PRC Administrative Law

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Introduction to Chinese LawLecture 5

Administrative Law

1


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Issues

1. Basic concepts in administrative law

2. History of administrative law making

3. Reform of legislating mechanisms

4. Impact of WTO entry on PRC administrative law

5. Administrative punishment

6. The Sun Zhigang case

7. Re-education through labour

8. State compensation


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1. Role of administrative law

Concept of administrative law Concerns all aspects of the states administrative management system;

Provides legal basis of activities of various organs of stateadministration;

Regulates internal structure and operation of each administrative organand relationship among administrative organs as well as between theseorgans and citizens, social organizations and economic entities;

Supervises exercise of administrative powers and provides remedies fortheir unlawful exercise.

Basic premise: administration in accordance with law

Crucial component of rule of law

Particular relevance to China: due to traditional emphasis onpolicy rather than law and weak control of government powerover citizens


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Subject matter of administrative law

Administrative powershow conferred, exercised and

supervised

organization of administrative organs: e.g., organic laws of

administrative organs

administrative actions: e,g., law of administrative punishment

supervision of administrative powers: e.g., law of

administrative litigation

Started later than criminal law and civil/commercial law, butdeveloped rapidly


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Administrative actions

DefinitionAll acts of administrative organs backed up by the coercive power of

the state

Types

Abstract (general,): of legislative nature; legal rules orother normative documents of general application; e.g.,

administrative regulation, guizhang, orders and decisions of general

application to a category of situations

Concrete (specific,): administrative action of law

enforcement (); performed in relation to more specificcircumstances, events or persons; may take the form of an order to

do something, a grant, a deprivation, a permit, an exemption, a

refusal, a certificate


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2. Historical review (1)

1979 Organic Law of Local PCs & Local PGs

1982 Organic Law of the State Council

1982 Law of Civil Procedure (Provisional and Repealed by

LCP 2007)Art. 3 applicable to adjudication of administrative litigation

1986 General Principles of Civil Law

Art. 121 - state organs or their personnel if infringing lawful rights

and interests of citizens and legal persons and resulting in harms in

the course of performing functions and duties civil liability


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Historical review (2)

1986 Security Administrative Punishment Regulations

, repealed by 2005 Security

Administration Punishment Law):

Art. 39 provides for judicial review of administrative

punishment

A breakthrough

Increases in number of cases

Establishment of administrative divisions in courts

Other laws and regulationsalso providing for judicialreview of administrative actions


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Historical review (3)

Law of Administrative Litigation 1989 ()

State Compensation Law 1994 (, amended 2010)

Law of Administrative Punishment/Penalty 1996 ()

Law of Administrative Supervision 1997, amended 2010

(replaced Regulations on Administrative Supervision 1990)

Law of Administrative Reconsideration/Review 1999 (replacedRegulations on Administrative Reconsideration 1990)

Law of Administrative Licensing 2003 () Law on Civil Servants 2005 ( )

Regulations on Openness of Government Information 2007

( )


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3. Reform of legislating mechanism (1)

Law on Legislation (2000)basic principles

Compliance with procedures for law-making

Public participation

Transparency and democracy

Transparency and impartiality requirements under WTO(GATT, Art. X 3(a))

Each contracting party shall administerin a uniform,

impartial and reasonable manner all its laws, regulations,decisions and rulings of the kind described in para. 1 of thisArticle (which requires prompt publication to enableacquaintance of traders).


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Reform of legislating mechanism (2)

Regulatory reform under WTO

Drafting or amending legislating procedures according to

WTO rules

Ministries of the State Council: abolished more than 800

departmental guizhang, decrees, orders, rules; amended 300

Ministry of Commerce, in particular: abolished more than 500,

amended 120, and drafted 26 new departmental guizhang,

decrees, orders and rules to comply with WTO rules


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4. Entry into WTO and promise of

independent judicial review

Under Art. 2(D) of the Protocol on the Accession of thePRC

China agrees to establish, among other things, tribunals forthe prompt review of certain WTO-related administrativeactions. Such tribunals shall be impartial and independent ofthe agency entrusted with administrative enforcement. Thesereview procedures shall include the opportunity for appealand if the initial right of appeal is to an administrative body,there shall in all cases be the opportunity to choose to appealthe decision to a judicial body.


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Major changes after WTO entry (1)

Three SPC judicial interpretations

(1) SPCs Rules concerning Several Questions about

Adjudication of Administrative Cases Relating to

International Trade:

The court requires first-instance trials of all WTO-

related administrative cases to be handled by

intermediate courts or courts at upper levels.


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Major changes after WTO entry (2)

(2) SPCs Rules concerning Several Questions aboutApplication of Law in Adjudicating Anti-DumpingAdministrative Cases

(3) SPCs Rules concerning Several Questions about

Application of Law in Adjudicating CountervailingAdministrative Cases

In the above two judicial interpretation documents, SPCspecifies that first-instance trials of all anti-dumping and

countervailing administrative cases shall be handled by thehigh court where the defendant administrative organ islocated or any intermediate court designated by such highcourt.


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5. Administrative punishment: concept (1)

Governed by Law of Administrative Punishment 1996 ()

Definition

a form of sanction, imposed by administrative authorities forbreach of laws and regulations on administrative

management (different from administrative disciplinary

sanctions applying to state personnel)

Punishable behavior

e.g., disrupting public order, impairing public security,

infringing others personal rights or property rights, impairing

social management, etc.


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Administrative punishment: concept (2)

Imposing authorities public security organs, labour re-education management

committees, organs of finance management, industrial-commercial

administrative management, management of agriculture, forestry,

husbandry, fishery, irrigation and natural resources, etc.

Types (Art. 8)

warning, fine, confiscation of property, order to cease production

or business, suspension or revocation of permit or license,

administrative detention.


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Administrative punishment: basic principles

Principles of natural justice and due process Principle of legality

Administrative punishment is invalid if there does not exist a legalbasis for it, or the procedure prescribed by law for its imposition

has not been complied with. (Art. 3)

Principle of proportionality between administrative punishment and the facts, nature,

circumstances, and degree of social danger of illegal behavior

Principles of justice and openness

Right to be heard Right to compensation

Machinery for enforcing these principles Law of Administrative Litigation and State Compensation Law


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Administrative punishment: legal basis

An administrative punishment which involves the deprivation ofthe liberty of a person must only be prescribed by law (laws

are enacted by the NPC or its Standing Committee) (Art. 9)

Other administrative punishment which does not involve thedeprivation of the liberty of a person can be provided for in

administrative regulations made by the State Council (Art. 10)

Local regulations cannot prescribe cancellation of business

license (Art. 11)

guizhang (): can only prescribes warning and fine (Arts. 12-

13)


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6. The Sun Zhigang case (1)

Facts (textbook 147-48):

In April 2003, the death of the interned vagrant inmate, a universitygraduate named Sun Zhigang (), was reported in the media as alikely murder. It had occurred in March 2003 in the medical clinic of aninternment and deportation (I&D, or C&R - custody and repatriation, ) station in Guangzhou city of Guangdong province.

Sun was a fashion designer originally from Hubei province who hadgone to Guangzhou to work. As he walked to an internet bar, policeasked for his temporary living permit () and his identity card. Hehad not applied for the permit and he had forgotten the ID card. Hecalled his friends to bring his ID card. However, three days later, a friendcalled his family to tell them of the death. An official autopsy showed asavage beating of his body 72 hours before the death.

Thirteen persons, including fellow inmates and officials of the medicalclinic, were tried in June 2003. Two men found directly responsible formurdering Sun were sentenced to death (one suspended). Sun's familyreceived compensation (speculated at RMB500,000) from thegovernment.


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The Sun Zhigang case (2)

Constitutional guarantee of citizens personal freedom:Art. 37, Constitution -

The freedom of the citizens of the PRC is inviolable. No citizenmay be arrested except with the approval or by decision of aPeoples Procuratorate or by decision of a Peoples Court, and

arrests must be made by a public security organ. Unlawfuldetention or deprivation or restriction of citizens freedom by othermeans is prohibited, and unlawful search of the citizens isprohibited.

Law on Legislation: Art. 8(5)The following affairs shall only be governed by law (enacted byNPC and NPCSC): (5) mandatory measures and penaltiesinvolving deprivation of citizens of their political rights or restrictionof the freedom of their person.


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Legal basis of I&D (or C&R)

State Council promulgated the 1982 Measures for Internment andDeportation of Urban Vagrants and Beggars: requiring that beggarsfrom rural families, rogue urban residents, tramps or beggars, andother people who live in the streets and had no livelihood beinterned and deported from the cities.

The 1991 [State Council] View on the Reform of Internment andDeportation Work: requiring

such measures to be imposed on anyone who did not have thethree permits (ID card, temporary residence permit, workpermit) three-lacks-persons ( ).


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Aftermath: Reform

On 18 May 2003, three legal scholars in Beijing petitioned tothe NPCSC to declare the main legal basis for the internmentand deportation system, i.e., the 1982 Measures,

unconstitutional, based on a provision contained in the Law onLegislation of 2000(Art. 8(5)) which requires such legal basis tobe law.

On 20 June 2003, the State Council announced that as of 1August 2003, the old measures would be replaced by the new

Measures for Aid for Urban Vagrants and Beggars. Pastmalpractices, including detention, verbal abuse, physicalpunishment and maltreatment, as well as exploitation andforced labour, were expressly prohibited.


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7. Re-education through labour (laojiao,

): concept

Definition

A form of administrative punishment, imposed by the

police according to laws, regulations and policies,under which the police can bypass the criminal processand summarily subject a person guilty of minoroffences to a maximum of 3 years incarceration, withpossibility of one-year extension, quasi-criminal in

nature.


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7. Re-education through labour:

history of regulation

1957: State Council Decision regarding Re-educationthrough Labour

1979: State Council Supplementary Provisions on Re-education through Labour, approved by NPCSC

1982: Ministry of Public Security Provisional Measures onRe-education through Labour

1983: Ministry of Justice and local organs of judicialadministration took over administration of laojiao from publicsecurity organs

2002: Ministry of Public Security Regulations on HandlingCases of Re-education through Labor

Now administered by committees for the management oflaojiao established by provincial and municipal governments


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Re-education through labour: implementation

Established in 1955 to suppress political dissidents withingovernment

Gradual expansion of application and shift in functions in

following decades, with primary function of maintaining

social order and political control unchanged Split authorities

o laojiao institutions now run by MOJ

o but police retain power to decide whether to impose detention

Targeted groupso drug addicts

o minor and habitual offenders in property and public order offences

o political and religious dissidents

o suspects of more serious offences in pre-trial investigation


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Re-education through labour: functions

Crime control

o against minor offenderso rural population (including rural migrants) make the majority of

detainees (70%)

o expansion to numerous offences

Drug control

o justificationIt takes a minimum of 3 years to eliminate thepsychological dependence on drugs.

Investigative detention

o prolonging detention by police beyond the period allowed by law, inparticular under revised Criminal Procedure Law which tightens

evidential requirements for criminal cases Political control of CCP

o targets: terrorists, ethnical separatists, religious fundamentalists,political dissidents and petitioners

o examples: Xinjiang separatists, falun gongfollowers, supporters andsympathizers of 1989 student movements


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Re-education through labour: criticisms (1)

Inconsistent with principles of due process and

protection of human rights (eg., under International

Covenant on Civil and Political Rights of the United

Nations, or ICCPR)

o a form of detention without trial

o no public hearing available

o the accused has no proper legal representation and

cannot call witnesses

o no open court proceedings


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Re-education through labour: criticisms (2) ICCPR bans detention without charge or trial

Article 9 prohibits arbitrary detention:

o Art. 9 (3) Anyone arrested or detained on a criminal charge shallbe brought promptly before a judge or other officer authorised by lawto exercise judicial power and shall be entitled to trial within areasonable time.

Article 8 prohibits forced or compulsory labour unless imposed as apunishment for a crime by a competent court:

o Art 8 (3)(a) No one shall be required to perform forced orcompulsory labour.

o Art 8 (3)(b) Para 3(a) shall not be held to preclude, in countries

where imprisonment with hard labour may be imposed as apunishment for a crime, the performance of hard labour in pursuanceof a sentence to such punishment by a competent court.

Chinese government signed ICCPR in 1998, but NPC has yet to ratifythe treaty


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Re-education through labour: criticisms (3)

Unconstitutionalo 1982 Constitution: freedom of the person of citizens inviolable (Art

37)

o 2000 Law on Legislation: only law (fal,) promulgated by NPC

or NPCSC can impose compulsory measures and sanctions

depriving or restricting freedom of citizens person (Art 8)

o Legal basis oflaojiao

not law (fal,), but 1957 SC Decision, 1979 SC

Supplementary Regulations, and 2002 Ministry of Public Security

Regulations which are administrative regulations and departmental

regulations enacted by SC and MPS, respectively


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Re-education through labour: reform (1)

Heightened domestic and international scrutinyand criticism

o Abuses: e.g., the Tang Hui case(http://www.youtube.com/watch?v=ajlMsqjMtMQ)

o Abolition? - unlikely, given its multi-functions andstrong resistance from the police

o

2002 Regulations by Ministry of Public Security:allowing administrative review () and judicialreview (through administrative litigation) oflaojiaodecisions (at least theoretically available)


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Re-education through labour: reform (2) Drug addicts

Law on Narcotics Control(2007) abolishes laojiao as applied

to drug addicts, to be replaced by Compulsory Quarantine DrugTreatment Centre (still administrative detention), joint jurisdiction ofMOJ and MPS and with essentially same features as laojiao

Minor offenders

NPCSC started to put a draft Minor Offences Rehabilitation Law() on legislative agenda in 2007 maximum penalty expected to be reduced to 18 months education-oriented, targeting young and minor offenders in property and

public order offences no room for political and religious offenders

semi-open and permitting supervised release

judicial review can take place after the police decides to imposepunishment

Suspects of more serious offencesduring pre-trial investigation likely to be removed from threat oflaojiao

Political and religious offenders

future less predictable: likely to be absorbed into harsher end ofcriminal process (i.e., the subversion offence)


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8. State compensation: concept

Governed by State Compensation Law (enacted 12 May1994, becoming effective 1 January 1995, amended 2010)

Condition for compensation

citizens rights violated and harm caused to liberty of personor property

Constitutional basis: Constitution, Art. 41

infringement of citizens rights by state organs or officialsloss suffered right to compensation in accordance withlaw


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State compensation: types

Administrative compensation (Chapter 2)

Unlawful detention, battery, acts of violence or administrativepunishment by administrative organs or their personnel in the courseof exercising their powers and functions rights of the body of theperson or property violated

Criminal procedure compensation (Chapter 3)

Violation of rights of the body of the person or property during criminalprocess by organs or official personnel in the course of exercisingtheir powers and functions of criminal investigation, procuratorial work,adjudication and management of prisons and detention centers

e.g., wrongful detention or arrest, torture, or verdict overturned inprocedure of adjudicative supervision (and sentence served, fine paid,or property confiscated)

Unlawful or wrongful judicial actions (Art. 38) e.g., pre-trial coercive measures, execution of judgment in civil or

administrative litigation (Art. 31)


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State Compensation Law:

2010 amendments (1)

Problems with current lawo Difficulties in obtaining compensation high and narrow criterion

for compensation, procedural barriers, limited scope ofcompensation

o Low compensation for actual loss local average daily salary of

state employee in previous year used as standard of calculatingloss

o No compensation for mental distress only public apology

Amended law came into effect on 1 December 2010



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2010 amendments (2)

Compensation for mental distress allowed (Art 35)

Scope of compensation expanded and clarified (Art 17) Old law: compensation only if state agencies or their agents

violated law, excluding cases of negligence

New law: removed the above condition; clarified rules oncompensation for physical injuries or death caused by abuses orbeating in detention centers by officials and others at officialsincitement; clarified rules on compensation for wrongfuldetentions and arrests



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2010 amendments (3)

Process of applying for compensation smoothed Old law: applying to agency obliged to compensate confirmationby agency (denial and delay frequently arise)

New law: removed requirement ofconfirmation and allowedcitizens to directly apply for compensation: applying to agencyobliged to compensate decision on whether to compensate within2 months if no, applying to superior agency forreview/reconsideration if no, applying to courts compensationcommittee established at intermediate courts or above for a decision.

Requests for administrative compensation may be filed directly withthe agency obliged to compensate or filed with court as ancillaryclaims in administrative review or administrative litigation without filingwith the agency, to be reviewed by the courts administrative division.

Requests for criminal procedure compensation must be filed directlywith the agency obliged to compensate, subject to administrativereview (except when court is the agency obliged to compensate); ifdissatisfied with results of administrative review, the applicant may filethe request with the compensation committee at the court with equalranking of the reviewing body; the committees decision is final.


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2010 amendments (3)

Burden of proof allocated (Art 15) old law: no clear rules

new law: burden of proof falling on party with claims; in case victimsdied or incapacitated during incarceration, respondent should proveno causality between own acts and harmful consequences

Funds for compensation guaranteed (Art 37) old law: no clear rules

new law: applying to agency obliged to compensate for paymentwith effective document agency applying to fiscal department forfunds within 7 days fiscal department making payments within15 days


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State Compensation Law: future direction

Compensation for criminal procedural measures

Remaining restrictions on scope of compensationno compensation intwo circumstances: wrongful detentions within statutory periods and

wrongful arrests of individuals eventually exempted from prosecutions due

to minor nature of offences

Compensation for administrative acts

No rules on compensation for administrative inaction No rules on compensation for abstract administrative actions

Compensation for judicial acts No catch all rule on scope of compensation

Compensation procedure: need for judicialization Compensation committee at courts acts more like an administrative body

than a judicial body: review based on written documents without hearing

representations by both parties

Compensation for emotional distress

No detailed rules on calculation: pending SPCs interpretation

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PRC Administrative Law

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