After attending a paper presentation which caused ideas to ferment, a Chinese colleague and I began an email dialogue about Administrative Law in China. Below are excerpts from the email chain. Things are getting somewhat clearer, but I remain unclear as to street-level implementation and standard of review (e.g., level of deference).

Dear Friend,

Quickly reviewing your comments, I think X (and many American scholars like myself) would benefit from learning more information on Chinese administrative law as it relates to review of “arbitrary and capricious review” of government actions. The American equivalent is found in section 706 of the Administrative Procedure Act. What is the Chinese equivalent and how is it implemented?

Thanks,

Jason

***

Jason,

Many thanks for your response. With respect to X’s research, government’s possible “arbitrary and capricious” actions related to permitting should subject to at least the following administrative laws:


I. Administrative License Law —

The Law stipulates the establishment of an administrative license, the executive organs and procedures for administrative license, the expenses of administrative license, supervision and check, and legal liabilities. Permitting, as a kind of concrete administrative action, should follow all these stipulations, especially the procedural provisions of this Law. Please find the attachment for Administrative License Law.

II. Administrative Reconsideration Law —

Article 6 A citizen, legal person, or any other organization may, in accordance with this Law, file an application for administrative reconsideration under any one of the following circumstances:
(1) an administrative sanction, such as warning, fine, confiscation of illegal gains or property, order to suspend production or business, suspension or rescission of license or permit, administrative attachment, which one refuses to accept;
(3) an administrative decision of altering, suspending or discharging certificates, such as a license, permit, credit certificate, credential, which one refuses to accept;
(8) cases where an administrative organ is considered to have illegally handled issuing a certificate, such as a permit, license, credit certificate, or credential, or examining and approving or registering relative items, which one considers oneself legally qualified to apply for.

As to the reconsideration organs, the Law provide:

Article 12 An applicant, who refuses to accept a specific administrative act of the departments under local people’s governments at or above the county level may apply for administrative reconsideration to the people’s government at the same level; an applicant may also apply for administrative reconsideration to the competent authority at the next higher level.

Article 13 A citizen, legal person, or any other organization that refuses to accept a specific administrative act of local people’s governments at various levels shall apply for administrative reconsideration to the local people’s government at the next higher level.

An applicant who refuses to accept a specific administrative act of a local people’s government at the county level, which belongs to a dispatched organ legally established by a people’s government of a province or an autonomous region, shall apply for administrative reconsideration to the dispatched organ.

Article 14 A citizen, legal person, or any other organization that refuses to accept a specific administrative act of a department under the State Council, or the people’s government of a province, an autonomous region, or a municipality directly under the Central Government, shall apply for administrative reconsideration to the department under the State Council, or the people’s government of the province, the autonomous region, or the municipality directly under the Central Government that undertook the specific administrative act. The applicant who refuses to accept the administrative reconsideration decision may bring a suit before a people’s court; or apply to the State Council for a ruling, and the State Council shall make a final ruling according to the provisions of this Law.

Article 15 A citizen, legal person, or any other organization, who refuses to accept a specific administrative act of an administrative organ or an organization, except for the administrative organs prescribed in Articles 12, 13, and 14 of this Law, shall apply for administrative reconsideration in accordance with the following provisions:

(1) an applicant, who refuses to accept a specific administrative act of a dispatched organ established by a local people’s government at or above the county level, may apply for administrative reconsideration to the people’s government that established the dispatched organ;

(2) an applicant, who refuses to accept a specific administrative act of a dispatched organ, established by departments under governments in accordance with the provisions in laws, regulations or rules, in its own name, shall apply for administrative reconsideration to the department who established the dispatched organ, or the local people’s government at the same level with the department;

(3) an applicant who refuses to accept a specific act of an organization authorized by laws or regulations shall respectively apply for administrative reconsideration to the local people’s government, the department under a local people’s government, or the department under the State Council, who is directly in charge of the organization;

(4) an applicant who refuses to accept a specific act of two or more than two administrative organs in their common name shall apply for administrative reconsideration to their common administrative organ at a higher level;

(5) an applicant who refuses to accept a specific act of an abolished administrative organ shall apply for administrative reconsideration to the administrative organ at the next higher level than the administrative organ that carries on the exercise of functions and powers of the abolished organ.

Under one of the circumstances listed in the preceding paragraphs, the applicant may also apply for administrative reconsideration to the local people’s government, in the locality of the specific administration act, at county level, and the local people’s government at county level accepting the application shall handle the administrative reconsideration in accordance with the provisions of Article 18 of this Law.

III. Administrative Procedure Law —

Article 11 The people’s courts shall accept actions initiated by citizens, legal persons or other organizations against any of the following specific administrative acts:
(1) refusing to accept such administrative penalties as detention, fine, revocation of a business license or permit, order of suspension of production or business or confiscation of property;

(4) deeming that the application for issuance of a permit or license conforms to the provisions of laws but an administrative organ has refused to issue it or refused to make a reply therefore.

In China, the administrative tribunals in the people’s courts hear this kind of cases.

***

Thanks, but this raises a follow-up question. While there is clearly administrative reconsideration of government decisions, what is the procedure and/or standard of review for such reconsideration? This is a complicated question under American law, and I would expect the answer to be different depending on whether one is discussing an agency interpretation a law versus an agency action. In terms of process then, is there a “record” which will be reviewed by the body that is reconsidering the action, and how much deference will the government agency receive by the reviewing body? Also is their public participation in the initial decision-making process?

Thanks,

JJC

**

Jason:

The procedure of review for such reconsideration is really complex in China. Maybe the attached text of the law can give you some ideas. In China, some (but not all) provisions (similar to the “interpretation” you mentioned) is reconsiderable. The legal basis is the Article 7 of the Administrative Reconsideration Law: “If a citizen, legal person or any other organization considers any of the following provisions, which is the basis of a specific administrative act of an administrative organ, to be illegal, he or it may, when filing an application for administrative reconsideration on a specific administrative act, file an application to the administrative reconsideration organ for reviewing the said provisions: (1) provisions of departments under the State Council; (2) provisions of local people’s governments at or above the county level and their departments; (3) provisions of people’s governments of towns or townships. The provisions set forth in the preceding paragraph do not include rules of departments and commissions under the State Council, and local people’s governments. Review on rules shall be handled according to relevant laws and administrative regulations.”

For the “record”, the reconsideration organs review both the legality and the rationality of administrative actions. The applicant and the respondent must submit supporting materials supporting their opinions, including the documents explaining the legal basis and the facts. All necessary documents based on which a permit decision is made should be submitted for review. Sometimes hundreds of pages of supporting documents and materials are submitted for review.

As to public participation, Article 19 of Administrative License Law provides: “Where an administrative license is to be established by means of drafting a law, a regulation or a regulation of the people’s government of a province, autonomous region or municipality directly under the Central Government, the drafting entity shall consult the opinions through hearing and argumentation, etc., and shall give explanations to the law (regulation) making organ about the necessity to establish the administrative license, the potential effects on the economy and society and the opinions heard and adopted.”

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