Administrative Litigation Law of the People's Republic of China
Text
Law to secure open government
Chinese people's dream of enjoying access to government information, also a dream not yet fully realized in the West, is coming closer to fruition. But there is nonetheless still work to do before this long-cherished dream can be realized. Opening government affairs to public scrutiny has been much debated in recent years. From grass-roots level villages to the central government, government affairs are gradually being made open to the public nationwide. This practice is playing an important role in restricting power abuse, combating corruption and increasing the efficiency of the government. But the practice needs to be formally institutionalized if further progress is to be made, said experts at the National Conference on Open Access to Information held in the Law School of Huna n University in Changsha, the capital of Central China's Hunan Province last month. The conference, which attracted a wide range of experts in this field, gave an insight into the on-going practice of making government operation transparent in China. Some experts from the Chinese Academy of Social Sciences (CASS) speaking to the topics "open government information" and "the right to know" pinpointed the problems lurking ahead and brought forward some incisive ideas at the conference. Clearly, opening government affairs to public scrutiny has contributed to the shifting of the function of government from a control to a service mode. The broader implementation of this policy is becoming more urgent with China's entry into the World Trade Organization not too far around the corner. Though both the central government and local governments have issued some regulatory documents to ensure the practice is observed to the letter, the practice remains on the level of lip-service in some places. It is still an administrative command sent from the top to bottom, and is not always adhered to. So, although government takes the initiative to open information, in many cases the public still have only limited access to information they want to know. The citizen's right to know is the major propelling force for the opening of government affairs, said Zhou Hanhua, PhD, from CASS. In a broad sense, the citizen's right to know means citizens have the right to know the truth about anything. For example, consumers have the right to know whether food is genetically modified or not. Taken in a narrow and limited sense, it can refer specifically to the citizens' right to access to information about the operations of government. It embodies the citizens' moral and legal right to access to government information and also to the government's obligation to respond to citizens' requests. But it seems that people now show concern only over what the government has done, not the process it has used in achieving what it has done. It is connected to the Chinese traditional mindset which stresses results rather than process. What this has meant is that although the concept of the right to know was put forward decades ago, it has remained an unfamiliar phrase to many Chinese people. But this situation is changing today as Chinese society progresses. The citizens' consciousness of their rights is being gradually sharpened. The government has hammered out a series of measures to upgrade the connection between government and the public. For example, the central government launched its On-line Government Project in 1999. Anyone can open the website probing information on central government affairs. Some other governmental departments followed suit and established their own websites. But it appears the functions of the websites are still limited. Complaints like "I'm told about things I don't care about, but there is limited information about the things I want to know." are sometimes heard. The practice of making village affairs known to the villagers reached its zenith around 1999 and drew favourable comment from overseas media. But the practice in many places started cooling off late last year. In some places, it has even regressed to the point where, once again, no information is being disclosed. The lack of clear-cut laws enforcing government transparency is the cause of this problem. Similar to the problem at the village level, without detailed directions and regulations, the opening of administration affairs to the public at the provincial level has also been sliding downhill. Take Hunan Province for example. All 34 provincial government departments, 90 per cent of the city-level government departments and 95 per cent of the county-level government offices have made their operations transparent in line with 27 regulations and 1,300 items, putting Hunan Province in the forefront in this regard. But the practice is still a formality in some places because of the lack of legal responsibility. There is insufficient supervision of the transparency of the functions of judicatory, procuratorial and police affairs. Complaints about judicatory corruption reached a unprecedented level in Chinese society in 1997. Then the policy of making government more open was instituted to enhance the public trust of judicatory organs. But as the judicatory system continues to develop, problems will keep cropping up. Because of these problems, experts hold that the citizen's right to know should be enshrined in the Constitution to ensure citizens' rights of obtaining information through certain and clear procedures. And there should be specific legal processes that can be pursued to guarantee access to government information that people want to know. If a citizen wants to get some information which some government department has not made open for certain reasons, the citizen should be able, through legal procedures, to gain access to the information. The scope of the open government information practice should also be prescribed in the law. It should not only be the opening of administrative procedures and results but also the opening of administrative regulations. Though the articles in the Constitution indicate that citizens enjoy the right to know, the "basic rights and obligations of citizens" have not been clearly stated. There are no provisions about the right to know in the Administrative Review Law and the Administrative Litigation Law. Incorporation of the right to know into the law should bring an end to the problems that have plagued the practice of this principle, experts agreed.
China's new human rights report highlights development, rule of law
BEIJING - The Chinese government released a white paper on Monday highlighting the progress of human rights protection in the legal system as well as economic and social development. "The tremendous achievements China has made in its human rights endeavors fully demonstrate that it is taking the correct path of human rights development that suits its national conditions," the white paper, published by the State Council Information Office under the title "Progress in China's Human Rights in 2014", said. China's legal reform gained momentum when the Communist Party of China (CPC) leadership adopted a comprehensive plan to promote rule of law at a key meeting last October. "The fundamental purposes of the blueprint are to protect civic rights, to defend human dignity and to put basic human rights into practice," the report notes. Unlike previous reports, this year's white paper has a single chapter about protecting people's right to impartial trials. Zhu Liyu, deputy director of the Center for Human Rights Studies of the People's University of China, told Xinhua legal reform has been one of the most notable progresses for human rights protection in China in the past two years. A number of new measures were made to improve the transparency and efficiency of judicial departments, empower them to better supervise administrative power and protect civic rights, which are of profound significance, Zhu said. "In the cases that a person's rights are violated by administrative power, the judicial system will be the last resort. Without the legal system, it is impossible to actually protect human rights," he said. In 2014, China also made notable progress in realizing its development targets. By the end of the year, among all the 29 countable or measurable indicators for economic and social development set forth in the 12th Five-Year Plan (2011-2015), 12 had been over-fulfilled, three had been nearly fulfilled and 11 had made smooth progress, accounting for 90 percent of the total. The mid-stage assessment of China's National Human Rights Action Plan (2012-2015), conducted in December 2014, showed most of the targets set had been reached and a larger part of the quantitative indices had been by achieved half or more. The white paper is China's 12th report on human rights since the government began releasing such reports in 1991. The report, with nine chapters and 14,000 words, details the progress the country made in protecting people's right to development, democracy, impartial trials and a clean environment, as well as the rights of women, children, senior citizens, ethnic minorities and the disabled.
Unified legal framework vital
Chinese top legislators called for the establishment of a specified and unified legal framework relating to administrative procedures to curb corruption and cope with China's entry to the World Trade Organization (WTO). "Governments at all levels are the first to withstand the challenges brought by China's WTO membership," said Chen Dapeng, an NPC deputy from Southwest China's Sichuan Province. "To conform with major WTO principles including non-discrimination, free trade and fair competition, it is urgent that a legal framework is set up to ensure more efficient, accountable and transparent administration." At present, despite the introduction of separate laws such as the Administrative Litigation Law and Administrative Penalties Law, a comprehensive legal framework relating to administrative procedures has not taken shape, said Chen Youde, a deputy from Northwest China's Shaanxi Province. In recent years, in the absence of transparent administrative procedures and relevant laws for regulation and supervision, instances of power abuses and corruption kept propping up. Thus it is urgent to complete the current set of administrative procedure laws, which will put every step and aspect of activities of administrative organs - except for those relating to State secrets - under the scrutiny of citizens and judicial institutions, Chen Youde said. One key piece of the jigsaw puzzle that is missing is an administrative licence law in the framework. "Without such a law, there is no clear definition of the administrative licence and many existing licence criteria are irrational," said Hu Wei, an NPC deputy from Shanghai. In some places, government departments used the licence to charge illegal fees, and as a result there are too many licence items and the functions among different departments have overlapped, according to Hu. It is therefore of great importance to regulate the administrative licence, urged Hu. Chen Dapeng also noted that the number of legal disputes between citizens and administrative organs has soared with a two-digit growth rate in recent years. He said China's current Administrative Litigation Law, which went into effect in 1990, needs significant modifications to conform with the new changes brought by the market economy and China's entry to the WTO. "There are some loopholes in the current law and some stipulations are too vague," Chen Dapeng told China Daily. As a result, some individuals are too afraid to exercise their right to litigation and there are cases that local courts yield under the pressure of administrative organs, according to Chen Dapeng.
Knowledge Graph
Examples
1 Adopted at the 2nd session of the Seventh National People's Congress on April 4, 1989; and amended according to the Decision of the Standing Committee of the National People's Congress on Amending the Administrative Litigation Law of the People's Republic of China adopted at the 11th session of the Standing Committee of the Twelfth National People's Congress on November 1, 2014.
2 "The government document, which has a universal binding effect, is not subject to court hearings, according to the Administrative Litigation Law," the court stated in an administrative verdict on the website of the plaintiff's lawyer Lin Wencai.
3 China's Administrative Litigation Law, which took effect in 1990, stipulates administrative actions subjected to judicial hearings must be "concrete actions", such as administrative punishments, interference with the operations of enterprises, and violations of rights of the person or a property right.