10th ECLS Conference on New Perspectives on the Development of Law in China Institute of East Asian Studies, University of Cologne September 25th to 27th 2015 Nina Rotermund Georg-August University Göttingen The Reform of the Reform Tendencies in China s Administrative Law New perspectives on the development of administrative law in the People s Abstract Republic of China Generally, a well-functioning administrative law system is necessary for the establishment of a liberal political system because it limits arbitrary acts of the government and protects individual rights and interests. For instance, the recent revision of the Administrative Litigation Law (ALL) in China in May 2015 illustrates China s efforts in granting more rights to its people against unfair administrative actions. Thanks to the revision of the Administrative Litigation Law the plaintiffs rights are considerably improved by reducing the requirements for filing cases, providing a simplified procedure and acknowledging informal dispute settlement. But it has to be seen in the context of what is called in China the political-legal system more generally. There are some structural challenges that hamper a successful enforcement of the ALL. For instance, there is much rhetoric concerning the establishment of rule of law in China, but actions are still constrained to areas that the Communist Party holds under control. The main obstacle is that the Party itself is not a state-organ and thus, cannot be held liable for its decisions. The courts are not independent enough to ensure a judgment free from Party intervention. So far, the Party s senior leaders preferences still decide the course of the political development. Hence, China s administrative law system remains a mixed blessing. 1. Introduction The merits of recent revision of the Administrative Litigation Law (ALL) have to be seen in the context of the administrative law system 1 more generally. In sum, these recent developments appear to be a mixed blessing. The initial enactment of the ALL in 1990 had been lauded as a considerable piece of reform, as it provided for a general basis for actions of individuals against the administration at all levels, which so far had been ruled upon by a number of piecemeal and specialized pieces of legislation only. And indeed, the recent revision of May 2015 can be said to contain a number of improvements, including the widening of the scope of acceptable cases and a mechanism to allow for the review of normative documents of higher agencies relevant to particular disputes. The revision also puts much emphasis on nonformal options for the settlement of disputes, namely by conciliation, mediation and arbitration. 1 The term administrative law employed here is to be defined as a body of law, which is regulatory in nature. It does not limit to the administrative law as traditionally understood and defined, namely a body of law governing the function of administrative power. 1
It will be discussed, whether this move really can be considered a step forward providing a general basis for actions of individuals against the administration at all levels. In order to assess the overall significance of the revision, one has to consider the structural challenges as well. Taking the long history of China s central-led bureaucracy into account, since the 1980s there is an evident tendency towards decentralization providing the local governments with more rights to act according to their specific circumstances. China is not a traditional authoritarian party-state any more, but a rather fragmented one which gradually acknowledges the influence of more political agents. Another structural challenge is that the ALL represents but one element in the system of administrative and more generally public law. Seen from this perspective, it is worth noting, that in spite of a number of announcements - a general law on administrative procedure is still lacking. This lack is quite significant, as it is very difficult to bring claims against alleged administrative misconduct in the absence of meaningful rules on the subject. From a more general perspective, we can see the very objective of administrative law is to organize and define the proper conduct of the exercise of public authority with a view also to safeguarding individual rights. From this point of view, it has to be highlighted, that the revision did not touch upon a major point: As has been affirmed in a number of disputes in the past, the ALL does not allow for action to be brought against the Communist Party, although the Party has an important influence on the exercise of authority. Moreover, the courts manifold demanded independence is still not improved. Having this in mind, the revision of the ALL, which, according to a number of sources, has inter alia been initiated by the Party, altogether appears to be a mixed blessing. This paper firstly introduces a short overview of notions about the Chinese bureaucracy from late Qing-Dynasty until recent times, from where it delves more deeply into some other structural challenges that weaken the enforcement of the Administrative Litigation Law. These challenges are the incomplete administrative law system, the fragmented political system, the influence of the Party and the weak position of the courts. It proceeds presenting legal implications within the text of the ALL to show that the potential of the law to strengthen the position of the plaintiff at court in contrast to the former version of 1989. In its last chapter this paper adds some concluding remarks. 2
2. Traditional notions about the bureaucracy in China Confucius once said: "In hearing litigations, I am like any other body. What is necessary, however, is to cause the people to have no litigations." 2 (Analects, Chap. 13). That people sue government officials ( 民告官 ) was not common in ancient China. According to Confucius, harmony was valuable. In Confucianism, everyone had their predestined social position and had to obey the concomitant rites of that status (de Bary, 18). Officials were regarded as father and mother ( 父母官 ) in the overall context of a father-emperor who led the people by his virtuous behavior (Shu, 22). Within the imperial court, on the one side, bureaucrats fought for more decentralization to gain more spheres for their personal control, but on the other side, the emperor intended to prevent further fragmentation (Hucker, 22). Therefore, the emperors of the Ming-Dynasty introduced a supervisory organ, the censorate ( 督察院 ) to control the actions of his their subordinates. Due to the invasion of Western powers in the late 19 th century, the Qing court found itself in a precarious situation where it was challenged not only from outside but also from within. The whole political and legal system was at stake. The last Qing emperors decided to allow certain reforms to transform the absolute monarchy into a constitutional one. In this reformist phase in 1908, they intended to set up a supreme court ( 大理院 ) that would deal with civil disputes and criminal cases, but not with administrative problems. But the outbreak of the Xinhai-Revolution in 1911 stopped any further implementation of these reforms and overnight, turned imperial China into a republic. The interim government focused on Sun Yat-sen s three principles ( 三民主义, these are nationalism, democracy and livelihood of the people). The powerful group of the republican revolutionary, political leader and cofounder of the Guomindang (GMD) Song Jiaoren introduced the so-called Pingzhengyuan ( 平政院 ) as an independent authority to sue unfair actions of government officials. Because it was accountable to the president, this authority was not as independent as announced. However, it was praised as a harmonious combination of Chinese and Western elements ( 中西合璧 ) (Zhang, 86). After the GMD led by Chiang Kai-shek had moved the capital back from Beijing to Nanjing in 1927, they set up an administrative court and enacted its organic law in 1932. In contrast to the Pingzhengyuan, the administrative court was not part of the executive but belonged to the judiciary. Its members had received a legal education and had more experience with legal disputes than some members of the Pingzhengyuan. The major problem concerning both the administrative court and the Pingzhengyuan was that they hardly became known among common people. The average number of cases brought to court between 1913 and 1927 2 子曰 : 聽訟, 吾猶人也 必也使無訟乎! 3
was about 28 procedures a year. There were about 404 complaints registered from 1933 to 1935, but only 56% of them were accepted by the courts (about 225 cases), among which only 20% were decided in favor of the plaintiffs (Zhang, 89). From 1949 to 1976, Communist China was ruled by Mao Zedong (1893-1976). Under his rule the Party replaced all laws by his decrees. Law was regarded as a tool of the ruling elite which also dates back to imperial times. Emphasis was put on government efficiency rather than protection of individual rights, just to ensure the implementation of the ruler s decisions (Peerenboom, 186). The Communist Party regarded itself as the vanguard of the suppressed people who were ruled by democratic centralism and the so-called mass line that guaranteed the Party leadership to get information from the bottom of society (Nathan, 197). Whenever people had complaints against the government, they were encouraged to tell Party officials at the same administrative level. Furthermore, in the 1960s the communists had established complaint bureaus which function like a petition system ( 人民来信来访, in short 信访制度 ) (Luehrmann, 847). Besides that, the communists built a dual administrative system. They set up Party committees on all government levels to ensure their influence in the political sphere. The internal communication within the bureaucracy was characterized by many overlapping formal channels and indirect oral meetings (Oksenberg, 31). After the beginning of the Great Proletarian Cultural Revolution (1966-1976) in 1966, the routinized work of the administration gradually stopped due to the terror of the Red Guards. Rebuilding the Chinese legal system after the disaster of the Cultural Revolution was a major undertaking while seeking new grounds for political legitimacy. Only after Mao s death in 1976, the new political successor, Deng Xiaoping, stressed that it was important to implement an impersonal, highly institutionalized legal system that would remove the Maoist legacy. The main purpose lay in economic modernization that demanded further political and legal reform (Lo, 649-650). According to Deng, socialist construction and economic development should be attained by setting up a stable legal system that provided the grounds for building up democracy. In his opinion, democracy and the legal system were closely intertwined. He wanted socialist democracy that, on the one side, would combat over-concentration of power, but on the other side, would be bound by centralism. The circumstances demanded quick steps towards legal reforms, so Deng decided that it is better to have crude laws than none at all. Therefore, experimental laws were set up to see if they proved to be practical. Thus, the aim of creating a comprehensive legal system was postponed (Lo, 653-655). The administrative work was taken up again and the bureaucratic apparatus was more professionalized based on comparisons with Western administrations in terms of education and experience of officials (Potter, 81). 4
3. Structural challenges A successful implementation of the revision of the ALL still faces some structural challenges that hamper and weaken its power. The most important ones are those that have constantly been discussed and this paper summarizes the main arguments. 3.1 The status quo of administrative law in China Since the administration, with its influence on economic management, holds a key role in assigning licenses or imposing penalties, the rapid economic modernization and opening up increased the demand for transparent administrative regulations. In fact, it is widely known that the setting of economic progress with weak control mechanisms has increased the officials inclinations to abuse their powers (Heuser, 276, Yang 2011, 2). Although the political leaders all promise to engage in setting up a government according to laws, their effort has not been successful since the bureaucratic apparatus constitutes a major obstacle in this process. All in all, this environment has hampered the establishment of an administrative law system so far. As indicated above, there are still various legal loopholes and inconsistencies to be found although legislation has already been relatively profound considering that China had to start at a point of legal poverty. The Administrative Litigation Law in 1990, the Administrative Penalty Law in 1996, the Administrative License Law in 2004 and the Civil Servant Law in 2005 are among the most important national legal enactments. They constitute cornerstones in the legislation process because they impose restrictions on the administrative authorities and simultaneously attempt to limit corruptive actions. Nevertheless, the lack of a national administrative procedural law still causes many debates among scholars (Zhan, 151; Ma, 300). The main function of an administrative procedural law is to provide transparent procedures of how administrative action is undertaken. On the one hand, the codification of such an administrative procedural law seems to be very complicated due to the highly diversified Chinese administration. Departments in different administrative levels run distinct procedures. This is also due to the traditional Chinese administrative apparatus that used to be very patriarchal. During the century long period of feudal despotism, people were subordinates of the bureaucracy led by countless officials (Ma, 303). Therefore, the coordination and unification of myriads of rules might be an inconvenient obstacle on the way to a national administrative procedural law (Zhan, 148). On the other hand, the existence of rules that support a consistent procedure is necessary to promote justice, efficiency and order (Ma, 304-307). Ma appropriately summarizes that an administrative procedural law is the result of the institutionalization of the most important administrative procedures, which have great impact 5
on both substantive rights of the private party and the administrative effectiveness of the administrative organ (301). Consequently, he defines the two key functions as administrative efficiency and rights protection. There are several studies providing drafts of an administrative procedural law, i.e. in 2003 and 2005 both Ying Songnian ( 应松年 ) as well as Wang Wanhua ( 王万华 ), scholars from China University of Political Science and Law, worked on drafts for an administrative procedural law that they consider to be the general law that guarantees a just procedure and that all other special laws concerning administrative procedures have to be based on. In case of conflicts of regulations, the specials laws shall be annulled and in case the administrative procedure law shows a deficit the special rule shall be used to complement it (Wang, 6ff.). In conclusion, these elaborate drafts reveal that the legislation of a consistent administrative law system is still incomplete and hence will remain that way as long as the last essential administrative procedural law is not enacted. 3.2 The fragmented political system and the rule of law debate Since the reform era, there has been an increasing pluralization of the policy-making process in authoritarian China which led to decentralization, also called fragmented authoritarianism (Lieberthal, 6). This model argues that authority below the peak of the Chinese political system is fragmented and disjointed (8). Being given more power, the local governments can act more freely concerning their decisions, but at the same time they have to start bargaining with other bureaucracies at the same level which also enjoy the same powers. Given these circumstances, the administrative work has become much more diverse in the past two decades which is also due to different legal implementations of the different administrative levels. Hence, the central government saw the need to establish means of administrative control. For instance, the Ministry of Supervision, which was restored in 1986, and its bodies supervise the actions of officials and attempt to promote good governance. In 1993, discipline committees of the Communist Party (under the supervision of the Central Commission for Discipline Inspection 中国共产党中央纪律检查委员会 ) were merged with the Ministry of Supervision ( 中华人民共和国监察部 ). However, due to the government funding of all supervisory organs, they hardly work independently which why they are criticized by Western scholars that they apparently hardly take steps against corruption (Peerenboom, 229, 230). In contrast to this, the recent anticorruption campaigns by Xi Jinping still proved to be successful. Given these internal discrepancies, the rule of law and a one-party state like China might not be compatible at all. The rule of law state is usually associated with democracy, protection 6
of rights, universal laws as well as procedural and institutional guarantees (Lo, 658-659). The state power is limited through the supremacy of law. 3 According to Randall Peerenboom, China will reach a statist socialist type of rule of law. This type is characterized by a market-based economy with socialist features like public ownership, a one-party-state and a strong emphasis on collectivism (Peerenboom, 189). Given this tendency, the establishment of an administrative law system according to law will also impact the implementation of a thin rule of law theory. Pressure also came from outside. Since China became a member of the WTO in 2001, international representatives demanded improvements in the field of rights protection. Above all, pressures from foreign countries also help to ensure this control well-functioning, and this transformation being smoothly brought about. The effectiveness of this control is strengthened by a transitional review mechanism, which is established, lasting for 10 years, in the WTO to monitor China s implementation. (Wu, 7). It seems promising that China will continue with its legal reforms due to international pressure. 3.3 The legal status of the Party The influence of the Communist Party (CCP) is obvious throughout the entire system (He 2012, 74). The CCP established its bureaus and committees in every government level and this way, it influences the important political decisions. The Party as a non-state agency occupies an extra-legal status which makes it hard for any supervisory organ to monitor its actions (Heuser 1987). Whereas young members are keen on reforms that would impose restrictions on the government, senior Party leaders are unwilling to lose power (Peerenboom, 166). These internal conflicts hamper a consistent national reform policy. Since the 1980s, law is no longer regarded as a tool of power, but as an institution to implement reforms. But in a first step, the Party has to acknowledge restrictions on its actions eventually to fully establish a rule of law system in China. Surprisingly, in October 2014 the Central Committee of the CCP had released a decision where it explained its intention to comprehensively move governing the country according to the law forward. In that decision the Party did not only directly address the rule of law, but it further acknowledged the importance of promoting the administrative litigation system. Referring to the weak points of the administrative litigation system, such as the failure of the agencies to comply with 3 Randall Peerenboom (2002) set up a thick and a thin theory of rule of law which differ in their scope of features regarding the power that is attributed to law. Whereas the thin theory is based on a minimum of basic aspects of rule of law like lawmaking process, transparency and justice, the thick theory is extended to features like political morality, economy and conceptions of human rights. 7
procedural requirements or the old notion of the official always acting in favor of the people, the Party emphasized the need for further reform. This example illustrates that there is much rhetoric concerning the establishment of rule of law in China, but actions are still constrained to areas that the Party considers to be of national interest. The contents of a Chinese rule of law state depend on how much the Party is willing to make concessions. So far, there seems little enthusiasm for further limitations of Party power because Party actions remain unpredictable. 3.4 The position of the courts Local congresses appoint and remove judges whose budget, salary and promotion are also subject to government decisions (Li, 34 and Potter, 285). Despite their obvious dependence on the governments, many courts and their administrative chambers have become somehow innovative in refusing to accept an administrative case, so that citizens are usually afraid of filing cases when thinking of the expenses for such long procedures until they know whether their case is accepted or not. Many scholars have illustrated the difficulty of filing administrative cases (Li, 27 and He 2012, 84). They call it the three difficult, one low and one high ( 三难, 一低, 一高 ). This slogan refers to the difficulty of filing, hearing cases and of executing their judgment ( 三难 ). There is a small number of cases that is actually accepted by the court ( 一低 ) and a high number of plaintiffs that withdraw their case during the procedure ( 一高 ) (Luo, 158). The courts fear external interference by the Party or local governments and thus, are particularly reluctant to accept politically sensitive cases, such as collective labor disputes or cases related to resource use (He 2007, 209). The courts may argue that there are either procedural difficulties or lack of clear regulations to file the case. Furthermore, they find themselves in a dilemma that they do not possess the required authority to hear it, but even if they did, they might not be able to deliver an equitable, but enforceable judgement (Li, 29 and He 2007, 211). 8
4. Legal implications within the revision of the Administrative Litigation Law 150 100 50 0 Number of administrative cases in 1000 (Source: The China Legal Development Yearbook, 1995-2011) As the graph clearly reveals, since 1989, the number of administrative cases has steadily been growing until today. Whereas less than 10,000 cases were filed before the enactment of the ALL, there were already 51,373 ALL suits in 1995, 79,527 cases in 1996 and 90,557 cases in 1997 (Pei, 836 and Peerenboom, 224). Ten years later, after some practical experience with the law, the courts accepted 96,178 cases in 2005 crossing the 100,000 line in 2007. The role of the courts in settling disputes has increased in a significant way. China s accession to the WTO in 2001 led to a further opening of China and broadened the scope of stakeholders. Modernization and social stratification increased conflicts and tensions (Li, 25). All in all, these implications asked for stronger courts and more professional procedures in all legal spheres. Beginning in 2009, the Legal Affairs Commission of the National People s Congress worked on the revision of the Administrative Litigation Law which has been effective for more than 20 years. There were two drafts until the revision was enacted on November 1 st, 2014 and became effective on May 1 st, 2015. At the end of April, the Supreme People s Court issued its Opinions about the revised ALL. Besides the inconsistencies of the administrative law system as an entity, the revision of the ALL seems promising considering the standing of the plaintiff facing the strong position of the defendant authority. The main purpose of the new ALL is to solve administrative disputes which is expressed in 1 of the ALL. The former version of the ALL mentioned a broader purpose, also listing the protection of administrative power. This illustrated the inferior position of administrative cases in contrast to civil and criminal disputes that long before were considered to be more beneficial to the courts and more effective in promoting social stability 9
(Li, 32). The strong emphasis on dispute resolution constitutes an important concession concerning the position of the plaintiffs by guaranteeing to control administrative actions. Moreover, there are several more regulations indicating a strengthened position of the plaintiffs. Their standing is enhanced for example by forcing the head of the administrative department to appear in court and to justify their action ( 3 ALL). This is an important improvement because officials used to ignore trials and refused to execute the judge s verdict (Finder, 26; O Brien, 84). Furthermore, the new law allows plaintiffs to seek redress against any administrative action ( 2 ALL). This term, which now replaces the term concrete administrative actions, is broader because any action of authority is now reviewable. The scope of acceptable cases has been widened from formerly eight types to twelve ( 12 ALL). So, plaintiffs will have more and easier access to judicial review. Since the enactment of the ALL more cases have been dealing with property disputes or illegal interference in business management (Pei, 837). That illustrates once more the importance of administrative action in areas of the economy and business operation. After China s accession to the WTO, many laws had to be adapted to meet the requirement of that international organization. Therefore, the Patent Law was twice revised in 2002 and 2008. The new Patent Law promotes the ALL by referring to administrative litigation in case of any conflict. At the same time, the extended scope makes it easier for the judges to know when to accept a case and when to refuse it. To promote the ALL, the Supreme People s Court has issued some Opinions and campaigns. Besides, some legal scholars and lawyers have attempted to raise the people s attention by initiating lawsuits themselves (Li, 30). The requirements to file a case ( 49) were reduced as well as the qualification to become a plaintiff ( 25). Whereas the former version demanded that a plaintiff is either a citizen, legal person or any other organization ( 24 ALL 1990), the new text adds the more general term the recipient of the administrative act which is supposed to cover more than just the three above listed legal persons. It is now easier for other people affected by that action to file a case. The plaintiff does not have to prove that the administrative action has a negative impact on their personal rights and interest. This rule serves to encourage common people to go to court to ease their conflicts. Furthermore, an interesting addition can be found in 53 ALL that allows plaintiffs to ask the court to review all normative documents ( 规范性文件 ), except administrative rules ( 规章 ). Many scholars have been discussing the nature of these administrative rules. Administrative rules are usually enacted by the executive, that is the State Council and its ministries and commissions which makes them more flexible and adaptive to changing environments. The 10
majority of scholars regards administrative rules as equal to laws since they function in a similar way (Wu 2003, 38).The regulations in 52 and 53 ALL 1990 prescribe which legal norms are to be taken as criteria ( 依据 ) and which as references ( 参照 ). Laws, administrative rule and regulations and local regulations can be taken as criteria, whereas regulations formulated by ministries and commissions of the State Council shall only be taken as reference. In case an administrative rule contradicts another legal norm, the courts are supposed to refuse to take these rules as reference (Wu 2003, 39). The State Council should be asked for advice if no solution can be found ( 53 II ALL). The Supreme People s Court made a final judgement in its so-called guiding case no. 5. The plaintiff, Luwei (Fujian) Salt Industry Import and Export Co., Ltd. Suzhou Branch claimed that the defendant Salt Administration Bureau of Suzhou Municipality, pursuant to the Measure of Jiangsu Province on implementing the Salt Industry Management Regulation, decided that Luwei Company s purchase and transportation of industrial salt without approval was illegal, and imposed administrative penalties on Luwei Company. The SPC concluded: [If] local government rules establish licensing and penalties in violation of legal provisions, they cannot be applied by the people s courts in administrative adjudication.[ ] When handling administrative cases, people s courts comply with laws, administrative regulations and local regulations, and refer to rules. In other words, if local regulations contradict national laws, they cannot be taken as a reference for jurisdiction. In this context, the courts can still only review the legitimacy of the action, but its propriety just in cases of penalties that are obviously inappropriate or actions that are incorrect ( 77 ALL). Although the SPC judgment in guiding case no. 5 has clarified how to use administrative rules, the revision still restricts the court s powers to review the legitimacy and not the necessary propriety. Administrative reconsideration remains optional ( 44). Yet, another important improvement can be seen in the acceptance of non-formal options of dispute settlements, as is prescribed in 60 ALL. In cases of administrative compensation and administrative discretion, both parties can agree on external settlement. The old version strictly forbade alternative dispute settlement, because the parties were not equal regarding the fact that the defendant authority was in the stronger position and had more influence on the decisions. Still, the parties preferred non-formal agreements because they were less costly and could be based on both their interests (Luo, 157 and Yang 2008, 160 and Yang 2011, 1). In order to provide judicial protection for the construction of socialist harmonious society, the SPC issued some opinions in 2007 to foster 11
mediation praising its merits and quality. 4 It further introduced a new work principle it called Giving Priority to Mediation and Combining Mediation with Judgment ( 调解优先 调判结合 ) in 2008. The China International Economic and Trade Arbitration Commission ("CIETAC") and the China Maritime Arbitration Commission ("CMAC") are one of the world's busiest arbitration forums dealing mainly with commercial and civil disputes. Subsequent to the Arbitration Law in 1994, more than 140 other arbitration centers have been established in large and medium-sized cities throughout the country (D Souza, 1321). Only recently, alternative dispute settlement in administrative law has been supported by the highest court in China which underlines its benefits for the legal system. Since the majority of cases are rather simple in their facts and thus easier to handle, the revision acknowledges a simplified procedure ( 82) which shall reduce the workload of the courts. The legislators included a SPC notice of 2010 that suggested the implementation of a simplified procedure. 5 In a simplified procedure a judgment has to be made within 45 days. To grant material justice, plaintiffs can ask the court to secure the legal enforcement of the decision ( 95 ALL), whereas the administrative authority can demand it directly from the citizens. This rule clearly favors the administrative authority by awarding it with more discretion. Yet, the overall measures that can be taken by the court to grant enforcement strengthen the plaintiff s rights of redress. Since the majority of cases deals with civil disputes, the ALL has several references to the Civil Procedure Law ( 101 ALL) which was implemented in 1991. In case of any legal loophole in the ALL, the judge can still refer to the Civil Procedure Law. Thus, rights protection is guaranteed which will have positive effects on the plaintiffs encouraging them to stand in for their rights. The plaintiffs standing has increased significantly, as can be seen from above. But the major obstacle still remains in the position of the Communist Party as a non-government agency whose actions are not reviewable by the court. Many administrative actions are derived by Party decisions and this limits the scope of acceptable cases. Although the revision has some important improvements, it still reveals shortcomings in the important restriction of Party rules (Cheung, 554). Besides the extra-legal position of the Party, the persistent dependency of the courts on the government is considered to be another essential deficiency of the Chinese legal system. This dependency restricts judicial review mechanisms (Peerenboom, 210; 240). 4 http://www.lawinfochina.com/display.aspx?lib=law&id=5886&cgid=, August, 3 rd 2015. 5 http://www.chinalaw.gov.cn/article/fgkd/xfg/sfwj/201103/20110300336105, August, 3 rd 2015. 12
Consequently, the absence of a constitutional review body aggravates the dependency and highlights the power of the governments over the courts. 5. Conclusion The number of administrative litigation cases filed each year shows the clear tendency that the Chinese society gradually turns it back on traditional views like the virtue of preventing litigation. That common people sue official has become a common phenomenon in today s China. Since the 1980s, China has been developing a legal system starting from a point of legal poverty and is now discussing how to establish rule of law. At the beginning of the reform period, citizens and rulers were subject to crude laws. But economic modernization propelled legislation which has so far proven to be profound but incomplete after all. Peerenboom argues that China is not likely to become a liberal rights-based democracy any time soon [ ] (184) and that this resistance affects the administrative law system as well. A consistent system of administrative law functions as an important step towards establishing democratic politics. The codification of an administrative procedural law, as indicated above, will enhance civil rights protection by restricting the power of the government, will strengthen the legitimacy and credibility of the government and combat corruption. Another main purpose is to overcome bureaucracy so that private parties find it easier to approach authorities to deal with their issues. The correlation between an administration according to law and the establishment of a rule of law state is evident. Further administrative law reforms impose restrictions on the government led by the Communist Party whose senior leaders reject any kind of concession. Although the revision of the Administrative Litigation Law improves the plaintiffs rights, the Party cannot be held liable for its decisions. So, in the end senior leaders preferences will decide the course. Given these facts, China s administrative law system seems to have been improved in a significant way but, as can be judged considering the structural obstacles, will remain a mixed blessing for now. 13
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