[author]HE Haibo
[content]
HE Haibo: The Effectiveness of Administrative Litigation in Dispute Resolution
Author* HE Haibo
Abstract: The administrative litigation system is entrusted with the important mission of building the rule of law, and at the same time, it is constrained by the legal system itself and various social conditions, and the status of its implementation is a topic of great concern. From the point of view of the actual operation of the litigation system, the basic questions are: who sues whom? Why sue? Who is to be tried? How is the trial conducted? The perception of these questions not only affects people's understanding of the administrative litigation system and the parties' willingness to litigate, but will also affect the design of the administrative litigation system.
1. Number of administrative cases
A system must be utilised to be effective. The administrative litigation system established during the Republic of China period, although the rate of plaintiffs winning cases was not low, but after all, the number was limited, and the role of dispute resolution for the whole society was extremely limited. At the beginning of the establishment of the contemporary administrative litigation system, some courts were also faced with the embarrassment of "having no rice to cook".
Since the establishment of the administrative litigation system, there has been an overall increase in the number of administrative cases. In 1989, the year in which the Administrative Litigation Law was enacted, the courts nationwide received 9,934 first-instance administrative cases, and after its full implementation in October 1990, the courts nationwide received 25,667 first-instance cases in 1991, about twice the number of cases received in 1990. Since then, the number of cases received has risen overall, reaching 141,880 in 2014. Spurred by amendments to the Administrative Litigation Law and the filing and registration system, the number of first-instance administrative cases nationwide has risen sharply. 279,574 cases were accepted in 2019, twice as many as in 2014. Second-instance administrative cases also continued to rise, reaching a peak of 139,513 in 2019 (Figure 6).
Fig. 6 Number of administrative litigation cases at first and second instance
Of course, this is not a high figure relative to a large country with a population of 1.4 billion and a period of transition in which social disputes are prevalent. If we take into account the fact that courts do not file cases and dismiss cases after filing, the number of cases that go to trial on the merits has to be discounted. In particular, after the introduction of the registration system for filing cases, the threshold for prosecution has been lowered, and there has been a corresponding increase in the number of court decisions not to file cases and dismissals of prosecutions. In recent years, these two items together accounted for about 30%. In 2020, for example, 5.2 per cent of cases were ruled not to be filed and 21.1 per cent of prosecutions were dismissed.
In terms of geographical distribution, Shandong and Henan have long been the provinces with the largest number of administrative litigation cases, with the two provinces combined at one point accounting for one-third of the country's total, and still one-fifth. Beijing, Guangdong, Jiangsu, Zhejiang and Sichuan also have a considerable number of cases. In contrast, until recent years, Qinghai, Ningxia, Gansu, Xinjiang and Hainan may have had only a few hundred administrative cases a year, and Tibet only a few dozen. The number of administrative litigation cases in each place, in addition to the size of the local population, is also related to the level of economic development, the state of administrative law enforcement, the judicial environment and the people's morals, so it is difficult to explain it by a single factor, and it is not appropriate to judge the state of the rule of law in the administration of a place simply by the number of administrative cases.
Nonetheless, there is one factor that has had a significant impact on the number of administrative litigation cases: real estate development. Real estate investment has brought about a large amount of land acquisition and demolition, triggering a large number of disputes in the fields of land management and urban and rural planning, as well as giving rise to litigation in the fields of information disclosure and social security. This also confirms the characteristics of contemporary China's rapid urbanisation, which is accompanied by "big demolition and big construction".
2. Plaintiffs and Defendants in Administrative Litigation
There is a lingering question in administrative litigation: who is suing the government? How many enterprises, how many individuals, how many foreigners are plaintiffs? How many of the "Qiu Ju" from the countryside with little knowledge are still out there? How many people with high social status will file administrative lawsuits?
Nationwide, about 80% of first-instance administrative lawsuits are filed by private citizens. This figure varies by geography and type of case. In a mountainous county in eastern Zhejiang province, of the 1,985 administrative litigation cases heard by the courts from 1990 to 2015, 89.4 per cent of the plaintiffs were individual citizens, 5.1 per cent of the plaintiffs were villagers' collectives (including village committees, villagers' groups, production teams, and natural villages), and only 3.8 per cent of the plaintiffs were enterprises; three-quarters of the individual plaintiffs were men, and three-quarters of those who marked their occupation as farmers. three-quarters. In the city, the landscape is naturally quite different, and the cases before the Beijing IP Court are particularly special. In the four and a half years or so since the court was established in November 2014, 13,000 foreign-related IPR administrative cases (excluding those involving Hong Kong, Macao and Taiwan) have been filed, accounting for one-fifth of the total intake, with no shortage of Fortune 500 companies as its clients.
Corresponding to the plaintiff's situation is that the proportion of lawyers' representation in China's administrative litigation is low. Some scholars on some of the court documents for statistics, the results found that: first-instance administrative litigation cases, the plaintiff and the defendant to hire lawyers accounted for only 35 per cent and 30 per cent, entrusted to the citizens of the agency (including entrusted to relatives, unit employees) is still a common phenomenon. The proportion of lawyers' representation has increased in recent years, but is still at a low level. An important reason for the low proportion of legal representation is that the plaintiffs are mostly "small people", and the value of their cases is so small that hiring a lawyer is still a luxury for them. Since legal representation is not mandatory by law, in many of the cases brought before the Supreme Court, the parties are still not represented by lawyers.
The situation of the defendants also reflects the nature of administrative cases from one side. According to the 680,000 judgement documents made public online by courts nationwide for the period 2014-2020, the proportion of the five levels of government taking on the role of defendant was 5.3 per cent at the central level, 3.4 per cent at the provincial level, 21.4 per cent at the prefectural and municipal levels, 57.9 per cent at the county level, and 10.9 per cent at the township level. This largely reflects the importance of "county governance" in China. More than 70 per cent of governments above the county level have their departments as defendants. This largely demonstrates the "sectoral governance" that characterizes the Chinese Government.
3. Matters at issue in administrative proceedings
The nature of the administrative cases before the courts is also an important aspect in judging their litigation system. Let us imagine two scenarios: in country A, the courts routinely hear administrative cases involving major policy decisions in which the central authorities are the defendants; in country B, the cases before the courts are filled with petty disputes, and major disputes are hardly ever resolved in the courts. Whatever the final outcome, the face of justice in these two countries is quite different. A litigation system that fails to entertain and resolve substantive disputes to the extent that those who are genuinely aggrieved do not come to court is in danger of becoming hollow.
It is difficult for us to know what the disputes that do not come to court are; on the basis of the adjudication documents, we are able to know roughly what the disputes that do come to court are.
Looking at the administrative field, administrative litigation cases are found in almost all departments. Public security cases used to be the first major category of administrative litigation for a long time. In 1987, when the Public Security Administration Punishment Ordinance came into force, public security cases accounted for as much as 45 per cent. Since then, the proportion of public security administrative cases has declined steadily, falling below 10 per cent in successive years. With the restructuring of family planning policies, the number of family planning cases, once a "major problem", has rapidly shrunk from several thousand to two or three hundred. At the same time, land and resources and urban and rural construction became the two largest categories of administrative cases, with the sum of the two once exceeding 40 per cent. The proportion of land and resources administrative cases (including land, forestry, grassland and minerals) has declined overall, but remains prominent. in 2020, land and resources administrative cases accounted for 15.9 per cent of all first-instance administrative cases. Urban and rural construction administrative cases (including planning, demolition and relocation, housing registration, etc.) have risen considerably since 2002, jumping to the top category. in 2020, urban and rural construction administrative cases will account for 21.7 per cent of all first-instance administrative cases. This reflects the fact that land management, urban and rural planning, and expropriation, demolition and relocation have become hot issues in current society. In addition, intellectual property, labor and social security cases are becoming increasingly prominent (Figure 7).
Fig. 7 Percentage of administrative litigation cases in major fields
It is difficult to have precise and reliable data on the types of administrative actions handled by the courts, limited by the calibre and method of statistics, but the overall trend is still clearly discernible (Fig. 8). In the early days, more than half of the administrative cases were brought against administrative penalties, but since then the proportion of administrative penalties has been decreasing, and in the last few years it has been less than 10 per cent. Illegal demands by administrative authorities for the fulfilment of obligations (mainly from farmers and businesses), once a serious problem (15.5 per cent in 1998), have fallen to less than 2 per cent in recent years. According to the 680,000 judgement documents for the period 2014-2020 that have been made public online by courts nationwide, the most frequently sued acts are administrative penalties (10.1 per cent), administrative registration (9.3 per cent), government information disclosure (7.3 per cent), administrative confirmation (5.8 per cent) and administrative coercion (5.7 per cent). Changes in the composition of the types of administrative litigation cases reflect changes in administrative practices. In general, regulatory administration such as administrative penalties, coercion and licensing no longer occupies most of the sky in administrative law, and service administration such as administrative payment, registration and adjudication is expanding day by day.
Fig. 8 Percentage of major types of administrative litigation cases
4. Handling of administrative disputes by the courts
It is difficult for us to know how many cases in which the parties felt fairness and justice during the litigation process; it is even difficult for us to count how many cases in which the plaintiffs won their cases. However, there are two relatively simple indicators that can help to understand the handling of administrative disputes: first, how many cases have been decided by the courts on the merits, and second, how many cases have been decided in favour of the plaintiffs.
Not all cases filed by plaintiffs necessarily result in a judgement. The court may not file a case, dismiss the case, or transfer it to another court for trial; the plaintiff may also withdraw the case, or the case may be withdrawn by the court because of non-payment of court fees or non-participation in court sessions; mediation may also be reached between the plaintiff and the defendant. In practice, inadmissibility and dismissal of cases accounted for a significant proportion of cases; in particular, after the implementation of the new Administrative Procedure Law and the registration system for filing cases, the proportion of dismissed cases was more than 20 per cent. Withdrawal of charges by the plaintiff was once the most important way of settling a case, with a peak of more than half (see Figure 2 in Chapter I). It is quite rare for plaintiffs and defendants to settle their cases by mediation; even though the new Administrative Procedure Law has expanded the scope of application of mediation, there has been no significant change. in 2020, 1,148 first-instance administrative lawsuits were settled by mediation, accounting for only 0.4 per cent of the total.
The proportion of first-instance cases settled by court judgement has fluctuated considerably: it used to be more than 70% in the early years of the administrative litigation system's implementation, less than 30% at its lowest point, and close to half in the last few years (see Figure 9). In contrast, the proportion of first-instance cases concluded by court judgement in favour of the plaintiff has been relatively stable, at around 30 per cent over a long period of time. If all first-instance cases concluded by the courts are taken as a base, the proportion of cases decided in favour of the plaintiff fluctuates: it used to be more than 20 per cent in the early years of the implementation of the Administrative Litigation Law, but then fell to less than 10 per cent, and has remained around 13 per cent in the last few years. However, the situation in different places and different types of cases may vary greatly. in 2017, of the 7,279 administrative cases of authorisation and confirmation of rights concluded by the Beijing Intellectual Property Court, 6,622 cases were concluded by way of judgement, of which 1,708 cases were decided by the court to revoke the administrative act, accounting for 23.5 per cent of all the cases concluded.
Figure 9 Judgement completion rate and plaintiffs' success rate in first-instance cases
5. Time and cost of handling administrative cases
How long does it take and how much does it cost to resolve a dispute from the time it occurs to its final resolution? This is a legal mystery that many people want to know, but it is difficult to know for sure.
The amended Administrative Procedure Law has extended the time limit for the plaintiff to file a lawsuit and for the court to conclude the case. Normally, the plaintiff should file a lawsuit within six months when he/she knows or should know that his/her rights and interests have been violated. After the plaintiff has filed a lawsuit, it usually takes seven days for the court to review the case, six months to conclude the case at first instance, 15 days to appeal, varying time to transfer the case file on appeal, and three months to conclude the case at second instance. It usually takes about a year to go from first to second instance; if there is a need for service of process, expert appraisal, requests for answers, etc., the time required has to be extended.
The actual length of time taken by the court to hear a case can be derived from the judgement documents. I counted 210,000 first-instance administrative adjudication documents that were filed within four years after the implementation of the new Administrative Procedure Law (i.e., from May 2015 to April 2018) and for which I was able to extract relevant data. The vast majority of cases were able to be concluded within the six-month (based on 183 days) time limit, with 11.6 per cent taking longer and 3.9 per cent taking more than a year. Overall, adjudicated cases took less time to conclude, with an average of 105 days and a median of 77 days, while judgement cases took an average of 136 days and a median of 112 days to conclude. The number of decisions and judgements reached a peak in the second and third months after the case was filed, and then decreased month by month; however, in the last month of the trial, the number of judgements and decisions increased steeply. This is clearly the result of judges "rushing to meet deadlines".
Figure 10: Length of first-instance administrative litigation trials
In practice, the court system has endeavoured to speed up the administrative litigation process by means of simplified procedures and online hearings. In Zhejiang, when the court tried to implement the simplified procedure for administrative litigation, it once set a record of 29.3 days on average to conclude 554 cases (accounting for 16 per cent of the total number of administrative cases of first instance concluded). However, constrained by a number of factors, the application of summary procedure cases is quite limited. Due to a variety of factors, including human delays and procedural deficiencies, some cases have gone back and forth for a long time. An extreme example is the case of Yu Qichu v. Guiyang Municipal Housing and Urban-Rural Development Bureau, in which the Supreme Court ruled in July 2012 that the defendant's forced demolition and relocation was unlawful. This judgement declared an important rule of administrative law and was therefore featured in the Gazette of the Supreme People's Court, as well as in the media as a major case handled by the Supreme Court. What readers may not have noticed is that the plaintiff fought for 16 years before obtaining this judgement in his favour; after that, it took another seven years before he received the compensation to which he was entitled.
The right to commence proceedings rests with the plaintiff, who needs to be careful before pressing the start button. Once the chariot of litigation has been set in motion, it is difficult to predict whether it will be resolved, how long it will take and how much it will cost. The best system can only reduce the uncertainty and cost of litigation in general.
This article is reprinted from the "empirical law research", excerpted from Professor He Haibo's book "administrative litigation law", the new third edition, is the second chapter of the "administrative litigation system function" a subsection (pp. 40-46).