Owen Tse

Owen Tse

Ken Hung

Ken Hung

Fandy Ip

Fandy Ip

Co-published

On 8 February 2018 the Supreme People’s Court issued a judicial interpretation which provides an updated supplement to the Administrative Procedure Law based on recent administrative and judicial practice.

This article discusses several key updates introduced by the 2018 interpretation to the practice of administrative litigation in China.

Administrative litigation says no to habitual complainants
The rapid development of the new ‘profession’ of habitual complainant has become an increasing concern for administrative bodies and the courts. Habitual complainants often have little or no interest in the dispute at issue, but make profit by repeatedly submitting complaints to the responsible administrative body and even filing for litigation against the administrative body in order to put pressure on it. Their claims are usually vexatious and often waste a large amount of resources.

According to the Administrative Procedure Law 2015, only those with “interest in the administrative action” may bring litigation against the decision-making authority. The 2018 interpretation has further stipulated that only persons who have filed a complaint with the administrative body for the protection of their own right may bring an administrative action. In so doing, habitual complainants will likely be restricted, and judicial resources may be better allocated to genuine complainants.

No excuse not to attend court
As a matter of custom, in Chinese courts administrative bodies tend to be absent from hearings; this has caused the unique phenomenon of “suing one you never see”, which impedes effective communication between the parties.

The new interpretation provides that if the administrative personnel cannot attend the hearing, a written explanation is required.  

As demonstrated in recent appeal proceedings against the Trademark Review and Adjudication Board (TRAB) in the Beijing IP Court, it is now rare for TRAB examiners to be absent during the trial hearing. The above measure may have dissuaded the responsible examiners from not attending trial. This allows the plaintiff and the TRAB to communicate effectively during the hearing.

‘Chinese-style’ separation of powers?
Traditionally, Chinese courts do not have the general power of judicial review. The Administrative Procedure Law empowered courts with limited authority to review regulations and guidelines made by the administrative bodies, including departments of the State Council and local governments and departments. 

The 2018 interpretation has further laid down the procedure, content and manner of such review. One amendment is that the 2018 interpretation has for the first time specified the circumstances under which the regulation of an administrative body may be deemed illegal. These include a regulation which:

  • exceeds the statutory power of the policy-making body;
  • contradicts a higher law or regulation;
  • illegally impairs citizen rights; or
  • seriously breaches rulemaking procedures.

However, the judicial review system remains limited. The request for review cannot be raised independently, but must be collateral to an administrative action brought against the relevant administrative body. Further, although the court’s view on the legality of a regulation will be kept on record, it has no power to strike down the regulation and can only give judicial advice to the policy-making body.

This is a co-published article whose content has not been commissioned or written by the IAM editorial team, but which has been proofed and edited to run in accordance with the IAM style guide.

For further information please contact:

Owen Tse
Vivien Chan & Co
www.vcclawservices.com
Email: owentse@vcclawservices.com
Tel: +852 2522 9183