Point of View... The determination of the justiciability of internal behavior-taking the minutes of the administrative organ meeting as an example.

Published:

2021-11-09

The acts of administrative organs on internal matters made by organizations and individuals with administrative affiliation, or internal procedures in the process of initiating administrative acts or administrative acts, although aimed at external matters, are not administrative acts and are not within the scope of administrative litigation. The only exception is that the above-mentioned internal acts can directly affect citizens, legal persons or other organizations and have an impact on their rights and obligations without the need for administrative acts under certain specific conditions. At this time, the substantive effect of internal behavior is equivalent to administrative behavior. Starting from the legislative purpose of the "the People's Republic of China Administrative Procedure Law" to protect the legitimate rights and interests of citizens, legal persons or other organizations, it should be included in the scope of administrative litigation. Analysis on the Legal Attribute and Effect of (I) Meeting Minutes As a common official document of government agencies, in administrative cases, whether the minutes of government meetings belong to specific administrative acts, whether administrative proceedings can be brought against them, how effective the minutes of meetings can be in specific administration, and whether they can be cited as normative documents are puzzled by a considerable number of administrative staff. In practice, some administrative organs fail to accurately distinguish the differences and differences between the meeting minutes and other administrative documents, and directly apply the meeting minutes to guide and manage relevant administrative affairs, which brings many troubles to judicial practice and the relief of the rights and interests of administrative counterparts, and also violates the principle of administration according to law. Therefore, it is necessary to clarify the legal nature and scope of the minutes of the meeting, and standardize the procedures and processes applicable to the transformation of the matters recorded in the minutes of the meeting. 1. Meaning and characteristics of meeting minutes Item 15 of Article 8 of China's "Regulations on the Handling of Official Documents of Party and Government Organs" (Zhongban Fa [2012] No. 14) stipulates: "The minutes are applicable to recording the main information and agreed matters of the meeting." The minutes of the government meeting are processed and compiled according to the minutes of the government meeting, the meeting documents and other relevant materials. They are documentary documents reflecting the basic situation and spirit of the meeting. They are mainly used to record and convey the meeting situation and agreed matters. 2. Analysis of the legal nature of government meeting minutes (1) The difference between government meeting minutes and abstract administrative actions Abstract administrative act refers to a universally binding administrative act made unilaterally by an administrative subject against an unspecified administrative counterpart. Abstract administrative acts have four forms: administrative regulations, administrative rules, administrative measures, decisions and orders. The minutes of the meeting are abstract, which means that the minutes of the meeting are abstract and concise expressive records of the matters and contents of the meeting, and are not all records that do not fall word by word. The content of a matter recorded in the minutes of the meeting is not the detailed process and final conclusion to solve the specific problem, but only the principles and methods to deal with a specific problem. In terms of the content of the minutes of the meeting, the matters recorded may be subject to certain constraints on unspecified administrative counterparts, or may be subject to certain constraints on specific administrative counterparts, but the minutes of the meeting are not consistent with the four forms of abstract administrative acts in terms of normative, procedural and statutory aspects. Even if some of the matters recorded involve some of the rights and interests of unspecified administrative counterparts, they do not have the characteristics of abstract administrative acts. The relevant departments need to transform the matters in the minutes of the meeting into administrative acts with legal basis in accordance with the law., Can produce legal effect. (2) The minutes of government meetings are not specific administrative acts Specific administrative act refers to the act of taking specific measures against a specific person or thing in the process of administrative management. The content and result of the act will affect the rights and interests of a certain person or organization. Its most prominent feature is the specificity and concretization of the object of the act, which belongs to an individual or organization, or a specific social matter. From the point of view of the content recorded in the minutes of the meeting and its own characteristics, the minutes of the meeting do not have the characteristics of specific administrative acts. The minutes of the meeting are formed by the meeting and are not specific administrative acts. In the process of forming the minutes of the meeting, some specific administrative matters are often discussed, and guiding and principled solutions and methods are produced, which have an impact on the rights and interests of the administrative counterpart on the surface, but in fact it still needs to be transformed by the relevant administrative organs in order to have external effect. (3) The minutes of government meetings are applicable to the internal affairs of administrative organs. In terms of the process of formation, content and scope of application of the minutes of the meeting, the minutes of the meeting are internal, that is, they are only applicable within the administrative organ. As a kind of official document, the minutes of the meeting are applicable to recording the meeting situation and agreed matters, and their internal nature should be clearly defined, that is, they should only be effective within the government organs and should not be effective directly to the outside. If the relevant matters need to be effective to the outside, they should be transformed into other corresponding types of official documents. The contents and matters recorded in the minutes of government meetings are abstract contents condensed and summarized, and their impact on administrative affairs and the rights and interests of administrative counterparts should only be principled, instructive and abstract, and cannot be used as the basis for specific administrative acts or directly applied to administrative counterparts. Therefore, the minutes of the meeting only have legal effect internally, that is, only have corresponding binding force within the administrative organ. (4) The minutes of government meetings need to be transformed for external effectiveness. The minutes of the government meeting do not have direct legal effect to the outside world, and the minutes of the meeting need to be transformed into other official documents. The matters recorded in the minutes of the meeting shall have external effect and may be announced in the form of approval, issuance or forwarding of notices. According to the provisions of the regulations, the issuance of "notices" needs to be sealed and has legal effect. For example, the notice (document number) on the issuance of the * * * meeting minutes is to transform the meeting minutes so that the contents and matters recorded in the meeting minutes have external legal effect. (5) Lack of legal basis for the direct external application of the minutes of government meetings The law does not specify whether the minutes of the meeting can be directly applied. In the absence of legal basis and clear positioning, if it is used directly, it will lead to the situation that illegal application is difficult to protect rights. 3. Exceptions to the litigation nature of the minutes of government meetings On the question of whether the minutes of government meetings are actionable and under what conditions they are met, a large number of judicial decisions of the Supreme People's Court uphold the agreed judicial view that the minutes of government meetings are still actionable if certain conditions are met. Two conditions should be met for justiciability: first, the content of the minutes of the meeting directly relates to the specific rights and obligations of citizens, legal persons or other organizations. In the case of Wang mou et al. v. Shenyang municipal people's government of Liaoning province for the retrial of the performance of the meeting minutes ((2018) supreme law application no 1589), the supreme people's court held that: On the issue of the justiciability of the minutes of the meeting. The first paragraph of Article 2 of the "the People's Republic of China Administrative Litigation Law" stipulates that citizens, legal persons or other organizations that believe that the administrative actions of administrative agencies and their staff infringe upon their lawful rights and interests have the right to file a lawsuit in a people's court in accordance with this law. Item 12 of the first paragraph of Article 12 stipulates that if a citizen, legal person or other organization considers that an administrative organ has infringed upon other legitimate rights and interests such as personal rights and property rights, the people's court shall accept it. It can be seen that the criterion for judging whether an administrative act is actionable is whether the administrative act infringes on the legitimate rights and interests of the relative, that is, the act that has an actual impact on the rights and obligations of the relative belongs to the scope of the case of administrative litigation and is actionable. In this case, the minutes of the meeting were made to resolve the housing shading dispute between Wang and others and the Shenyang Military Region Housing Management Office. They involved the repurchase of houses by shaded households and the approval of new housing planning. The content was clear and specific. After the minutes of the meeting were made, Wang and others stopped petitioning and obstructing the construction of the troops. The units involved in the minutes of the meeting have also carried out part of the work in accordance with the contents of the minutes of the meeting. Therefore, the minutes of the meeting have had a direct impact on the rights and obligations of Wang and others, and are actionable. The Shenyang Municipal Government proposed that the minutes of the meeting were not actionable, and the case did not fall within the scope of administrative litigation. The Supreme People's Court did not support it. In the retrial case of Jiaozuo textile co., ltd. suing Jiaozuo municipal people's government for the minutes of the meeting ((2019) supreme law application no 458), the supreme people's court held that: The minutes of meetings, as internal documents used by administrative organs to record and convey relevant meetings and agreed matters, are internal administrative acts and usually have no legal effect on the outside world, nor do they have a direct impact on the rights and obligations of administrative counterparts. The legal effect of the minutes of the meeting should meet two conditions: first, the contents of the minutes of the meeting directly involve the specific rights and obligations of citizens, legal persons or other organizations. Externalization methods include the administrative organ serving or informing the parties of the minutes of the meeting as an administrative decision, or the administrative organ executing the minutes of the meeting directly, and the parties knowing the contents of the minutes of the meeting in the process of execution, otherwise the minutes of the meeting will not have an externalization effect. The way to externalize the minutes of the meeting should be limited to legitimate channels. If the contents of the minutes of the meeting are known through abnormal channels such as private notification, it does not belong to the official release through legal channels. The minutes of the meeting do not have legal effect to the outside world, nor do they have enforcement power, and do not belong to the scope of administrative litigation. If the minutes of the meeting are transformed into other administrative acts with legal effect, the parties may sue for other administrative acts with legal effect, and the minutes of the meeting do not directly affect the rights and obligations of the parties. Whether the minutes of the [2013] No. 2 meeting, which is sued in this case, can be sued depends on whether it has been externalized and has legal effect to the outside world. Jiaozuo Municipal People's Government said that the minutes of the meeting involved in the case had been delivered to a textile company together with the reply of Jiao Zhengtu [2014] No. 35 on May 30, 2014, but did not provide evidence that the minutes of the meeting involved in the case had been delivered. A textile company is inconsistent and contradictory about the time and way it got the minutes of the meeting involved in the case. Therefore, in the absence of evidence to prove that the minutes of the meeting have been externalized, the original ruling rejected a textile company's prosecution is not improper. Huiyin Company's request for the implementation of land issues and other rights not resolved in the original relocation process may be claimed separately. (II) Enlightenment to the Work of Government Departments Since the minutes of government meetings, as internal documents used by administrative organs to record and convey relevant meetings and agreed matters, are internal administrative acts, they usually have no legal effect on the outside world, nor do they have a direct impact on the rights and obligations of administrative counterparts. However, through a large number of judicial cases of the Supreme People's Court, it can be seen that the minutes of government meetings are still actionable when certain conditions are met. Therefore, official documents that really need to be made in the form of meeting minutes in the work of government departments should be strictly examined and checked to avoid the contents of meeting minutes directly involving the specific rights and obligations of citizens, legal persons or other organizations, and infringing upon other personal rights, property rights and other legitimate rights and interests. If relevant matters need to be externally effective, they should be converted into other corresponding types of official documents.

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