Domestic Law Reforms in Post-Mao China

By Pitman B. Potter | Go to book overview

should instruct the plaintiff to seek administrative reconsideration even if the ALL would permit the court to hear the appeal. 142

The balancing of interests between ALL plaintiffs and administrative defendants is evident in the provisions concerning sanctions and security for litigation. On one hand, the Opinion specifies measures that may assist in bringing administrative defendants to court, such as seizure of assets as security for litigation where there is a question about the potential for enforcement. 143 However, the Opinion also contains several provisions aimed primarily at enforcement of administrative decisions on behalf of administrative agencies, including provisions for the sealing of property, the imposition of property liens, and the garnishing of wages and bank accounts. 144

Thus, the Supreme People's Court Opinion on implementation of the ALL is emblematic of the policy tensions underlying the law itself. On one hand there is the effort to permit meaningful judicial review of a wide range of administrative decisions as part of a general effort toward greater accountability of government. On the other hand, requests for ALL review are subjected to stringent procedural requirements to ensure that administrative litigation remains a remedy of last resort.

Nonetheless, in the context of continuing activism by the legal reform constituency, the ALL provides a starting point for further use of law to restrain government action. 145 Efforts are already under way to draft an administrative procedure law and a general code of administrative law. The ALL also may work to increase the power and prestige of the courts by granting them supervisory authority over the administrative bureaucracy. The ALL's principle permitting challenges to administrative conduct reflects and encourages changing popular attitudes that increasingly deny the infallibility of the Chinese government. While Chinese citizens and economic actors are likely to continue to respond to bureaucratic abuses through customary fatalism and use of informal personal relationships, the ALL provides at least a potential avenue for achieving redress through the courts. Each of these factors may, with the support of the legal reform constituency, or some other grouping, contribute to further growth in the role of judicial review. Thus, despite its problems, the ALL provides an important foundation for assertions by groups and individuals for greater autonomy from bureaucratic control by subjecting administrative agencies to a greater degree of external supervision through judicial review.


Notes

The author would like to thank Phil Bryden of the University of British Columbia Law Faculty and James V. Feinerman of Georgetown University Law Center for their helpful comments on an earlier draft.

1
"Zhonghua renmin gongheguo xingzheng susong fa" (Administrative litigation law of the PRC), Renmin ribao (People's daily), 10 April 1989, at 2. Hereinafter, all references to the ALL are to this edition. An annotated translation of the ALL appears in 3

-290-

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