Abstract

The Administrative Litigation Law of China 1989 paints a rosy picture in which the individual and the government face each other in court, both submitting to the judgment of the law. However, in reality, many administrative cases do not conclude with judicial rulings but largely with withdrawals by plaintiffs (varying between 30-57%). In recent years, coordination and settlement in administrative litigations are even advocated in the official directives.

This paper employs national statistical data, articles and reports written by judges to demonstrate that in most situations, withdrawals in administrative cases have not only denied individual plaintiffs the opportunity to protect their legal rights through litigation, but also rendered illusory any potential contribution that litigations might have towards the rule of law. The large number of withdrawals indicates the degree of difficulty that the institution of administrative litigation faces. Efforts made by the Supreme People’s Court to enhance the number of administrative cases or reduce the rate of withdrawal have failed to reverse the general pattern. The preference for coordination and settlement that courts at all levels have expressed in administrative litigation may be partly motivated by the prevailing judicial philosophy, but it is believed to be primarily a collective compromise that courts have made in face of challenging conditions.

The paper indicates that the institution of administrative litigation, embedded in the contemporary political and social structure of China, cannot be a means for achieving constitutional governance in China, and its impact on social change is severely limited. To eliminate the obstacles to administrative litigation, the immediate priority should be the promotion of judicial independence and authority. In the long term, the reform depends on the growth of civil society and the perfection of democratic politics.


I. Introduction

The Administrative Litigation Law of 1989 embodies the rule of law ideals to an exceptionally large extent, and its enactment attracted substantial attention and expectation. At the early stage of implementation of this legislation, Professor Gong Xiangrui and his fellows conducted systematic field research and underscored a number of problems in its implementation. American scholars such as Kevin O’Brien researched into administrative litigation in China’s rural areas and also painted a bleak picture for us. These studies, mainly based on various interviews and surveys, depict a strong impression on the audience, but they are apparently unable to supply empirical evidence on the national scale. Professor Pei Minxin may be one of the few scholars who have made an in-depth analysis based on the national data. However, his research, covering only the years of 1986-96, did not correlate the main indicators (case number and their dispositions) with the policy factors behind them and failed to provide a dynamic picture of administrative litigation in China over the past decades.

Among other data, the high rate of withdrawal cases and its high volatility remained a “puzzle” for many. The Chinese legal circle for a long time has had different attitudes towards withdrawal in administrative litigation. In recent years, coordination and settlement in administrative litigations are even advocated in the official directives. Will withdrawal, or “coordination and settlement” as so-called, be a way to go out of the predicament in judicial review, or is it merely a result of such predicament.

This paper seeks to first review the withdrawal, a particular institution in administrative litigation, as the vantage point, then to demonstrate and analyze the difficulties that the institution of administrative litigation faces with national statistical data (1987-2010), articles and reports written by judges and interviews, and ultimately to reveal the current state of administrative law in China. My conclusion corroborates the prevailing scholarly opinions on the practice of administrative litigation and emphasizes that the lack of judicial independence is the main cause of the difficulties in administrative litigation.