SPC Interpretation on the Administrative Litigation Law

ALL TRANSLATIONS ON THIS SITE ARE UNOFFICIAL AND ARE PROVIDED FOR REFERENCE PURPOSES ONLY. THESE TRANSLATIONS ARE CREATED AND CONTINUOUSLY UPDATED BY USERS --THEY ARE FREE TO VIEW, BUT PROPER ATTRIBUTION IS REQUIRED FOR DISTRIBUTION OF THESE OR DERIVATIVE TRANSLATIONS.

Title: The Supreme People's Court Interpretation regarding several questions on the application of "The People's Republic of China Administrative Litigation Law"

Promulgating Entities:Supreme People's Court

Reference number: Legal Interpretation (2015) No.9

Promulgation Date: 2015-4-22

Expiration date:

Source of text: http://www.court.gov.cn/zixun-xiangqing-14294.html

The Supreme People's Court Interpretation regarding several questions on the application of "The People's Republic of China Administrative Litigation Law"

(Passed on April 20, 2015, by the Supreme People's Court Adjudication Committee at its 1648th meeting)

In order to correctly apply the Twelfth National People's Congress Standing Committee's eleventh meeting decision to amend the "Administrative Litigation Law of the People's Republic of China," and in combination with the actual work of the administrative judges of the People's Courts, we hereby explain the application of the relevant provisions as follows:

Article 1: People's courts shall file cases that meet the conditions for bringing lawsuits, ensuring that parties are able to exercise their lawful rights to bring a lawsuit.

With respect to lawsuits lawfully filed by Parties, people's courts shall uniformly accept the complaints in accordance with article 51 of the Administrative Litigation Law. Where it can be sufficiently determined to meet the requirements, the case shall be registered and filed on the spot; where it cannot be determined on site that whether it meets requirements, a decision shall be made within 7 days of receiving the complaint as to whether or not to file the case; where ; Where a determination still can not be made within 7 days, the case shall first be filed.

Where a complaint suffers lacks some content or materials, people's courts shall give parties a single comprehensive notification of all of the content or other materials that they need to supplement and the time limits for supplementing materials. Complaints that are supplemented and corrected to meet the requirements for initiating litigation within the time limit, shall be registered and filed. Where a party refuses to supplement or correct, or where having supplemented and corrected still does not meet the conditions for a lawsuit, and a ruling is made that the case will not be filed, the ruling will additionally clearly state the reasons for not filing the case.

Where a party is dissatisfied with a decision not to permit case filing, they may raise an appeal.

Article 2: The phrase 'having specific litigation demands' as provided for in article 49 of the Administrative Litigation Law, refers to:

(1) A demand for a judgment revoking or modifying administrative acts;

(2) A demand for a judgment that an administrative organ perform a legally prescribed duty or payment obligation;

(3) A demand for a judgment confirming that an administrative act is illegal;

(4) A request for a judgment that an administrative act has no effect;

(5) A request for a judgment that an administrative organ give compensation or retribution;

(6) A request for resolution of a dispute over an administrative agreement;

(7) A demand for joint review of a regulatory document that is a rule or lower;

(8) Request for a joint resolution of related civil disputes;

(9) Other litigation demands.

Where parties cannot accurately express their litigation demands, people's courts ought to give them clarification.

Article 3: In any of the following circumstances , where a case has already been filed, a ruling shall be made to reject the litigation:

(1) It does not comply with Article 49 of the Administrative Litigation Law;

(2) It exceeds the statutory time limit without legitimate grounds for doing so;

(3) the wrong defendant is listed and changes are refused;

(4) Failure to follow the law in having a legally-designated representative, designated agent, or a representative conduct the litigation

(5) Failure to follow laws and regulations in first apply for reconsideration from the relevant administrative organs;

(6) raising duplicative litigation;

(7) Bringing litigation again, without a legitimate reason, after it has been withdrawn;

(8) Where the administrative action clearly has no actual effect on his or her lawful rights and interests;

(9) The target of the lawsuit has already been controlled by an effective judgment;

(10) It does not conform with other legally prescribed requirements for bringing a lawsuit;

Where people's courts having read the file, investigated and made inquiries of the parties, believe it is unnecessary to hold try it in court, they may, at their own discretion, decide to dismiss a lawsuit.

Article 4: Where citizens, legal persons, or other organizations initiate litigation, in accordance with the first paragraph of Article 47 of the Administrative Litigation Law on an administrative organ's failure to perform their legally-prescribed duties, it shall be initiated within 6 months from the date on which the time period for the administrative organs performance of the legally-prescribed duty was completed.

Article 5: 'Responsible Persons for the administrative organ' as provided for in paragraph 3 of Article 3 of the Administrative Litigation Law, includes both the official and deputies in charge of the administrative organ. Where an administrative organ's responsible persons shall appear in court in answer to a lawsuit, they may appoint one or two other persons to be their representatives for the proceedings.

Article 6: 'The reconsideration organ decides to sustain the original administrative action', as provided for in the second paragraph of Article 26 of the Administrative Litigation Law, includes reconsideration organs' rejection of an application for reconsideration or reconsideration request, except for where the application did not meet the conditions for acceptance.

"Reconsideration organ modification of original administrative conduct" as provided for in Administrative Litigation Law Article 26 paragraph 2, refers to the reconsideration organ altering the disposition of the original administrative action.

Article 7: Where a reconsideration organ decides to maintain the original administrative acts, the administrative organ that took the original administrative action and the reconsideration organ are joint defendants. Where a plaintiff only initiates litigation against the administrative organ that took the original administrative acts or the reconsideration organ, the people's court shall inform the plaintiff to add defendants. Where the plaintiff does not consent to the addition, the people's court shall make the other organ a joint defendant.

Article 8: Where the administrative organ that took the original administrative acts and the reconsideration organ are joint defendants, determine jurisdiction in accordance with the level of the administrative organ that took the original administrative acts.

Article 9: Where reconsideration organs decide to sustain the original administrative acts, people's courts shall review the legality of the reconsideration procedures when reviewing the legality of the original administrative acts.

The administrative organ that took the original administrative acts and the reconsideration organ bear the burden of presenting evidence regarding the legality of the original administrative acts, and may have one of the two organs make the presentation of evidence. The reconsideration organ bears the burden of proof regarding the legality of the reconsideration procedures.

Article 10: When people's courts make judgments on the original administrative acts, they shall make corresponding judgments on the reconsideration decision at the same time.

Where people's courts make a judgment to revoke the original administrative acts and the reconsideration decision, they may make a judgment for the administrative organ that took the original administrative acts to take new administrative action.

Where people's courts make a judgment for the administrative organ that took the original administrative acts to perform their legally prescribed duties or fulfill payment obligations, they shall simultaneously make a judgment revoking the reconsideration decision.

Where the original administrative acts are revoked, and determined to be unlawful or invalid, and have caused injruy to the plaintiff, the administrative organ that took the original administrative acts shall bear responsibility for compensation; Where injury to the plaintiff was caused by the illegality of the reconsideration procedures, the reconsideration organ bears responsibility for compensation.

Where the original administrative acts are revoked, and determined to be unlawful or invalid, and have caused injruy to the plaintiff, the administrative organ that took the original administrative acts shall bear responsibility for compensation; Where injury to the plaintiff was caused by the illegality of the reconsideration procedures, the reconsideration organ bears responsibility for compensation.

Article 11: Agreements having content on Administrative Law rights and obligations negotiated and concluded by Administrative organs and citizens, legal persons or other organizations for the purpose of realizing public interest or administrative management goals, are "administrative agreements" as provided for in item (11) of the first paragraph of article 12 of the Administrative Litigation Law.

Lawsuits brought by citizens, legal persons or other organizations on the following administrative agreements shall be accepted by the people's courts in accordance with law:

(1) Operations agreements specially permitted by the government;

(2) Compensation agreements for expropriation or requisition of land or housing;

(3) Other administrative agreements.

Article 12: Article 12: Where citizens, legal persons or other organizations raise a lawsuit over an administrative organs' failure to lawfully perform, or failure to perform on an administrative agreement, refer to civil law provisions regarding the period for litigation; where a lawsuit is raised of an administrative organ unilaterally modifying or terminating an agreement , apply the provisions of the Administrative Litigation Law and its judicial interpretations regarding time periods for litigation.

Article 13: For cases of lawsuits raised on administrative agreements, apply the provisions of the Administrative Litigation Law and its judicial interpretations regarding jurisdiction.

Article 14: When people's courts apply administrative law norms to review whether or not an administrative organ performed in accordance with law, honored an agreement, or whether or not unilateral modification or dissolution of an agreement was lawful, they may simultaneously apply civil law norms that do not violate mandatory provisions of the Administrative Law and Administrative Litigation Law.

Article 15: Where plaintiffs assertion that defendants have not performed in accordance with law or an agreement, or have unlawfully unilaterally modified or dissolved an agreement, is established, people's courts may make a judgment on the basis of plaintiffs' litigation demands, confirming the validity of the agreement, hold that the defendant must continue to fulfill the agreement, and clarify specific content of continued performance; and where injury has been caused to plaintiffs, hold that the defendant will give compensation.

Where plaintiffs demands to dissolve an agreement or confirm that an agreement is invalid are established, make a judgment to dissolve the agreement or confirm that it is invalid, and handle it on the basis of the Contract Law and other relevant legal provisions.

Where defendants modify or disolve an agreement out of public interest necessity or for other legal prescribed reasons, and cause injury to plaintiffs, make a judgment that the defendant will give compensation.

Article 16: Where lawsuits are raised against administrative organs who do not perform in accordance with law or administrative agreements, use the standards for civil norms for litigation fees; for litigation raised against an administrative organs' unilateral modification or dissolution of an agreement, use the standards for administrative cases.

Article 17: Citizens, legal persons, or other organizations demanding that people's courts combine trial with that for related civil disputes as provided for by Administrative Litigation Law article 61, shall submit them before the first-instance trial begins hearings; but where there is a legitimate reason, they may also be submitted during court investigation.

In any of the following circumstances, people's courts shall make a decision to not approve combining trial of the civil dispute, and inform the parties that they may lawfully use other channels to assert their rights:

(1) Where the law provides it shall first be handled by administrative organs;

(2) Where it violates provisions on exclusive jurisdiction in the Civil Procedure Law or jurisdiction set by an agreement;

(3) where an application has already been made for arbitration, or a civil suit has been raised;

(4) Other civil disputes not suitable for combined trial.

A single reconsideration may be applied for regarding a decision to not give permission.

Article 18: Where people's courts combine related civil disputes with administrative litigation, the civil dispute shall be independently filed, but heard by the same trial organization.

In hearing cases of administrative organs' rulings in civil disputes and combining trial of the civil dispute, do not separately file the cases.

Article 19: People's courts combining the trial of a civil dispute are to apply the relevant civil law norms except where the law provides otherwise.

Parties' handling of civil rights and interests in mediation cannot be used as the basis for reviewing the legality of administrative acts.

Administrative and Civil disputes shall be ruled upon separately. Where parties submit an appeal only regarding the administrative judgment or the civil judgment, the judgment against which there is no appeal becomes effective at the completion of the period of appeals. The first-instance trial people's court shall send the entire case file together to the second-instance trial people's court, for trial by the administrative trial division. Where the people's courts for second-instance trial discover that an effective ruling on which there was no appeal was truly in error, they shall follow the trial supervision procedures

Article 20: Citizens, legal persons, or other organizations requesting that people's courts combine a review of normative documents as provided for by Administrative Litigation Law article 53, shall submit them before the first-instance trial begins hearings; but where there is a legitimate reason, they may also be submitted during court investigation.

Article 21: Where regulatory documents are unlawful, people's courts do not use them as the basis of for determining the legality of an administrative act, and explain this in the the judgment opinion reasoning. The people's courts making the effective rulings shall submit a disposition suggestion to the administrative organ that formulated the regulatory document, and may send a copy to the people's government at the same level as the formulating organ or to the administrative organ at the level above.

Article 22: Where plaintiffs' demand for defendant to fulfill a legally prescribed duty is established, but the defendant unlawfully refuses to perform or exceeds the allowable time for a response without a legitimate reason, people's courts may make a judgment on the basis of article 72 of the Administrative Litigation Law for the defendant to fulfill the duty in the plaintiffs' demands within a certain time period; where it is necessary for the defendant to investigate or use discretion, a judgment shall be made for the defendant to make a new disposition of the plaintiffs' demands.

Article 23: Where plaintiffs application for defendants to fulfill payment obligations, such as paying compensation for disability or death, minimum living guarantee benefits or social insurance benefits, is established, and the defendants have an obligation to make payment in accordance with law but refuse or delay fulfillment of the obligation without legitimate reason, people's courts may follow the provisions of article 73 of the Administrative Litigation Law to make a judgment that the defendant must fulfill the relevant payment obligations within a certain time period.

Article 24: Parties applying for retrial to the people's court at the level above shall do so within 6 months of the judgment, ruling or mediation certificate taking legal effect. In any of the following circumstances, it shall be submitted within 6 months of the day on which they learned or should have learned:

(1) there is new evidence sufficient to overturn the original judgment or ruling;

(2) the principle evidence on which the original judgment or ruling was determined was fabricated;

(3) the legal documents on which the original judgment or ruling was based have been annulled or modified;

(4) adjudicators hearing the case were corrupt or took bribes, acted for personal gain, or abused the law in a capricious and arbitrary manner.

Article 25: In any of the following circumstances, parties may apply to the people's procuratorate to make a procuratorial appeal or procuratorial suggestion:

(1) the people's courts have rejected an application for retrial;

(2) The people's courts have exceeded the time period without making a ruling on an application for retrial;

(3) There is clear error in a retrial judgment or ruling.

Where, after people's courts make a judgment or ruling on the basis of procuratorial appeals or suggestions, parties apply for a retrial, the people's courts will not file the case.

Article 26: Where the time period for raising suit is not completed by May 1, 2015, apply the time periods for bringing suit provided for in the revised Administrative Litigation Law.

Where cases were not tried to completion before May 1, 2015, apply the pre-revision Administrative Litigation Law provisions regarding time limits for trial. Where cases were not tried to completion before May 1, 2015, apply the pre-revision Administrative Litigation Law provisions regarding time limits for trial.

For applications for retrial over judgments, rulings or administrative compensation mediation agreements that took effect before May 1, 2015; or retrials by people's courts following trial supervision procedures apply procedural provisons from the revised Administrative Litigation Law.

Article 27: Where judicial interpretations previously released by the Supreme People's Court differ from this interpretation, this interpretation is controlling.

 

About China Law Translate 592 Articles
CLT is a crowdsourced, crowdfunded legal translation project that enables English speaking people to better understand Chinese law.

Be the first to comment

Leave a Reply

Your email address will not be published.


*