About the author
Liu Xing, male, Han nationality, born in 1975, member of the Communist Party of China, Doctor of Laws, deputy chief judge of the Administrative Tribunal of the Beijing High Court, undertook the case involving Yang Jianbo's lawsuit against the China Securities Regulatory Commission involving the "8·16" Everbright Securities incident. A number of influential, major, difficult and complex administrative cases, including administrative penalties and market ban cases. The administrative judgment he wrote won the first prize for outstanding judgment documents in administrative adjudication by courts across the country. The "Research Report on Difficult Legal Issues in Administrative Cases of House Expropriation and Compensation on State-owned Land" that he drafted won the first prize for outstanding research results in administrative adjudication by national courts; he drafted The Beijing Municipal Court's "Answers to Several Questions on the Trial of Government Information Disclosure Cases" and "Several Opinions on Providing Judicial Guarantees for Ecological Civilization and Urban and Rural Environmental Construction in the Capital" provide normative guidance for the trial of related types of cases. Published the monograph "Basics of Administrative Trial", co-authored "Research on Judgment of Administrative Agencies' Information Disclosure Failure Cases", and published more than 200 legal essays and current commentaries. He was awarded third-class personal merit twice, won honorary titles such as "National Court Case Handling Model", and opened a personal public account "Going to the Rule of Law".
2017 is destined to be an extraordinary year. This year is an important year in the development of the Republic, and it is also the 30th year that the Capital Court has carried out administrative trial work. October 1 this year is the 68th birthday of the Republic and the 27th anniversary of the implementation of the Administrative Procedure Law of New China. In this special year and special day, as an administrative judge in the capital of the Republic, I always feel that I should write something. Fortunately, there is no need to think about it, the theme of "from history to the future" naturally comes to mind. This article is based on the 30 years of development of administrative trials in the capital, and strives to find the development trajectory of administrative trials, so as to better understand the origin and destination of administrative trials.
Stage Theory
In the late 1970s and early 1980s, the legal construction of New China ushered in the spring of development, and the administrative litigation system was also founded in that era full of ideals and passion. So far, it has been 30 years since the Capital Court carried out administrative trial work, and it has been 27 years since the establishment and operation of an independent and complete administrative litigation system. In the past 30 years, administrative trials in the capital have grown from scratch, from small to large; in the past 30 years, the protection of citizens' rights in the Republic has developed vigorously; in the past 30 years, the national governance strategy and the construction of a law-based government have achieved a historic leap; in the past 30 years, the administrative judges in the capital have the courage to Taking responsibility, writing a beautiful picture with passion and wisdom.
The first is the stage of from scratch, which is about the time before the implementation of the Administrative Procedure Law from 1982 to October 1, 1990. It should be said that in our country, administrative litigation is definitely an imported product. Although there was an early administrative litigation system during the Beiyang Warlord Government and National Government period, the real historic leap in administrative litigation in New China was undoubtedly accompanied by the National Day. Dongfeng, who attended the Third Plenary Session of the 1982 Central Committee of the Communist Party of China, wrote something that seemed to be an understatement but was actually of great significance in the Civil Procedure Law that was piloted in 1982. Although it was only a trial implementation, although it was only a reference, and although the number of cases was even rarer under the circumstances at that time, it did not affect the historical significance of the emergence of this system. It not only filled the gap in the system, but also opened up the control of power, A new chapter in protecting civil rights. After careful conceptual, institutional and organizational preparations, around 1987, courts at all levels in Beijing established specialized administrative tribunals to hear administrative cases. The Administrative Tribunal of the Beijing High Court was established in May of that year and became an important symbol of the actual administrative trial work of the capital courts. During this period, the first administrative case concluded by a judgment in the capital court was the case of Wang Moumou v. Public Security Administrative Punishment accepted by the Mentougou Court in 1987, achieving a zero breakthrough in the substantive review of administrative actions. During this period, the first judgment against an administrative agency issued by the Capital Court was also heard by the Mentougou Court. In the case of Wu Moumou v. Planning Bureau in 1988, the court ruled to revoke the administrative decision. During this period, due to the trial positioning and the constraints of the legal conditions at that time, administrative litigation was not yet a normalized and universal system operation, but its epoch-making historical significance and value have been demonstrated to a certain extent.
The second stage is from small to large, from about 1990 to the beginning of this century. The official implementation of the Administrative Procedure Law on October 1, 1990 became an important milestone in the history of the construction of the democratic legal system in New China, marking that the administrative litigation system has become one of the three major litigation systems alongside the civil litigation and criminal litigation systems. This period is a stage in which administrative trials cross the river by feeling the stones and taking small steps. Especially in the context of an era in which administrative power dominates, citizens' rights awareness is not liberated enough, and the judiciary is not strong enough and mature enough, it is more prominent that citizens are afraid, unwilling, or unable to file a lawsuit. Administrative agencies are unwilling to be defendants and do not want to do anything. It is also common for defendants to even boycott being defendants. It is not uncommon for courts to be unwilling to hear administrative cases, dare not hear administrative cases, and dare not rule against administrative agencies. During this period, there were a number of influential cases in the Capital Court, some were positive, some were negative, some were positive, and there were also difficulties on the road to development, reflecting the difficulties in the growth process of the system from small to large. For example, in the famous "no defendant in this case" case, the administrative trial encountered a central state administrative agency's refusal to respond to the lawsuit. The result was that the court confirmed that the administrative agency refused to respond to the lawsuit in court without justifiable reasons and ruled in accordance with the law. The value of this case lies in reflecting the characteristics of the capital court. The attitude of the central state administrative agencies towards administrative trials reflects to a large extent its attitude towards the law. The attitude of the courts towards the central state administrative agencies also reflects to a large extent. Show judicial character and maturity. During this period, many classic cases emerged, all of which were the works of the first generation of administrative judges in the capital, and they still shine with the light of wisdom. For example, in 1992, the Xuanwu District Court heard the administrative factual behavior case of Hong against the public security organ. Under the historical conditions at that time, it not only creatively included the factual behavior into the scope of litigation adjustments, but also pioneered the application of facts outside the legal and institutional framework at that time. The confirmation judgment confirmed that the administrative act was illegal and filled up the loopholes in the law. This judgment method was not absorbed by judicial interpretations until eight years later. The more dazzling value of this case is that it also ruled that the administrative agency should compensate the plaintiff for mental damage of 600 yuan. I know that the National Compensation Law had not yet been promulgated at that time, and civil mental damage compensation was still being debated and had not yet entered the court judgment. The first judgment for mental damage compensation for administrative infringement was actually 600 yuan. These are all very valuable from today's perspective. Under the conditions at the time, the breakthrough was even more conceivable. During this period, there was also the case of Tian Yong v. University of Science and Technology Beijing, which is well-known in legal circles, and it still has great theoretical and practical significance. Of course, at this time, administrative trials have just started, and there are still many factors that affect and restrict them, so regrets are inevitable. For example, the case of Liu Moumou suing Peking University for awarding a doctorate is a frequently mentioned case. , in which the complicated and fierce competition between theory, system and practice can be said to be the epitome of the development of administrative trial.
The third stage is from the weak to the strong stage , which is mainly the period between the promulgation of the "98 Articles" judicial interpretation by the Supreme Court in 2000 and the revision of the administrative litigation system in 2014. After more than ten years of development and accumulation, marked by the “98 Articles” promulgated by the Supreme Court in 2000, administrative trials have gradually grown from weak to strong. During this period, governing the country according to law became the basic strategy for national governance. In 2003, the country established the goal of building a government governed by the rule of law; in 2004, the Constitution was revised, establishing the principle that the country guaranteed respect and protection of human rights; in 2007, the Property Law was promulgated and implemented, making the boundaries between citizen rights and government power clearer... During this period, the country The reform of the administrative legal system has accelerated. In 2000, the Legislation Law was promulgated and implemented; in 2003, the Administrative Licensing Law was promulgated and implemented; in 2011, the Administrative Enforcement Law was promulgated and implemented... The basic institutional framework of the administrative legal system has become more complete and complete, laying the foundation for the development of administrative trials judicial review A more solid foundation. During this period, new types of administrative trial cases in the capital also emerged one after another. With the country's accession to the WTO, new types of cases such as intellectual property rights, anti-dumping and countervailing subsidy entered administrative litigation procedures. Administrative cases related to trademark and patent rights confirmation have since become unique in the administrative trials of the capital courts. During this period, the administrative litigation system itself also experienced tremendous changes and development.In 2000, "Article 98" underwent all-round development in terms of the scope of cases, prosecution conditions, party qualifications, review standards, etc.; in 2004, the Supreme Court issued meeting minutes on the application of law in administrative cases; In 2008, the Supreme Court launched a reform of the administrative case jurisdiction system; in 2012, the Supreme Court launched an exploration of a system that separates administrative rulings from execution, and so on. All these institutional changes have had a significant and far-reaching impact on the administrative trial work, making the administrative trial work of the Capital Court gradually better and accumulating strength to meet more challenging and promising changes.
The fourth is the comprehensive improvement stage , which is mainly due to the Fourth Plenary Session of the 18th CPC Central Committee in 2014, especially in the more than two years since the implementation of the new Administrative Procedure Law in 2015, which is still on the way. The past two years are not a long time, but the changes in administrative trials are incomparable to those in the past. With the advancement of the modernization of the national governance system and governance capabilities, the role of administrative trials in building a country ruled by law, a government ruled by law, and fair justice has become increasingly prominent. The reform of the administrative litigation system came into being, completely changing the traditional ecology of administrative trials and reshaping the ecology of administrative law enforcement to a considerable extent. Over the past two years, administrative trials in courts across the country have taken on a new look, and administrative trials in the capital have taken on a new look and appearance. There are many changes, and the length of this article is limited. Generally speaking, the channels for civil rights relief are smoother. In the past, the difficulty of filing complaints in administrative trials has been solved with the implementation of the case registration system. The on-the-spot case filing rate has reached about 96%, making it easier and more convenient for the counterparty to protect their rights; judicial review has The scope is wider, the intensity of supervision is greater, and the effect of supervision is more obvious. The pressure on administrative agencies to respond to lawsuits is greater and the standards are stricter. The failure rate of substantive judgments is about 25%. Compared with the past, it seems that it is easier to lose administrative cases; the administrative trial The functions are more clearly demonstrated, and the responsibilities and values of administrative judges can be better reflected. Although there are some new situations and new problems that require attention in the operation of many new administrative litigation systems, the good times of administrative trials have undoubtedly arrived.
Empirical Theory
30 years is not too long for the legal system to take root. The national administrative trial system was officially established. Although it was shorter, only 27 years ago, the administrative trial in the capital dared to be the first, with a high starting point and rapid development, achieving 30 years of leapfrog progress. Here, there must be certain internal laws. It is these regularities that have supported the administrative trials of the capital courts from the past to today. I believe that these regularities will also be an important driving force for the administrative trials of the capital to move towards a better tomorrow.
First, the transformation of national governance strategy is the fundamental guarantee for the healthy development of administrative trials. Administrative litigation adjusts the "official-civilian relationship" between power and rights. The location advantage of the capital determines that there are many large agencies here and the pressure and challenges of administrative trials are greater. Under the historical background of administrative dominance in our country, the administrative litigation system came into being. Although it is not a miracle, its difficulty can be imagined under the conditions at that time. To a certain extent, the establishment and development of the administrative trial system is the result and reflection of the transformation of national governance methods. Without the promotion of democratization and legalization and the transformation of governance methods after the Third Plenary Session of the Eleventh Central Committee, the Administrative Procedure Law of the 1980s would not have been born. Similarly, without the new ideas and concepts of national governance since the 18th National Congress, Without guidance, there will be no new development opportunities for the administrative litigation system. It can be seen that although the administrative litigation system has its own logic and approach, the reform and practical development of the administrative litigation system are undoubtedly deeply embedded in the transformation of China's social governance. The future development of the administrative litigation system will To a large extent, it will also depend on the scope, direction and degree of transformation of social governance methods.
Second, the reform of the judicial system and the development of the administrative litigation system itself have provided institutional support for the healthy and healthy development of administrative trials. The reform of judicial system and mechanism and the development of administrative litigation system have injected continuous impetus into the development of administrative trial practice. On the one hand, looking back at the development of administrative litigation practice, almost every advancement is closely related to the reform of the judicial system and mechanisms at that time.The "strictness" in administrative litigation practice in the 1980s is certainly related to the fact that the system has just been established and needs to be explored, but it also bears the imprint of the judicial function of that era. In the first ten years of this century, administrative trials ushered in a major development, which was inseparable from the reform of trial methods at that time. Nowadays, administrative trials are facing great opportunities for development, which is also closely related to the most profound and profound reform of the judicial system in history, especially the construction of cross-district courts and the reform trend of "let the judges judge and let the judges be responsible". Refers to the critical problems that plagued administrative trials in the past. On the other hand, every jump in the 30-year development of administrative trials in the capital is accompanied by tremendous changes in the administrative litigation system itself. The revision of the new Administrative Litigation Law in 2014 has become an important engine for comprehensively promoting the development of administrative litigation in the new era. It can be said that it is every reform of the judicial system and mechanism, as well as the development of the administrative litigation system itself, that has consolidated the institutional foundation for the development of administrative trials on the road of rationalization and scientificization.
The third is the interaction between legal theoretical research and practical innovation, which is an important force in promoting the sound and healthy operation of administrative trials in the capital. The capital has a concentration of higher education institutions, a large gathering of legal experts, and a deep foundation for theoretical research. The administrative judges in the capital have an obvious advantage of being close to the public. It can be said that the history of the establishment and development of my country's administrative litigation system and the history of the progress of administrative adjudication work in the capital court are a history of interaction between theory and practice. On the one hand, the establishment of the administrative litigation system in New China was the result of the promotion of theoretical research. Especially in the late 1970s and early 1980s, there was no administrative trial practice at all. It was driven by theoretical research that the 1982 The trial implementation of administrative litigation based on the Civil Procedure Law gave birth to a complete administrative litigation law in 1989 that rewrote the history of China's rule of law. Moreover, every reform and adjustment of the administrative litigation system since then has embodies the hard work and sweat of theoretical researchers, and all have traces of the "cutting and polishing" of theoretical research. On the other hand, the in-depth development of administrative trial practice has also greatly enriched the material for theoretical research on administrative law, expanded the scope and effect of research, and a large number of innovative typical cases have provided fertile soil for theoretical research. Many typical cases have established The rules have entered the classroom and the textbooks. It can be said that many administrative law research results benefit from the enlightenment of rich and complex administrative trial practice. To a certain extent, it can be said that without the guidance of theoretical research, the rational light of administrative trial will not be so nourishing to people's hearts. Similarly, without the basis of administrative trial practice, theoretical research can easily become a castle in the air. Administrative judges and scholars have the closest hearts and the most connected feelings. They must work together to create new brilliance.
IV is the legacy of administrative judges passed down from generation to generation, and is the source of vitality and vitality for the administrative trial industry in the capital. The past is not as good as smoke. Judgments record every step of the development of administrative trials in the capital. The 30 years of administrative trial in the capital have not only achieved tremendous development in the administrative trial industry, but also forged a mature administrative trial team that strives for ideals. If I had to use one sentence to describe the experience of developing administrative trials in the capital, I would first choose the “people” factor. Generations of administrative judges have inherited the fine traditions and spirit of the capital's administrative trials that are loyal to the law, dare to use their swords, dare to innovate, and have the courage to fight. They are the source of vitality for the development of the capital's administrative trials. Over the past 30 years, generations of administrative judges in the capital, as the patron saint of administrative trials in the capital, have tried a large number of administrative cases, experienced too many challenges, overcome too many difficulties, and made countless achievements. Fruitful. There is nervousness and excitement. There is pride and there is anger. There is joy and regret. Survival in the cracks and development in struggle were once vivid portrayals. Many of the once high-spirited pioneers are now gray-haired. What has changed is their appearance, but what remains unchanged is their pursuit. They have always persevered and devoted themselves wholeheartedly to the cause of administrative adjudication in the capital and to participating in the process of national rule of law.A large number of classic cases, such as Tian Yong v. University of Science and Technology Beijing, Qiao Zhanxiang v. Ministry of Railways, Yang Jianbo v. China Securities Regulatory Commission, Yu Yanru v. Peking University, etc., have fixed the names and smiles of administrative judges, and have also witnessed the country, especially Progress in the construction of rule of law in the capital. Now, the baton of the administrative trial in the capital has been passed into our hands. Our mission is to inherit the fine traditions and styles of administrative judges in the capital, and strive to carry them forward to contribute to the vitality and vitality of the administrative trial industry in the capital.
Theory of Direction
The long road to Xiongguan is really like iron, but now we are crossing it from the beginning. The administrative trial in the capital has passed by without realizing it for 30 years. Looking back on the past is to better move towards the future; summarizing experience is to make the road to the future more stable and fast. Looking forward to the next 30 years, where should administrative trials go from a new starting point? As a member of a team that passes the baton from generation to generation, your personal strength may be insignificant, but your responsibilities and mission are glorious and cannot be slacked off.
First, there is a pattern. administrative trial is most about pattern. This is because administrative adjudication adjusts the relationship between civil rights and administrative power, and administrative power and judicial power involve the entire power division structure and framework of the country. Therefore, to do a good job in administrative adjudication and achieve a fair trial, it is necessary to balance rights and judicial power. Understand the review standards and legal application of individual cases under the pattern of power, authority and power. Administrative trials are the basis for adjusting the relationship between rights and power in individual cases. They also use the relationship between rights and power to adjust the relationship between power and power (legislative power, administrative power and judicial power). In the context of multiple legislative subjects and multi-level legal norms, It requires a balanced approach to maintain the unity of the legal system while respecting legislative autonomy; it also involves the adjustment of the relationship between the central and local governments, balancing the relationship between maintaining the central authority, unity of decrees, and the legal system, and unleashing local enthusiasm for exploring and innovating the rule of law; Balancing law and policy in context. The administrative trial function of the capital court is unique, and new types of difficult and complex cases emerge in an endless stream. How to properly handle the relationship between safeguarding rights and supervising power in these cases often takes into account multiple and recurring factors, which requires a corresponding pattern and sufficient wisdom. If we do not stand at a certain height and consider the application of the law under a certain pattern, it is estimated that it cannot be called a mature, convincing, and positive judicial review, nor can it be responsible for effectively protecting citizens' rights and supervising administrative agencies' compliance with the law. exercise their powers and promote the construction of a law-based government.
The second is to maintain balance. refereeing is the art of balance. Administrative trials directly involve citizens’ personal interests and public interests, and directly involve the adjustment of administrative and judicial powers. It is necessary to achieve a balance between civil rights and administrative powers, public interests and personal interests within the legal framework, which has been mentioned previously. In fact, what needs to be balanced in administrative trials is not only the external balance, but also the internal balance of civil rights and administrative power. For example, as for the plaintiff, he enjoys the right to file a lawsuit and obtain a fair trial granted by the constitution and law. He should also bear the obligations stipulated by the law. It is impossible to only enjoy rights without assuming obligations, otherwise the rights and obligations will be inconsistent with each other. Imbalance is not a guarantee of rights in the sense of the rule of law. Therefore, although the legislative purpose of the Administrative Procedure Law is to protect the legitimate rights and interests of citizens, legal persons and other organizations, in the period of transformation, administrative litigation must also be used to guide citizens, legal persons or other organizations to exercise their litigation rights in accordance with the law, rationally and in good faith, and to balance rights and obligations. That's the right way. Not long ago, the Supreme Court issued the "Several Opinions on Further Protecting and Regulating the Legal Exercise of Administrative Litigation Rights by Parties", which aimed at outstanding issues in practice and put forward opinions on balancing protection and regulation. For another example, administrative agencies need to adhere to the balance between power and responsibility, and those with power must have responsibilities. In practice, it often happens that power is exercised without taking responsibility, or that great power is exercised but responsibility is understated. Administrative judges need to balance this relationship.In fact, there are many relationships that need to be balanced in administrative trials, such as the eternal themes of justice and efficiency, as well as the balance between immediate interests and long-term interests, the interests of the majority and the interests of the minority, etc. Balance requires pattern and also needs wisdom. To achieve qualitative development in administrative trials, the improvement of balancing capabilities is indispensable.
The third is to follow rules. The law of is the inherent regulation of the development of things. The particularity and complexity of administrative trial adjustment objects determine that laws play a potentially decisive role in trial practice, especially in the trial of difficult and complex cases. There are many internal laws contained in administrative trials, both internal and external, both explicit and implicit. Here we only talk about two aspects of the rules. One is related to the plaintiff and the relationship between the court and the plaintiff. If the counterparty believes that the administrative agency has violated its legitimate rights and interests, it can file a lawsuit according to law. This does not mean that administrative litigation is omnipotent. The parties' litigation rights must be exercised within the legal framework, and the administrative trials of the courts must also perform their functions under the control of laws and rules. Moreover, The resolution of administrative disputes in administrative trials is by no means as vulgar and simple as the parties not suing, appealing, or appealing. It is not just to pursue “satisfaction” by the parties regardless of legal standards and bottom lines. Rather, it should be based on whether the administrative disputes are within the rule of law. Provide fair and authoritative hearing and judgment within the framework. The second issue is related to the defendant and the relationship between administrative power and judicial power. Although the legislative purpose clause of the Administrative Litigation Law stipulates that administrative trials have the responsibility of "supervising the exercise of powers by administrative agencies in accordance with the law," the "supervision" here also has profound connotations. We must abide by the modest character of the judiciary and strengthen supervision on the basis of respecting administrative power. . This is because administrative agencies and judicial agencies are both the country's law enforcement agencies. They have different divisions of responsibilities and the same goal. They are all to implement the law well, implement the rule of law well, and promote social welfare. They should respect each other; administrative power is a future-oriented, The active power to take the initiative, meet social risks and challenges, and create social employment opportunities and wealth has its own operating rules and logic. These essential attributes embedded in administrative power need to be treated as backward and passive judicial power. Respect; also, in an era of risk and a period of rapid transformation, the exercise of administrative power is full of professional judgment, policy considerations and discretion. Judicial supervision in these areas needs to be particularly cautious. Only when discretion reaches the level of "obviously inappropriate", It can be corrected in accordance with the law, and it cannot over-expand the intensity and standards of judicial review and arbitrarily restrict the diversified consideration and discretionary space of administrative agencies. Otherwise, it may appear to be "supervision" and "power control", but in fact it will hinder the normal operation of administrative power. , and also violates the original intention of the administrative litigation system.
The fourth is pursuit. The future of administrative trials ultimately depends on the professional pursuits and beliefs of administrative judges. Administrative trials deal with individual cases and fairly judge the merits of individual cases. However, the vision of administrative judges should never be limited to individual cases, because the responsibilities of administrative judges are by no means a legal vending machine, but rather a participant and promoter of social governance. By. Perhaps in practice, the vast majority of cases can be satisfactorily resolved within the scope of individual cases, but for influential, exemplary, difficult and complex new types of cases, administrative judges need to broaden their horizons, look up to the stars, and be down-to-earth, in the rule of law. Find the best combination of justice and efficiency, ideals and reality, freedom and order within the pattern and framework. Therefore, the professional pursuit of administrative judges is first to focus on individual cases, explore the factual determination and legal application of individual cases within the legal framework, resolve disputes in individual cases, and achieve case closure. However, it is not enough to only face individual cases. We also need to face the people behind the disputes in individual cases. When we handle cases, it seems that we are handling disputes and resolving conflicts. In essence, we are shaping the people behind the disputes. That is, through the handling of individual cases, we To create modern citizens who are honest, trustworthy and responsible, when dealing with difficult and complex cases and when considering solutions, we need to consider the guidance and provision of people's behavioral standards.Furthermore, for difficult and complex cases, we must not only face the law of the individual case and the people behind the case, but also face the future and consider what kind of public-private relationship needs to be shaped by administrative trials. The reason why administrative trials are crucial to the construction of a rule of law country, a rule of law government, and a rule of law society, and why the reason why administrative trials have a unique function is that the core of administrative trials is to adjust the relationship between citizens and the government. The responsibilities and mission of administrative litigation are not only to clarify rules, Distinguish right from wrong, resolve disputes, and more importantly, achieve positive interaction between citizens and the government and promote good governance in society.
After thirty years of weathering the wind and rain, the spring blossoms and autumn harvests are another step forward. The 30 years of administrative trial work in the Capital Court have been a journey of exploration and a journey of thousands of miles. The river rushing towards the sea is spectacular and beautiful because of the condensed waves. The splashing waves themselves are a beautiful scenery. The trial of each case is like the waves of administrative trials in the capital. They not only constitute the beautiful memories of the past 30 years, but also serve as a beacon for us from the past to the future, illuminating our way forward.
Toward the rule of law, you and I stand side by side. I am proud, I am an administrative judge in the capital!
(Author: Liu Xing. This article was originally published on the author’s WeChat public account “Xing to the Rule of Law”)
