(I) of Vision of Administrative Litigation | Scope of Administrative Litigation

The scope of accepting cases in administrative litigation refers to the scope of accepting administrative cases by the court, that is, the jurisdiction of the court to accept and try administrative cases. From the point of view of the judicial power of the court, it refers to the judicial review power of the court over which administrative acts of the administrative organ; from the point of view of the administrative organ, it refers to which acts of the administrative organ will be supervised by the people's court; from the point of view of the administrative counterpart, it means that the counterpart can sue the people's court when he is not satisfied with which administrative acts.

Not all administrative disputes can bring administrative litigation to the court. Only when the administrative dispute is within the scope of accepting cases stipulated by law, the administrative relative can bring administrative litigation. The scope of accepting cases is an important issue in administrative litigation and an important symbol that distinguishes administrative litigation from other litigation. The scope of administrative litigation cases accepted by the people's courts determines the scope of supervision by judicial organs over the actions of administrative subjects, the scope of administrative litigation brought by citizens, legal persons and other organizations infringed by administrative subjects, and the scope of the power of final administrative adjudication.

On the whole, China's current legislation uses a combination of generalization, positive and negative enumeration to provide for the scope of administrative litigation.

The first paragraph of Article 1 of the Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's the People's Republic of China of China (Law Interpretation No. 1 [2018], hereinafter referred to as the "Interpretation of the Administrative Litigation Law") stipulates in a general manner the scope of administrative litigation, that is, "Citizens, legal persons or other organizations that are dissatisfied with the administrative actions of administrative agencies and their staff and file lawsuits in accordance with the law shall fall within the scope of the people's courts".

Article 12 of the the People's Republic of China Administrative Procedure Law (amended in 2017, hereinafter referred to as the "Administrative Procedure Law") stipulates the scope of administrative litigation accepted by the people's court in two paragraphs by specifically enumerating and covering the bottom, that is, "the people's court shall accept the following lawsuits brought by citizens, legal persons or other organizations: (1) those who are not satisfied with administrative penalties such as administrative detention, temporary suspension or revocation of permits and licenses, order to suspend production or business, confiscation of illegal gains, confiscation of illegal property, fines, warnings, etc.; (II) those who are not satisfied with administrative compulsory measures such as restriction of personal freedom or the seizure, seizure or freezing of property; (III) the administrative organ refuses or fails to reply within the statutory time limit for the application for administrative license, or refuses to accept other decisions made by the administrative organ on administrative license; (IV) refuses to accept the decision made by the administrative organ on confirming the ownership or right to use of natural resources such as land, mineral deposits, water flows, forests, mountains, grasslands, wastelands, beaches, sea areas, etc.; (V) refuses to accept the decision on expropriation, requisition and compensation; (VI) the administrative organ refuses to perform or fails to reply to the application for the administrative organ to perform its legal duties of protecting personal rights, property rights and other legitimate rights and interests; (VII) believes that the administrative organ infringes on its management autonomy or rural land contractual management right or rural land management right; (VIII) believes that the administrative organ abuses its administrative power to exclude or restrict competition; (IX) believes that the administrative organ illegally raises funds, apportion expenses or illegally requests to perform other obligations; the (X) believes that the administrative agency has not paid pensions, minimum living security benefits, or social insurance benefits in accordance with the law; (11) It believes that the administrative agency has not performed in accordance with the law, failed to perform in accordance with the agreement, or illegally changed, or terminated the government franchise agreement, and the land and house expropriation compensation agreement And other agreements; (12) It is believed that the administrative agency infringes other legal rights and interests such as personal rights and property rights. In addition to the provisions of the preceding paragraph, the people's court shall accept other administrative cases that may be brought by law and regulations."

Article 13 of the Administrative Litigation Law lists in a negative way the matters that are not accepted in administrative litigation, that is, "the people's court shall not accept lawsuits brought by citizens, legal persons or other organizations on the following matters: (1) national defense, foreign affairs and other state acts; (II) administrative regulations, rules or decisions and orders with general binding force formulated and issued by administrative organs; (III) administrative organs' decisions on rewards and punishments, appointment and removal of staff of administrative organs; an administrative act that is finally decided by an administrative organ as prescribed by (IV) law." The second paragraph of Article 1 of the Judicial Interpretation of the Administrative Procedure Law also lists in a negative way the acts that do not fall within the scope of administrative litigation, that is, the following acts do not fall within the scope of administrative litigation of the people's courts: (1) acts carried out by public security, national security and other organs in accordance with the explicit authorization of the Criminal Procedure Law; acts of (II) mediation and arbitration as prescribed by law; (III) acts of administrative guidance; (IV) the repeated handling acts of rejecting the party's complaint against the administrative act; the act of (V) the administrative organ that does not produce external legal effect; the preparation, demonstration, research, layer reporting, consultation and other procedural acts carried out by the (VI) administrative organ for the purpose of making the administrative act; the execution act made by the (VII) administrative organ in accordance with the effective judgment of the people's court and the notice of assistance in execution, however, except for administrative agencies that expand the scope of enforcement or adopt illegal methods; (VIII) higher-level administrative agencies to listen to reports, law enforcement inspections, and supervise the performance of responsibilities to lower-level administrative agencies based on internal hierarchical supervision relationships; (IX) administrative agencies to register for letters and visits, Accepting, handing over, forwarding, review, reviewing opinions, etc; (X) acts that do not actually affect the rights and obligations of citizens, legal persons or other organizations."

According to the above provisions, the actionable administrative acts can be summarized as: specific administrative acts; administrative factual acts; administrative agreements; other administrative cases that can be sued by laws and regulations.

A specific administrative act is an act of administrative law that is unilaterally made by an administrative agency in response to a specific event, has external effects, and contains administrative inaction. Specific administrative acts have the characteristics of unilateral, individual and legal effect.

1. Unitarity. Refers to the fact that the legal effect is based on the unilateral meaning of the administrative organ. The production of legal effect is determined by the administrative organ unilaterally, which is the embodiment of administrative coercive force and reflects the inequality between the two sides of the administration. This is different from the administrative agreement in which the relative person participates in the meaning.

2. Individuality. Refers to the administrative action is made for a specific person, specific events. Generally binding administrative acts that are not directed at specific persons or specific matters are not specific administrative acts, but abstract administrative acts, which are not actionable.

3. legal effect. Refers to the direct external legal effects of the act. Contains the following points: direct, means that the legal effect must occur directly to the relative, once the administrative act is done, it will lead to the creation, change and elimination of the rights and obligations of the relative. Externally, it refers to the legal effect of administrative acts on persons other than the administrative subject, the exchange of views between administrative organs or within administrative organs, internal supervision and guidance and other administrative internal acts are not justiciable due to lack of external nature (see (2017) Administrative Judgment No. 295 of the Supreme Law). In addition, the act produces a legal effect, is legally binding, and aims to generate, change, and eliminate the rights and obligations of the counterpart (including substantive law and procedural law), such as the rejection of the application of the recipient, and only produce The administrative fact that the result is different. Legal validity also includes the characteristics of binding force and compulsion. Administrative acts that do not have legal binding force on the rights and obligations of the relative person do not have legal validity, such as administrative guidance and administrative mediation.

Administrative factual acts can directly produce factual effects. This kind of behavior objectively has no legal effect, subjectively does not produce legal effect. The act itself cannot produce the creation, change and elimination of legal relations in administrative law, nor does its purpose be to produce, change or terminate the rights and obligations of the relative, but only the actual profit and loss in the result. Such as the act of forced demolition, although the result of the demolition caused losses to the relative person, but the purpose of the demolition act is not to create an obligation to the relative person, but in the case of the relative person does not perform the demolition obligation to make a factual act of the pursuit of the result of the fact.

The reason why administrative factual acts are included in the scope of litigation is that the administrative factual acts are only uncertain of the rights and obligations of the parties in terms of content, not that they do not affect the rights and interests of the parties in terms of consequences, and their inclusion in the scope of administrative litigation is conducive to protecting the legitimate rights and interests of administrative counterparts and standardizing the law enforcement behavior of administrative personnel.

Article 12, paragraph 1, item 11 of the Administrative procedure Law brings administrative agreements into the scope of accepting cases in the Administrative procedure Law. Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases (Fa Shi [2019] No. 17) stipulates the definition of an administrative agreement, and Article 4 includes all disputes arising from the conclusion, performance, modification and termination of an administrative agreement into the scope of accepting cases. Whether an agreement is an administrative agreement or a civil agreement, from the perspective of court judgments in practice, there are three main criteria for judging: first, one of the parties to the agreement is an administrative agency; second, the content of the agreement involves rights and obligations in administrative law; Third, the purpose of the agreement is to achieve public interest or administrative management goals.

1. The administrative acts stipulated in the Administrative Procedure Law include administrative acts made by organizations authorized by laws, regulations and rules. Therefore, even if the subject of the act is not an administrative agency, as long as the act is authorized by laws, regulations and rules, the act is regarded as an administrative act and is actionable.

2. Government information disclosure behavior. Article 51 of the regulations on the Disclosure of Government Information of the the People's Republic of China gives citizens, legal persons or other organizations the right to bring administrative proceedings against the disclosure of government information by administrative organs.

3. Administrative reconsideration cases. Article 5 of the "the People's Republic of China Administrative Reconsideration Law" stipulates the right of citizens, legal persons or other organizations to initiate administrative litigation against administrative reconsideration decisions, except where the law stipulates that administrative reconsideration decisions are final.

4. Administrative compensation. Administrative compensation refers to the legal exercise of administrative power by the administrative subject, which damages the legitimate rights and interests of the administrative counterpart, or when the administrative counterpart damages his legitimate rights and interests for the public interest, the state makes up for the loss of the administrative counterpart. The "Reply of the Supreme People's Court on Accepting Housing Demolition, Compensation, Resettlement and Other Cases" once stipulated: "Citizens, legal persons, or other organizations are related to housing demolition, compensation, resettlement and other issues made by the people's government or the urban housing administrative agency in accordance with their powers. If the ruling is not satisfied, the people's court shall accept a lawsuit as an administrative case."

5. Administrative compensation. Article 2 of the "the People's Republic of China State Compensation Law" stipulates: "If a state agency or a staff member of a state agency violates the lawful rights and interests of citizens, legal persons, and other organizations in the illegal exercise of powers and causes damage, the victim has the right to obtain state compensation in accordance with this law." Article 2 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Compensation Cases" stipulates: "If the compensation claimant confirms that the specific administrative act is illegal but decides not to compensate, or has objections to the determined amount of compensation, the people's court shall accept the administrative compensation lawsuit."

6. Administrative public interest litigation. In the course of performing its duties, the people's Procuratorate finds that administrative organs responsible for supervision and management in the fields of ecological environment and resource protection, food and drug safety, state-owned property protection, transfer of state-owned land use rights, and protection of heroic memorial facilities have illegally exercised their functions and powers or failed to act, resulting in infringement of national interests or social public interests, Procuratorial recommendations shall be made to the administrative organs to urge them to perform their duties in accordance with the law. If the administrative organ still fails to perform its duties in accordance with the law after being urged by the procuratorial organ, and the national interests or social public interests are in a state of infringement, the people's procuratorate shall file an administrative public interest lawsuit in accordance with the law.

Not all administrative acts are actionable. Combined with the provisions of laws and judicial interpretations and court decisions, non-actionable administrative acts have the following characteristics:

If an administrative act is aimed at an unspecified person, it cannot be sued, but attention should be paid to the judgment of the administrative act of a specific and determined group of people with a large number of people. This type of administrative act is an actionable administrative act. For example, in the case of Huang Shaohua v. Huixian municipal government to raise the pension standard, the pension standard for more than 1700 migrant workers belongs to this group of specific personnel, which should be a specific administrative act and can be sued.

Behaviors such as listening to reports, law enforcement inspections, supervision and performance of responsibilities between administrative agencies, internal meeting minutes, rewards and punishments, appointments and dismissals, and mediation and guidance that are not legally binding and coercive do not directly have legal effect to the outside world. It is actionable. However, when the revocation or change of the original administrative act by the higher administrative organ has a substantial impact on the rights and obligations of the parties, this kind of internal supervision is external and can be sued.

For administrative acts that require the approval of a higher authority and are made by a lower authority in the joint name of a higher authority and a lower authority, the approval of the higher authority has been externalized and is justiciable.

Such acts include the repeated handling of complaints filed by the parties to the administrative act, the execution of the administrative organ in accordance with the effective judgment of the people's court, the notice of assistance in execution, etc., except for the administrative organ's expansion of the scope of execution or the act of assistance in execution in an illegal manner. If the people's government identifies the community as a shantytown, it does not have a substantial impact on the rights of the administrative counterpart and cannot be sued. The act of the government changing the property right of the relative person's house according to the court's notice of assistance is not actionable. However, at the request of other departments, the administrative organ exercises its administrative functions and powers in accordance with its own will, and makes specific administrative acts independently on specific matters, which have a substantial impact on the rights of the administrative counterpart and are actionable. At this time, the requirements of other departments are only the cause of initiating specific administrative acts and are not actionable.

For example, non-performance of procedural obligations such as the service of notice, non-litigation. However, if a procedural administrative act does have an impact on the legitimate rights and interests of the relative, and because the final substantive decision cannot be made, the procedural act cannot be incorporated into the substantive decision to bring a lawsuit, in order to protect the legitimate rights and interests of the relative, the procedural act is actionable. For example, in the guidance case (2013) issued by the Supreme People's Court, Leshan City People's Social Security Bureau issued a notice of suspension of the time limit for work-related injury determination on the grounds that the traffic control department had not yet issued a traffic accident confirmation letter for the accident in this case. The act of notification prevents the administrative counterpart from providing relief against the entity's administrative act, and the procedural act is actionable.

In judicial practice, non-actionable administrative acts also include the following categories:

1. Administrative acts that are pre-reconsideration without applying for reconsideration and the final decision of the administrative organ shall not be sued.

Pre-reconsideration cases need to be handled by the administrative reconsideration organ first, and only those who are not satisfied with the handling decision can bring a lawsuit. However, a final administrative act that is finally decided by an administrative organ in accordance with the law may not be prosecuted again. For example, Article 14 of the Administrative Reconsideration Law stipulates that the ruling made by the State Council shall be final and shall not be sued; the second paragraph of Article 30 of the Administrative Reconsideration Law stipulates that the State Council or the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall make decisions on the assignment, adjustment or expropriation of land for administrative divisions, the administrative reconsideration decision of the people's government of a province, autonomous region or municipality directly under the Central Government to confirm the ownership or use right of natural resources such as land, mineral deposits, water flows, forests, mountains, grasslands, unreclaimed land, tidal flats and sea areas shall be final and shall not be subject to litigation.

2. Cases relating to letters and visits are not actionable.

The system of letters and visits and the system of administrative reconsideration and administrative litigation are independent of each other. If the people's court reviews petition cases, it involves the evaluation of the legality of the petition review opinions, the judgment of the content of the petition review opinions, and the substantive review of whether the lower administrative organs have fulfilled the petition review opinions. This is actually a re-introduction of petition matters into judicial proceedings, which may eventually form a vicious circle of petition and litigation. Article 2 of the reply of the Supreme people's Court on whether the people's Court will accept administrative litigation brought against the handling opinions made by the administrative departments for letters and visits of the people's governments at or above the county level, the administrative organs responsible for accepting letters and visits, and the people's governments of towns (townships) or the decision not to accept them [(2005) xinglihe zi No. 4], the people's court shall not accept the handling opinions, review opinions, review opinions and no longer accept the decision made by the administrative organ that has the right to deal with the petition matters in accordance with the regulations on letters and visits, and if the petitioner refuses to accept the administrative lawsuit, the people's court shall not accept it.

3. Issues left over from history, not applicable to administrative litigation

For example, real estate disputes left over from history, such as socialist transformation, do not fall within the scope of the work of the people's court, and the people's court shall not accept or reject the lawsuit filed by the parties in accordance with the law.

4. The fact that whether the administrative subject implements the specific administrative act is not clear and cannot be sued.

For example, the Hengyun gangue factory in Yingshang County cannot prove that the people's Government of Yingshang County carried out the compulsory demolition, nor can it prove that the compulsory demolition involved in the case was carried out after others were entrusted by the Yingshang County government. If the conditions for statutory prosecution are not met, the prosecution shall be dismissed.

5. Administrative proceedings are generally not applicable to the treatment of acts taken by administrative organs, which have a large margin of discretion and more policy factors, because they lack statutory standards that can be directly applied or referred.

For example, in the case of Huang Shaohua v. Huixian Municipal Government to raise the pension standard, the standard of the water conservancy disability pension involved in the case should be determined by the Huixian Municipal Government based on the actual situation, and the people's court should not directly determine the pension standard through judgment.

6. If there is no clear defendant in administrative litigation, it cannot be sued.

The "clear defendant" here not only requires the plaintiff to have an accurate expression of the defendant's name when suing, but also has preliminary evidence to prove that the administrative act being sued was done by the administrative organ. However, "clarity" does not require "correctness". If the administrative act complained by the plaintiff is obviously not made by the administrative organ, and the defendant is not qualified, the people's court shall explain to the plaintiff and require him to replace the correct defendant. If the plaintiff does not agree to the change, it will rule to dismiss the lawsuit.

In a general sense, only acts with external effects made by administrative organs in response to specific events and in accordance with the provisions of the law are actionable. But more often, it is necessary to analyze according to the specific situation, combined with the judicial documents of the Supreme Court and typical cases, to judge whether the behavior of the administrative organ is an actionable administrative act.