Suing the government

By Xuyang Jingjing Source:Global Times Published: 2014-3-24 19:48:01

Judicial officers hear a trial at a court in Nanjing, Jiangsu Province. Photo: CFP

There are many ways to wind up in jail, but "clerical error" is rarely one of them. Unfortunately for Lin Wencai, 61, this is exactly what happened after a chain of events beginning in 1996 and ending in 2002 resulted in him being imprisoned for over a year.

Lin applied to change the name of his company in 1996, but the local bureau of industry and commerce instead simply wiped the company out of existence. As a result of this minor error, Lin wasn't able to sue a partner company three years later, because Lin's company no longer existed as it was written in the contract, he said.

In 2002, the bureau issued a notice to correct the error, but nothing happened. Frustrated, Lin sued the bureau. He failed the suit and the appeal, and then petitioned to higher authorities, all to no avail. In April 2002, he was arrested for suspected involvement in contract fraud. He spent over 400 days in jail before he was exonerated.

It was during this time in jail that he decided to study law. In 2006, he set up a "people vs authorities" website to help citizens hold government agencies accountable for their inaction or wrongdoings, such as wrongful execution or imprisonment.

Similarly, Cui Wu, a Nanjing-based lawyer, also set up a "people vs authorities" website back in 2004. Both Cui and Lin receive hundreds, if not thousands of online inquiries every year.

Liang Bing (second from right), director of the Dongguan Social Security Department, sits as a defendant during a case at the Dongguan No 1 People's Court in Guangdong Province on November 22, 2013. Photo: CFP

Diminishing success rate

Filing lawsuits against the government or government agencies is difficult. People are constantly getting rejected, being persuaded to drop the suits, or they have to wait forever without getting an answer, even though courts are required by law to respond with a decision on whether they will accept the case or not within a week. Class action suits against the government are even more difficult.

Chinese courts closed more than 12.95 million cases last year, but only 121,000 of them or 0.9 percent of them were administrative cases involving State power, according to the work report of China's Supreme People's Court.

Among criminal, civil and administrative lawsuits, the administrative cases are the most difficult to get accepted by courts. Official numbers show that in 2011, 7.8 percent of the administrative suits were rejected by courts, which is 7.8 times the rejection rate of civil lawsuits, according to a February report by National People's Congress of China magazine.

In many cases, the plaintiffs end up dropping the lawsuits. Research by He Haibo, a professor at Tsinghua University, showed that around 40 percent of administrative lawsuits are withdrawn. But among those withdrawals, only 10 percent are result of the authorities correcting their administrative actions.

As a result, some scholars estimate that only about 30 percent of administrative cases go to trial and receive a court ruling.

This often leads to petitions instead. In Shanghai, for instance, the number of petitions that involved administrative disputes in 2012 was about 170,000 cases, while the administrative review bodies accept an average of 3,000 cases each year, according to Lin Yinmao, deputy Secretary-General of the Standing Committee of the Shanghai Municipal People's Congress.

When the cases do go to trial, the chances the plaintiffs will win a lawsuit against the government are slim.

A study of such cases between 2000 and 2011 by Bao Wanchao, an associate professor at Peking University, showed that the chances of people winning dropped from 17 percent in 2000 to 7.09 percent in 2011.

An interesting contrast from Bao's study was that in the decade between 2000 and 2011, there were over 3 million lawsuits brought by the authorities against the people, referring to cases in which government bodies file a request with a court to impose penalties on citizens, compared with over 1.2 million the other way around.

While the people win less than 10 percent of the cases they bring up against the authorities, the authorities won over 90 percent of times they sued private citizens.

Revision underway

Despite the fact the criminal procedure law and civil law have both been revised in recent years, the Administrative Procedure Law - the law which allows people to sue the government or government agencies - has not been amended since it was passed in April 1989.

The authorities started collecting suggestions from experts in 2009 and in December a revised draft was put to the standing committee of the National People's Congress for preliminary review. The draft will need to go through another two rounds of public consultation and revision before it can be put forward to the legislative body for approval.

One of the goals of the revision is to make it easier for people to bring government bodies to court, and most legal experts say the revision does indeed include more types of cases. But legal experts and legislators say it still isn't enough.

Apart from listing the categories of cases eligible to be heard in an administrative court, the draft also listed a few examples of situations where the law would apply. But this means that any case not specifically covered might fall through the cracks. "I suggest that they specify the circumstances in which a case can't be heard, and the rest of the cases should all be admitted," said Jiang Ming'an, a law professor at Peking University who was involved in the revision of the law.

Scholars also suggest more specific rules regarding who can or can't be sued. At the moment, entities such as village committees can't be sued in administrative cases.

Both the revised draft and the original text contain articles that say administrative bodies should not interfere with court trials, but use different wording.

But the purpose of the law, as specified in the first article, is different.

The revised version deleted a sentence from the original text that says one purpose of the law is to "maintain and oversee" efforts to ensure the administrative bodies execute their duties according to the law. Many citizens and lawyers complain that this in practice leads to many courts siding with local governments.

Improper influences

Concerns that courts might be manipulated are well warranted. Courts at all levels are funded by governments of the same level. The appointment of court personnel is often decided by local officials, despite the fact the law stipulates that the judges should be appointed or removed by the local legislative body of the same level.

Because of this it's difficult for courts to try a case that involves the local government independently and fairly.

In some places the local authorities pressure the courts by denying the staff their salaries. Some local authorities depose "disobedient" judges or demote them to small grass-roots agencies, said Jiang, who was also involved in drafting the original administrative procedure law in 1989.

As a result people are losing confidence in the law. "In the past people didn't know they had the right to sue the government, now they know they can but they don't believe it actually works," said Jiang. "That's why they'd rather petition, or go directly to the mayor or Party secretary."

In order to ensure independent trials, some experts have suggested that an independent court system be built for administrative lawsuits.

These courts would not be restricted by the administrative jurisdiction and would have more flexibility, and more importantly, could avoid interference by the local governments or government agencies, scholars have suggested. Countries and regions such as Germany and Japan, as well as Taiwan, all have a separate court system for administrative lawsuits.

But such a system might not be readily embraced by the authorities, said Jiang, who suggests that courts at the grass-roots level no longer take administrative cases if an independent administrative court is out of the question.

Since most of the administrative actions, such as administrative punishment or issuing permits, are conducted by local governments at the county level or lower, it makes sense that cases against them be brought up to a court at a higher level instead of courts at the same level. The local governments would have much less influence in such trials, explained Jiang.

During the just concluded two sessions, Cao Jianming, the procurator-general of the Supreme People's Procuratorate, told media that the authorities would soon release a specific plan for judicial reform, which was one of the decisions made during the third plenary meeting of the CPC Congress last year.

One of the much anticipated measures is putting the provincial level authorities in charge of the budgets and personnel of lower level courts, which could greatly improve the situation regarding administrative influence over the judicial system. But Cao said they are still working on the specifics.

Establishing an independent judicial system, not only for administrative cases, but for civil and criminal cases, is the ultimate goal, but it wouldn't happen all at once, legal experts say.

The revision of the administrative procedure law provides a good opportunity to break through, said Jiang. He also suggests that specifying that "administrative bodies should not interfere with the court" would imply that other forces, such as the CPC bodies, might interfere. "It should be, courts should try cases based on the law, and that's it," he said.

Over the years the cases people brought against government bodies have exposed lots of issues with laws and regulations, and the authorities have been able to correct some of them. One of the most common issues involved in administrative lawsuits is about demolition.

"In case after case we see that the existing regulations on land acquisition and demolition compensation don't work and those are issues that should be addressed," said Jiang.


Newspaper headline: Reforms mulled for taking authorities to court


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