Administrative Litigation Vision (VII) | Administrative Litigation Prosecution Time Limit

Published:

2022-09-05

Foreword As one of the legal elements of administrative litigation, the prosecution period of administrative litigation is related to whether citizens, legal persons or other organizations can exercise the right of action in accordance with the law, and then safeguard their legitimate rights and interests, which is an important part of the administrative litigation system. The time limit of administrative litigation is different from the limitation system of civil litigation. For different types of administrative actions, the starting point and length of the prosecution period are not the same, which needs to be accurately grasped. The nature of the time limit for the prosecution of 1. administrative litigation. Administrative litigation does not apply the statute of limitations system of civil litigation, but the system of the time limit for prosecution. The time limit of administrative litigation is the legal time limit for the plaintiff to file an administrative lawsuit to the court and seek judicial relief. The system of time limit for prosecution is different from the system of limitation of action. First of all, in general, there is no suspension or interruption of the prosecution period of administrative litigation, only the delay of the prosecution period and the extension of the application under certain circumstances. Article 48 of the Administrative Litigation Law stipulates: "If a citizen, legal person or other organization delays the time limit for prosecution due to force majeure or other reasons that do not belong to him, the time delayed shall not be counted in the time limit for prosecution. If a citizen, legal person or other organization delays the time limit for prosecution due to other special circumstances other than those specified in the preceding paragraph, he or she may apply for an extension of the time limit within ten days after the obstacle is removed, and the time limit." Secondly, the time limit for prosecution in administrative litigation is one of the statutory prosecution requirements. The people's court should take the initiative to review it in accordance with its functions and powers. If the prosecution exceeds the statutory time limit without justifiable reasons, the court shall rule not to accept it. If the case has been filed, it shall rule to reject the prosecution. The Supreme People's Court on the application<中华人民共和国行政诉讼法>Interpretation of the "(hereinafter referred to as the" applicable interpretation ") article 69;" one of the following circumstances, has been filed, shall be ruled to reject the prosecution: ...... (II) beyond the statutory prosecution time limit and no administrative procedure law article 48 of the circumstances......" In the case of (2017) Supreme Law Application No. 5410, the Supreme Court held that the time limit for prosecution in the administrative procedure law is different from the time limit for litigation in the civil law. The time limit for prosecution in the Administrative Procedure Law is one of the statutory conditions for prosecution. If the prosecution period is exceeded, the procedural right to enter the entity will be lost. Since administrative cases are public law litigation, involving public interests and the stability of social management order, the people's court should review whether the prosecution meets the statutory conditions, including whether the statutory prosecution time limit is exceeded. It is not that the parties do not advocate that the people's court will not review the matter. 2. time limit for prosecution of different administrative acts (I) time limit for prosecution of specific administrative acts Article 46 of the "Administrative Litigation Law" stipulates: "If a citizen, legal person or other organization directly files a lawsuit in a people's court, it shall file it within six months from the date when he knows or should know that an administrative act has been made. Except as otherwise provided by law. If a case filed for real estate has been filed for more than 20 years from the date of the administrative act, and other cases have been filed for more than five years from the date of the administrative act, the people's court will not accept it." Article 65 of the applicable interpretation stipulates: "if a citizen, legal person or other organization does not know the contents of an administrative act made by an administrative organ, the time limit for prosecution shall be calculated from the date when he knows or should have known the contents of the administrative act, but the maximum time limit for prosecution shall not exceed the time limit stipulated in the second paragraph of Article 46 of the administrative procedure law." The first paragraph of Article 64 of the applicable interpretation stipulates: "if an administrative organ fails to inform a citizen, legal person or other organization of the time limit for prosecution when making an administrative act, the time limit for prosecution shall be calculated from the date when the citizen, legal person or other organization knows or should know the time limit for prosecution, but the maximum period from the date when the content of the administrative act is known or should be known shall not exceed one year." 1. The starting point of the time limit for the prosecution of administrative proceedings. According to the provisions of the law, when the administrative organ informs the time limit for prosecution, the starting point is when the citizen, legal person or other organization knows or should know the content of the administrative act; if it is not informed, it shall start from the date when the time limit for prosecution is known or should be known. It should be noted that the time limit for prosecution of administrative cases starts from the date on which the content of the administrative act is known or should be known, rather than from the date on which the illegal administrative act is known or should be known [see (2016) Supreme Law Application No. 1798]; The people's court cannot take the date on which the accused administrative act is signed as the starting point for the time limit for prosecution, however, the day after the date of service shall be taken as the starting point to calculate whether the prosecution of a citizen, legal person or other organization exceeds the statutory prosecution period [see (2015) case No. 1727 of the Bank of China]; The starting point of the maximum prosecution period shall be calculated from the date of the administrative act. 2. The length of the administrative litigation prosecution period. According to the provisions of the law, when the administrative organ informs the time limit for prosecution, the time limit for prosecution of administrative litigation shall be subject to two time limit conditions at the same time: six months from the date when the citizen, legal person or other organization knows or should know the content of the administrative act, and does not exceed the maximum time limit for prosecution. In the case that the administrative organ does not inform the time limit for prosecution, the time limit for prosecution needs to apply three time limit conditions at the same time: six months from the date when the citizen, legal person or other organization knows or should know the time limit for prosecution, and the maximum time limit for prosecution shall not exceed one year from the date when the citizen, legal person or other organization knows or should know the content of the administrative act. The above prosecution period needs to be met at the same time, otherwise the right to seek judicial relief will be lost. The time limit for the prosecution of the (II) request to confirm the invalidity of the administrative act. Whether the action to confirm the invalidity of an administrative act is limited by the time limit for prosecution, Article 94 of the interpretation of application stipulates: "if a citizen, legal person or other organization sues for the revocation of an administrative act, and the people's court finds that the administrative act is invalid after examination, it shall make a judgment confirming the invalidity. If a citizen, legal person or other organization sues to confirm that the administrative act is invalid, and the people's court considers that the administrative act is not invalid, and after explanation, if the plaintiff requests to revoke the administrative act, it shall continue to hear the case and make a corresponding judgment in accordance with the law; if the plaintiff requests to revoke the administrative act but exceeds the statutory time limit for prosecution, it shall rule to reject the lawsuit; if the plaintiff refuses to change the claim, the judgment." Article 162 stipulates: "If a citizen, legal person or other organization files a lawsuit against an administrative act made before May 1, 2015 and requests confirmation that the administrative act is invalid, the people's court shall not file the case." In the case of (2020) Supreme Law Bank No. 341, the Supreme Court held: "A major and obviously illegal administrative act is an invalid administrative act, which is absolutely invalid from the beginning and does not have legal effect due to the passage of time. The parties may file a request for confirmation of invalidity at any time for administrative acts made after May 1, 2015, and are not limited by the time limit for prosecution. At the same time, in order to avoid the abuse of the parties to confirm the invalid claim to circumvent the prosecution time limit system, the plaintiff party should prove that the accused administrative act is invalid, and the defendant party may also present evidence to deny the other party's claim. The people's court shall examine whether the administrative act is invalid, and if it considers that the administrative act is invalid, it shall not be limited by the time limit for prosecution; if it considers that the administrative act is not invalid, the people's court shall explain it to the plaintiff. It has been explained that if the plaintiff changes the request for revocation of the administrative act, the people's court shall continue to hear and review whether it meets the time limit for the revocation of the lawsuit. If the time limit for the statutory lawsuit is exceeded, it shall rule to reject the lawsuit; if the plaintiff refuses to change the request, the judgment shall reject the lawsuit. request." Therefore, an action to confirm the invalidity of an administrative act is not limited by the time limit for prosecution. (III) time limit for prosecution of administrative omission Article 47 of the administrative procedure law stipulates: "if a citizen, legal person or other organization applies to an administrative organ for the performance of its legal duties to protect its personal rights, property rights and other legitimate rights and interests, and the administrative organ fails to perform it within two months from the date of receiving the application, the citizen, legal person or other organization may bring a lawsuit to the people's court. Where laws and regulations provide otherwise for the time limit for administrative organs to perform their duties, such provisions shall prevail. Citizens, legal persons, or other organizations request administrative agencies to perform their statutory duties to protect their personal rights, property rights and other legitimate rights and interests in emergency situations. If the administrative agency fails to perform, the filing of a lawsuit is not subject to the time limit specified in the preceding paragraph." Article 66 of the applicable interpretation stipulates: "if a citizen, legal person or other organization, in accordance with the provisions of paragraph 1 of Article 47 of the Administrative procedure Law, brings a lawsuit against an administrative organ for failing to perform its statutory duties, it shall file a lawsuit within six months from the date of expiration of the time limit for the administrative organ to perform its statutory duties." According to the provisions of the law, the starting point of the litigation period is the date when the administrative organ performs its statutory duties. Unless otherwise provided by laws and regulations, the performance period is in principle two months from the date of receipt of the application, and the prosecution period is six months from the starting point. However, there is no clear provision in the current law on the time limit for prosecution when administrative organs perform their statutory duties in accordance with their powers. In general, as long as the statutory duties to be performed by the administrative organ ex officio still exist legally and effectively, the administrative organ shall continue to bear the burden as an obligation, which shall not be eliminated by the administrative organ's failure to perform. The statutory duties that the administrative organ should perform ex officio shall not be changed into the statutory duties that should be performed in accordance with the application by the administrative counterpart, that is, the time limit for prosecution stipulated in Article 47 of the Administrative Procedure Law is not applicable in this case [see (2020) Supreme Law No. 332]. Time limit for prosecution of administrative reconsideration decisions by (IV) Article 45 of the Administrative Litigation Law stipulates: "If a citizen, legal person or other organization refuses to accept the reconsideration decision, he may bring a suit in a people's court within 15 days from the date of receipt of the reconsideration decision. If the reconsideration organ fails to make a decision within the time limit, the applicant may bring a suit in a people's court within 15 days from the date of expiration of the reconsideration period, unless otherwise provided for by law." Article 31 of the "the People's Republic of China Administrative Reconsideration Law" stipulates: "The administrative reconsideration agency shall make an administrative reconsideration decision within 60 days from the date of accepting the application; except that the administrative reconsideration period stipulated by law is less than 60 days. If the situation is complicated and the administrative reconsideration decision cannot be made within the prescribed time limit, it may be appropriately extended with the approval of the person in charge of the administrative reconsideration organ, and the applicant and the respondent shall be notified; however, the extension period shall not exceed 30 days at most." If the reconsideration organ informs citizens, legal persons or other organizations of the time limit for filing a lawsuit, if it is not satisfied with the reconsideration decision (including the decision not to accept the case) made by the reconsideration organ, the starting point of the litigation time limit shall be the date of receipt of the reconsideration decision; if it is not satisfied with the reconsideration organ's inaction, the starting point of the litigation time limit shall be the date of expiration of the reconsideration time limit, which is generally 60 days. The time limit for reconsideration shall be 15 days from the starting point. If the administrative body for reconsideration fails to inform the citizen, legal person or other organization of the time limit for filing a lawsuit, the starting point of the time limit for filing a lawsuit shall be the date on which the citizen, legal person or other organization knows or should have known the time limit for filing a lawsuit, and the time limit shall be 15 days, but the maximum period shall not exceed one year from the date on which the content of the reconsideration decision is known or should be known. Article 58 of the "Applicable Interpretation" stipulates: "The laws and regulations do not stipulate that administrative reconsideration is a necessary procedure for filing an administrative lawsuit. After a citizen, legal person, or other organization applies to the reconsideration agency for administrative reconsideration, and the reconsideration agency agrees to withdraw the reconsideration application. If a lawsuit is filed against the original administrative act within the statutory prosecution time limit, the people's court shall file a case in accordance with the law." According to the provisions of the law, if an application for reconsideration is withdrawn, the time limit for the prosecution of the original administrative act shall apply to the prosecution of the original administrative act. (V) time limit for prosecution of administrative agreements Article 27 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases stipulates: "The People's Court shall apply the provisions of the Administrative Procedure Law when trying administrative agreement cases; if there are no provisions in the Administrative Procedure Law, reference shall be made to the provisions of the Civil Procedure Law." Article 25 stipulates: "if a citizen, legal person or other organization brings a lawsuit against an administrative organ for failing to perform in accordance with the law or failing to perform an administrative agreement in accordance with the agreement, the limitation of action shall be determined with reference to the norms of civil law; if a lawsuit is filed against an administrative organ for changing or rescinding an administrative agreement, the time limit for prosecution shall be determined in accordance with the Administrative procedure Law and its judicial interpretation." Therefore, the provisions of Article 46 of the Administrative Procedure Law on the fixed duration of litigation can be applied to the period of litigation of administrative agreements, as well as the provisions of the Civil Code on the termination and interruption of the statute of limitations. In the case of (2021) Liao 10 Xing Zhong No. 60, the court of first instance held that according to the provisions of Article 25 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases, if a citizen, legal person or other organization fails to bring a lawsuit against an administrative organ in accordance with the law or fails to perform an administrative agreement in accordance with the agreement, the limitation of action shall be determined with reference to civil legal norms. This case is a case in which the plaintiff sued the administrative organ for failing to perform the administrative agreement as agreed. According to the provisions of this article, the provisions of the civil procedure law on the interruption of the limitation of action shall be applied. The plaintiff in this case has been claiming rights until the prosecution, so the limitation of action is interrupted, and the defendant's opinion that the case exceeds the limitation of action is not supported. Although the court of second instance revoked the ruling of the court of first instance, the reason was that there was evidence to prove that the people's Government of Anping Township had fulfilled the resettlement agreement signed by both parties, and the appellee's first instance application to change the housing resettlement to monetary compensation had no factual basis, rather than exceeding the litigation period. Therefore, this case can still provide reference for the duration of litigation in administrative agreement cases. (VI) time limit for prosecution of administrative compensation According to Article 14 of the State Compensation Law of the People's Republic of China, if the organ under compensatory obligations fails to make a decision on whether to compensate within the prescribed time limit, the claimant may bring a lawsuit to the people's court within three months from the date of expiration of the time limit. If the claimant for compensation has any objection to the method, item or amount of compensation, or if the organ under compensatory obligations makes a decision not to compensate, the claimant may, within three months from the date on which the organ under compensatory obligations makes the decision to compensate or not to compensate, bring a suit in a people's court. The Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Compensation Cases, which came into effect on May 1, 2022, make clearer provisions on the time limit for administrative compensation litigation. According to this provision, citizens, legal persons or other organizations shall, within two years from the date when they know or should know that an administrative act infringes upon their legitimate rights and interests, apply to the organ under compensatory obligations for administrative compensation. If the organ under compensatory obligations fails to make a decision on compensation within two months from the date of receipt of the application for compensation, a citizen, legal person or other organization may bring an administrative compensation lawsuit in accordance with the relevant provisions of the Administrative procedure Law. Where a citizen, legal person or other organization files an administrative lawsuit and requests administrative compensation at the same time, the provisions of the Administrative Procedure Law on the time limit for prosecution shall apply. If a citizen, legal person or other organization only disagrees with the administrative compensation part of the administrative reconsideration decision and files an administrative compensation lawsuit within 15 days from the date of service of the reconsideration decision, the people's court shall accept it according to law. When an administrative organ makes an administrative reconsideration decision with compensation content, if it fails to inform citizens, legal persons or other organizations of the time limit for filing a lawsuit, the time limit for filing a lawsuit shall be calculated from the date when the citizens, legal persons or other organizations know or should know the time limit for filing a lawsuit, but it shall not exceed one year from the date when the citizens, legal persons or other organizations know or should know the content of the administrative reconsideration decision. 3. epilogue </中华人民共和国行政诉讼法>

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