Administrative Litigation – European Chinese Law Research Hub

A new paper by Tianhao Chen, Wei Xu and Xiaohong Yu

In 2015, the revision of China’s Administrative Litigation Law introduced the Chief Officials’ Appearance System (COAS). The system requires agency leaders themselves, rather than their legal counsel, to appear in court and defend their administrative actions. Unlike other post-2014 legal reforms aimed at empowering the judicial system and fending off local protectionism, the COAS uniquely enhance the engagement of political officials in the judiciary process. This approach is based on the belief that increased participation will help officials to gain a better understanding of public concerns and improve administrative litigation quality. The detailed workings of the COAS were laid out in this previous blogpost by Nina Rotermund.

In this comprehensive study, we set out to assess how and whether the optimistic goals set for the COAS were achieved. Through an empirical analysis of 1551 administrative litigation cases in a Beijing local court and extensive field research across 12 other provinces, the study uncovers unexpected outcomes that merit a closer examination.

Contrary to official expectations, we find that the COAS reproduces the administrative grievances that it is tasked to resolve. Data from Beijing revealed that plaintiffs were 5.08 times more likely to appeal or file a new suit over the same issue when chief officials made court appearances. This tendency was attributed to a mismatch between the plaintiffs’ expectations for meaningful engagement and the often-detached demeanour of the officials, who sometimes resorted to reading from prepared statements without genuinely addressing the plaintiffs’ concerns. This lack of meaningful interaction left plaintiffs dissatisfied, propelling them to pursue further legal avenues.

Moreover, the number of administrative cases overall and the rates of the government losing cases before district leaders’ court attendances in Beijing’s 16 districts were not significantly higher than after they appeared in courts, indicating that lawful governance did not improve. This issue is related to the officials’ generally apathetic approach to court appearances. Statistics indicate that 73.6% of officials planned to conduct the required court visits only in the fourth quarter, when the annual cadre evaluation was underway. This figure is disproportionately higher than the proportions in the other three quarters. Further, the amount of officials’ appearances in court barely surpassed the number of appearances required to fulfil the performance evaluation criteria. This indicates that officials’ appearances are more about fulfilling administrative assessment requirements rather than genuinely improving lawful administration.

“[…] plaintiffs were the so-called nail households (dingzihu 钉子户), ones who refused to relocate and came to court only to claim better compensation. They wouldn’t be pleased by simply meeting the officials in person. Instead, sometimes they even interrogated the officials and we had to interrupt and stop them.”
Judge in Qinghai, August 2022

Despite this, the study also observed surprisingly impartial and even strategic responses from the court. Statistical analysis of Beijing data shows that the involvement of district leaders in court did not skew judicial outcomes in favour of the government. This is partly due to the strategic appointment of high-ranking judges in cases involving chief officials, ensuring a balance of authority in the courtroom. Moreover, the analysis reveals a nuanced trend wherein courts are more likely to rule against government officials who are nearing the end of their term, suggesting a strategic consideration of future relations with the administrative agencies.

Expanding the study nationwide revealed similar trends across China, albeit with regional variations. Through the “China Judicial Politics Database,” which includes 70% of publicly available cases, we identified 28,805 instances of official court appearances. Of these, a mere 146 involved officials at the bureau and deputy bureau levels, noting that the overall frequency of government leaders appearing in court remains low nationwide. Interviews conducted with judges, lawyers, and government officials from 12 provinces, including Zhejiang, Henan, Guizhou, Jiangsu, Guangdong, Sichuan, Qinghai, Shaanxi, Tianjin, Liaoning, Hebei, and Xinjiang, presented a complex but consistent picture. Similar to Beijing, official court appearances were rare and typically motivated by assessment requirements, leading to tense courtroom dynamics between disinterested officials and pragmatic plaintiffs. Courts employed diverse strategies to manage their interactions with the government, sometimes using the theatrical nature of appearances to exert pressure.

“[…] sometimes I would intentionally tolerate plaintiffs’ emotional expressions to exert extra pressure on
administrative agencies.”
Judge in Zhejiang, April 2022

In sum, the study reveals that, contrary to what the creators of COAS had expected, the COAS has not significantly ameliorated administrative dispute resolution. Instead, it has resulted in a renewed triad of administrative litigation: apathetic state agencies, increasingly agitated plaintiffs and strategically empowered courts.

The unintended impacts of the COAS carry certain implications. Despite previous views of administrative litigation in China as no more than a “frail weapon” due to political constraints, the courts appear somewhat empowered, benefiting from the cumulative effects of several reform measures implemented over the last four decades and the strategic behaviours of judges. Additionally, plaintiffs’ willingness to pursue further legal action, fuelled by an increased legal awareness and desire for justice, challenges the notion that official appearances alone would placate citizens. Still water runs deep, and the perverse impact of the COAS implies that the rule-based approach to dispute resolution would be a more desirable and effective route than the paternalistic approach.

The paper ‘Administrative Litigation in China: Assessing the Chief Officials’ Appearance System’ was published in The China Quarterly (free draft available here). Tianhao Chen is an associate professor at the School of Public Policy and Management at Tsinghua University. His research focuses on administrative law, administrative agreements, judicial governance and technology ethics. His work has been published in Chinese Journal of Law, China Legal Science and Law Science.

Wei XU is a PhD candidate studying at the School of Public Policy and Management at Tsinghua University. Her research focuses on platform antitrust, judicial reform, public administration and law.

Xiaohong Yu (corresponding author) is an associate professor in the department of political science at Tsinghua University. Her research focuses on Chinese politics, judicial politics and empirical legal studies. Her work has been published in Journal of Empirical Legal Studies, The China Review and Tsinghua University Law Journal. She can be contacted at xyu[at]tsinghua.edu.cn.

A paper by Chun Peng

^{Mauro Cateb, licensed under CC BY 2.0}

Since May 1 of 2008, the Regulations on Open Government Information (the OGI Regulations, English translation here) have formally triggered the legal mandate for information disclosure for all government agencies across China. Over the last ten years, much attention has been paid to how much progress towards transparency can be and has been made in a political system long dogged by secrecy, with an enormous amount of ink spilled on this area of law. Yet one issue remains relatively untrodden, if not unknown, among scholars and observers interested in the Chinese transparency regime. That is transparency for public enterprises and institutions.

As part of the legacy from the planned economy of the pre-reform era, public enterprises and institutions, in Chinese 公共企事业单位, also known as state-owned enterprises and state-sponsored institutions, continue to perform a variety of public functions and/or to receive public funds. They still loom large in Chinese people’s lives today, spanning from health care to education, from transportation to electricity. Against this background, the level of transparency of these quasi or non-governmental organizations bears much significance and warrants more attention. In this paper I attempt to fill the gap in the existing literature.

It starts by explaining the legal framework of open public enterprises and institutions in China, paying particular attention to its difference from the same regarding administrative organs and empowered organizations under the OGI Regulations. The previously unnoted dualistic structure within China’s transparency law is pointed out and the 2019 amendment to the OGI Regulations to reinforce such a structure be introduced. I then explain the fourfold conventional wisdom that underpins such a legal change, as articulated by officials entrusted with the drafting task: First, it was believed that because public enterprises and institutions do not qualify as administrative subjects, they are usually unable to enter into administrative litigation. Even if they become defendants, it is difficult, if not impossible, for the courts to review the legality of their disclosure decisions. Second, it was suggested that the responsibility of ensuring public enterprises and institutions’ transparency, including settling grievances arising from lack thereof, is better entrusted to the oversight departments than to the judiciary. Third, the drafters thought that public enterprises and institutions should be considered regulatees whose transparency obligations are different from the freedom of information requirements that apply more generally to the government, and closer to compulsory disclosure requirements imposed on listed companies or charitable organizations. The fourth and last official rationale is that globally, the freedom of information laws primarily target government agencies rather than non-government organizations.

The rest of the article dissects the above reasoning and puts forward counterarguments. It first reports and assesses the transparency performance of the Chinese public enterprises and institutions since the implementation of the OGI Regulations in 2008, particularly in comparison to that of the administrative organs. It will be made clear that public enterprises and institutions had a rather poor transparency record over the last decade or so, due to a lack of hierarchical pressure from the government departments responsible for overseeing their operation. In other words, although it became a legal requirement back in 2008 that public enterprises and institutions should be more open, there has remained a huge gap between the law on paper and law in action. In contrast, as a silver lining, this paper demonstrates that the Chinese judiciary has actually been active yet prudent in scrutinizing public enterprises and institutions’ compliance with the OGI Regulations, in spite of the institutional barrier created by the dualistic structure. The paper then argues that to incorporate public enterprises and institutions into the OGI Regulations is in line with both the Chinese constitutional imperative for participatory democracy and the international mainstream of including non-governmental entities performing public functions and/or receiving public funds in the freedom of information legislation. This means that the underlying rationale for enhancing the dualistic structure by the 2019 amendment is wrongheaded. The concluding part summarizes and makes proposals for further legal reforms in this area.

Chun Peng’s paper is published with the University of Pennsylvania Asian Law Review and available here.

Chun Peng is presently an assistant professor and assistant dean at Peking University Law School. He received his doctorate and master’s degree in law from the University of Oxford and holds a double degree in law and economics from Peking University. He has published widely on Chinese constitutional law, administrative law and comparative law in English and Chinese. Besides scholarly work, he writes op-eds on China and the world at The Diplomat, China Daily and Caixin. His book Rural Land Takings Law in Modern China: Origin and Evolution is published with Cambridge University Press. More recently, he is interested in data governance and privacy law and has published on China’s social credit system and the newly enacted PRC Personal Information Protection Law.

European Chinese Law Research Hub

Tag: Administrative Litigation

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