Administrative Litigation Law (Incorporating Draft Revisions)

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"Administrative Litigation Law of the P.R.C." Revised Draft

Chapter I: General Provisions

Article 1: Pursuant to the Constitution, this Law is enacted for the purpose of ensuring the just and prompt handling of administrative cases by the people's courts, protecting the lawful rights and interests of citizens, legal persons and other organizations, and supervising the exercise of administrative powers by administrative organs in accordance with the law.

Article 2: Citizens, legal persons or other organizations feeling that their lawful rights and interests have been infringed upon by a specific administrative act of an administrative organ or its personnel, have the right to bring a suit before a people's court in accordance with this Law.

Administrative organs, as referred to in the previous paragraph, includes organizations authorized to make specific administrative act in accordance with laws and regulations.

Article 3: People's courts shall protect citizens, legal persons or other organizations' right to sue, and accept in accordance with law those administrative cases that should be accepted and heard.

Administrative organs must not interfere with or impede the people's Court's acceptance and handling of administrative cases. Administrative organ that are sued shall respond to the suit in accordance with law.

Article 4: People's courts shall, in accordance with the law, exercise judicial power independently over administrative cases, and receive no interference from administrative organs, social groups or individuals.

People's Courts establish administrative trial divisions, hearing administrative cases.

Article 5: People's courts hearing administrative cases, have the facts as their basis and law as their measure.

Article 6: People's courts hearing administrative cases, review the legality of specific administrative acts.

Article 7: People's courts hearing administrative cases shall, in accordance with law, carry out the collegial panel, recusal, public trial and second-instance trial as final judgment systems.

Article 8: Parties in administrative lawsuits have equal legal positions.

Article 9: Citizens of all ethnicities have the right to use their ethnic language and script to conduct administrative litigation.

In areas inhabited by ethnic minorities where several ethnicities live together, people's courts shall conduct adjudication and issue legal documents in the languages and scripts commonly used by the local ethnicities.

People's courts shall provide translation for litigation participants who do not understand the language or script commonly used by the local nationalities.

Article 10: In administrative lawsuits, the parties have the right to conduct debate.

Article 11: People's Procuratorate have the right to exercise legal supervision over administrative lawsuits.

 

Chapter II: Scope of Case Acceptance

Article 12: Peoples Courts accept the following lawsuits brought by citizens, legal persons or other organizations:

(1)Where one does not accept an administrative punishment such as administrative detention, the withholding or revocation of a license or permit, an order to stop production and operations, confiscation of unlawful gains, confiscation of illegal property, fines or warnings;

(2)Where one does not accept compulsory administrative measures and compulsory administrative enforcement, such as limits on personal freedom or the sealing, seizing or freezing of property;

(3)Where an application for an administrative permit was refused by an administrative organ or it did not respond; or where one does not accept a decision such as to grant, modify, extend, revoke, withdraw or cancel an administrative permit.

(4)Where on application to an administrative organ to carry out its duty to protect lawful rights and interests such as rights in person or property, the administrative organ refuses to perform or does not respond.

(5)Where it is felt that an administrative organ has violated lawful enjoyment of ownership rights or rights to use natural resources such as land, minerals, water, forests, mountains, grasslands, uncultivated lands, tidal flats and sea areas,

(6)Where it is felt that an administrative organ has violated their business autonomy or rural land contract management rights ;

(7)Where it is felt that an administrative organ has abused its administrative powers to exclude or limit competition;

(8)Where it is felt that an administrative organ has illegally fund-raised, expropriated or commandeered property, apportioned charges or unlawfully requested the performance of other duties;

(9)Where it is felt that an administrative organ has not lawfully given a pension or paid minimum social living allowance benefits and social insurance benefits;

(10)Where it is felt that an administrative organ has violated their rights in person or property, or other lawful interests.

Outside of those provided in the preceding paragraphs, people's courts accept other administrative cases that laws and regulations provide may be raised.

Article 13: People's courts do not accept the following lawsuit raised by citizens, legal persons or other organizations:

(1)Acts of state such as defense and foreign affairs;

(2)Administrative regulations and rules, or decisions and orders formulated and released by administrative organs that are widely binding;

(3)administrative organs' decisions on administrative organ personnel, such as rewards and punishments, or appointments and terminations ;

(4)specific administrative acts for which the laws provide that an administrative organ has the final judgment.

Article 14: Citizens, legal persons, or other organizations feeling that a normative document on which a specific administrative act was based, other than a regulation formulated by the state council, local government or other department, may concurrently request a review of that document when raising a lawsuit against the specific administrative act.

Article 15: Where citizens, legal persons or other organizations feel that specific administrative acts violated their lawful rights and interests and cause harm, they have the right to demand compensation in accordance with the "PRC State Compensation Law".

Chapter III: Jurisdiction

Article 16: Basic level people's courts have jurisdiction of first-instance administrative cases. 高级人民法院可以确定若干基层人民法院跨行政区域管辖第一审行政案件。

Article 17: Intermediate People's Court have first-instance jurisdiction over the following administrative cases:

(1)cases of patent and trademark rights verification as well as cases handled by customs;

(2)Cases of litigation against specific administrative acts by any department of the state council or a local people's government at the county level or above ;

(3)significant and complicated cases in the jurisdictional region.

Article 18: High people's courts have jurisdiction over significant and complicated first-instance administrative cases in the jurisdictional region.

Article 19: The Supreme People's Court has nationwide jurisdiction nationwide over significant and complicated first-instance administrative cases.

Article 20: Administrative cases are in the jurisdiction of the people's court in the area of the administrative organ that first took the specific administrative act. Where, upon reconsideration of a case, the reconsidering organ changes the original specific administrative act, jurisdiction may also be had by the people's court at the location of the reconsidering organ.

Article 21: Lawsuits raised against compulsory measures that limit personal freedom, are in the jurisdiction of the people's court at the place of the defendant or plaintiff.

Article 22: Administrative cases raised due to immovable property, are in the jurisdiction of the people's court for the area where the immovable property sits.

Article 23: In cases where two or more people's courts have jurisdiction rights, the plaintiff may choose one of these people's courts to bring a lawsuit. Where the plaintiff brings suit in two or more people's courts with jurisdiction rights, the first people's court to file the case has jurisdiction.

Article 24: When a people's court discovers it has accepted a case that is not within its jurisdiction, it shall transfer it to a people's court with jurisdiction rights. The people's court receiving the transfer must not transfer it on its own volition.

Article 25: Where a people's court with jurisdiction rights is for special reasons unable to exercise jurisdiction, the people's court at the level above designates jurisdiction.

If a dispute occurs regarding jurisdiction, the two sides to the dispute shall resolve it through consultation. If consultation does not succeed, it shall be report to the court above them both to designate jurisdiction.

Article 26: Higher level people's courts have the right to hear administrative cases over which lower people's courts have first-instance jurisdiction.

Where lower people's courts feel that an administrative case over which they have first-instance jurisdiction needs to heard by a higher level people's court or have jurisdiction designated, they may report the situation to the people's court above for a decision.

Chapter IV: Litigation Participants

Article 27: The object of a specific administrative act and other citizens, legal persons or other organizations with interests in a specific administrative act, have the right to bring a lawsuit as a plaintiff.

If the citizen with the right to bring a lawsuit is deceased, his close family members may bring the lawsuit.

If a legal person or other organization is terminated, the legal person of other organization inheriting its rights may bring a law suit.

Article 28: Where a citizen, legal person or other organization directly brings a lawsuit before a people's court, the administrative organ that took the specific administrative act is the defendant.

Where, upon reconsideration of a case, the reconsidering organ sustains the original specific administrative act, the administrative organ that took the original specific administrative act is the defendant; if the reconsidering organ has changed the original specific administrative act, the reconsidering organ is the defendant.

Where a reconsideration organ has not issued a reconsideration decision within the statutory time period, and citizens, legal persons or other organizations file suit on the original specific administrative action, the administrative organ which made the original specific administrative act is the defendant; where the suit is on the reconsideration organ's inaction, the reconsideration organ is the defendant.

Where two or more administrative organs have taken the same specific administrative act, the administrative organs that have jointly undertaken the specific administrative act are joint defendants.

Specific administrative acts taken by an organization entrusted by an administrative organ, the entrusting administrative organ is the defendant.

Where an administrative organ has been abolished or its powers modified, the administrative organ that continues to perform its powers is the defendant.

Article 29: Where one or both parties is two or more persons in an administrative case arising from the same specific administrative act or from the same type of administrative act, and the people's court feels that the cases can be consolidated for trial, it is a joint case.

Article 30: For joint actions were one party is a large group of people, the party may select a representative to conduct the litigation. The legal acts of the representative shall take effect for the party represented, except that changes to or waiver of any claim must be upon consent of the represented party.

Article 31: Citizens, legal persons or other organizations that have interests in a specific administrative action that is subject to litigation but have not brought suit, or those with interests in the outcome of the case disposition, may apply to participate in the litigation as a third party or be notified by the people’s court to participate in the litigation.

Third parties bearing an obligation under the judgment of a people's court have the right to bring a lawsuit.

Article 32: Citizen's without capacity for litigation, are represented by their legally-designated representatives in court. Where the legally-designated representative struggle among themselves over the responsibility, the people's court appoint one of them to handle the lawsuit.

Article 33: Parties and their legally-designated representatives may retain one or two persons for the lawsuit.

The following persons may be retained as agents ad litem:

(1)lawyers or basic-level legal service workers;

(2)The close relatives or staff of the parties;

(3)Citizens recommended by the parties' community, workplace or social groups.

Article 34: A lawyer representing in a case may consult and reproduce materials pertaining to that case in accordance with rules, and may also investigate among and collect evidence from the involved organizations and citizens. For information that involves state secrets, commercial secrets or the individuals's privacy, confidentiality shall be kept in accordance with provisions of the law.

Upon approval by the people's court, parties and other agents ad litem may consult or reproduce materials relating to that case's court proceedings, but excepting those involving state secrets, commercial secrets or individuals's privacy.

Chapter V: Evidence

Article 35: Evidence includes:

(1) documentary evidence;

(2) physical evidence;

(3) audio-visual materials;

(4) electronic data;

(5) witness testimony;

(6) the statements of the parties;

(7) evaluation opinions;

(8) Inquest records, and on-scene records.

The evidence above must be verified as true in court before it can be used as the basis of a verdict.

Article 36: The defendant shall have the burden of presenting evidence on specific administrative acts it has taken and shall provide the evidence and normative documents on which taking the specific administrative act was based.

IF defendants do not produce evidence, or delay production without legitimate reason, it will be found that there is no relevant evidence. However, where a third party's lawful rights and interests are involved in the specific administrative actions, this does not include evidence provided by the third party or collected by the people's court in accordance with law.

Article 37: In the course of the lawsuit, the defendants and their legally-designated representatives must not themselves collect evidence from the plaintiff, third persons or witnesses.

Article 38: In any of the following situations, upon the people's court's permission, the defendant may supplement evidence.

(1)the defendant had already gathered evidence when it took the administrative action, but due to force majeure or other legitimate reasons cannot provide it ;

(2)the plaintiff or third person submits reasoning or evidence that it did not present during the administrative handling procedures.

Article 39: The plaintiff may provide evidence showing the illegality of a specific administrative act. Where the evidence provided by the plaintiff is not valid, it does not excuse the defendant's burden of presenting evidence.

Article 40: In cases where the defendant has not performed its statutory duties, the plaintiff shall provide evidence of the request he submitted to the defendant. However, there is an exception in any of the following situations:

(1)where the defendant should proactively perform a statutory duty in accordance with the powers of its office;

(2)Where the plaintiff has a legitimate reason for being unable to provide evidence.

During cases of administrative compensation or administrative organs making compensation in accordance with law, the plaintiff shall provide evidences showing the damage caused by the specific administrative action. Where the defendant has caused the plaintiff to be unable to provide evidence, the burden of proof shall fall upon the defendant.”

Article 41: People's courts have the right to request the parties provide or supplement evidence.

Article 42: People's courts have the right to collect evidence from relevant administrative organs, other organizations and citizens. However, they must not collect evidence not gathered at the time the specific administrative act was take, for the purpose of proving the legality of the specific administrative act.

Article 43: Where the following evidence is related to a case, and the plaintiff or a third party cannot collect it of their own volition, they may request the people's court to collect it:

(1)evidence that is kept by government organs and needs to be collected by the people's court;

(2)evidence that touches on state secrets, commercial secrets and personal privacy;

(3)Other evidence that they truly cannot gather by themselves for objective reasons.

Article 44: In circumstances where evidence might be destroyed or lost or difficult to obtain later on, litigation participants may apply to the people's court to preserve the evidience, and the people's court may also proactively take measures to preserve such evidence.

Article 45: Evidence shall be presented in court, and examined by the parties. Evidence that touches upon state secrets, commercial secrets and personal privacy must not be presented in public court sessions.

People's courts shall follow the statutory procedures to comprehensively and objectively review and verify evidence. an explanation shall be given where evidence was not accepted.

Evidence acquired by illegal means must not serve as the basis for determining the case facts.

Chapter VI: Bringing Suit and Case Acceptance

Article 46: For administrative cases within the scope of those accepted by people's courts, citizens, legal persons or other organizations may first apply to the administrative organ at the level above, or to an administrative organ as prescribed by law or regulations, for a reconsideration and then raise a lawsuit before a people's court if not satisfied with the reconsideration; citizens, legal persons or other organizations may also directly bring a lawsuit before a people's court.

Where laws or regulations provide that a consideration shall first be requested from an administrative organ and then raise a lawsuit before a people's court if not satisfied with the reconsideration, follow the provisions of the laws or regulations.

Article 47: Where citizens, legal persons or any other organizations apply to an administrative organ for reconsideration, the reconsidering organ shall make a decision within two months from the day it received the application. Except as otherwise provided for by law or regulations.

Applicants who do not accept a reconsideration decision may bring a lawsuit before a people's court within 15 days from the day they receive the reconsideration decision. If the reconsidering organ fails to make a decision within the time limit, the applicant may bring a suit before a people's court within 15 days after the time limit for reconsideration expires. Except as otherwise provided for by law.

Article 48: Where citizens, legal persons or other organizations choose to directly initiate an action before a people's court, it shall be done within three months of learning that the specific administrative act has been taken. Except as otherwise provided for by law.

Article 49: Where citizens, legal persons or other organizations file an application with an administrative organ for it to perform its statutory duty of protecting his or its legitimate rights and interests, such as rights in person or property, but the administrative organ does not perform the duty within two months after receipt of the application, the citizen, legal person or other organization may bring a suit before a people’s court. Where laws and regulations provide other time limits for administrative organs to perform their duties, those provisions control.

The previous paragraph's time limit for litigation does not apply where citizens, legal persons or other organizations in an emergency situation request that an administrative organ perform its statutory duty to protect their rights in person or property but the administrative organ does not do so.

Article 50: Where citizens, legal persons or other organizations exceed the time limit for filing suit due to force majeure or other reasons that unrelated to the parties, the time delay is not included in the time limits for prosecution. Where a suit cannot because of restrictions to personal freedom, the time when personal freedom was restricted is not included in the time limits for prosecution.

Where citizens, legal persons or other organizations delay the time period due to special circumstances, they may apply for an extension of the time period within 10 days of the impediment clearing, the people's court decides whether to approve.

Article 51: A Complaint shall be submitted to the people's court when bringing suit, with the number of copies corresponding the the number of defendants.

Where there is truly difficulty in writing out a Complaint, suit may be brought orally, and the people's courts' clerk will make a record, and issue a written certificate indicating the date, and inform the opposing party.

Article 52: The people’s courts shall register complaints on the spot when receiving them and issue dated written confirmations. If a complaint is incomplete in content or has other errors, the people’s court shall provide guidance and explanations, and give one-time notice for the party to supplement and make corrections. The people’s courts must not use the grounds that the complaint does not meet requirements to not accept and file it without first having given guidance and making explanations.

To address the non-receipt of complaints, or the failure to issue the written confirmation after receipt as well as not giving the parties one time notice to supplement the content of the complaint or correct any error contained therein, the party may complain to a higher people’s court, which shall order corrections and punish the principle responsible personnel and other directly responsible persons in accordance with law.

Article 53: The following requirements shall be met when bringing a lawsuit:

(1)the plaintiff is a citizen, legal person or other organization meeting the requirements provided in article 27 of this law ;

(2)there is a clear defendant;

(3)there are specific litigation demands and factual evidence;

(4)is within the scope of cases accepted by the people's courts and the jurisdiction of the people's court accepting it.

Article 54: Where the complaint meets the requirements of Article 53 of this Law, the people’s court shall file the case within 7 days after receipt of a complaint or oral complaint, and notify the parties; where the requirements for filing a suit are not met, the people’s court shall issue a written ruling within 7 days, not accepting the case. The written ruling shall specify the reasons for rejection. Where the plaintiff remains unconvinced by the award, they may file an appeal.

Where the people’s court neither files the case nor issues a written ruling within 7 days, the party may bring a suit before the people’s court at the level above. Where the court above finds that the requirements for bringing suit are met, it will file and hear the case or it may designate another lower people’s court to file and hear the case.

 

Chapter VII: Trial and judgment

Section 1: Ordinary Provisions

Article 55: Administrative cases in the people's courts shall be tried in public, except for those that involve state secrets or the private affairs of individuals, or are otherwise provided for by law.

Cases that involve trade secrets may be tried in private where the party applies for a private hearing.

Article 56: People's court hearing administrative cases, form a collegial panel of judges or of judges and assessors. The collegial panel shall have an odd number members, greater than three.

Article 57: Parties feeling that a adjudicators have an interest in the case or have another relation to it, which may affect the fair handling of the case, they have the right to demand the recusal of the judicial personnel.

Adjudicators who feel they have an interest in the case or another relation to it, shall apply for recusal.

The provisions of the two preceding paragraphs apply to clerks, interpreters, expert evaluators and persons who conduct inquests.

The recusal of the court president as the presiding judge is decided on by the adjudication committee; the recusal of an adjudicator is decided by the court president; the recusal of other personnel is decided by the presiding judge. Any party not accepting the decision may apply for a reconsideration.

Article 58: During litigation, the enforcement of the specific administrative act does not stop. But, in any of the following situations, rule to stop the the enforcement of the specific administrative act:

(1)The defendant feels enforcement needs to stop;

(2) the plaintiff applies for enforcement to be stopped, and the people's court finds that enforcement of the specific administrative act will cause irremediable losses, and stopping enforcement will not harm state or public interests;

(3)the people's court finds that undertaking the specific administrative act will cause a major harm to national interests or to the social public interests ;

(4)laws or regulations provide for the enforcement to be stopped.

Where a party does not accept a ruling to stop enforcement or not stop enforcement, it may apply for a reconsideration one time.

Article 59: Where an administrative organ is sued for failing to issue a survivor's pension, minimum living subsidies and workers' compensation or medical or social insurance in accordance with law, and where the connection of rights and obligations is clear and the plaintiff's lives will be seriously impacted if advance enforcement is not made, a people’s court may rule for advance enforcement in accordance with the plaintiff's request.

Where a party is unpersuaded by a ruling for advanced enforcement, it may apply for reconsideration one time. The enforcement of the ruling does not stop during the reconsideration period.

Article 60: Where upon a people's court's summons, a plaintiff refuses to appear in court without a legitimate reason, or leaves without the permission of the court, this may be treated as awithdrawal of the lawsuit; if a defendant refuses to appear in court without a legitimate reason or leaves without the permission of the court, it may be ruled a default

Article 61: Where litigation participants or other persons commit any of the following acts, the people's court may, according to the seriousness of the circumstances, give him a reprimand, order him to sign a statement of repentance or impose a fine of up to 10,000 yuan, or detain him or her for a period of up to 15 days; where is constitutes a crime, criminal responsibility shall be pursued in accordance with law:

(1)Persons with an obligation to assist in investigation or enforcement, delay without reason, refuse to enforce or impede the enforcement of a people's courts' decision to investigate or notice of enforcement assistance.

(2)The defendant, upon summons by subpoena, refuses to appear in court without a legitimate reason, or leaves court midway without first getting the court's permission.;

(3)fabricating, concealingt or destroying evidence, impeding the people's court's trial of a case.

(4)instigating, bribing or coercing others to make false testimony or threatening and obstructing witnesses from giving testimony;

(5)concealing, transferring, selling or destroying property that has been sealed, seized or frozen;

(6)using violence, coercion or other means to obstruct the personnel of a people's court from performing their duties or disturbing the order of a people's court;

(7) insulting, slandering, framing, beating or retaliating against the personnel of a people's court, participants in proceedings or personnel who assist in the execution of duties.

People's courts may fine or detain the person with principle responsibility or other directly responsible persons at a work unit exhibiting any of the conduct in the preceding paragraph, and where it constitutions a crime, pursue them for criminal responsibility in accordance with law.

Fines and detention must be approved by the president of a people's court. Where a party is unpersuaded, it may apply for a reconsideration to the people's court at the level above one time. Enforcement does not stop during the reconsideration period.

Article 62: People's courts hearing administrative cases do not apply mediation. There is an exception however, for cases of administrative compensation and of administrative organizations giving subsidiaries.

Article 63: During an administrative lawsuit, where a party applies for joint resolution of a civil dispute arising from a specific administrative act's impact on the relationship of civil rights and obligations , the people’s courts may hear them together. Where the people’s court has decided on a joint hearing, the party must not also file a civil lawsuit for the civil dispute .

Where a party is unpersuaded by the ruling handed down by an administrative organ in relation to a civil dispute and files an administrative suit, the people’s court may try the civil dispute jointly as requested.

Where in an administrative lawsuit a people's court finds that trial of the administrative case requires a ruling in a civil suit as its basis, rule to suspend the administrative lawsuit.

Article 64: Where before a people's court announces the judgment or ruling in an administrative case, the plaintiff applies to withdraw the suit, or if the defendant changes the specific administrative act and the plaintiff agrees and applies to withdraw the suit, the people's court rules on whether or not to grant approval.

Article 65: People's courts trying administrative cases have the laws, administrative regulations and local regulations as their basis. Local regulations apply to administrative cases occuring within that administrative region.

People's courts trying administrative cases from ethnic autonomous regions also have that ethnic autonomous region's autonomy regulations and specific regulations of the national autonomous area as their basis.

Where people's courts hearing administrative cases and considering regulations find that the regulations are inconsistent, the Supreme People's Court will send it to the the State Council for a ruling.

Article 66: Where in the course of trying an administrative case a people's court discovers that a normative document as provided for in article 14 of this law is not legal, it cannot be the basis of for the legality of a specific administrative act, and shall be transferred to the relevant administrative organ for disposition.

 

Section 2: Ordinary first-instance procedures

Article 67: People's courts shall, within five days after filing a case, send a copy of the Complaint to the defendant. The defendant shall, within 15 days of receiving the copy of the Complaint, submit to the people's court the evidence for taking the specific administrative act and the normative documents on which it was based and submit a Response. The people's court shall send a copy of the Response to the plaintiff within five days of receiving it.

Defendants' failure to submit a Response does not affect the trial of the case by the people's court.

Article 68: Where the evidence for a specific administrative act was solid, the laws and regulations applied correctly, and statutory procedures were met, or where the plaintiff's grounds for requesting the defendant perform a duty is not established, the people's court rules to reject the plaintiff's claim.

Article 69: Where a specific administrative act has any of the following situations , the people's court will rule to revoke or revoke in part, and may also rule for the defendant to again take the specific administrative act;

(1)the principle evidence is insufficient;

(2)the law or regulations were applied incorrectly;

(3)violated statutory procedures and might create an actual impact on the plaintiff's rights ;

(4)Exceeded powers of office;

(6)abused powers of office.

Article 70: Where the people's court rules that the defendant will take a new specific administrative act, the defendant must not, based on the same fact and reason, take a specific administrative act essentially identical to the original specific administrative act.

Article 71: Where through trial, a people's court ascertain that the defendant has not performed, or dragged out performance, of a statutory duty, rule that the defendant must perform within a fixed time period.

Article 72: Where people's courts ascertain through trial that a defendant has a payment obligation in accordance with law, rule for the defendant to fulfill the payment obligation.

Article 73: In any of the following circumstances, people's court's make a judgment confirming that a specific administrative act is unlawful or ineffective.

(1) According to law, the specific administrative act shall be revoked, but the revocation thereof will cause significant harm to national interests or interests of the societal public.

(2) According to law, the specific administrative act shall be revoked,, but there is no revocable content;

(3) The specific administrative action's procedures were unlawful, but it has not caused actual impact on the rights of the plaintiff;

(4) A defendant did not perform or delayed the performance of its statutory duties and shall be ordered to perform, but performance would already no longer hold any meaning

(5) A defendant has revoked or changed the original unlawful specific administrative action, but the plaintiff does not withdraw the lawsuit and still requests confirmation of the illegality of the original specific administrative action;

(6) the plaintiff submits that the specific administrative act is void, and establishes reasons.

When people's courts make a decision in accordance with the proceeding clause, they may make a judgment ordering the defendant to adopt remedial measures at the same time; where harm was caused to the plaintiff make a judgment that the defendant bears responsibility for compensation in accordance with law.

Article 74: Where an administrative punishment is obviously unjust or where other specific administrative acts are involved in an error in determining or affirming a monetary amount, the people's court may modify the judgment.

Modification of a people's court's judgment must not increase the plaintiff's obligations or reduce the plaintiff's interests. Except, however, where an interested party is also a plaintiff with opposite claims.

Article 75: Cases publicly or privately tried by the people's courts will without exception have the judgment announced publicly.

Where the judgment is announced in court, the written judgment opinion shall be sent within 10 days; where judgment is made at a fixed time, the written judgment opinion is sent immediately following the announcement.

When announcing a judgment, the parties must be informed of their right to appeal, the time limits for appeal, and the court of appeals.

Article 76: The masses may consult judgment opinions and rulings that have already taken legal force, except for those that touch upon state secrets, commercial secrets and personal privacy.

Article 77: Where, in trying an administrative case, a people's court finds that the head of an administrative organ or persons with direct responsibility have violated administrative discipline, it shall transfer the relevant materials to the administrative organ or to the administrative organ at the next higher level or to a supervisory or personnel department; where finding that there is criminal conduct, the relevant materials shall be transferred to the public security and procuratorial organs.

Article 78: The people's court shall make a first-instance judgment within three months from the day of filing the case. where special circumstances require an extension, it is approved by a high people's court; where an extension is needed in a first-instance case tried by a high people's court, it is approved by the Supreme People's Court.

Section 3: Simplified Procedures

Article 79: People's court hearing the following first-instance administrative cases where the facts are clear, the relationship of rights and obligations is clear, and the controversy is not large, may apply simplified procedures:

(1)the challenged specific administrative act was taken on site in accordance with law;

(2)the amount involved in the case is less than 1000 yuan;

(3)the parties on both sides agree to apply simplified procedures.

Remands for new trial and retrials in accordance with trial supervision do not apply the simplified procedures.

Article 80: A single judge will handle administrative cases that apply the simplified procedures, and a judgment should be reached within forty five days from the day of filing the case.

Section 4: Procedures for Second-Instance Trials

Article 81: If a party does not accept a people's court's first-instance judgment , it has the right to file an appeal with the people's court at the level above within 15 days after the service of the written judgment opinion. Where a party does not accept a people's court's first-instance ruling , it has the right to file an appeal with the people's court at the level above within 10 days after the service of the written ruling.Where no timely appeal is raised, the first-instance judgment or ruling of the people's court shall take legal effect.

Article 82: For appeals cases, people's courts shall form a collegial panel and hold in-court trial sessions. Where upon review of the case file, investigation and questioning the parties, the people's court may decide not to hold in-court trial sessions where no new facts, evidence or reasoning has been submitted and the collegial panel feels it is not necessary to hold in-court proceedings.

Article 83: People's courts trying appeals cases shall conduct a comprehensive review of the original people's court's judgment or ruling and shall the challenged specific administrative acts.

Article 84: People's courts hearing appeals cases shall make a final judgment within two months from the day of receiving the appeal. Where an extension of the time limit is necessary due to special circumstances, the high people's court approves it; where an extension of the time limit for handling an appeals case by a higher people's court is necessary, the Supreme People's Court approves it.

Article 85: People's courts hearing appellate cases, handle them distinctly according to the following situations:

(1)Where the ascertained facts are clear and the laws and regulations correctly applied in the original judgment or ruling, the appeal is rejected and the original judgment or ruling shall be upheld;

(2)Where there is an error in the ascertained facts or the law and regulations are incorrectly applied in the original judgment or ruling, the judgment shall be amended, revoked or modified according to law ;

(3)Where the fundamental facts ascertained are unclear or the evidence insufficient in the original judgment, remand to the original people's court for a new trial or change the judgment after reviewing and clarifying the facts.

(4)Where the original judgment had serious violations of statutory procedures such as omitting a party or not allowing attendance at a meeting, rule to revoke the original judgment and remand to the original people's court for new trial.

Where after the original people's court issues a judgment on a case remanded for new trial, a party raises an appeal, the second-instance court must not remand for new trial again.

Where people's courts trying appeals cases need to change the original judgment, they shall make a judgment on the challenged specific administrative act at the same time.

Section 5: Procedures for Trial Supervision

Article 86: Where a party feels that a judgment or ruling which has already taken effect truly contains error, they may apply to the people's court at the level above for a new trial, but the enforcement of the judgment or ruling is not be suspended.

Article 87: Where a party's application is eligible for one of the following situations, the people's courts shall have a retrial:

(1)where not accepting or rejecting the lawsuit was in error;

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

(3)where the evidence for ascertaining facts in the original judgment or ruling was not credible and sufficient, was not debated in court or was fabricated;

(4)where the application of laws and regulations in the original judgment or ruling was truly incorrect.

(5)Where there were violations of legally provided procedures that might impact fair trial;

(6)The original judgment or ruling omitted a litigation demand ;

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

(8)Where while trying the case, adjudication personnel were corrupt and took bribes, abused their office for personal gain or perverted the to make a wrong judgment.

Article 88: If the president of a people's court of any level finds that a true error in an legally effective judgment or ruling made by that court requires that the case be retried, he shall submit it to the adjudication committee for deliberation and decision.

If the Supreme People’s Court finds any error in the judgment or ruling of local people’s courts at any level that has already become legally effective, or a people's court at a higher level finds any error in the judgment or ruling of a people’s court at a lower level that has become legally effective, the Supreme People’s Court or the higher level people’s court has the right to bring up the case for trial by itself or direct the people's court at a lower level to retry the case.

Article 89: If any of the circumstances provided in Article 87 of this Law is discovered by the Supreme People’s Procuratorate in a legally effective judgment or ruling of the people’s courts at any level, or by a people’s procuratorate at a higher level in the legally effective judgment or ruling of a people’s court at a lower level, the Supreme People’s Procuratorate or the higher level people’s procuratorate shall file a counter-appeal.

If local people’s procuratorates at any level find any of the circumstances provided in Article 87 of this Law in a judgment or ruling of the people’s courts at the same level that has already become legally effective, they may make procuratorial suggestions to the people’s courts at the same level and report the findings to the people’s procuratorate at a higher level for the record; they may also request the people’s procuratorate at a higher level tofile a counter appeal to the people’s court at that level.

Local people's procuratorates at all levels have the right to submit prosecutorial suggestions to the people's court at the same level regarding unlawful conduct of trial adjudication personnel in trial procedures that is outside the trial supervision procedures.

Chapter VIII: Enforcement

Article 90: Parties must perform on effective judgments, rulings and mediation documents from the people's courts.

Article 91: If a citizen, legal person or other organization refuses to perform on the judgment, ruling or mediation document, the administrative organ or a third person may apply to the people's court of first-instance to compell enforcement or the administrative organ may proceed with compulsory enforcement in accordance with law.

Article 92: Where administrative organs refuse to perform on a judgment, ruling, or mediation document, the people's court of first-instance may adopt the following measures:

(1)inform the bank to transfer from the administrative organ's account the amount that shall be returned or the damages that shall be paid;;

(2)Where they have not performed within the time limits provided, fine the administrative organ 50-100 yuan per day, beginning on the day the period became completed.

(3)Publicly announce the administrative organ's refusal to perform;

(4)submit a judicial proposal to the administrative organ above the relevant administrative organ or to a supervisory or personnel department. The organ that accepts the judicial proposal shall deal with the matter in accordance with the relevant provisions and inform the people's court of its disposition;

(5)Where refusal to perform on a judgment, ruling or mediation agreement has a repugnant social impact, the persons at the administrative organ with direct principle responsibility and other responsible persons may be take into custody, and where the circumstances are serious and a crime is constituted , be pursued for criminal liability in accordance with law.

Article 93: Where citizens, legal persons or other organizations neither bring a lawsuit nor perform on a specific administrative act, the administrative organ may apply to a people's court for compulsory enforcement, or compel enforcement in accordance with law.

Chapter IX: Administrative cases involving foreign interests or jurisdictions

Article 94: This Law applies to foreign nationals, stateless persons, and foreign organizations that engage in administrative suits in the People's Republic of China, except as otherwise provided for by law.

Article 95: Foreign nationals, stateless persons, and foreign organizations that engaged in administrative litigation in the People's Republic of China shall have the same procedural rights and obligations as citizens and organizations of the People's Republic of China.

Should the courts of a foreign country impose restrictions on the administrative litigation rights of the citizens and organizations of the People's Republic of China, the Chinese people's courts shall follow the principle of reciprocity regarding the administrative litigation rights of the citizens and organizations of that foreign country.

Article 96: Where foreign nationals, stateless persons, and foreign organizations retain lawyers to conduct administrative litigation in the People's Republic of China, they shall retain lawyers of a lawyers organization of the People's Republic of China.

Chapter X: Supplementary Provisions

Article 97: Where people's courts try administrative cases and this law has no provisions, apply the relevant provisions of the "PRC Civil Procedure Law".

Article 98: People's courts hearing administrative cases shall charge litigation fees. Litigation expenses are borne by the losing side, and by both sides where both sides have responsibility. Specific methods for charging litigation fees shall be provided separately.

Article 99: This Law shall go into effect October 1, 1990.

 

 

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