Perspective | The Special Nature and Calculation Rules of the Statute of Limitations for Administrative Litigation

Courts differ significantly in their proactive review of the statute of limitations in administrative litigation compared to the statute of limitations in civil litigation. In the first instance, as long as the parties do not raise the defense of the statute of limitations, the court should not proactively review the statute of limitations in civil cases. However, according to the principle of comprehensive review in administrative litigation, the court has the right to proactively review whether the plaintiff's administrative litigation has exceeded the statute of limitations. However, whether this is "should review" or "can review" is worthy of discussion. From the existing laws, there is no explicit provision for "should review", nor is there an explicit requirement that it should not be reviewed. From judicial practice cases, courts have adopted a "proactive review" attitude. The reason for this can be attributed to: firstly, the inherent meaning of the principle of comprehensive review in administrative litigation; secondly, it conforms to the basic legal principles of the binding force of administrative actions. That is, "after the administrative counterparty exceeds the time limit for administrative reconsideration and administrative litigation, they may not apply for administrative reconsideration or initiate administrative litigation for that action." Thirdly, it conforms to the requirements of the judicial interpretation of administrative litigation. Because, according to Article 69, paragraph (2) of the Supreme People's Court's Interpretation on the Application of the Administrative Litigation Law of the People's Republic of China (hereinafter referred to as the "Administrative Litigation Judicial Interpretation"), the court should review the statute of limitations for cases that have already been filed, and dismiss the lawsuit if it is found to have exceeded the time limit.

However, I believe that this "proactive review" method actually maintains the authority and effectiveness of administrative organs. Under the rules that the statute of limitations in administrative litigation cannot be suspended, interrupted, or extended, and with extremely harsh conditions for deduction, the court's proactive review of the statute of limitations is of no benefit to the substantive protection of the legitimate rights and interests of the counterparty. Because the factors that cause the counterparty to exceed the statute of limitations are complex and varied, and there are indeed many seriously illegal administrative actions in reality, the situation where the legitimate rights and interests of the counterparty continue to be harmed due to exceeding the statute of limitations (and internal administrative supervision channels are also unavailable) should open the door to administrative litigation relief for the counterparty. Therefore, the rules for reviewing the statute of limitations in civil litigation should be adopted. Unless the defendant explicitly raises the defense of exceeding the time limit, the court should not proactively review the statute of limitations, so as to maximize the protection of the counterparty's right to sue and maximize the correction of illegal administrative actions. Some people worry that this will lead to the instability of the effectiveness of administrative actions. In fact, the biggest factor leading to the instability of the effectiveness of administrative actions is that its effectiveness is revoked. In this case, we can confirm its illegality without revocation.

In addition, under the premise that the court can proactively review the statute of limitations, it is worth discussing at which stage the review should be conducted. In judicial practice, some courts review at the filing stage, while others review at the trial stage, and the practices of courts in different regions vary. We believe that the court should not review the statute of limitations at the filing stage. Even if a review is necessary, it should be conducted at the trial stage after filing. There are three reasons for this: firstly, the statutory requirements for filing a lawsuit do not include the statute of limitations. Article 49 of the Administrative Litigation Law does not include the statute of limitations among the requirements for filing a lawsuit; secondly, reviewing the statute of limitations at the filing stage increases the threshold for filing a lawsuit, which is inconsistent with the reform of the administrative litigation filing registration system; thirdly, the statute of limitations is a procedural requirement. If it is found that the statute of limitations has been exceeded at the trial stage, the lawsuit can be dismissed, which guarantees the plaintiff's right to sue and avoids litigation burdens for both parties and the court.

The statute of limitations is a concept of administrative litigation procedure, while the statute of limitations is a concept of civil litigation procedure. Generally speaking, the statute of limitations and the statute of limitations have the following three differences:

First, the calculation point is different.The statute of limitations is calculated from the date on which the counterparty knew or should have known of the administrative action, while the statute of limitations is calculated from the date on which the party knew or should have known of the infringement of their rights.

Second, whether it is a variable period.The statute of limitations is a fixed period, and there is no suspension or interruption, unless there are justifiable reasons, and the people's court decides to deduct or extend the time that has been delayed. The statute of limitations is a variable period, and it can be suspended, interrupted, and extended as long as there are statutory reasons.

Third, whether the court proactively reviews.The court may review the statute of limitations ex officio. If the counterparty files a lawsuit after the statute of limitations has expired, the people's court will rule not to accept it. If it is found that the statute of limitations has expired after acceptance, the lawsuit will be dismissed, that is, the counterparty loses the right to sue. However, the court usually does not proactively review the statute of limitations. The statute of limitations is not a statutory condition for filing a civil lawsuit, and the party does not lose the right to sue. If the opposing party raises the defense of the statute of limitations and the court finds that the statute of limitations has expired after trial, the lawsuit will be dismissed, that is, the party loses the right to win the lawsuit.

Fourth, the purpose of establishment is different.The purpose of the Administrative Litigation Law in establishing the statute of limitations is to urge the counterparty to exercise their rights as soon as possible, improve the efficiency of administrative law enforcement, and maintain the stability of administrative management order. If the counterparty is allowed to seek relief at any time for administrative actions, it will inevitably cause administrative actions to be constantly questioned and denied, so it focuses more on maintaining administrative public order. However, in addition to allowing the established legal order to stabilize quickly, the establishment of the statute of limitations in civil litigation is more importantly to guarantee the right to relief between equal subjects, focusing on the protection of the private rights of equal civil subjects.

In the understanding and application of the statute of limitations in administrative litigation, the most important issue is how to correctly calculate the starting point of the statute of limitations. For this issue, we will, on the premise of strictly following the relevant provisions of the Administrative Litigation Law and judicial interpretations, closely combine theoretical analysis and practical cases for explanation. This includes three aspects: firstly, the judgment of "knowing or should have known"; secondly, the forward calculation method of the statute of limitations; and thirdly, the backward deduction of the statute of limitations.

There are two criteria for determining the time limit for filing an administrative lawsuit: the subjective criterion, namely, whether the administrative counterpart "knows" or "should know" the content of the administrative act or the time limit for filing a lawsuit; and the objective criterion, namely, "six months," "one year," or "two years." These two criteria work together to constitute the rules for determining the time limit for filing a lawsuit. The subjective criterion, due to its inherent variability and ambiguity, is more difficult to grasp than the objective criterion. Therefore, the subjective criterion is our primary focus of study. So, how should "knowing" or "should know" be judged?

First,"Knowing" is an affirmative state. The subjective cognitive state of the counterpart can be clearly judged through existing evidence. For example, if the administrative organ informs the counterpart of the content of the administrative act or the time limit for filing a lawsuit orally or in writing, it can be proved as long as there is corresponding evidence, such as a return receipt, audio or video recording, etc., which are all relatively clear pieces of evidence.

Secondly,"Should know" is a presumed state. It can be inferred from the existing evidence that the counterpart knew the content of the administrative act or the time limit for filing a lawsuit, although the counterpart may not actually know, and it does not conform to objective reality, but it conforms to legal reality, which is a legal presumption and judgment. For example, in other appeals, lawsuits (such as government information disclosure), visits, or other dealings with the administrative organ initiated by the administrative counterpart, the content of the administrative act or the time limit for filing a lawsuit was known. If it is only known from a third party (such as a citizen or enterprise), and not from the administrative organ (the organ that made the administrative decision, or other relevant administrative organs), this does not belong to the relationship between the administrative counterpart and the administrative subject, that is, the "knowing" or "should know" in the sense of the Administrative Litigation Law. Here, there is another point worth noting: if the administrative counterpart is not an ordinary citizen, but a lawyer, judge, law professor, etc., with professional legal knowledge, I believe that a stricter judgment standard can be applied. That is to say, even if the administrative organ does not inform the counterpart of the time limit for filing a lawsuit in the administrative decision, based on the particularity of their profession, they should know more than ordinary people, and the "should know" standard can also be used to judge their time limit for filing a lawsuit. That is, ordinary people are judged by ordinary standards, and professionals are judged by professional standards.

In addition,The issue of the burden and degree of proof of "knowing" or "should know." Regarding the burden of proof, according to the rules of evidence, it can be borne by the administrative organ, or the court can collect evidence ex officio for judgment. Regarding the degree of knowing, the standard of "necessary content + reasonable certainty" can be adopted. The so-called "necessary content" does not mean that the administrative counterpart needs to know all the content (or all administrative acts) of the administrative act, but only needs to know the name, subject, and matters involved in a certain administrative act. The so-called "reasonable certainty" means that the "necessary content" known is sufficient for the counterpart to be certain of the objective existence of the administrative act, and to recognize that the impact on their legitimate rights and interests may lead to losses, then they can file an administrative lawsuit to seek judicial relief.

Finally,Regarding the situation where the counterpart in land requisition and demolition "knows" or "should know" the decision on land requisition, according to the relevant regulations of the State Council, a comprehensive judgment can be made in combination with the evidence of the administrative organ issuing an announcement on land requisition or an announcement on land requisition compensation and resettlement, handling land requisition compensation registration, signing a land requisition compensation agreement, receiving land requisition compensation, signing a house demolition agreement, and requesting coordination of compensation standards.

The forward calculation of the time limit for filing a lawsuit refers to the specific time period from the date on which the administrative counterpart knows or should know the content of the administrative act or the time limit for filing a lawsuit until the end. According to the relevant provisions of the Administrative Litigation Law and judicial interpretations, the forward time periods for the time limit for filing a lawsuit are 6 months, 1 year, 20 years, and 5 years.

1. Calculation of the Start and End Times of the Time Limit

First, 6 months. This is the most common time period. It starts from the day after the date on which the administrative counterpart knows or should know that the administrative act was made, and ends on the corresponding day of the expiring month. If there is no corresponding day, the last day of the expiring month is the last day of the period. If the last day of the month is a statutory holiday, the day after the statutory holiday ends is the last day of the period.

Secondly, 1 year. This is a special time period. It starts from the day after the date on which the administrative counterpart knows or should know the time limit for filing a lawsuit, and ends on the corresponding day of the expiring month of the year. If there is no corresponding day, the last day of the expiring month is the last day of the period. If the last day of the month is a statutory holiday, the day after the statutory holiday ends is the last day of the period.

Thirdly, 20 years and 5 years. This is the longest period for the protection of the right to sue. It starts from the day after the date on which the administrative act was made, regardless of whether the counterpart knows or should know, and ends on the corresponding day of the expiring month of 20 years or 5 years. If there is no corresponding day, the last day of the expiring month is the last day of the period. If the last day of the month is a statutory holiday, the day after the statutory holiday ends is the last day of the period.

Diagram showing the calculation of the time limit for filing an administrative lawsuit:

In summary, for time limits calculated in "months," a general principle is: "The date on which the period expires should be the day corresponding to the starting month in the expiring month. If there is no corresponding day in the starting month, the last day of the expiring month should be used." In addition, the understanding of "holidays" includes not only statutory holidays (New Year's Day, Spring Festival, Qingming Festival, Labor Day, Dragon Boat Festival, Mid-Autumn Festival, National Day), but also ordinary holidays (Saturdays and Sundays). If a holiday falls within the period, it is not deducted. If the last day of the period is a holiday, the first day after the holiday is the date on which the period expires.

2. Rules Applicable to Different Time Limits

The 6-month time limit for filing an administrative lawsuit is the most basic calculation rule. However, the 1-year time limit for filing a lawsuit is the longest deadline when the time limit for filing a lawsuit is not informed. That is to say, if the time limit for filing a lawsuit is not informed, it should be calculated from the date on which the counterpart knows or should know the time limit for filing a lawsuit, and the longest period should not exceed 1 year from the date on which the counterpart knows the content of the act. Does this mean that a lawsuit can be filed at any time within this 1 year? There are two different views: one view is that since the counterpart knows the time limit for filing a lawsuit, the 6-month period should be calculated according to the usual standard. Even if it does not exceed 1 year, it is still considered to have exceeded the time limit for filing a lawsuit if it exceeds 6 months; another view is that a lawsuit can be filed at any time within 1 year, and there is no need to strictly adhere to the 6-month time limit.

The author agrees with the second viewpoint. The reasons are as follows: Firstly, the existing rules on the time limit for filing administrative lawsuits do not allow for suspension or interruption, which is already a harsh restriction on the plaintiff's filing of lawsuits. Since the judicial interpretation has stipulated a maximum of 1 year, based on the substantial protection of the plaintiff's right to sue, a more favorable interpretation of the exercise of the plaintiff's right to sue should be made. Moreover, applying a 1-year time limit is only a few months longer than 6 months and will not seriously shake the foundation of the administrative act's authority and certainty. Secondly, the 6-month time limit is aimed at "making an administrative act," while the 1-year limit applies to "knowing the content of the administrative act." These two are not completely equivalent, because in reality, there are indeed situations where the counterparty knows that a certain administrative organ has made a certain administrative act (such as deciding to levy a certain piece of land), but does not know the specific content of the administrative act (such as the area of land to be levied, the number of households, compensation standards, resettlement plan, etc.). Therefore, the two cannot be applied equally, but the more specific 1-year regulation should be applied. Thirdly, in judicial practice, many courts and lawyers in different regions also hold this view, and a certain range of habits and consensus has been formed on this issue. For example, case (2018)陕行终132 holds that Wang Xuzhao did not previously know the administrative act of renting out the land by the land bureau. On February 4, 2015, when he copied the administrative registration and approval form for the land involved from the Changba Branch of the Xi'an Municipal Land and Resources Bureau, he only then knew about the administrative registration of the land involved. His filing of an administrative lawsuit with the first-instance court on July 31, 2015 did not exceed the legally stipulated 2-year filing deadline. Another example is case (2016)冀行终452, which holds that Wang Jianjun did not learn about the notified administrative act until August 26, 2014. His lawsuit filed on August 28, 2015 did not exceed the 2-year statutory deadline.

There is no suspension or interruption of the filing deadline for administrative lawsuits. This is a significant difference from the statute of limitations in civil lawsuits. The underlying reason is usually considered to be the consideration of urging the counterparty to exercise their right to sue in a timely manner and the stability of the effectiveness of administrative acts. Once an administrative act is made, it has authority, certainty, binding force, and executive force, and cannot be revoked or changed without statutory grounds. If the administrative act is allowed to be interrupted or suspended due to the filing deadline, it will lead to an unstable state of effectiveness of the administrative act, and it will also lead to the counterparty abusing their right to sue, which is not conducive to maintaining national interests, public interests, and the stability of the already established order of public power. However, the author has always found it hard to accept this. Why can't the filing deadline for administrative lawsuits be suspended or interrupted? Are the existing reasons for not suspending or interrupting really so sufficient and irrefutable? The author does not agree.

First, granting the effect of suspending or interrupting the filing deadline for administrative lawsuits will not shake the foundation of the administrative public order. Through scientific and reasonable system design and strict application of the circumstances of suspension and interruption, as long as the abuse of the plaintiff's right to sue can be avoided, granting the effect of suspending or interrupting the filing deadline will instead be conducive to supervising and correcting illegal administrative acts. In other words, in reference to the provisions of the General Principles of Civil Law, even the circumstances of interruption should be strictly limited to the situation of filing an administrative lawsuit with the court, and should not include requesting the administrative organ to fulfill its obligations or resolve disputes. The circumstances for suspension can directly refer to the provisions of Article 149 of the General Principles of Civil Law, because these clauses are all circumstances that objectively prevent the right holder from exercising their right to sue, such as force majeure, loss of capacity, undetermined heirs, and being controlled by others. Second, the inability to suspend or interrupt the filing deadline has seriously affected the exercise of the counterparty's right to sue. For those seriously illegal administrative acts that cannot be supervised through administrative litigation procedures due to exceeding the filing deadline, the counterparty has lost the channel for litigation relief. In addition, the existing internal supervision and correction mechanisms within the administrative system are not smooth. For seriously illegal acts that exceed the filing deadline, it is rare to solve them through the internal supervision and correction mechanism of the administrative system, and can only allow seriously illegal acts to continue to exist.

The deduction of the filing deadline for administrative lawsuits refers to the situation where the administrative counterparty is delayed in filing a lawsuit due to force majeure or other reasons not attributable to themselves. The delayed time is not included in the filing deadline. There are two reasons for the deduction: Firstly, force majeure, which is the same as the content and understanding of force majeure as one of the reasons for the suspension of the statute of limitations in civil lawsuits, and will not be elaborated here. Here, it is only emphasized that delays in the filing deadline due to low-temperature freezing rain and snow disasters should also be considered as force majeure, and the start and end times of the aforementioned disasters shall be determined by the local meteorological department. Secondly, other reasons not attributable to the counterparty themselves. Common situations for this reason include being seriously ill and unable to express their will correctly for a certain period of time, being restricted in their personal freedom, or encountering a traffic accident and being unable to file a lawsuit within the statutory time limit. In addition, the author believes that it should also include the determination of the immediate family members of a deceased citizen acting as the counterparty, or the termination of a legal person or other organization acting as the counterparty and the determination of the legal person or other organization that inherits their rights, resulting in the exceeding of the filing deadline, which should also be deducted. Judicial cases have continuously enriched the circumstances for deduction, such as common deductible circumstances including: reasonable reliance on the government's handling of disputes (excluding visits) or delays due to incorrect government notifications, delays due to reliance on the court's handling of disputes for the same litigation purpose, and exceeding of the filing deadline due to errors in choosing the jurisdiction court. Moreover, when the court specifically judges whether a situation constitutes a deduction, it should interpret and judge from the perspective of protecting the counterparty's right to sue.

The extension of the filing deadline for administrative lawsuits refers to the situation where the counterparty is delayed in filing a lawsuit due to force majeure or other reasons not attributable to themselves, as well as other special circumstances. Within ten days after the removal of the obstacle, they may apply to the people's court for an extension of the filing deadline. However, the final decision on whether to allow the extension rests with the people's court. So, what constitutes "other special circumstances"? The Administrative Litigation Law and judicial interpretations have not elaborated on this, and it is mainly left to the courts in various places to decide. However, Justice Jiang Bixin believes in his book that it should include the situation where the legal representative of a minor has not been determined. In addition, there are two obvious shortcomings here that will render this clause ineffective. Firstly, the counterparty only has the right to suggest an extension of the filing deadline, while the power to decide whether to extend the filing deadline remains with the court. This judicial discretionary standard is inconsistent and prone to abuse. Secondly, the time limit for the counterparty to apply for an extension is only 10 days, which is obviously too short. A slight oversight will exceed the limit, and for ordinary parties unfamiliar with administrative litigation laws, this 10-day provision is meaningless. To this, Justice Jiang Bixin also believes that 10 days is a bit short, and in the future, the provision of one month in Article 91 of the "Administrative Litigation Law" of Taiwan can be borrowed as a reference. Although the filing deadline for administrative lawsuits cannot be suspended, by comparing the circumstances of deducting and extending the filing deadline for administrative lawsuits with the circumstances of suspending the statute of limitations in civil lawsuits, we find that there are many similar, even completely identical, situations (such as force majeure). The former has actually absorbed and transformed the latter to a certain extent.