Administrative Litigation Research Articles

Can information transparency strengthen authoritarian accountability? An empirical study of open-government-information litigation in China (2008–2018)

China’s 2008 national regulation on open government information (OGI) triggered a new wave of administrative litigation against governments calling for their release of classified information. Many scholars have debated the effects of OGI regulation and litigation on government accountability. Thus, this study examines 19,076 first instance OGI cases from 2008 to 2018 and proposes a typology of accountbility to explore whether and how information transparency can strengthen authoritarian accountability in China. The data suggests that information transparency boosts the amount of litigation and increases the plaintiffs’ winning rates against the state, which seems to fit the conventional-wisdom However, the interpretation of such patterns needs to incorporate two contingent conditions. First, China’s OGO litigation centers around urbanization-related disputes, such as housing demolition and land acquisition. The data futher reveals that urbanization stimulates OGI litigation but decreases the plaintiffs’ winning rates, and information transparency also has no impacts or even negative association with their winning rates, suggesting that OGI litigation mainly serves as a channel to release public grievances (as pressure-releasing accountbility). Second, our data also shows that plaintiffs’ winning rates are much higher when citing procedural clauses than content clauses in the OGI Regulation, suggesting authoritarian accountability is more procedural than substantive. Our findings offer a nuanced discussion on authoritarian information governance and accountability.

Extinction of the Cause for Reduction and Exemption of Land Value Tax and Its Attribution of Responsibilities: An Analysis of High Administrative Litigation Division of Taipei High Administrative Court Judgment (112) Su Tze No. 14

Extinction of the Cause for Reduction and Exemption of Land Value Tax and Its Attribution of Responsibilities: An Analysis of High Administrative Litigation Division of Taipei High Administrative Court Judgment (112) Su Tze No. 14

Does the publication of judgments on the Internet change the outcome of administrative litigation cases? A DID-model-based analysis

This article analyses the influence of the publication of judgments on the Internet on the results of administrative litigation cases in China. Due to the particularity of administrative litigation, courts are often subject to the restriction of public power in the trial process, and defendants are in a stronger position than plaintiffs. In 2010, the Supreme People’s Court (SPC) issued the Regulations on the Issuance of Judicial Documents on the Internet by the People’s Courts, which for the first time imposed clear and detailed regulations on the publication of judgments. This Regulation promotes judicial openness and establishes judicial credibility, which is conducive to balancing the litigation status of the plaintiff and the defendant. By sampling 7463 judgment documents from 2012 to 2015 on China Judgment Online, this study applies a difference-in-differences model to determine the influence of the Issuance of Judgments on the Internet Regulation on administrative litigation by form of closure, the plaintiff winning rate, and the withdrawal rate of the plaintiff. The implementation of this Regulation was found to significantly increase the rate of judgment and reduce the plaintiff withdrawal rate, significant impacting the trial results of administrative litigation cases.

Is greenwashing beneficial for corporate access to financing? Evidence from China

We discuss the dual impacts of corporate greenwashing on access to financing. Using data from China's listed firms from 2007 to 2022 and an insightful measurement of greenwashing that uses a machine learning approach, we find that greater greenwashing increases the size of bank loans, the most important financing tool in China. However, we confirm that the effect of greenwashing on promoting financing is inefficient, as it aggravates debt overhang. The results show that media coverage, administrative litigation, and industrial and regional competition can mitigate the effect of greenwashing on financing. Our findings have policy implications for corporate sustainability.

The Implementation and Practice of Administrative Litigation Mediation

The Implementation and Practice of Administrative Litigation Mediation

‘행정소송규칙’에 관한 현황 및 법적 과제

The Administrative Litigation Rules were established based on the rule-making power of the Supreme Court. Originating from England and America, the rule-making authority of the Supreme Court aims to ensure the independence and expertise of the judiciary branch. In Korea, the Supreme Court is granted broad discretion to establish rules regarding litigation procedures, internal regulations, and administrative procedures under the Constitution, even without the basis of law. However, Article 108 of the Constitution contrasts with Anglo-American systems in that the Article recognizes the supremacy of law over conflicting statutory and Supreme Court Rules, thereby affirming the principle of legal superiority. The Administrative Litigation Act has prompted demands for reform from academia, as it has long been left as is since its comprehensive revision in 1984. Now that the Administrative Litigation Rules have been established, such demands are expected to be met to a significant extent. It is noteworthy that the rules reflect significant aspects of past judicial precedents and legal principles adopted by the Supreme Court with regard to interpreting provisions of the Administrative Litigation Act, or common practices implemented without legal basis. However, uniformly regulating substantive legal interpretations based on Supreme Court Rules may contradict the purpose of Article 108 of the Constitution. Moreover, even for matters concerning litigation procedures, it is more preferable to regulate essential issues on realizing citizens' fundamental rights directly by law. In Korea, the process of establishing Supreme Court Rules is devoid of involvement from the National Assembly, and the sole procedural controls are inquiries of opinions from relevant agencies and prior announcements of legislation. Relying solely on such procedures, however, is limited in securing democratic legitimacy. Because judicial reviews for unlawful Supreme Court Rules are carried out by the same body responsible for the establishment, concerns arise over the effectiveness of judiciary controls. Therefore, supplementary legal measures thereof are called for, as well as proactive efforts for the revision of the Administrative Litigation Act.

论行政规范性文件司法附带审查的性质

Administrative Normative Documents are simultaneously administrative and legal which determines that there are objectively two different types of judicial review for administrative normative documents, namely administrative trial review and legal applicability review. From the perspective of review conditions and results, the judicial review of administrative normative documents stipulated in the current Administrative Litigation Law can only be considered as a legal applicability review. The legal applicability review is a necessary part of judicial trial, and is not a unique issue in administrative litigation. It is not only related to administrative normative documents and should not be specifically stipulated in the Administrative Litigation Law, but should be stipulated in the Constitution or the Court Organization Law. From the perspective of legal applicability review, there are also many problems in the current law regarding the intensity and procedures of judicial review. Finally, the legal applicability review cannot fulfill the function of legal supervision over administrative normative documents. China still needs to consider the necessity and possibility of establishing some kind of administrative trial review.

피의자·피고인 신상공개 여부 결정에 대한 불복절차

「Act on special cases concerning the punishment of specific violent crimes」 didn’t have no provision on the appeal procedure against decision on the disclosure of suspects identity. According to precedents, the suspect can file an administrative litigation against an identity disclosure decision. This situation is the same under the 「Act on the disclosure of suspect’s identity concerning specific serious crimes」. However, the 「Act on the disclosure of suspects identity concerning specific serious crimes」 expanded the application scope of the institution of disclosure of suspects identity. Therefore, Appeal procedure against decision on the disclosure of suspects identity can be crucial in future. In this light, this article examines problems of the current appeal procedure against decision on the disclosure of suspects identity and suggests improvement methods after comparative law research.
 Disclosure decision of a public prosecutor or a judicial police officer is an administrative disposition of investigative agency during investigation phase. Therefore, it has rationality that the criminal court has jurisdiction over the appeal against an disclosure decision. Furthermore, in order that an determinate judicial ruling can be made quickly quasi-appeal procedure is appropriate for the appeal process against suspect’s identity disclosure decision.

중앙노동위원회의 재심판정에 대한 취소소송의 가구제

Whether it is an individual labor relationship or a collective labor-management relationship, these disputes have a civil legal nature, so they naturally fall under the realm of civil procedures. However, the Labor Relations Commission was established to provide quick and simple rights relief, and since the decisions of the Labor Relations Commission were in the nature of disposition, ultimately, lawsuits filed through the Labor Relations Commission fell under the Administrative Suit. Accordingly, Revocation Litigation for the National Labor Relations Commission's decision on review is formally an administrative suit that contests the illegality of the Labor Relations Commission's decision, and the Administrative Litigation Act is applied. However, in reality, it has a very unique structure in which labor law is applied in that it deals with legal disputes between workers (or trade unions) and employers. Meanwhile, under the current law, there is no system that guarantees the legal status of the plaintiff not only at the Labor Relations Commission stage but also at the Administrative Suit stage. Accordingly, cases where Provisiona relief is possible when filed through a civil procedure become impossible when filed through an Administrative Suit, making the legal status of workers unstable. Additionally, it is very difficult to meet the requirements for Suspension of Execution, which is Provisiona relief under the Administrative Litigation Act, and even if the requirements are met, there is usually no benefit in applying for Suspension of Execution for disposition of refusal. And with regard to provisional disposition, the Supreme Court does not allow provisional disposition in Revocation Litigation on the grounds that there is no provision for provisional disposition in the Administrative Litigation Act. Therefore, if a worker who has been unfairly dismissed by an employer disputes the validity of the dismissal with an Administrative Suit or files a lawsuit to confirm employee status, he or she can apply for provisional disposition. However, the reality is that if you go through the Labor Relations Commission and file a Revocation Litigation for the National Labor Relations Commission's decision on review with the Administrative Suit, you cannot apply for any Provisiona relief. Our Constitution recognizes the people's right to seek trial as one of their fundamental rights. This means that appropriate rights relief must be provided through trial to citizens whose rights have been violated, and that appropriate rights relief is provided means that the conclusion desired by the plaintiff must be reached at the desired ‘time.’ Therefore, even if an Administrative Suit is filed against an employer's unfair dismissal or unfair labor practice, Provisiona relief should be granted just as in the case of filing a Civil Procedure. Specifically, a worker or employer can apply for Suspension of Execution in Revocation Litigation for the National Labor Relations Commission's decision on review. Regarding Provisional Disposition, unfair dismissal relief Revocation Litigation can use Provisional Disposition for payment of wages, Provisional Disposition for preservation of worker status, Provisional Disposition for prohibition of work interference, Provisional Disposition for suspension of effect for disadvantageous disposition, etc. In unfair labor practice relief Revocation Litigation, it is possible to use provisional disposition for collective bargaining compliance, provisional disposition for exclusion of interference with violation of right to organize, and provisional disposition for workplace lockout.

과세처분 취소소송에서 처분사유 추가·변경의 기준

The Supreme Court has used the phrase ‘identity of basic facts’ as the criterion for determining the addition or change of reasons for disposition in general administrative litigation. In lawsuits for revocation of taxation disposition, the expression ‘identity of disposition’ has been mainly used. However, in the case of taxation disposition, the expression ‘identity of disposition’ is only used in a relatively broad sense to reflect the characteristics of taxation disposition and to recognize the scope of addition or change of reasons for disposition. Therefore, the ‘identity of basic facts’ is also a criterion for adding or changing reasons for disposition in a lawsuit for revocation of taxation disposition. The Supreme Court has held that ‘identity of basic facts’ is determined by whether the social facts, as a pre-legal concept, are basically the same. However, these criteria alone do not provide a convincing explanation for the permissibility of adding or changing reasons for disposition. As in the case of an amendment to the bill of indictment, it is necessary to recognize the normative elements in the content of the ‘identity of basic facts’. If this is recognized, the tax unit can function as a normative element in the case of taxation disposition. The Supreme Court held that in the case of withholding tax, the recipient of the amount of income is not an essential factor that distinguishes the unit of tax obligation, so it is possible to change it during the hearing of a lawsuit for revocation of collection disposition. However, changing the tax item as a result was not allowed. If normative factors are recognized, in special cases of withholding tax, even if the tax item changes, it is possible to add or change the reasons for disposition considering the legal structure and defense rights.

Normative act in the administrative litigation legislation and practice: definition and distinction from similar phenomena

The article indicates that, regardless of the form of the official document, the fact that it governs through its generally binding provisions the legal status (establishment, change or termination of rights and duties) of an unlimited circle of participants in legal relations to which this official document applies (the general direction of the rules of conduct) rather than covering only specifically defined (personified) persons - are sufficient conditions for ascertaining the normative nature of a particular official document or its certain provisions. It was established that if an official document is not characterized by these properties or only one of them is inherent in it (mandatory nature of the rule of conduct that it establishes, changes or terminates, its general orientation and the possibility of its repeated application), then this indicates that a document belongs to acts of official interpretation of legal norms (including those that are formally binding for their issuers) or acts of application of law (including administrative acts), public policy documents or other official documents.
 In addition, the author drew attention to the fact that, unlike normative acts, individual legal acts are formally binding for specific (clearly determined) persons and define only their individual rights and/ or duties within particular situations, exhausting their legal validity after their settlement. Equally important is the correct separation of normative acts from acts of official interpretation (clarification) of law, which, having a general nature and being calculated for the use of their interpretatory provisions during the period of validity of respective legal rules are not legally binding for participants in legal relations regulated by the relevant law. At the same time, it was noted that according to established judicial practice, which is based on the principles of the rule of law (primarily, on legal certainty as its component) and good governance, acts of official interpretation (clarification) of legal rules, as a general rule, bind their issuers, but due to the lack of such an effect for other participants in the respective legal relationships, these acts are not universally binding in the literal sense of this feature.

Administrative Litigation in China: Assessing the Chief Officials’ Appearance System

Abstract The Chief Officials’ Appearance System (COAS), introduced in 2015, requires government leaders to appear in court and explain their actions. Unlike other post-2014 legal reforms aimed at reducing political influence in administrative litigation, the COAS uniquely actively involves political officials. This approach is based on the belief that increased participation will help officials to gain a better understanding of public concerns and improve administrative litigation quality. However, few studies have examined the system's effectiveness, and existing research relies on anecdotal evidence with limited analysis. To address this gap, we conducted a systematic empirical inquiry using 1,551 administrative litigation cases filed in a Beijing local court and extensive field research in 12 other provinces. Contrary to official expectations, we found the system reproduced the administrative grievances it was tasked with resolving. Moreover, when chief officials appear in court, administrative litigation is characterized by a renewed triad of apathetic state agencies, increasingly agitated plaintiffs and strategically empowered courts.

Taxation of Income from Contract of Borrowing Other's Name: A Brief Analysis of Taipei High Administrative Litigation Division of High Administrative Court Judgment (112) Su Tze No.653

Taxation of Income from Contract of Borrowing Other's Name: A Brief Analysis of Taipei High Administrative Litigation Division of High Administrative Court Judgment (112) Su Tze No.653

The Rise of the Chinese Judiciary and Its Limits: Administrative Litigation in the Reform Period

The Rise of the Chinese Judiciary and Its Limits: Administrative Litigation in the Reform Period

학교폭력 행정소송에서 나타난 쟁점 사안에 대한 판례 분석 -2020년 개정된 「학교폭력예방 및 대책에 관한 법률」을 중심으로-

학교폭력 행정소송에서 나타난 쟁점 사안에 대한 판례 분석 -2020년 개정된 「학교폭력예방 및 대책에 관한 법률」을 중심으로-

The purpose of administrative proceedings: protection against violations by public authorities or ensuring the correct application of law by them

The pertinence of the matter of correct understanding of the purpose of administrative proceedings in Ukraine is caused by the fact that the trends in the development of the practice of interpretation and application of the Ukrainian legislation on administrative litigation, as well as the shifts in scientific studies of the principles and rules of administrative proceedings, indicate that there are fundamental discrepancies in the understanding of the purpose of administrative proceedings among the scientific community and administrative courts, which lead to the distortion of the outcomes of the functioning of the administrative justice system in the practical dimension. The purpose of the article is to determine the purpose of administrative proceedings in the light of its nature and social purpose. The dialectical method of scientific research was used, making it possible to consider the purpose of administrative proceedings in view of its continuous development in the theory and practice of administrative litigation in its unity and contradictions. The author as well resorted to normative-dogmatic method, serving as a tool for understanding the purpose of administrative proceedings in accordance with its legislative definition. As a result of the study it was determined that the point of view, according to which the activity of administrative courts should be directed not only towards the protection of the rights and legitimate interests of natural and legal persons in the public law domain from violations by public authorities, but also towards the judicial review of proper satisfaction of the public interest in the activities of public authorities with regard to the performance of the public powers entrusted to them, by establishing the comprehensive truth within the framework of the case and by ensuring lawfulness in disputed legal relations through the correct definition of the rights and obligations of their participants. Moreover, the author maintains that by collecting information and documents to determine those decision, action or inaction of the public authority, which should have been made (committed) outside the context of protecting the rights and legitimate interests of the relevant private individuals, the administrative court takes over the governmental executive functions of the public authorities, protecting the relevant public interest and becoming part of the executive branch of power. It was, furthermore, noted that even an administrative lawsuit filed by a public authority against natural or legal person is not deemed to be a way to protect the rights and interests of the respective public authority, as the administrative justice has a different task.

20 Years from Aedo v. Fisco: Is There Still Something of the Old Public Law Nullity?

On November 27, 2000, the Supreme Court decided the case "Aedo v Fisco", which set an important precedent regarding the understanding that traditional doctrine and case law had regarding public law nullity and its scope. After two decades, the question arises regarding the validity of this line of cases. Based on the examination of ten subsequent cases, a brief analysis of the new contours that the Supreme Court has set out regarding the general regime of the action for public law annulment is presented. In light of the evidence provided by the rulings, the author questions the validity of this action as a general mechanism for protecting the rights of the administered, noting the troublesome state of national administrative litigation.

On the Rationality Principle of Administrative Litigation in Substantive Resolution of Administrative Disputes

Through the analysis of the administrative second-instance case of Tianchang Aimeiyi Clothing Processing Factory v. Chuzhou Radio, Television, Press and Publication Bureau, when the Anhui Provincial Higher People's Court conducted the second instance of this case, it was mainly the application of the principle of administrative rationality, thereby affecting the administrative penalty behavior and the first-instance judgment was changed. First, the author elaborates on the general theory of the principle of administrative rationality. The connotation of the principle of administrative rationality is mainly expressed as the principle of administrative fairness and justice, the principle of considering relevant factors and the principle of proportionality. Secondly, the author elaborates on the principle of administrative rationality based on this case and relevant practice. The actual situation mainly includes the obvious inappropriateness of discretionary administrative actions and the lack of application of change judgments; thirdly, the analysis of the current causes of the principle of administrative rationality mainly includes two aspects: administrative efficiency and responsibility and the use of judicial change power; finally, the administrative rationality principle The practical application of sexual principles puts forward corresponding suggestions for improvement.

Constitutional provisions regarding the judicial control exercised upon the administrative acts issued / adopted in exceptional situations

Conditions of admissibility of an action in administrative Litigation having as object the administrative acts issued/adopted in exceptional situations, we find them regulated in the Law no. 554/2004 of the administrative Litigation, while in other works we cand find analyzed these problems under the form of the administrative Litigation, on the basis of the Law no. 554/2004, and on the basis of the constitution which is completed with the provisions of the special legislation appliable to the special situations. 
 In the specialty doctrine are identified, as rule, the following conditions of admissibility of an action in the administrative Litigation: the condition that the attacked act to be an administrative act; the condition that that act to affects a right recognized by law or a legitimate interest; the condition that the issued act to emanate from a public authority; the condition of the fulfillment the preliminary administrative procedure; the condition that the action to be introduced within a certain term.
 In the light of these reasons detached form the constant jurisprudence of the Court from Strasbourg, the Romanian Constitutional Court ruled in the sense that providing a right of effective access to justice, it has to be analyzed also by considering the effects that a judicial decision has upon the right of the person who addressed the justice.

The legal status of the class members during the group litigation

The study discusses certain rules of group litigation in the civil procedure in the context of the legal status of class members in procedural relations. Attention is paid to the rights and obligations of the person who applies to court with a request to protect the rights and legitimate interests of a group of members. Participants in a class action include the person conducting the case (plaintiff-representative) and group members who joined the collective claim. The comparative legal method and teleological interpretation allow to conclude that there are active procedural relations only between the court and the claimant-representative, which predetermines the possibility of performing administrative actions, proving and appealing judicial acts only by the plaintiff, but not by the other claimants. The extremely curtailed scope of powers of the group members is justified by their voluntary joining a class action lawsuit. Relations within a group of persons are substantive in nature; this allows to highlight the necessity of appropriate private material mechanisms to satisfy the interests of the majority of participants under the rules on decisions in meetings. In view of the possibility of consolidating in a class homogeneous but different in size substantive claims of the group members we believe it is essential to establish the majority criterion, regardless of the price of the claim of each member. The research also reveals the contradiction in legal regulation in the event of a refusal to certify a group of persons after the initiation of proceedings on a class action in civil, arbitration and administrative litigation, substantiates the inexpediency of leaving a class action without consideration, and the need to consider personal claims of group members and allocate relevant cases in a separate production, as provided for in the Arbitration (Commercial) Procedure Code of the Russian Federation. Attention is drawn to the gaps in the legal regulation of group proceedings in terms of establishing the amount and procedure for paying the state fee.