Provisions on Several Issues Regarding the Responsible Persons for Administrative Organs Appearing at Court in Response to Litigation

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.

English中文(简体)

 917 total views,  6 views today

Promulgation Date: 2020-6-22
Title: Supreme People's Court Provisions Several Issues Related to the Responsible Persons of Administrative Organs Appearing at Court in Response to Litigation
Document Number:法释〔2020〕3号
Expiration date: 
Promulgating Entities:Supreme People's Court
Source of text: Official Account of the Supreme People's Court

These provisions have been drafted on the basis of the "P.R.C. Administrative Litigation Law" and other legal provisions taken together with the actual conditions of trial work, so as to further regulate appearances at court by the responsible persons for administrative organs.

Article 1: The third paragraph of article 3 of the Administrative Litigation Law provision that the responsible persons of administrative organs being sued shall appear in court to respond to the suit means that the responsible person for the administrative organ being sued shall appear at court in accordance with law to participate in proceedings, exercise procedural rights, and perform procedural obligations during the first-instance trial, second-instance trial, retrial, and other litigation procedures.

These Provisions apply to appearances in court in response to litigation by the responsible persons of internal or dispatched bodies of administrative organs and other organizations that are authorized by laws, regulations, or rules to independently exercise administrative authority.”

Where administrative organs should be added as a defendant, but the plaintiff does not consent to add them, the people's court is to notify them to participate in the litigation as a third party, and the provisions of the preceding paragraph are to be applied by reference to appearances by their responsible person.

Article 2: The responsible persons of administrative organs that are being sued as provided for in the third paragraph of article 3 of the Administrative Litigation Law include the principal and deputy responsible persons, responsible persons at the deputy division level in charge of implementing the challenged administrative actions, and other participating responsible persons of divisions.

The responsible persons of an organization entrusted by the administrative organ being sued or of an administrative organ under it, cannot appear in court on behalf of the administrative organ being sued.

Article 3: In cases with co-defendants, the co-defendants may consult to designate an administrative organ's responsible persons to appear in response to the litigation, and the people's court may also make a designation.

Article 4: In cases involving food and drug safety, the ecology and environment, public health and safety, and other major public interests, cases of great public concern, or cases that might trigger a mass incident, the people's courts shall notify the responsible person of the administrative organ to appear in court.

In any of the following situations, where it is necessary for the responsible person of an administrative organ to appear at court, the people's court may notify the responsible person of the administrative organ to appear and respond to the suit:

(1) The administrative action that is the subject of the suit involves major rights and interests in the persons or property of citizens, legal persons, or other organizations;

(2) It is administrative public interest litigation;

(3) Normative documents of the organ at the level above the administrative organ being sued require that the responsible person for the administrative organ appear in court to respond to the suit;

(4) Other situations where the people's courts find that it is necessary to notify the administrative organ's responsible person to appear in court to respond.

Article 5: In their notification of rights and obligations served on administrative organs, the people's courts shall inform the responsible person of the administrative organ of such matters as the legally-prescribed obligation to respond to the lawsuit and relevant legal consequences.

Where the people's courts notify the responsible persons for administrative organs to appear in court, they shall serve a written notice to appear at least 3 days before opening court proceedings and inform them of the adverse legal consequences that might be borne if the administrative organ's responsible person does not appear.

Where the administrative organs request to change the person appearing in court in response to the litigation before trial and it won't impact the normal conduct of in-court proceedings, the people's court shall allow it.

Article 6: Where the responsible person of an administrative organ appears at court to respond to litigation, proof of their identity shall be submitted to the court before in-court proceedings begin. The proof of identification shall indicate the responsible person's full name, title, and other basic information, and shall bear the seal of the administrative organ.

The people's courts shall review the proofs of identity for administrative organs' responsible persons appearing in court to respond to litigation, and where they find through review that the requirements are not met but that they may be supplemented or corrected, they shall inform the administrative organ to provide supplementation or correction; where they cannot be supplemented or corrected, or doing so would impact normal in-court proceedings, it is to be viewed as the administrative organs' responsible person failing to appear.

Article 7: Where a single case requires multiple in court proceedings at the same level of trial, and the responsible person for the administrative organ appears at court one time, it generally may be held that they have performed their obligation to appear in court to respond to the suit, unless the people's court notifies the responsible person of the administrative organ to appear again.

The responsible person of an administrative organ's appearance to respond to litigation during one trial procedure does not waive their obligation to appear during other trial procedures.

Article 8: Any of the following situations is within the circumstances for the responsible person of an administrative organ being unable to appear in court as provided for in the third paragraph of article 3 of the Administrative Litigation Law.

(1) Force majeure;

(2) Accidents;

(3) The need to perform official duties that others cannot do in their stead;

(4) Other legitimate reasons for not appearing in court.

Article 9: Where the responsible person of an administrative organ cannot appear for a legitimate reason, they shall submit relevant proofs and affix the seal of the administrative organ or have that organ's principal responsible person sign in approval.

The people's courts shall conduct a review of the reasons why an administrative organ's responsible person cannot appear, and their proof materials.

Where the responsible party of an administrative organ cannot appear for a legitimate reason, and the administrative organ applies to delay the start of in-court proceedings, the people's courts may allow it, and the people's courts may also decide to delay in-court proceedings based on it's own authority.

Article 10: The "corresponding staff" as provided for in paragraph 3 of article 3 of the Administrative Litigation Law refers to the staff who specifically exercised administrative authority at the administrative organ being sued.

Staff of organizations or lower-level administrative organs that are entrusted to exercise administrative authority may be regarded as corresponding staff of the administrative organ.

People's courts shall refer to article 6, paragraph 2 of these Provisions to review the identification of the corresponding staff of administrative organs.

Article 11: Litigation participants participating in litigation activities shall lawfully exercise procedural rights, perform litigation obligations, comply with court rules, and conscientiously uphold the order of the proceedings.

The responsible person of the administrative organ or the corresponding staff entrusted by the administrative organ shall make statements, give replies, submit evidence, debate the issues and deliver a final opinion on the situation of the case, and explain the normative documents on which the challenged action is based.

Where the responsible person of an administrative organ appears in response to litigation, they shall express their opinions on substantively resolving the administrative dispute.

Where litigation participants disrupt courtroom order through methods such as insults, berating, or threats, the people's courts shall stop them and handle it in accordance with article 59 of the Administrative Litigation Law.

Article 12: In any of the following situations, the people's courts shall submit a judicial recommendation to the supervision organ or the administrative organ at the level above the organ being sued:

(1) The responsible person of the administrative organ failed to appear in response to the suit, and did not explain the reasons, or the reasons were not sustained.;

(2) Administrative organs with legitimate reasons apply for a delay of in-court proceedings and are approved by the people's court, and when it is again time to hold in-court proceedings, the responsible person of the administrative organ still failed to appear in response to the litigation without a legitimate reason;

(3) Neither responsible person for the administrative organ or the corresponding staff of the administrative organ appear in court in response to the litigation;

(4) The responsible person of the administrative organ withdraws from court mid-proceeding without the permission of the people's court;

(5) When the people's court requests the responsible person of the administrative organ to interpret or explain the relevant issues during the court hearing, but the responsible person of the administrative organ refuses to do so, resulting in the inability to conduct the hearing.

In any of the circumstances provided for in the preceding paragraph, the people's courts shall record this in the case and indicate it in the judgment documents.

Article 13: Where parties submit objections to administrative organs having the conduct provided for in the first paragraph of article 12 of these Provisions, the people's courts may indicate it in the trial record, and it is not to impact the normal hearing of the case.

Where the plaintiff refuses to appear or withdraws from court mid-proceedings without the court's permission due to the administrative organ having circumstances provided for in the first paragraph of article 12 of these Provisions, the people court may handle it as a withdrawal of the suit.

Where the plaintiff clearly refuses to state its case or by other means refuses to state its case during the trial on the grounds that the administrative agency has the circumstances set forth in the first paragraph of article 12 of these Provisions, resulting in inability to conduct the trial, and still fails to state its opinions after the court has explained the legal consequences, the people’s court may regard this as a waiver of the right to state the case, and the plaintiff shall bear the corresponding legal consequences.

Article 14: People's courts may use appropriate means to publicly disclose the appearances of responsible persons from administrative organs in response to litigation.

The people's courts may periodically compile statistics, analysis, and appraisals of the state of responsible persons of administrative organs appearing at court in response to litigation in the jurisdiction, and report to the standing committee of the people's congress at the same level, and notify the people's government at that level.

Article 15: These provisions are to be implemented from July 1, 2020.

 

About China Law Translate 1003 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.


*