While administrative law in China developed slowly, starting from the 1990s, the importance of administrative procedure law to fight corruption and foster society’s trust in the public administration became apparent. However, China’s legislation did not firmly establish the due process principle in the law. Rather, administrative law scholars as well as courts in China moved forward and developed the notion of due process. For instance, the Intermediate People’s Court of Suqian City in Jiangsu has in 2004 found that the local urban development bureau should have given inhabitants of buildings they demolished the chance to make statements and defend themselves, despite respective provisions being absent from the law. Meanwhile, legal scholars argue that due process is an unwritten general legal principle of administrative law.
Earlier investigations have pointed out that while judges have made use of due process in their adjudication work, such cases, even if designated representative by the SPC, do not suffice to fully establish the principle in administrative procedure law (Haibo He 2008). The post-2013 era in China is generally characterized by developments pointing to a regression of the rule of law. In this paper, administrative cases decided by Chinese courts from 2014 to 2019 are analysed to determine whether or not courts have further expanded the application of the due process principle. During that period, the High People’s Courts and the Supreme People’s Court published 321 decisions that mentioned the due process principle. About 70 percent of the court decisions dealt with rights relating to immovable property, including land use rights of state-owned land and the ownership of collectively owned land.
When an institution of higher learning makes a decision against a student who violates school rules and disciplines that affects his/her basic rights, it must allow the student to defend him/herself, and it must deliver the decision in a timely manner after it is made; otherwise, it will be deemed a violation of due process.
The due process principle finds its expression for instance in the famous case of student Tian Yong 田永, who was denied his graduation certificate by a university. Beijing Intermediate People’s Court decided in 1999 that the university’s decision was unlawful, arguing that due process was not being observed by the school. (指导案例38号，最高人民法院公报 2015 (8))
While a general administrative procedure law is absent at the national level, some laws such as the Administrative Penalty Law, the Administrative Enforcement Law and the Administrative Licensing Law include several due process requirements. The Administrative Penalty Law for instance, amended in 2021, includes the requirement for administrative agencies to notify in advance and consider any objections from persons against whom an administrative penalty is taken, among others. Some of the changes in the new Administrative Penalty Law were inspired by experimental legislation at the local level: Provincial legislators such as in Hunan (in 2008) and Jiangsu (in 2015) had already passed Administrative Procedure Regulations with a wide range of due process requirements. Apart from local legislation, policy documents adopted by the State Council emphasize the importance of due process rights and while they are not legally binding, do indicate a general trend for future legislation.
The study of court decisions undertaken here demonstrates that indeed, courts have continued to expand the application of due process after 2013. Due process rights are applied across different fields of substantive administrative law, and to different forms of administrative actions, including administrative penalty decisions as well as physical acts such as the demolishing of buildings. Courts however rarely elaborate on specific requirements the due process principle contains. Among others, notification rights, rights to a hearing and the right to ‘adequate participation’ for adressees of administrative acts have been held to be part of due process.
However, these developments are not always directed towards a general strengthening of administrative procedure to provide effective pre-judicial remedies. In several cases, courts use the reference to the due process principle as a catch-all clause for administrative injustices including for instance the requirement that belongings of former inhabitants of a building must be appropriately stored before demolition. Courts further do not always attach legal consequences, such as the revocation of the administrative act, where they find a violation of due process. We find that applying the due process principle helps courts avoid deciding on the substantive legality of the administrative acts in question, potentially interfering in the conflict between different administrative agencies.
Björn Ahl is Professor and Chair of Cologne University’s Chinese Legal Culture. Before joining the University of Cologne in 2012, he was Visiting Professor of Chinese Law, Comparative Public Law and International Law in the China EU School of Law at the Chinese University of Political Science and Law in Beijing. Prior to that he held a position as Assistant Professor of Law in the City University of Hong Kong. He has also worked as Associate Director and Lecturer in the Sino German Institute of Legal Studies of Nanjing University and as a Researcher at the Max Planck Institute of Comparative Public Law and International Law in Heidelberg. Find him on LinkedIn.
Why is there so much ado about the responsible person of an administrative agency appearing in court? Nina Rotermund set out to look for answers in the latest interpretation of the Supreme People’s Court.
When the government of Zunyi City in Guizhou announced its plan to construct a highway close by, local residents had to fear expropriation. Mr. Ding decided to file a request with the Guizhou Provincial People’s Government for a reconsideration of the construction notice and its revocation. The provincial government rejected his reconsideration request because it considered the notice to be an internal administrative document. It argued that the kind of administrative actions that circulate within administrative organs do not directly affect the rights and obligations of a citizen, legal person or other organization outside the administration. Therefore, it rejected the reconsideration request. So, Mr. Ding filed an administrative lawsuit with the Intermediate People’s Court of Guizhou’s provincial capital Guiyang. During the court trial, the plaintiff presented the reasons and evidence supporting the revocation of the provincial government’s reconsideration decision. Surprisingly, Guizhou’s deputy governor, Mr. Chen, responded to the claims in court in person. The news of him attending the trial went viral. Mr. Chen confirmed that he participated in the trial in person to signal the government’s respect for the people’s rights and interests. He emphasized that the government accepted public and judicial monitoring. Whereas making statements in administrative trials is usually a rather short part, the entire exchange in this trial lasted for an hour.
This example highlights the symbolic meaning that is attached to the presence of the responsible person of an administrative agency in court. People, legal scholars, and politicians all attach great importance to the appearance of the responsible person of an administrative agency in court. But why does it seem to be such a big event at all?
Before the revised Administrative Litigation Law (ALL, with translation here) became effective in 2015, in general, administrative officials usually refused to appear in court and only sent their lawyers as representatives. Besides the regular administrative work, attending administrative trials seemed to be unworthy and a waste of resources. Traditionally, in China, it was common for people not to fight with magistrates (民不与官斗). Rather, magistrates were regarded as taking care for the people like parents for their children (父母官). This conviction still seems to be present somehow.
In 2011, Jiang Bixin, then vice-president of the Supreme People’s Court (SPC), emphasized that the presence of the responsible person of an administrative agency in court was an effective means to resolve the dispute between the people and the government and to understand the mood and emotions of the people. In a similar vein, the State Council had also underlined its support for monitoring the lawful actions of the administration. It indicated that administrative personnel usually lacked legal knowledge, although it was essential to abide by the laws. Attending administrative trials seemed to be an excellent way to learn a lesson.
However, as mentioned before, the enthusiasm about the responsible person of an administrative agency appearing in court was not shared by the administration itself. In its 2015 annual report, the Supreme People’s Court (SPC) reflected on the situation of administrative trial work and found that main problems inhibiting successful adjudication in administrative litigation include leading cadres not treating administrative litigation correctly, not respecting the people’s right to sue, and not supporting courts in accepting administrative cases, as well as officials unwilling to appear in court or to make a statement, or to accept an unsuccessful outcome.
The political and legal proponents truly believed that appearing in court would benefit the resolution of administrative disputes. Eventually, they came to dominate the drafting process of the ALL: The third paragraph of Art. 3 of the Administrative Litigation Law states that the responsible person of an administrative agency, their deputy, or a relevant employee of that agency shall appear in court to respond to the complaint against them. However, the ALL remains vague and does not provide any further details: Who is a responsible person in the administrative agency? In what kind of cases do they have to appear in court? Are there exemptions from that obligation? How does the court handle a situation when the responsible person refuses to appear in court?
The latest Interpretation of the SPC concerning the application of the ALL (2018 SPC Interpretation, with translation here) offers answers. Its Art. 128 defines the “responsible person of an administrative agency” as either the head or their deputy or even a person charged with special responsibilities. According to the second paragraph of Art. 128, besides the responsible person, one or two litigation representatives can respond in court. But the head or their deputy has to appear unless they have a good reason for their absence. In that event, they shall authorize a relevant employee to attend. However, they are not allowed only to send a lawyer to participate in the trial.
Moreover, Art. 129 determines that the people’s court can propose in writing to the agency that the responsible person is to appear in court when the case involves significant public interest, generates enormous publicity, or is likely to cause a mass incident. The people’s court shall indicate that attendance is mandatory in the their notice, according to the second paragraph of Art. 129. Besides, Art. 132 stipulates that the court shall document any misconduct in the ruling and send a recommendation to the relevant agency in case the responsible person or the relevant employee refuse or fail to attend the hearing themselves and only authorize a lawyer to attend.
The SPC’s Provisions were necessary because of various regional differences in the interpretation of the Law. For example, in 2016, Li Huai from the University of Wuhan had looked at normative documents of about 51 local governments that specify in which cases the head of the alleged administrative agency should or must attend the trial. He indicates that local decisions focus on different aspects such as the significance of a case, the year of its filing etc. to determine when the responsible person must appear in court. Unfortunately, Li Huai’s analysis offers no answers whether how many responsible persons actually appear in court. Some statistics of lower-level courts illustrate the impact of the system of responding to court proceedings. But the numbers are not representative for the entire country. For example, the government in Hangzhou presented some results. In 2017, the rate of appearance was still about 37,7% whereas in 2018, it increased to about 69.8% because the Standing Committee of the Hangzhou Municipal People’s Congress introduced supervision mechanisms. Their aim was to foster a change of thinking from “I have to appear in court” towards “I want to appear in court”. In their study about the appearance rate in Mudanjiang City in Heilongjiang, intermediate people’s court judges Liu and Jiang conducted statistics and concluded that the appearance rate reached 100%, but the rate to make a statement was lower. For instance, in 474 administrative cases filed in 2017, the appearance rate was 100%, but only 69 representatives of the administrative agency made a personal statement, which account for 14,6%. They assume that the administrative representatives are afraid of making mistakes when they express their opinion. They do not want to be responsible for negative legal consequences or of losing the lawsuit.
Still, the local differences underline that a nation-wide and uniform system was still lacking. Therefore, since 2018, the Supreme People’s Court conducted pilot work in Beijing, Shanxi, Chongqing, Jilin, Fujian, Hubei, and other places. It also collected opinions of the high courts, and suggestions of some front-line judges of the basic and intermediate people’s courts. Interestingly, it took 12 draft versions of the “Provisions on several issues concerning the responsible person of the administrative agency appearing in court” (Provisions, translated here), that include only 15 articles, until the final Provisions where agreed on.
Why are the Provisions necessary on top of the official 2018 interpretation? Was it not detailed enough? What are the differences between Section Nine of the 2018 SPC Interpretation (Art. 128-132), and the SPC provisions issued in March this year? The obvious answer is that the provisions constitute a special judicial interpretation intending to facilitate legal practice and to improve the application of the ALL (see Zhang 2020). In essence, the Provisions correspond to Section Nine of the 2018 SPC Interpretation, but the ALL and the 2018 SPC Interpretation are not as explicit as the Provisions, which the table below highlights.
Comparison of the 2018 SPC Interpretation and the Provisions:
2018 SPC Interpretation, Section 9
Provisions July 1, 2020
Art. 1 I: The responsible person must appear in court in first, second, and retrial proceedings, according to Art. 3 III of the ALL, exercise litigation rights and perform litigation obligations. II: The responsible person of an internal organization of the administrative agency authorized by the laws, rules, and regulations to exercise administrative power independently, [or the responsible person] of a dispatched agency or other organization shall appear in court. III: If it is added as another defendant and the plaintiff or defendant do not agree, the people’s court shall add the administrative agency as a third party, the responsible person shall appear according to the preceding paragraph.
Art. 128 I: The responsible person of an administrative agency” is either the principal or deputy or another person charged with special responsibilities. II: One or two litigation representatives can attend in addition; a relevant employee shall replace the principal or deputy; a lawyer as the only representative is not allowed.
Art. 2 I: The responsible person includes the principal of the agency or deputy or another person in charge of the enforcement of the alleged administrative action or another responsible person. II: The responsible person of an entrusted organization or the lower-level administrative agency is not the responsible person who must appear in court.
Art. 3 In administrative cases with co-defendants, the administrative agencies can consult to determine the responsible principal who must appear in court, or they can let the court decide.
Art. 129 I: Attendance is mandatory in the cases with a significant public interest, generating enormous publicity, possibly leading to mass incidents. II: The people’s court has to specify if appearance is mandatory in its notice for the agency. III: If the responsible person cannot appear, they have to give a proper reason, and the agency has to submit a statement that is sealed. IV: In case of refusal, the court may offer judicial recommendations.
Art. 4 I: In cases involving significant public interests such as food and drug safety, the protection of the ecological environment and resources and public health safety, or, in cases generating enormous publicity, possibly leading to mass incidents, the people’s court must notify the responsible person to appear in court. II: In one of the following circumstances, the responsible person has to appear in court, the people’s court may notify the responsible person to appear: The alleged administrative action involves significant personal and property rights of the citizen, legal person or other organization,Cases concerning administrative public interest litigation,Normative documents of the higher-level agency require the responsible person of the agency to appear in court,Other circumstances where the people’s court deems it necessary to inform the responsible person to appear in court.
Art. 130 I: The relevant employee is an employee on the national administrative staffing or any other employee fulfilling their duties in accordance with the law. II: Any employee of the legal affairs department of the local people’s government or of the specific department taking the administrative action may be deemed as the relevant employee.
Art. 10 I: The relevant employee specified in Art. 3 III of the ALL refers to staff members with special administrative functions and powers in the agency. II: Employees of organizations or subordinate administrative agencies entrusted by another administrative agency to exercise administrative functions and powers may be regarded as relevant employees. III: The people’s court shall refer to Art. 6 II of these Provisions to examine the identification materials of the relevant employees.
Art. 5 I: The people’s court shall inform the responsible person of the agency about matters like their rights and legal obligations and the related legal consequences. II: When the court notifies the responsible person of an agency to appear in court, it shall send the notification letter three days before the hearing starts. It shall also inform the responsible person of the negative legal consequences if they do not appear in court III: If the agency requests to replace the responsible person that must appear in court before the hearing, the people’s court shall allow it.
Art. 131 I: The administrative agency must to submit materials of identification. II: A relevant employee must submit a power of attorney sealed by the administrative agency.
Art. 6 I: The responsible person that appears in court shall submit their identification documents before the hearing. The identification documents shall explicitly say the name, position, and other necessary information of the responsible person and shall be sealed by the agency. II: The people’s court shall examine the identification documents. If it deems that the conditions are not met, it shall notify the agency to make corrections. If they do not correct or supplement, which can influence the regular opening of the hearing, the people’s court regards this as if the responsible person did not appear.
Art. 7 I: If the same case requires multiple hearings at the same instance of trial, it can be regarded as fulfilling the duty to appear in court when the responsible person appears in the first court hearing unless the court notifies them to appear again. II: If the responsible person appears in court in one trial of the procedure, it does not exempt them from their duty to appear in other hearings.
Art. 8 I: Under one of the following circumstances, the responsible person as prescribed in Art. 3 III of the ALL cannot appear in court: Force majeure,Accidents,They need to perform official duties that others cannot replace,Other legitimate reasons for failing to appear in court.
Art. 9 I: If the responsible person has a proper reason, they have to submit the relevant evidence and seal it with the administrative agency’s stamp or have the principal of the administrative agency sign an approval. II: The people’s court shall examine the reasons and supporting materials explaining why they do not appear in court. III: If the responsible person of the administrative organ fails to appear in court for proper reasons, and the administrative organ applies for postponement of the hearing, the people’s court may allow it; the people’s court may also decide to postpone the hearing by its authority.
Art. 11 I: Litigation participants shall exercise their litigation rights and perform their litigation obligations, abide by court rules, and consciously maintain litigation order according to law. II: The responsible person of the agency or the relevant employee entrusted by the agency shall make a statement, reply, submit evidence, debate, issue a final opinion on the situation of the case, and explain the normative documents on which it is based. III: If a responsible person appears in court, they shall express an opinion on the substantive settlement of the administrative dispute. IV: If the participants in the litigation or others disturb the order of the court by means like an insult, verbal abuse, threats, the people’s court shall stop them and deal with them according to Art. 59 of the ALL.
Art. 132 If the responsible person does not appear in court, or only send a lawyer, the people’s court shall record and specify in adjudicatory instruments the failure to respond and may propose that the relevant agency conduct disposition.
Art. 12 I: In any of the following circumstances, the people’s court shall provide judicial recommendations to the supervisory organ of the administrative organ or the administrative agency at the next higher level of the administrative agency taking the administrative action: The responsible person fails to appear in court and does not explain the reasons or the reasons are unfounded.The administrative agency has proper reasons to request postponement of the hearing. After the people’s court approved it, and the hearing starts, the responsible person fails to appear in court without proper reason.Neither the responsible person nor the relevant employee of the agency appears in court.The responsible person withdrew from court without permission to leave.The people’s court asks the responsible person to explain the relevant issues during the hearing, but the responsible person refuses to respond, resulting in the failure of court proceedings. II: In the event, there is one of the circumstances; the court has to record and specify in the judgment the failure to respond.
Art. 13 I: If a litigation party objects the circumstances of the administrative agency as mentioned in Art. 12 of these Provisions, the people’s court may specify it in the transcript of the court hearing without affecting the regular trial procedure. II: If the plaintiff refuses to appear in court on the ground that the administrative agency acts according to one of the circumstances of the first paragraph in Art. 12 of these Provisions, or withdraws from the hearing without the court’s permission, the people’s court can treat it like withdrawal. III: If the plaintiff clearly refuses to make a statement because the administrative agency has a circumstance of the first paragraph in Art. 12 of these Provisions or refuses otherwise resulting in the failure of trial proceedings and still does not state their opinion after the court has explained the legal consequences, the court can regard this as renouncing the right to make a statement, and they shall bear the corresponding legal consequences.
Art. 14 The people’s court may disclose to the public through an appropriate form the situation of the responsible person appearing in court. II: The people’s court may regularly conduct statistics, analyses, and evaluations of the appearance of the responsible person in court within its administrative jurisdiction and report to the people’s congress at the same level or to the people’s government at the same level.
Art. 15 These provisions shall be in effect as of July 1. 2020.
Translation by Nina Rotermund
At first glance, we can see that the Provisions provide details on the pre-trial and trial procedure concerning the appearance of the responsible person. For instance, the Provisions emphasize that the responsible person has to attend first instance, second instance, and retrial procedures (Art. 1), but it acknowledges that administrative officials have limited time resources. That is why, Art. 7 says that in the same case that requires multiple hearings at the same trial instance, it is acceptable if the responsible person appears in the first hearing. However, it stipulates that the obligation to appear in court affects all cases. Hence, responsible persons cannot excuse themselves if they appeared in one case in the first hearing but fail to appear in the first hearing of another case. The explicit mentioning of the court’s obligation to examine identification documents (Art. 6) reveals that it is not enough to send anyone to court but the right responsible person. In case the actual responsible person cannot appear in court, another relevant employee of the administrative agency can be designated, but their name and identification must be submitted to the court for the examination beforehand (Art. 10).
But besides these specifications, the core answer to initial questions seems to be hidden in the third paragraph of Art. 11: “If a responsible person of an administrative organ appears in court, they shall express an opinion on the substantive settlement (实质性化解) of administrative disputes.” The keywording is a substantive settlement that conveys a political message: The grievances of the people are taken seriously to preserve social order. The responsible person, their deputy or other relevant employees must be committed to genuinely solving the dispute. The trial in court provides the platform to enter into an active dialogue with the people. If the responsible person or any other entrusted person does not appear without proper reason that was announced before the hearing started, the court can sanction the misconduct according to Art. 59 of the ALL. Sanctioning misconduct does not only include internal supervision of the supervisory administrative organ, or the higher-level administrative agency (Art. 12) but public control as well (Art. 14).
To sum up, the ado about the responsible person appearing in court is justified for three reasons: In terms of psychological impact, the appearance in court is a signal of respect for the people and their need. In terms of substantive justice, the Provision guarantees substantive rights by demanding substantive settlement of the dispute. In terms of procedural fairness, the Provisions drew from judicial practice and pilot work to provide the people’s courts with an encompassing catalog about how to deal with the rights and obligations of the litigation parties in the trial.
Nina Rotermund is a PhD Candidate and a lecturer at Cologne University’s Chair for Chinese Legal Culture. Her research focus is the 2015 revised Administrative Procedure Law, she also explores the political system of the People’s Republic. Get in touch with her here or on LinkedIn.
LI Huai (李淮), The appearance of administrative organ in court: status and prospect – Review of the third paragraph of Art. 3 of the new Administrative Litigation Law (行政机关负责人出庭应诉：现状与展望——兼对新《行政诉讼法》第3条第3款之检讨), in: Journal of the Administrative Institute of Gansu (甘肃行政学院学报) 2016, No. 4, 114-125, 116-117.
ZHANG Weiwei (张维炜), The legal revolution of overturning “noble officials and low people” – The birth of the administrative litigation law (一场颠覆“官贵民贱”的立法革命 — 行政诉讼法诞生录), in: The People’s Congress of China (中国人大) January 16, 2014, 21-23.
LIU Hao (刘灏), The origin and meaning of “father and mother official” (“父母官”的由来与内涵), in: World of Literature and History (文史天地), August 4, 2007, 89.
JIANG Bixin (江必新), Actively innovate the ideal system for an effective resolution of administrative disputes (积极创新理念机制 有效化解行政争议), issued April 27, 2011 in: Journal of the People’s Court (人民法院报), available at: http://fzzfyjy.cupl.edu.cn/info/1044/1794.htm [May 11, 2020].
LI Huai (李淮), The appearance of administrative organ in court: status and prospect – Review of the third paragraph of Art. 3 of the new Administrative Litigation Law (行政机关负责人出庭应诉：现状与展望——兼对新《行政诉讼法》第3条第3款之检讨), in: Journal of the Administrative Institute of Gansu (甘肃行政学院学报) 2016, No. 4, 114-125, 116-117.
HE Lei (何蕾), Delegate YU Yuemin talks about improving the ability of the responsible person of the administrative agency to appear in court – Promoting more prominently the head of administrative agency to appear in court (于跃敏代表谈提升行政机关负责人应诉能力 — 促行政领导出庭出声更出彩), in: Legal Daily (法制日报), March 15, 2019, available at: http://www.npc.gov.cn/npc/c30834/201903/20b975ca99c54fe19a3cc30efc042f75.shtml [July 12, 2020].
LIU Zhongyuan (刘忠元), JIANG Lilong (蒋利龙), The responsible person of an administrative agency appearing in court – Taking Miganjiang City as an example (行政机关负责人出庭应诉研究———以牡丹江市为例), in: Journal of Heilongjiang Administrative Cadre College of Politics And Law (黑龙江省政法管理干部学院学报) , Vol. 6, 22-25.
GAO Jiawei (高家伟), The appearance of the responsible person in court is a systemic innovation for fostering grassroot democracy (行政机关负责人出庭应诉作为持续稳定推进基层民主的一项制度创新), in: Administrative law enforcemtn and administrative trial (行政执法与行政审判), July 2, 2020, available at: https://mp.weixin.qq.com/s/BqsKN7AkecTDkzXBbUHMxg [July 7, 2020].