Controlling the State?: Mediation in Administrative Litigation in the People's Republic of China

Author:Michael Palmer
Position:Professor of Law and Associate Dean for Research in the Faculty of Law and Social Sciences, School of Oriental and Afric

I Introduction - II Non-Judicial Systems of Control Over Administrative Conduct - III Administrative Responses to Administrative Complaints- IV The System of Administrative Litigation - V The Practice and Reform of Administrative Litigation in the PRC - VI Conclusions -


I. Introduction .

In post-Mao China's development, a revival of law and legal agencies and a re-thinking of the relationship between the Communist Party and the State have been two highly important features of the leadership's reform policies. Both the legal system (including its laws) and State institutions were suppressed during the radical years of the Cultural Revolution. Their revival in the late 1970s, after the demise of Mao and his supporters, was a strong indication of a return to more orthodox approaches to socialism and China's development. As law and state institutions re-emerged in China's socialist system, the Party saw the possibility that the law might be used to control the exercise of power by the State and its agencies.1 Such control, especially as exercised through independent courts, is a key feature of most conceptualizations of the rule of law, a concept that was more or less formally incorporated by the Constitution of the People's Republic of China (P.R.C.) in 1999.2

Accordingly, the 1981 Civil Procedure Law (for Trial Implementation) provided for review by the People's Courts of administrative decisions,3 and the revised Constitution of the following year declared at Article 41 that "[c]itizens who have suffered losses as a result of infringement of their civil rights by any state organ or functionary have the right to compensation in accordance with the law."4 Subsequently, this right was also incorporated into other legislation, in particular the General Principles of the Civil Law 1986, at Article 121.5

In due course, a special litigation process was designed for judicial review and, in April 1989, was promulgated in the form of the Party to handle contradictions at ease, assume overall control of a situation and co-ordinate the work in all fields. When there is no distinction between Party and government, the Party becomes an executive body; only when the two are separated is it possible for Party organisations to exercise better supervision and effectively prevent or overcome bureaucratism . . . . To consolidate the achievements of structural reform and to institutionalise administrative management . . . we should formulate an administrative litigation law, strengthen supervision over administrative work and personnel, and investigate cases of neglect or dereliction of duty and other breaches of law and discipline by administrative personnel.

Administrative Litigation Law (ALL).6 The politically sensitive nature of a process in which the citizen can sue state organs and actors in a system that practiced-and still practices-a "people's democratic dictatorship" meant that implementation was delayed until October 1, 1990.7 This delay would enable, in a distinctively socialist Chinese approach to legal development, experiments to take place in selected localities in which the new law would be implemented on a trial basis only-experiments that had commenced even before the law had been promulgated-and opinions to be sought from local officials involved in the administration of justice on the likely impact of the ALL. Judges would thus be given the chance to inform their decision making in judicial review cases with the experience gained from this preparatory work. The new system of administrative litigation carried within it certain distinct advantages for the Communist Party. Above all, the new system would function as a mechanism by which ordinary citizens may more effectively keep the conduct of the State in check, thereby facilitating continued, albeit indirect, Party dominance of the State. This important development came at the end of a decade in which the Party had been thinking seriously about how best to separate Party and State,8 and thereby avoid the many problems that had resulted from the fusion of State and Party institutions when China engaged in, and then slowly recovered from, its 'Cultural Revolution' (1966-1976).9 Deng Xiaoping initiated such re- thinking in the late 1970s when he called for Party leadership to be confined to 'political leadership,' and not to intrude directly into the state sphere, thereby serving as a substitute for government and other administrative bodies. Deng's thinking on the need to separate the Party from the State (dangzheng fenkai) underpinned Zhao Ziyang's proposals for reform, put forward in his official report to the Thirteenth National Congress of the Chinese Communist Party (CCP) in October 1987.10 Zhao accepted that economic liberalization requires political reform, and called for new types of institutions that would both promote the development of a market economy and strengthen China's socialist legal system.11

Consistent with this approach, the ALL provides for citizen suits against State organs and functionaries-although Articles 12 and 14 defined the courts' jurisdiction in such a way as to protect the Communist Party from such intrusive judicial conduct.12 The leadership gave the ALL considerable publicity "both in an effort to build legitimacy for the new law and as a reflection of the increased openness of the Chinese government."13 Subsequently, and especially after the 1999 rule of law amendment to the 1982 Constitution and China's accession to the WTO, the nature, effectiveness, and above all, the independence of the P.R.C.'s system of judicial review is characterized as a crucial element in China's future legal and political development.14

In the period leading up to the enactment of the new law, and continuing into the interregnum between the promulgation and enforcement of the ALL, the proposed system of judicial review gave rise to considerable controversy within Chinese legal circles. This centered on such matters as the types of cases falling within the jurisdiction of the administrative chambers newly established in the people's courts (for example, whether or not labor disputes involving State-owned enterprises would be included in the work of these chambers). Furthermore, controversy surrounded compensation possibilities where administrative misconduct had caused the plaintiff losses, and the extent to which the courts could modify an administrative decision.15 One key issue was the nature of the decision-making process that would be appropriate in administrative cases and drafts of the Administrative Litigation Law allowing for the use of mediation in resolving disputes dealt with by administrative litigation. However, the prevailing opinion among legislators and judges was that, in administrative cases, there should not be any reliance by the courts on mediation as a means of dealing with the substance of a dispute. This was the position finally taken in the law on judicial review when it was promulgated in 1989.16

II. Non-Judicial Systems of Control over Administrative Conduct .

While the emergence of a system of judicial review for the purposes of controlling the conduct of administrators and challenging administrative decisions has been an important legal development in post-Mao China, judicial review does in fact operate within the context of a broad range of mechanisms for dealing with administrative troubles. As in the system of criminal justice,17 the courts have been expected to deal with only a small proportion of the cases that arise.18 Court-based adjudication is just one of several types of processes that may be used in China as a check on administrative decision making. Others include, in particular, legislative supervision, administrative supervision, letters and petitions, and administrative review.19

In China's socialist legal system, legislative supervision of administrators assumes a particular importance because the main legislative bodies (the People's Congresses) are the principal holders of State power at all levels. From the time of China's first Constitution, introduced in 1954,20 the highest organ of the State has been, in theory, the National People's Congress. The National People's Congress is composed of people's deputies "elected" by the provinces, autonomous regions, large municipalities that are directly administered by the government, and the military.21 Under the current Constitution (1982), the National People's Congress (and, at the provincial level and below, the local people's congresses) performs a broad range of functions and exercises considerable authority outside its immediate legislative role.22

The congresses (and, in practice, their standing committees, which act on their behalf when the congresses are not in session) are, inter alia, authorized to receive, review, and approve written reports by government agencies; consider and approve the budgets of administrative bodies; examine and approve plans for national economic and social development; examine and approve reports or their implementation; and oversee the implementation and consistency of laws.23

In practice, however, the thoroughness and independence of legislative supervision of the operations of administrative bodies is limited. The dominant position of the Chinese Communist Party- including the system whereby the Party reserves for its members leading positions in the State sector (nomenklatura), Party discipline, and the network of political-legal committees-means that both the Congresses' Standing Committee and the leadership of the administrative bodies answerable to the legislature often overlap and are subject to the same Party policies and guidelines. As a result of this and other weaknesses, the People's Congress has rarely failed to approve either the work report of an administrative body or an appointment proposed by an administrative organ.24 Although it is true that some of the local People's Congresses have been prepared to challenge the administrative bodies they are supposed to supervise,25 the system of legislative supervision is largely ineffective. It is likely to remain so for the foreseeable future. As administration and governance in China become more complex through...

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