(IV) of the Vision of Administrative Litigation | The Suitable Defendant of Administrative Litigation

The issue of the defendant's qualification is covered by the participants in the proceedings and is the basis for the court to accept administrative litigation cases. The defendant in administrative litigation includes not only the administrative organ that made the administrative act, but also the reconsideration organ and the organization entrusted with the implementation of the administrative act. It determines the circumstances under which an administrative organ or an entrusted organization can be a competent defendant in administrative proceedings, and which administrative organ or entrusted organization should be the defendant under different circumstances.

The defendant's eligibility has two levels of meaning. The first level of meaning is formal fitness. The second paragraph of Article 49 of the "Administrative Litigation Law" stipulates that "there is a clear defendant". The so-called "there is a clear defendant" means that the indictment points to a specific and specific administrative agency being sued. However, "clear" does not mean "correct". Therefore, the second meaning of the defendant's suitability is substantive suitability, that is, "citizens, legal persons or other organizations directly report to the people's court" as stipulated in the first paragraph of Article 26 of the Administrative Procedure Law. If a lawsuit is filed, the administrative agency that made the administrative act is the defendant ". According to the third paragraph of Article 49 of the Administrative Litigation Law, the filing of a lawsuit should "have a specific claim and factual basis". The "factual basis" here includes the relevant factual basis for the defendant to "make an administrative act", which specifically means that the accused administrative organ has made the accused administrative act.

According to the current Administrative Procedure Law, the subjects that can be used as defendants include:

According to the first paragraph of Article 26 of the administrative procedure law, if a citizen, legal person or other organization directly brings a lawsuit to the people's court, the administrative organ that made the administrative act shall be the defendant. The "administrative organs" here include governments at all levels below the provincial level and administrative departments at all levels that exercise administrative functions in accordance with the law.

According to the provisions of the second and third paragraphs of Article 26 of the Administrative Procedure Law, it can be divided into the following situations:

The first situation is: after reconsideration of the case, the reconsideration organ decided to maintain the original administrative act, the administrative organ that made the original administrative act and the reconsideration organ are co-defendants;

The second situation is: after reconsideration, the reconsideration organ changes the original administrative act, the reconsideration organ is the defendant;

The third situation is: the reconsideration organ has not made a reconsideration decision within the statutory time limit, and if a citizen, legal person or other organization sues the original administrative act, the administrative organ that made the original administrative act is the defendant;

The fourth situation is: if the reconsideration organ fails to make a reconsideration decision within the statutory time limit, and a citizen, legal person or other organization sues the reconsideration organ for inaction, the reconsideration organ is the defendant.

The administrative reconsideration organ can be simply understood as the superior organ of the administrative organ that makes the administrative act. The specific scope needs to be defined according to the Administrative Reconsideration Law and the Administrative Reconsideration Law Implementation Regulations.

According to the provisions of the first paragraph of Article 2 of the Administrative Litigation Law, citizens, legal persons or other organizations that believe that the administrative acts of administrative organs and their staff infringe upon their legitimate rights and interests shall have the right to bring administrative proceedings to the people's courts in accordance with this Law. At the same time, the second paragraph of this article stipulates that the administrative acts referred to in the preceding paragraph include administrative acts made by organizations authorized by laws, regulations, and rules.

It can be seen that under certain conditions, organizations authorized by laws, regulations, and rules can also become defendants under the Administrative Procedure Law. Combined with the Supreme People's Court on the application of<中华人民共和国行政诉讼法>(hereinafter referred to as the "Applicable Interpretation"), these "organizations" include:

1. Village Committee and Neighborhood Committee

According to the provisions of the first paragraph of Article 24 of the "Applicable Interpretation", if a party refuses to accept the villagers' committee or residents' committee's performance of administrative duties in accordance with the authorization of laws, regulations, and rules, the villagers' committee or residents' committee shall be the defendant.

In other words, the village committee or neighborhood committee can perform administrative duties when authorized by laws, regulations, and rules. In this case, it can also become a suitable defendant in administrative litigation.

2. Institutions and industry associations

Generally speaking, institutions have no administrative functions. However, under the premise of the authorization of laws, regulations and rules, it should be treated according to the situation.

According to the provisions of the third paragraph of Article 24 of the applicable interpretation, if a party refuses to accept the administrative acts carried out by institutions of higher learning and other institutions, as well as bar associations, associations of certified public accountants and other trade associations in accordance with the authorization of laws, regulations and rules, the public institution or trade association shall be the defendant.

According to the provisions of Article 20 of the applicable interpretation, if an internal agency, dispatched agency or other organization of an administrative organ authorized by laws, regulations or rules to exercise administrative functions and powers performs an administrative act beyond the scope of legal authorization, if the party concerned refuses to accept the lawsuit, the institution or organization that performs the act shall be the defendant.

Therefore, the internal agencies and dispatched agencies of administrative agencies authorized by laws, regulations, and rules to exercise administrative powers can also become eligible defendants.

According to the provisions of Article 21 of the applicable interpretation, if a party refuses to accept the administrative act made by the administrative agency of the development zone approved by the State Council or the provincial people's government, the administrative agency of the development zone shall be the defendant; if the administrative act made by the functional department of the administrative agency of the development zone approved by the State Council or the provincial people's government shall be the defendant, The functional department shall be the defendant.

It can be seen that for the development zone management agencies and their functional departments approved by the government at or above the provincial level, they can become eligible defendants when performing administrative functions.

Article 4 of the "Regulations on Expropriation and Compensation of Houses on State-owned Land" stipulates that the people's governments at the city and county levels are responsible for the expropriation and compensation of houses in their respective administrative regions, and the housing expropriation departments shall organize and implement them.

According to the provisions of Article 25 of the interpretation of application, if the housing expropriation department determined by the people's government at the city or county level makes an administrative act in the process of organizing and implementing housing expropriation and compensation, and the expropriated person refuses to accept and file a lawsuit, the housing expropriation department shall be the defendant. At the same time, if the expropriation implementation unit is entrusted by the housing expropriation department and engages in acts within the scope of the entrustment, and the expropriated person refuses to accept the lawsuit, the housing expropriation department shall also be the defendant.

This makes it clear that the housing expropriation department is the main body that organizes the implementation of housing expropriation and compensation on state-owned land. If you are not satisfied with the administrative act made by the department or the expropriation implementation unit entrusted by it, the housing expropriation department shall be regarded as the defendant.

Paragraph 6 of Article 26 of the "Administrative Litigation Law" stipulates that if an administrative agency is revoked or its powers are changed, the administrative agency that continues to exercise its powers is the defendant. With regard to the situation where there is no successor organ, Article 23 of the applicable interpretation stipulates: "if an administrative organ is abolished or its functions and powers are changed, and there is no administrative organ that continues to exercise its functions and powers, the people's government to which it belongs shall be the defendant; if the administrative organ at the next higher level under vertical leadership is the defendant."

Article 25 of the "Applicable Interpretation" stipulates that if the housing expropriation department determined by the municipal or county-level people's government organizes and implements the work of housing expropriation and compensation, and the expropriated person refuses to accept the lawsuit, the housing expropriation department shall be the defendant. If the expropriation implementation unit is entrusted by the housing expropriation department and engages in an act within the scope of the entrustment, and the expropriated person refuses to accept the lawsuit, the housing expropriation department shall be the defendant.

In the case of compulsory demolition of houses, the plaintiff shall bear the preliminary burden of proof to the competent defendant, that is, it is necessary to prove that the specific administrative organ has made a decision on expropriation or made a decision on the confirmation of illegal construction and other previous administrative acts. In reality, if the plaintiff cannot provide evidence to prove the specific organization of the compulsory demolition authority due to objective reasons, in order to ensure the plaintiff's right of action, it is presumed in principle that the administrative authority that made the expropriation decision or the illegal building confirmation decision is the compulsory demolition authority unless the decision authority has evidence to prove that the compulsory demolition was indeed committed by other relevant departments or organizations [see (2015) Xing Jian Zi No. 70 case].

When the owner of the house can neither provide evidence to the administrative organ that made the decision of expropriation or forced demolition, nor can he determine the subject of compulsory demolition and no administrative organ takes the initiative to bear the responsibility, the party concerned shall file a lawsuit with the people's government at the city, county and township level as the defendant, and the people's court shall file a case [see (2017) Supreme Law Bank No. 102 case].

The third paragraph of Article 26 of the administrative procedure law stipulates that "if the reconsideration organ fails to make a reconsideration decision within the statutory time limit, and if a citizen, legal person or other organization sues the original administrative act, the administrative organ that made the original administrative act shall be the defendant; if the reconsideration organ fails to act, the reconsideration organ shall be the defendant." The term "inaction of the reconsideration organ" here should be understood to include both the failure to make a reconsideration decision within the time limit after acceptance and the inadmissibility of an application for reconsideration. Moreover, inadmissibility includes not only the positive inaction of a written decision not to accept it, but also the negative inaction of whether to accept it or not as punishment [see (2018) Supreme Law Xing Shen No. 9429].

The Provisions of the Supreme People's Court on Correctly Determining the Qualification of Defendants in Administrative Litigation of Local People's Governments at or above the County Level (hereinafter referred to as the "Provisions"), which came into effect on April 1, 2021, explains the qualification of defendants in administrative litigation of local people's governments at or above the county level.

1. If laws, regulations and rules stipulate the administrative functions and powers of the functional departments of the local people's governments at or above the county level, and the local people's governments at or above the county level give guidance to their functional departments, and citizens, legal persons or other organizations file a lawsuit against the guidance, the functional department that specifically implements the administrative act shall be the defendant.

2. In accordance with the provisions of the Urban and Rural Planning Law, the local people's government at or above the county level instructs the relevant functional departments to implement compulsory demolition of illegal buildings, compulsory demolition of houses in collective land expropriation, and house expropriation and compensation decisions on state-owned land, citizens, legal persons or other organizations If you refuse to accept the act of compulsory demolition, the administrative agency that made the compulsory demolition decision is the defendant; if there is no compulsory demolition decision, the functional department that specifically implements the compulsory demolition is the defendant.

3. Citizens, legal persons or other organizations apply to the local people's government at or above the county level for the performance of statutory duties or payment obligations. Laws, regulations, and rules stipulate that such duties or obligations belong to the administrative powers of the lower-level people's government or corresponding functional departments. The people's government has transferred it to the lower-level people's government or corresponding functional department for processing and informed the applicant.

1. Formal ineligibility.Formal ineligibility is manifested in that the defendant is not specific, unclear or does not meet the provisions of Article 26 of the Administrative Procedure Law and Articles 19 to 25 of the Applicable Interpretation on eligible defendants.

Take the judgment of the Supreme Court as an example for analysis: if the party concerned sues that the administrative organ fails to perform its statutory supervisory duties, the administrative organ that directly exercises the supervisory authority shall be the defendant. In the case of (2016) Supreme Law Bank Shen No. 1747, the court held that in accordance with Article 8 of the Banking Supervision and Administration Law and Article 4 of the Measures for the Administration of the Sales of Wealth Management Products of Commercial Banks, the dispatched offices of the China Banking Regulatory Commission have the wealth management products The statutory duty to supervise and manage sales activities. As an independent business legal person, the local banking regulatory bureau has the legal responsibility of supervision according to the authorization of the law, and can bear the legal responsibility independently. If the party concerned mistakenly lists the CBRC as the defendant and still refuses to change to the local banking regulatory bureau after explanation, the people's court may rule not to file the case or reject the prosecution. The case was decided on the basis of Article 20, paragraph 2, of the Applicable Interpretation.

2. Substantial ineligibility.Substantive ineligibility means that the prosecutor or plaintiff has no evidence to prove that the administrative act being sued was made by the administrative organ being sued.

In the case of (2016) Supreme Law Application No. 2907, the Supreme Court held that the retrial applicant filed a lawsuit with Qingyun County Government as the defendant, demanding confirmation that Qingyun County Government's administrative coercive act was illegal and requesting administrative compensation. As "there is a clear defendant", the plaintiff also provided preliminary factual evidence. The original court found that the retrial applicant's lawsuit met the legal conditions and accepted it, which not only better protected the plaintiff's right of action, it also provides an opportunity to further establish the facts of the case through verbal hearings. After the trial, the original court held that the evidence and witness testimony provided by the retrial applicant were not sufficient to prove that the Qingyun County Government was substantively qualified, nor was it sufficient to prove that the accused administrative coercive act was carried out by the Qingyun County Government. The court of first instance ruled that the rejection of his claim was in accordance with the law.

1. Consequences of inappropriate form and substance.Formal eligibility falls within the scope of the statutory conditions for prosecution, and if the conditions are not met, a ruling shall be made not to file the case or to dismiss the prosecution after filing the case. According to the provisions of the first paragraph of Article 26 of the interpretation of application, if the defendant sued by the plaintiff is not qualified, the people's court shall inform the plaintiff to change the defendant; if the plaintiff does not agree to the change, it shall rule to reject the lawsuit. According to the above-mentioned provisions, on the one hand, the people's court has the obligation to find out ex officio whether the defendant specified in the complaint is a qualified defendant; on the other hand, even if it is not qualified, the people's court should also explain it, instead of directly ruling to dismiss the prosecution on the grounds that the defendant is not qualified. The issue of substantive eligibility is relatively complex and usually needs to be ascertained through a substantive trial, and if the review does not constitute substantive eligibility, the plaintiff's claim is rejected. However, it does not rule out the possibility of dismissing the prosecution on the grounds that the prosecution does not meet the statutory conditions before entering the substantive hearing, in cases where it is particularly clear that there is no substantive qualification.

2. The consequences of the defendant's non-addition shall be added.According to the interpretation of the minutes of the meeting of the first Circuit Court of the Supreme people's Court on several issues concerning the Application of Administrative trial Law, the defendant should be added, mainly refers to the situation that several administrative organs jointly make the same accused administrative act, and the plaintiff only sues one or several administrative organs, and fails to bring a lawsuit against all the administrative organs involved in making the accused administrative act. The second paragraph of Article 26 of the "Applicable Interpretation" stipulates that the defendant should be added and the plaintiff does not agree to the addition, the people's court shall notify him to participate in the litigation as a third party, except where the administrative reconsideration agency is a co-defendant. In the case of the administrative reconsideration organ as a co-defendant, according to the first paragraph of Article 134 of the applicable interpretation and the minutes of the above-mentioned meeting, the plaintiff only sued the reconsideration organ or the organ that made the original administrative act, the people's court shall add the party that has not been sued as a co-defendant, and shall not notify the administrative organ to participate in the proceedings as a third party.

In judicial practice, the defendant's suitability in administrative litigation corresponds to the theory of administrative subject, and the people's court often identifies the administrative subject while identifying the defendant's qualification. The idea of judicial review is generally as follows: first of all, it is necessary to examine whether there is a clear authorization of laws, regulations and rules, and then it is necessary to examine whether the accused administrative organ has made administrative acts in its own name. At this stage, it is necessary to investigate the relevant facts of the accused administrative act, and to examine whether it can independently bear legal responsibility, It often depends on inquiring about the relevant establishment and filing materials of the accused administrative organ. The theory of administrative subject is abstract, but the litigation request is concrete. In the practice of administrative litigation cases, we should analyze the litigant's litigation request, and clearly solve the administrative subject of the core dispute through the litigation request, so as to establish the accurate defendant.