Litigations Without a Ruling: The Predicament of Administrative Law in China

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.