litigation law With four months hard-working, 10 versions of draft were worked out, but none of them was acceptable because the project was too ambitious

to be accomplished They were forced to dance to another tune: gave up drafting the grant corpus juris and worked on the singular law which was imperative and feasible After discussing within the group and consulting with the Legal Affairs Committee, the group decided to draft the administrative litigation law at first

The regular process of drafting, then, began in February 1987 In the course of drafting, the group tried various measures to improve the quality of the draft To collect useful experience and information, some members visited many places and investigated a lot of government sections and courts Besides, various colloquia,

proseminar and conferences were held several times to hear the opinions from both experts and the ordinary people In August 1987, when the first version of the preliminary draft was completed,36 the group distributed it to some interested officials, scholars, and relevant ministries for further comments In order to test the proposed legislation, an experimental legislation of administrative litigation was concurrently implemented in Chongqing, Sichuan Province.37 Meanwhile, the group also solicited the Supreme People’s Court for opinions regarding the law.38Considering the opinions from various aspects, the group revised the draft for many times

By August 1988, the group finalized the draft and submitted it to the Legal Affairs Committee of the NPC The formal process of legislation was initiated on the basis

of such preliminary draft At first, the NPC Legal Affairs Committee revised the preliminary draft and disseminated it extensively to courts, prosecutors, relevant ministries, local governments, and legal scholars from legal research institutes to hear opinions for further revision of the ALL draft Then, in October, the Fourth Session of the Seventh NPC Standing Committee deliberated the revised draft of the ALL After the session, the Standing Committee of the NPC published the whole

draft in the People’s Daily to call for public comments on the revision of the ALL

36 Zhou Changxin, “Woguo Xingzheng Susong Zhidu zai Jiannan Qibu” (The Institution of Administrative Litigation in

Our Country Gets Afoot Roughly), Legal Daily, (Jan 28, 1989), at 1.

37 See “Chongqingshi Xingzheng Susong Zanxing Guiding” (The Administrative Litigation Provisional Regulation of

Chongqing Municipality) (approved on Sept 4, 1987), in Sichuan Sheng Difangxing Fagui Huibian, 118 (1987) Selecting

one or more cities to try out legislation prepared for national promulgation is the Chinese practice for controversial legislation.

38 Interview conducted by Susan Finder in February 1989, see Susan Finder, “Like Throwing an Egg Against a Stone?

Administrative Litigation in the People’s Republic of China,” Journal of Chinese Law, Vol 3, No.1, (Summer 1989),

pp.1-17.

draft.39 Simultaneously, the Legal Affairs Committee of the NPC, Domestic Judiciary Committee, and the Legal Work Committee held four joint conferences to discuss the changes in the draft Participants included the ones from courts, democratic parties, the State Council and its departments, as well as prosecutors, legal specialists and leaders of some social groups involving the court, prosecutor, the State Council and its departments, democratic parties, leaders of some people’s group In addition, working teams were send to the provinces and localities to solicit opinions from local governmental, judicial, and prosecuting departments.40 The final revision of the draft was completed at a special meeting of eighty persons from various departments On April 4, 1989, the ALL was passed at the Second Session of the Seventh National People’s Congress

EFFORTS IN IMPLEMENTING THE ALL

Originally, the ALL was planned to take effect on April 1, 1990, while the date was postponed to 1 October 1990 in order to have more sufficient preparation for implementing the new law.41 Prior to the implementation, the State Council and the Supreme People’s Court held several conferences to urge localities to carry out the ALL On 1 September, the State Council held a telephone conference advising

39 “Dui xingzheng susong fa cao an tichu xiugai yijian” (Submitting opinions on the draft administrative litigation law),

People's Daily, (7 December 1988), at 4.

40 See Pitman B Potter, “The Administrative Litigation Law of the PRC: Judicial Review and Bureaucratic Reform,” in

Pitman B Potter (ed.), Domestic Law Reforms in Post-Mao China, (Armonk, NY: M.E Sharpe, 1994), pp 270-304.

41 “Yang Shangkun qianshu zhuxi ling gongbu xingzheng susong fa” (Yang Shangkun signs as president the order for

promulgation of the administrative litigation law), Legal Daily, (10 April 1989), at 1.

administrative departments to handle their own work properly, implying that this not only was required by the ALL but also would reduce litigation under the new law.42

On 13 September the Supreme People’s Court held a national meeting in Hangzhou

on the implementation of the ALL, at which judicial infrastructure building was emphasized 43The Chinese Society of Law also sponsored a meeting to discuss the issues of implementation, focusing on the importance of the ALL as a deterrent to bureaucratic abuses.44 Impelled by the central authority, localities throughout China began to try various endeavors to carry out the ALL

These endeavors included legal propaganda and education, image building, and judicial infrastructure building Legal propaganda and education, which aimed to diffuse the knowledge of the ALL among citizens and to build consensus for the law among government officials, was a popular practice in many localities The forms of the practice included pasting or distributing various reading materials, releasing news

to the media, giving lectures, providing legal counseling services in streets, organizing open-trial and so on The use of these forms varied from locality to locality For instance, just after the promulgation of the ALL, Shenzhen Intermediate People’s Court gave 168 lectures on the ALL to the municipal government and its departments, with which the audiences reached 30 thousands person-time 45

42 “Yao Yilin on Administrative Procedures Law,” Beijing Xinhua Domestic Service, (1 September 1990), translated in

FBIS Daily Report -China, (4 September 1990), p.32.

43 “Ren Jianxin Speaks on Administrative Law,” Beijing Xinhua English Service, in FBIS Daily Report -China, (14

Nanyang Regional Intermediate People’s Court took different forms From 1989 to

1990, this court printed and distributed 13,660 propagandistic materials, made 113 boards to display tendentious materials, made 236 pasting pictures, and sent sounding cars 115 auto-time to propagandize the ALL In addition, it offered legal counseling services in streets 87 times and organized the activity of “a street of legal propaganda” 30 times.46 Among these forms, distributing news release through media was the most effective one A survey showed that 31.1% of respondents said they knew the ALL through media like TV, radio and newspaper.47

In addition to the legal propaganda and education, many efforts were exerted to build

a positive legal image For this purpose, the “social effect” of administrative adjudication was especially emphasized Ma Yuan, the vice president of the Supreme Court, once stated that,

“…must pay much attention to the social effect of case handling When hear the administrative case, the People’s Court should strive to make the trial play positive role, to make the judgment of the People’s Courts can beget positive and favorable backwash in all circles of the society, so as to build up a strict and impartial image for the People’s Court.”48

Following this instruction, courts designedly set some typical or influential cases as

Huang Jie and Li Daomin (ed.), Practice and Studies on the Administrative Adjudgment, (China Legal Press, 1991), p 61.

46 Henan Province High People’s Court, “‘xingzheng susong fa’ shishi qian xingzheng shenpan shidian gongzuo zongjie” (Summary of the experimental work of administrative adjudgment before the implementation of the ALL), in Huang Jie

and Li Daomin ed., Practice and Studies on the Administrative Adjudgment, (China Legal Press, 1991), p.43

47 Zhang Shuyi and Zhan Zhongle, “Qiantu guangming, daolu quzhe: Henan sheng nanyang diqu ‘xingzheng susongfa’

shishi xiaoguo diaocha baogao” in Gong Xiangrui, Fazhi de lixiang yu xianshi (The Ideal and Reality of the Rule of Law),

(BeiJing: China University of Law and Politics Press, 1993), p.84.

48 Ma Yuan, “Guanyu guanche zhixing xingzheng susong fa xuyao jinyibu mingque de jige wenti”, The Speech at

National Court Working Conference of Administrative Adjudication, (September 18, 1990).

examples to show the solemnness of the law and the impartiality of the judge One example is the case that an power supply firm sued the Technique Inspection Bureau

of a city for its unfair administrative sanction.49 On September 27, 1989, Technique Inspection Bureau found that the electricity firm used the 50t electric measuring apparatus without obtaining any certificate of eligibility and fabricated data It thus made a decision of sanction Claimed by the bureau, its act was accorded to the Metric Law and the Detailed Implementation Rules for the Metric Law Thus, it made the decision to sequestrate the illegal earnings amounting to 132 million Yuan and amerced the firm of 5,000 Yuan Yet, the firm refused to accept the penalty But

it did not file a lawsuit immediately, instead, it appealed to the Provincial Bureau of Electricity Industry and the municipal government, hoping to solve the dispute through the administrative channel

Unfortunately, all the administrative channels failed to help Without alternatives, the firm decided to file a lawsuit to the Intermediate People’s Court After the lawsuit was accepted by the court, the firm expressed its willingness to accept the sanction and applied three times for withdrawing the filed lawsuit However, the court learned

it from investigation that the plaintiff did not really like to accept the punishment; rather, it worried that the lawsuit might displease the department of metric and thus would go against the upgrade evaluation of the enterprise, which was always ongoing The court treated it as a significant case for its representativeness of a

49 He Nan Provincial High People's Court, “Guan yu 'Xingzhen Susongfa' shishi qian xingzheng shenpan shidian gongzuo

de zongjie” (The Covering Report on the Experimentation of Administrative Adjudication before the Enactment of the

Administrative Litigation Law), in Huang Jie, Li Daomin (ed.), Xingzheng shenpan shijian yu yanjiu (Practices and

Studies on Administrative Adjudication), China Legal Press, 1991, p 37.

general situation that many citizens were reluctant to file lawsuit against the government because they were afraid of the retaliation of the officials and the court’s bias in favor of the government Therefore, the court decided to take this case seriously and rejected the firm's applications for withdrawing the case In hearing the case, the court found that the defendant was wrong in both law application and evidence confirmation

After the court informed the defendant of its inappropriateness, the defendant corrected its unlawful decision by changing the administrative sanctions imposed on the firm The plaintiff thus applied for withdrawing the lawsuit for the fourth time as

it accepted the new sanctions The court then permitted the application by its ruling After the case was ended, the defendant said that, “through the litigation, we know that the court is genuine a court as it adheres to the principle and deals with the case according to the law We are convinced.” The plaintiff said that, “At the beginning,

we hoped to resolve the dispute through higher level administrative authority since

we do not trust the court, thinking that the court would definitely bias in favor of the administration The fact corrects our prejudice The court protects our lawful rights and interests sincerely.”50

In order to magnify the positive social effects, the courts usually try their best to attract public attention as well The most popular practice is to hear the major lawsuit openly For example, when Zhengzhou Intermediate People’s Court heard the case

50 Ibid.

that Zhengzhou Material Trade Centre sued Henan Provincial Industrial and Commercial Bureau, an open-trial was organized 51Thousands of people audited the

trial and more than 10 news media including Zhengzhou Evening Paper, Henan Daily, and Legal Daily covered the news This case did attract much attention and

arouse great echoes Three enterprises from Shanghai, Guangzhou and Shenzhen successively filed lawsuits to the Zhengzhou Intermediate People’s Court against the Industrial and Commercial Bureau after they read the news from the newspapers

Another effort made to push for implementing the ALL was the judicial infrastructure building One of the most serious problems for the courts was the deficiency of judicial infrastructure By September 1990, about 20 percent of the people’s courts at grass-roots level had had no special administrative tribunals In some places, this number even reached 40-50 percent Since 1989, not every administrative tribunals had sufficient staff to form a collegiate panel, which requires three judges for the hearing of administrative litigation cases.52 For those who did, their administrative litigation staff team was not stable because either the judges were frequently on loan to other tribunals since administrative litigation cases were rare, or, the judges themselves requested a permanent transfer-out because the job was difficult and the small number of administrative cases led to proportional cuts in their material rewards.53

51 He Nan Provincial High People's Court, “Guan yu 'Xingzhen Susongfa' shishi qian xingzheng shenpan shidian gongzuo

de zongjie” (The Covering Report on the Experimentation of Administrative Adjudication before the Enactment of the

Administrative Litigation Law), in Huang Jie, Li Daomin (ed.), Xingzheng shenpan shijian yu yanjiu (Practices and

Studies on Administrative Adjudication), China Legal Press, 1991, p 42.

52 Ren Jianxin, “Renzhen guanche zhixing xingzheng susong fa, nuli kaichuang xingzheng shenpan gongzuo xin jumian”,

The Speech at the National Court Working Conference of Administrative Adjudication, (Sept 13, 1990).

53 Bao Wan- chao, “Mingaoguan: zhongguo de xianzhuang, kunhuo yu gaige”, (Citizens Suing Government: Actuality,