"Administrative Litigation Vision" (II) | Administrative Litigation Jurisdiction

Administrative litigation jurisdiction refers to the division of authority between different levels and local people's courts to accept administrative cases of first instance. It is an important litigation legal system involving basic issues such as the organizational system of administrative trials and the protection of citizens' litigation rights. It is the division of jurisdiction between courts. The jurisdiction of administrative litigation is to solve the problem of which level and which court to sue when citizens, legal persons or other organizations believe that administrative acts belonging to the scope of court cases infringe upon their legitimate rights and interests.

Jurisdiction is the division of powers of the people's courts to accept administrative cases of first instance. With the exception of railway transport courts, other special people's courts and people's tribunals do not hear administrative cases, nor do they examine and enforce cases in which administrative organs apply for the enforcement of their administrative acts. Jurisdiction is the division of authority between the higher and lower courts and the courts at the same level to accept administrative cases. In other words, the jurisdiction should solve the problem of division of competence between different trial levels and different regional courts at the same level. The division of jurisdiction does not include the division of second instance and retrial cases. We implement a four-level two-instance system. The second instance is the continuation of the first instance. The jurisdiction of the first instance case is determined, and the jurisdiction of the second instance case is determined accordingly.

Chapter III of the Administrative Procedure Law has 11 provisions on the content of administrative litigation jurisdiction in China. For the people's court, it specifically clarifies the jurisdiction of administrative cases between the courts, that is, it stipulates which case should be accepted and tried by which court, and how the trial of administrative cases between different courts should be divided. For citizens, legal persons and other organizations, it solves the problem of which court to sue. In judicial practice, because the determination of jurisdiction is correct or not, it is often closely related to the fair trial of the case and the smooth implementation of the judgment results. It is even believed that "choosing the jurisdiction court is equivalent to winning half of the lawsuit". In procedural law, acts that violate the jurisdiction system in legal provisions are regarded as serious violations of procedural law.

(I) facilitate litigation. The jurisdiction of administrative litigation should be determined to facilitate the plaintiff, the defendant and other parties to carry out litigation, to facilitate their participation in litigation activities.

(II) facilitate the correct, fair and effective exercise of judicial power by the people's courts. Facilitating the correct exercise of judicial power by the court includes the correct verification, determination of the facts of the case, and the correct application of legal norms. According to the provisions of the Administrative Procedure Law, the basic people's courts have jurisdiction over administrative cases of first instance. This provision includes factors that are local and nearby and facilitate the verification of facts. However, special customs administrative cases are highly professional and technical, and the jurisdiction of intermediate courts with better overall quality, level and conditions is conducive to the correct exercise of judicial power.

(III) people's courts have an appropriate division of labor. When determining the jurisdiction of administrative litigation, we should consider the reasonable division of labor between the people's courts at all levels, so that the burden of a certain level of court should not be too heavy. The trial workload between the courts at the same level should be reasonably divided, and the trial power and trial workload between the upper and lower courts should also be reasonably distributed.

According to Chapter III of the Administrative procedure Law, the jurisdiction of the four-level courts is: the basic people's court has jurisdiction over administrative cases of first instance. The Intermediate People's Courts shall have jurisdiction as courts of first instance over the following administrative cases: cases involving lawsuits against administrative acts undertaken by departments under the State Council or local people's governments at or above the county level; cases handled by the Customs; major and complex cases within their respective jurisdictions; and other cases under the jurisdiction of the Intermediate People's Courts as prescribed by law. The Higher People's Courts shall have jurisdiction over major and complicated administrative cases of first instance within their respective jurisdictions. The Supreme People's Court has jurisdiction over major and complicated administrative cases of first instance throughout the country.

According to the interpretation of the Supreme People's Court on the application of the Administrative Procedure Law (hereinafter referred to as the Judicial Interpretation of the Administrative Procedure Law), major and complex cases within the jurisdiction include joint litigation cases with significant social impact, foreign-related or involving Hong Kong Special Administrative Region, Macao Special Administrative Region, Taiwan Region, and other major and complex cases.

The Implementation Measures of the Supreme People's Court on Improving the Pilot Reform of the Positioning of the Trial-level Functions of the Four-level Courts (Law [2021] No. 242, hereinafter referred to as Notice No. 242) supplements the jurisdiction of the four-level courts. Article 2 stipulates that the following administrative cases of first instance in which the people's government at the county or prefecture level is the defendant shall be under the jurisdiction of the grass-roots people's court: cases of disclosure of government information; cases of failure to perform legal duties; cases in which the administrative reconsideration organ does not accept or procedure rejects the application for reconsideration; and cases of administrative adjudication of disputes over the ownership of natural resources such as land and forests.

The people's courts at all levels perform their respective duties, and the basic people's courts focus on accurately ascertaining the facts and resolving disputes in substance; the intermediate people's courts focus on the effective and final adjudication of the second instance and the precise determination of disputes; the higher people's courts focus on retrial to correct errors in accordance with the law and unify judgment standards; the Supreme People's Court supervises and guides the trial work throughout the country to ensure the correct and unified application of the law.

To raise the level of jurisdiction is to raise the level of jurisdiction over a case. Article 24 of the Administrative Litigation Law stipulates that people's courts at higher levels have the power to hear administrative cases of first instance under the jurisdiction of people's courts at lower levels. If a people's court at a lower level deems it necessary for a people's court at a higher level to try or designate jurisdiction over an administrative case under its jurisdiction as first instance, it may report to the people's court at a higher level for a decision.

Article 4 of Circular No. 242 stipulates that if the basic people's court considers that the first instance civil, criminal and administrative cases under its jurisdiction belong to one of the following circumstances and need to be tried by the intermediate people's court, it may report to the people's court at the next higher level for trial: those involving major national interests and social public interests and should not be tried by the basic people's court; It belongs to a new type within its jurisdiction and the case is difficult and complicated; it has guiding significance for the application of universal law; there are major differences in the application of law in similar cases in which the judgment of the people's court at the next higher level or the basic people's courts within its jurisdiction has taken effect in the past three years, which have not been resolved as of the time of the trial; the first instance of the intermediate people's court is more conducive to a fair trial. If the intermediate people's court considers that the civil, criminal, or administrative cases of first instance that have been accepted by the basic people's court under its jurisdiction belong to one of the above-mentioned circumstances and it is necessary to be tried by this court, it shall decide to upgrade its jurisdiction. Article 5 stipulates that if an intermediate people's court considers that a civil, criminal, or administrative case of first instance under its jurisdiction falls under one of the following circumstances and needs to be tried by a higher people's court, it may report to the people's court at the next higher level for trial: it is of guiding significance for the application of universal law; there are major differences in the application of law in similar cases in which the judgment has taken effect in the past three years between the people's courts at the people's courts at the next higher level or the intermediate people's courts within their jurisdiction, the case has not been resolved by the time of trial; the first instance by a higher people's court is more conducive to a fair trial. If the higher people's court considers that a civil, criminal or administrative case of first instance that has been accepted by the intermediate people's court under its jurisdiction falls under one of the above-mentioned circumstances and it is necessary to be tried by this court, it shall decide to upgrade its jurisdiction.

The above rule that "the higher court can only raise the jurisdiction level of administrative cases but not lower the jurisdiction level" is conducive to avoiding the phenomenon of controlling the final outcome by demoting administrative cases first and then second instance.

With regard to the level jurisdiction of reconsideration cases, Article 134 of the Administrative procedure Law stipulates that in cases where the reconsideration organ is a co-defendant, the administrative organ that made the original administrative act shall determine the level jurisdiction of the case. Administrative reconsideration cases are different from the principle of "high not low" in determining the level of jurisdiction by the co-defendants, that is, the higher court corresponding to the two defendants is selected as the jurisdiction court, but the administrative organ that made the original administrative act clearly determines the level court.

In general, administrative litigation is under the jurisdiction of the basic court where the defendant is located, but when there are multiple defendants and the level of the defendant is different, there is a competition of jurisdiction. In this case, the principle of "higher than lower" is adopted to determine the level of jurisdiction by the highest-ranking administrative organ among the co-defendants.

However, when the "department of the State Council or the local people's government at or above the county level" with a higher level of the co-defendant is considered to be not a qualified defendant after examination after filing the case, the administrative organ with a lower level in the same case is no longer under the jurisdiction of the high-level people's court. However, after the case has been heard in court and a certain review of the administrative actions made by the lower-level administrative organs, it is found that the higher-level administrative organs are not qualified defendants. In order to save judicial resources, the people's court can follow the Administrative Procedure Law. Article 24 stipulates that "the people's court at a higher level has the right to hear administrative cases of first instance under the jurisdiction of the people's court at a lower level". Continue to hear the case. If the court in charge of the case considers that there is a suspicion of taking the opportunity to raise the level of jurisdiction or has justifiable reasons to believe that it is not appropriate to continue the trial of the case, it may not help itself to try the case, and after ruling to reject the prosecution against a higher-level administrative organ, transfer the case to the people's court at a lower level with jurisdiction.

The geographical jurisdiction of administrative litigation refers to the division of labor between the people's courts at the same level and in accordance with their respective jurisdictions for the trial of administrative cases of first instance. Geographical jurisdiction is based on the determination of the level of jurisdiction, from the horizontal to determine which court to accept administrative cases.

The basic principle of general territorial jurisdiction is that the plaintiff is the defendant, that is, the administrative case is under the jurisdiction of the people's court where the administrative organ that originally made the administrative act is located. General territorial jurisdiction is the basic method to determine the territorial jurisdiction of administrative litigation, and if there is no special provision, the court where the defendant is located is the competent court.

General territorial jurisdiction is the basic principle for determining the jurisdiction of the court, but special territorial jurisdiction takes precedence over general territory. If the law expressly provides that administrative cases are subject to the jurisdiction of a particular court, the principle that the plaintiff is the defendant cannot be applied. Unlike civil litigation cases, special people's courts do not hear administrative cases unless approved by the Supreme Court. Therefore, the exclusive jurisdiction of specialized courts cannot be applied to administrative litigation cases.

The special territorial jurisdiction of administrative cases is mainly real estate cases. Article 20 of the "Administrative Litigation Law" stipulates that administrative litigation initiated by real estate shall be under the jurisdiction of the people's court where the real estate is located. Article 9 of the judicial interpretation of the administrative procedure law makes it clear that "administrative litigation due to real estate" refers to the litigation brought by the change of real property rights caused by administrative acts. If the real estate has been registered, the location recorded in the real estate register shall be the location of the real estate; if the real estate has not been registered, the actual location of the real estate shall be the location of the real estate. Therefore, not all cases related to real estate are under the jurisdiction of the court where the real estate is located. Only cases where the real estate right is established, changed, transferred, and eliminated directly due to the change of the real estate right, that is, the administrative action directly leads to the establishment, change, transfer, and elimination of the real estate right. (For reference cases, see (2017) Supreme Law Application No. 8347)

Joint jurisdiction means that two or more courts have jurisdiction over the same administrative case. In this case, the plaintiff has a certain choice of competent court.

With regard to administrative cases under joint jurisdiction, the Administrative Procedure Law and its judicial interpretations mainly provide for two situations of joint jurisdiction. The first is a lawsuit filed against administrative coercive measures that restrict personal freedom. Both the defendant's location and the plaintiff's location have jurisdiction (Article 19 of the Administrative Procedure Law). And as long as the administrative organ has taken administrative compulsory measures to restrict personal freedom and is based on the same fact, even if other administrative compulsory measures or administrative penalties are taken, the principle of joint jurisdiction of the place where the defendant is located plus the place where the plaintiff is located still applies (Article 8, paragraph 2, of the Judicial Interpretation of the Administrative Procedure Law). Second, in cases after reconsideration, the courts of the place where the administrative organ that initially made the administrative act and the place where the reconsideration organ is located have jurisdiction (Article 18, paragraph 1, of the Administrative procedure Law).

For cases under joint jurisdiction, the plaintiff may choose any court with jurisdiction to file a lawsuit. If the plaintiff files a lawsuit in each court with jurisdiction, the court that first filed the case shall have jurisdiction (Article 21 of the Administrative Procedure Law).

Cross-administrative jurisdiction is a breakthrough and innovation in the general territorial jurisdiction of the plaintiff on the defendant. In cross-administrative jurisdiction, the court where the defendant is located is not the only court with jurisdiction, and the plaintiff may choose any other court that meets the requirements across regions as the jurisdiction court. The determination of cross-regional jurisdiction of administrative cases requires the approval of the Supreme People's Court, and the Higher People's Court determines the court's cross-regional jurisdiction over administrative cases based on the actual situation of the trial work (Article 18, paragraph 2, of the Administrative Procedure Law). Cross-administrative jurisdiction is conducive to reducing the local government's interference in the independent judicial power of the judiciary, and is conducive to maintaining the independence and impartiality of the judiciary.

Taking the cross-administrative jurisdiction of Jinan City as an example, after the approval of the Supreme People's Court, the Higher People's Court of Shandong Province issued Lu Gao Fa Ming Chuan [2019] No. 290 "On Forwarding<最高人民法院关于同意山东省高级人民法院开展行政案件集中管辖改革的批复>Notice, determined that the Jinan two-level people's court from October 1, 2019 to carry out cross-administrative jurisdiction administrative case reform pilot work. The jurisdiction area of the basic people's court is divided into three jurisdiction areas: east, middle and west, and each district (city/county) is divided into three jurisdiction areas. For administrative litigation cases of first instance under the jurisdiction of the basic people's court, the plaintiff can bring a lawsuit to the basic people's court where the administrative organ that initially made the administrative act is located, or to other basic people's courts in the same area.

Similar to the contract or other property rights and interests disputes in civil disputes, the parties may also agree in writing to choose the place where the defendant is located, the plaintiff is located, the place where the agreement is performed, the place where the agreement is concluded, the place where the subject matter is located, and the place where the dispute is actually connected, except for violations of hierarchical jurisdiction and exclusive jurisdiction (Article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases).

Transfer to jurisdiction is a corrective measure taken to the wrong jurisdiction, which means that the people's court transfers a case that does not belong to its jurisdiction to the people's court with jurisdiction. The transfer of jurisdiction mainly includes the error of territorial jurisdiction between the courts at the same level, and also includes the error of level jurisdiction between the higher and lower courts.

If the people's court finds that the case it accepts is not under its jurisdiction, it shall transfer it to the people's court with jurisdiction, and the people's court to which it is transferred shall accept it (Article 22 of the Administrative procedure Law). It should be noted that the transfer of jurisdiction presupposes that the court has accepted the case. If it is found that the case is not under the jurisdiction of the court at the stage of filing the case, it can be ruled not to file the case, and there is no application of transfer jurisdiction. (See Case (2018) Supreme Law Application No. 1119)

Designated jurisdiction means that a higher court refers a case to a lower court by way of a ruling. The purpose is to prevent and resolve disputes arising from unclear jurisdiction.

The designated jurisdiction of administrative litigation mainly exists in the following situations:

First, in the process of transferring jurisdiction, if the people's court to which the case is transferred considers that the case does not belong to the jurisdiction of the court in accordance with the provisions, it shall report to the people's court at a higher level to designate jurisdiction, and shall not transfer it on its own (Article 22 of the Administrative procedure Law).

Second, if a people's court with jurisdiction is unable to exercise jurisdiction for special reasons, the people's court at a higher level shall designate jurisdiction. In the event of a dispute over the jurisdiction of a people's court, the dispute shall be settled by the parties to the dispute through consultation. If the consultation fails, it shall be reported to their common superior people's court for designation of jurisdiction (Article 23 of the Administrative Procedure Law).

After the people's court accepts an administrative case, if the defendant believes that the court receiving the case has no jurisdiction, he may raise an objection to the jurisdiction within the statutory time limit. After examining its objection to jurisdiction, the court held that the court did not have jurisdiction and should transfer the case to a court with jurisdiction; if it held that the objection was not established, it would rule to reject it (paragraphs 1 and 2 of Article 10 of the Judicial Interpretation of the Administrative Procedure Law). Unlike civil litigation cases, the "Administrative Procedure Law" and related laws and regulations do not give the defendant in an administrative case the right to appeal the ruling that rejects the objection to jurisdiction.

In addition, the objection to jurisdiction can only be raised in the first instance, and the court will not review the objection to jurisdiction raised in the retrial, retrial in accordance with the first instance procedure and the second instance procedure (Article 11 of the judicial interpretation of the administrative procedure law).

The jurisdiction of administrative litigation is another important issue in administrative litigation. In determining the jurisdiction of courts at all levels and courts in different regions of the same level, we should base ourselves on resolving contradictions at the grass-roots level, while ensuring the independence of judicial power and fair trial, and constantly improve the jurisdiction of level jurisdiction and regional jurisdiction.