China's revised Administrative Procedure Law will take effect from May 1, but Chinese courts have already begun to put the spirit of this revision into practice. In February, a small but significant legal ruling by a Guangzhou court might point the way towards a new legal paradigm in China - a private enterprise brought suit against a government agency for administrative and monopoly abuses and won the case, the country's first-ever verdict of this kind. In March, China's Supreme People's Court held three days of nationwide live video streaming training on the new Administrative Procedural Law for judges at various levels, the first televised national training of this kind for judges.

A court hearing in the intermediate court in Zaozhuang, Shandong Province in June 2013, in which the local government is sued for non-disclosure of open government information. Photo: IC

Recent amendments to Chinese law will make it easier for citizens to take the government to court. The National People's Congress (NPC) approved an amendment to Administrative Procedure Law, which stresses people's right to sue, on November 1. The revised law will take effect from May 1.

But even before the law's formal implementation, Chinese lawyers and judges have already begun to put the spirit of this revision into practice in real trials.

"A private company has dared to stand up to sue and win a trial against a government agency for administrative abuses and monopoly. Mine was the first such case in China," said lawyer Wei Shilin proudly to the Global Times. Wei is representing the plaintiff in the case of Shenzhen Sware Technology against the Department of Education of Guangdong Province.

The Legal Daily newspaper hailed Wei's case as "a breakthrough," 25 years after the implementation of the Administrative Procedure Law and seven years after the passage of China's Anti-Monopoly Law, both of which were intended in part to check abuses of administrative power by government departments.

Sware and Wei's story began in early 2014, when China's Ministry of Education decided to organize a "cost engineering" competition for students in construction engineering programs around the country. To select contestants, each province was required to organize provincial level contests. On April 1, 2014, the Guangdong Provincial Department of Education designated Glodon Software as its exclusive provider of construction data software.

In the relatively specialized market for construction data software, there are several major providers, including Sware and its competitor Glodon, as well as dozens of smaller companies.

After the Department of Education's administrative order, Sware took the view that the order was an abuse of administrative power and a breach of China's Anti-Monopoly Law.

Sware alleged that the Department of Education used an opaque selection process and abused its administrative power, adding that if all vocational college students are trained in its competitor's system, it will be placed at a competitive disadvantage when the students graduate and enter the workforce.

After several rounds of unsuccessful communication with the Department of Education, Sware filed a suit with the Guangzhou Intermediate People's Court against the department, alleging that it had abused its administrative power to eliminate or restrict competition.

However, the road towards a ruling was bumpy. The first major obstacle Sware met was the law itself. Since it was China's first lawsuit in which a private company sued a government agency on the grounds of the Administrative Procedure Law and Anti-Monopoly Law, the Guangdong court took its time in evaluating whether the case met the relevant legal conditions.

After almost seven days' deliberation, the court accepted the case and held a hearing on June 26. Even the hearing itself was considered a breakthrough, as it was the first time a court had to agree on a case of this type.

"Sware has tried all other methods to try to ask the Department of Education to withdraw its administrative order. But it failed. Few private companies in China dare to sue government agencies. The bigger the company, the larger its fears, because the stakes are higher. If a company monopolizes a product at a national level through government designation, its competitors are left with no way to survive. Sware is desperate. The law is our last and only resort," Wei told the Global Times.

After the hearing, eight months were spent waiting for the court's decision. Wei wrote several letters to the court to inquire about progress; the court told him to wait patiently, since this was the first case of its type.

Finally, on February 2, 2015, the court issued a verdict stating that, by granting one company's product exclusive status in its contest, the Department of Education of Guangdong Province had in fact used an opaque selection process and abused its administrative power.

"The Guangzhou court's verdict is a milestone. This case is a small case but has huge significance in China. A private enterprise brought suit against a government agency for administrative abuses and monopoly - two of the key obstacles to the smooth functioning of a market economy - and won the case. Government intervention into normal market activities might disturb the market's own adjustment," Sheng Jiemin, director of economic law research office at Peking University, told the Global Times. He is also an expert witness in this case.

'Put power into cage'

Sware's victory might not have been entirely a coincidence. Discussion of amending the Administrative Procedure Law has appeared frequently in Chinese media during the last two years. After three rounds of deliberation by legislators with the NPC and two rounds of solicitation of suggestions from the public, the NPC approved the first amendment in the law's 25 years of existence.

According to the amendment, courts must launch administrative proceedings if the government is sued for violating agreements on land or other commercial operations franchised by the government. According to the People's Congress of China, the NPC's official magazine, the amendment's goal is to "put administrative power into the cage of rule of law."

"It is this general trend towards rule of law that encouraged us to use legal means to [protect our] rights. Sware sued the Department of Education in Guangzhou, because Guangdong Province has a sound economy, relatively efficient courts and experienced judges familiar with the market economy. If this case was held in other less developed provinces, we might lose the trial. Through this case, I've gotten the sense that, with each trial, the government is improving itself a little bit," said Wei Shilin.

A new normative normal?

The legal drama in Sware's case is not over. Guangdong's Department of Education refused to accept the Guangzhou Intermediate People's Court's verdict. It appealed to the high court of Guangdong Province. The hearing is yet to be held. The department insists it is merely obeying so-called "normative documents" from higher educational authorities.

However, the amendment to the Administrative Procedure Law enables private parties to challenge not only specific decisions of government agencies, but also the rules and regulations on which they are based. The new provision stipulates that if a citizen or any other organization believes that a normative document issued by central and local government departments is not in accordance with the law, they may request that the normative document be reviewed in a formal legal proceeding.

"We say that the Administrative Procedure Law is meant to allow citizens and private parties to sue the government. But for what should suits be allowed, and for what should they not be allowed? There should be clear definitions. Many citizens' economic activities are legal. But when those citizens really want to do something, the normative documents and procedures of government agencies block them from doing it. I think either the courts or the NPC should have the power to review government normative documents, so that citizens can know for what they can bring suit, and for what they can't," said Wu Xiaoling, vice-chairwoman of the Financial and Economic Committee of the NPC, during an NPC deliberation, according to the NPC official website.

Court appearances 

Since 2014, to get ready for the new amendment, judges, police and government officials have been changing both their training and daily work routines.

In a written response to the Global Times, China's Supreme People's Court stated that on March 8 the court held three days' nationwide live video streaming training on the new Administrative Procedural Law for judges at various levels, the first televised national training of this kind for judges. Most judges at the Supreme People's Court attended the training. High courts throughout the country have also arranged for local courts to watch the recorded video stream from the training. Lecturers at the training included NPC senior legislators and supreme court senior judges specializing in administrative law.

In October 2014, as part of preparation for the new amendment, deputy district chief Liu Yu of Beijing's Fengtai district appeared in person as defendant's legal representative before a judge at the Beijing High People's Court. In March 2015, district chief Lu Yingchuan of Beijing's Shunyi district also appeared as a defendant's legal representative before a judge at Beijing Fourth Intermediate People's Court.

The amendment compels defendants - representatives of government agencies - to personally appear before the court. Those who refuse to appear without legitimate reasons may face punishment. Currently most defendants ask their lawyers or other staff to represent them in court.

"Government officials appearing in court in person is a very important revision. Though the heads of these government agencies might not appear in court every time, they now have to assign their deputies or someone directly related to the case to appear before court. This means the government will hear the other side's story, [and may push them to] consider their administrative decisions more carefully. Furthermore, appearing in person is a way of showing respect for the court and rule of law," said Song Tong, a lawyer and director of administrative law office at Beijing Chaoyang District Lawyers Association.

An open court also needs an independent and transparent judiciary. On March 30, the general office of the Central Committee of the Communist Party of China and the State Council released regulations requiring leaders at all levels to keep their hands off legal proceedings. For leaders who try to pull strings, not only will it be included in their performance evaluations, but they also face the risk of being put behind bars for illegally meddling in the work of the judiciary.

As China's first white paper on judicial transparency in Chinese courts, issued in March by the Supreme People's Court, said, "Justice is not [just] to be done, but to be seen being done."