Civil Administrative Litigation Law of China.

Author: Chief Editor: Ma Huade
Publisher:
Publishing Date: 1999-01-01
Features: Editorial Note: To meet the needs of China's socialist modernization construction and the implementation of the strategy of governing the country according to law for legal talent, and to comprehensively improve the quality of legal professionals, we have reviewed and revised the original textbooks according to the newly formulated teaching plan for judicial schools. The outstanding feature of this series of textbooks is their strong practical application focus. With an emphasis on cultivating applied legal professionals, they focus on developing students' practical working abilities. Based on China's current laws, they combine issues from judicial practice, adhering to the principle of linking theory with practice, and strive to systematically and accurately introduce the basic theories and knowledge of various legal disciplines, making them suitable for the teaching characteristics of judicial schools. China's Administrative Litigation Law is one of the series, edited by Ma Huade. Due to the lack of experience in writing legal textbooks for judicial schools and the tight schedule, there may inevitably be shortcomings and errors in the book. We welcome criticism and corrections from readers. The division of writing responsibilities for China's Administrative Litigation Law is as follows: Gao Jiawei wrote Chapters 2 and 5; Wang Chengdong wrote Chapters 3 and 4; Ma Huade wrote Section 3 of Chapter 5, Sections 2 and 6 of Chapter 6; Zhang Yue wrote Sections 2 and 6 of Chapter 6; Zhang Luhao wrote Chapter 7; Zhang Buchong wrote Chapters 8, 9, and 10; Du Xueliang served as the chief editor. The Legal Textbook Editorial Department of the Ministry of Justice, November 1998
Excerpt:
(II) Adhering to the Law
When the People's Court hears administrative cases, it shall be based on the following three aspects of legal provisions: , administrative substantive law. Administrative substantive law can be divided into substantive laws related to administrative organs (defendants) and substantive laws related to citizens, legal persons, or other organizations (plaintiffs or third parties) based on the subjects they regulate. The former mainly includes administrative organization laws concerning the establishment and powers of administrative organs, as well as separate departmental administrative laws and regulations concerning specific administrative management powers. The latter mainly includes provisions on the specific rights and obligations of citizens, legal persons, or other organizations.
Second, administrative procedural law. Similar to the above point, administrative procedural law can also be divided into procedural laws related to administrative organs and procedural laws related to the rights and obligations of citizens, legal persons, or other organizations in procedural matters. Administrative organs must fully comply with both aspects of procedural law. On the other hand, whether the procedure is legal is one of the contents through which the People's Court examines the legality of specific administrative actions. Regardless of whether the procedure of a specific administrative action is deemed legal, the People's Court must clearly cite relevant provisions of administrative procedural law in its judgment. It is common in practice for the People's Court to cite only the provisions of administrative substantive law in its judgments while ignoring those of administrative procedural law. This practice makes it difficult to determine whether the People's Court has reviewed the procedure followed by the administrative organ in making a specific administrative action, and even more so, it is impossible to know the basis on which the People's Court reviewed the legality of the procedure. In essence, this is merely the continuation of the traditional backward concept of prioritizing substance over procedure, which is highly detrimental to the development of administrative legal systems and should be changed.
Third, administrative litigation law. Just as administrative organs must comply with their own procedural law (administrative procedural law), the People's Courts must also comply with their own procedural law (administrative litigation law). Judgments that violate the provisions of administrative litigation law are invalid. When applying administrative substantive law and administrative procedural law, the People's Courts must comply with Articles 52 and 53 of the Administrative Litigation Law, which stipulate that judgments shall be based on laws, administrative regulations, local regulations, and autonomous regulations or separate regulations, and reference shall be made to administrative rules. In cases of legal conflicts, the relevant rules for selecting applicable laws must also be followed.
(III) Characteristics of the Principle of Adhering to Facts and the Law
The principle of adhering to facts and the law is a common principle of the three major types of litigation in China, but it has distinct characteristics in administrative litigation compared to criminal and civil litigation. The object of administrative litigation is specific administrative actions, which are actions taken by administrative organs based on facts and the application of law. Their fundamental attributes are similar to those of judicial judgments: they are all acts of state organs exercising power (state power), must be based on facts and the law, and possess legal effects such as determinability, binding force, and enforceability. They cannot be revoked without following the legally prescribed procedures. When examining the legality of specific administrative actions, the People's Court must first base its judgment on the facts investigated and determined by the administrative organ and apply the law it relies on. In other words, the People's Court's adherence to facts is a second examination and determination of the facts of the same case after the administrative organ has already done so, representing a secondary investigation and determination of the facts. Similarly, the People's Court's adherence to the law is a second application of the same legal provisions after the administrative organ has already applied them. The principle of adhering to facts and the law in administrative litigation is a fundamental principle with the nature of post-event review.
III. Principles for Examining the Legality of Specific Administrative Actions
Article 5 of the Administrative Litigation Law states: "When the People's Court hears administrative cases, it shall examine the legality of specific administrative actions." Compared to criminal and civil litigation, the principle of examining the legality of specific administrative actions is a distinctive basic principle of administrative litigation.
(I) Scope of Examining the Legality of Specific Administrative Actions
First, from the perspective of the object, the People's Court examines only specific administrative actions and not abstract administrative actions.