The hurdle is high: The administrative litigation system in the people’s republic of China

The administrative litigation system remains nascent in mainland China. Besides the problem that the Administrative Litigation Law (ALL) promulgated in 1989 is out of date as a consequence of rapid economic, social and legal transformation over the past two decades, the implementation of the ALL has also encountered notorious problems, which are dubbed ‘three difficulties, one low and one high’. This refers to the difficulty in making one’s case accepted in court, difficulties in the trials of administrative cases and difficulties in the execution of administrative judgments, low numbers of administrative cases accepted and handled by the courts, and a high withdrawal rate by plaintiffs.1 This chapter provides an overview of the history, current legislation and implementation of the law in terms of the administrative litigation system in mainland China. We first provide a concise historical overview of the evolution of the administrative litigation system; then we briefly examine the current legislative framework and other applicable legal rules on the administrative litigation system. In the next section, we discuss the scope and standards of judicial review provided in law, its limitations and expansion in judicial practice; this is followed by an analysis of the most difficult issue of having one’s case accepted by courts (li’an nan). Next, the predicament of courts and judges in handling administrative cases is discussed, linking this issue closely with the lack of judicial independence in general. We then probe the highly controversial application of reconciliation in the settlement of administrative disputes in courts. Academic proposals on the revision of the ALL are discussed from a prospective view. Lastly, concluding remarks are provided.A Brief Historical Overview of the Administrative Litigation System in Mainland China.

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