CHINA Improved law made it easier to sue government entities

CHINA

Improved law made it easier to sue government entities

China Daily

02:26, December 27, 2018

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(Photo: VCG)

China has seen rapid growth in resolving lawsuits between citizens and government departments over the past five years, but taking officials to court would have been unheard of 30 years ago.

From 2013 to 2017, Chinese courts concluded more than 910,000 cases against governments, up 46 percent year-on-year, and lawsuits have been made easier for litigants since the Administrative Procedure Law was revised in 2015, according to the Supreme People's Court.

In November, for example, a Beijing resident identified only as Cui sued the city's Tongzhou district government in No 4 Intermediate People's Court over a land use dispute after she provided material through the court's online case filing platform. The head of the district government attended the trial and the hearing was broadcast to the public through the internet.

Lawsuits filed by citizens against local authorities are commonplace today, but it was not so easy in the early 1980s, just after the country had launched its reform and opening-up policy.

"The question of whether to allow citizens to sue government departments aroused heated debate back then," said Yang Jingyu, 82, a retired lawmaker who at the time was a member of the Standing Committee of the National People's Congress, the top legislative body.

He recalled discussions about the Maritime Traffic Safety Law, which is regarded as a foundation of China's legal system. It recognizes the right of people to sue local governments.

"When the law's draft was submitted to the NPC Standing Committee and discussed among lawmakers for the first time in March 1983, it started a debate on whether governments could be defendants," Yang said.

Many lawmakers questioned a clause in the draft that said citizens could only go to high-level maritime traffic authorities for review - but no higher - if they disagreed with punishments made by lower departments, such as fines or revocations of marine certificates.

"The lawmakers thought litigants should have the right to appeal in court if they were unhappy after the review, as the Constitution at the time (effective since 1982), had clarified that everyone had the power to criticize, appeal or accuse governments if those bodies were found doing something wrong or violating the law," Yang said.

Officials of the transportation authorities who made the draft had argued during discussions that government entities could not be taken to court, Yang said, "because they thought what they do is in the name of the country, and a country could not be named as a defendant".

He recalled that Peng Zhen, then-chairman of the NPC Standing Committee, said in response that sailors, especially those who had invested many years of their lives to become captains or obtain maritime certificates, would be jobless or fall into trouble if the transportation authorities wrongly punished them.

"He said it would be unfair if we did not allow them to appeal" in court, Yang added, saying the principle complied with the Constitution.

After the discussion, the Legal Affairs Commission of the NPC Standing Committee researched laws and regulations in the United States and Japan and found that both provided litigants with the opportunity to sue government departments, Yang said.

Even though there were few lawsuits against administrations in the early 1980s, "We must respect the Constitution and uphold the principle that all people are equal before the law," Yang said,

The top legislature ultimately decided to follow the suggestion, he said, and in September 1983 the NPC Standing Committee passed the Maritime Traffic Safety Law, allowing people to take marine-related departments to court within 15 days of being punished.

Hu Kangsheng, 74, another retired lawmaker who participated in the discussions, said the law made Chinese people realize, for the first time, that they could sue governments.

"It also made our legislative work on improving administrative procedures easier," he added.

Legislators' persistence later proved essential, as disputes between citizens and authorities began to appear alongside fast economic development and city construction.

In 1985, Bao Zhengzhao, a resident of Cangnan county, Zhejiang province, argued with the county government because the authority said one of his houses along a river was illegally built and urged him to remove it to prevent flooding.

Seeing no action after two years of negotiations, the government demolished the house in July 1987, which made Bao angry. He decided to solve the problem through the legal system, hoping the government would pay compensation of more than 13,000 yuan (about $3,500 at the time).

But at that time changes to administrative procedures were still being considered, so the country had no legal structure under which a case like Bao's could be dealt with.

The Zhejiang High People's Court took note of the dispute and eventually named Wenzhou Intermediate People's Court to hear the matter based on laws then in place.

But Hu said that judges found it was too difficult for citizens to collect evidence and prove authorities' mistakes, given the procedures in place at the time for handling civil cases.

Bao lost his lawsuit in 1988, but the case reflected significant progress in China's rule of law and persuaded lawmakers to transfer the burden of proof to governments in the design of legal procedures.

Also by 1988, a citizen's right to appeal had been included in more than 130 laws and administrative regulations, and a draft of the administrative procedures law had been submitted to the top legislature for review.

In 1989, the Administrative Procedure Law was unveiled and took effect a year later.

Lawsuits against governments - referred to as administrative cases - have mushroomed since the law took effect. The work report of the Supreme People's Court in 1992 said that Chinese courts heard more than 25,600 administrative cases in 1991, almost double the year before. Most of those involved land, forests and taxes.

"The legislation deserved our great efforts during those years," Hu said. "What we did was protect the rights of every citizen."

But that was not the end of the story. In the last five years, for example, the law was revised as legislators aimed to safeguard more rights of residents in lawsuits against governments.

Under a judicial reform forwarded by the central leadership in 2013, combined with the revised law in 2015, courts nationwide must accept cases "without hesitation" if litigants provide sufficient material.

The top court's 2018 work report also said that more than 95 percent of disputes could be filed immediately after litigants supplied materials.

To prevent authorities from interfering in lawsuits, Beijing No 4 Intermediate People's Court was set up in 2014 to specialize in hearing administrative lawsuits against district governments across the city. Officials, especially the heads of major departments, have been ordered to attend case hearings since the reform and the revised law came into effect.

In addition, the right of individuals and social organizations to accuse government departments of harming the public interest, such as through pollution or damaging drug or food safety, has been recognized since the law was improved last year.

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