Chinese Administrative Law Research Articles

China’s Due Diligence Legislation for Environmental Governance on Transnational Corporations: History and Future

Environmental governance of transnational corporations is a global challenge. On one hand, these corporations can contribute to environmental protection through ecofriendly technologies and equipment. On the other hand, their activities can lead to environmental degradation and pollution. This article explores China’s due diligence legislation for environmental governance, including historical perspectives and future prospects. Chinese administrative law, relevant regulations, and the guidelines issued by Chinese trade associations are included.

The Construction of an Academic System for Administrative Law in China

In terms of principle, the intrinsic structural elements of the academic system of Chinese administrative law can be divided into three components: the positive law (de lege lata) system, the theoretical system and the system of methodology. As the foundation of the academic system, positive law mainly consists of the normative and institutional systems of administrative law; as the heart of the academic system, the theoretical system contains the theoretical basis, the system of basic principles and the system of categories of administrative law; and the system of methodology is the link and the conversion mechanism between positive law and the theoretical system, including the three research methods of politico-legal jurisprudence, Rechtsdogmatik (legal dogmatics) and social science jurisprudence. Along with institutional practice and the deepening of doctrine over the past thirty years since the promulgation of the Administrative Procedure Law (1989), the academic system of administrative law in China has been maturing. However, we are conscious that problems still exist. The basic approach to achieving further innovation includes advancing the construction of basic administrative law through codification; enhancing academic quality by jurisprudential thinking; shaping Chinese characteristics by rule of law practice; and carrying forward the whole academic system in a complete form.

Environmental Policy and Compensation in China: An Empirical Analysis of Article Eight of the Chinese Administrative License Law

Abstract In the past few years, China has implemented environmental policies that negatively affected the property interests of numerous private enterprises. This article offers the first systematic analysis of how China compensates enterprises for losses caused by the implementation of environmental laws and policies. It generates descriptive statistics on the characteristics of the compensation cases and finds that in a majority of the cases, the court allowed the government to set compensation below the value of the enterprise’s investment. Statistics also show that China offers weaker protection for private enterprises against newly adopted environmental policies compared to other types of rules or policies, allowing the government to close highly polluting enterprises with relatively low compensation. This article then offers an explanation of the courts’ approach and considers whether Chinese courts achieve an appropriate balance between property protection and policy flexibility.

After He Jiankui's Case: Chinese Legislative Modifications in Human Embryo Gene Editing.

This article systematically discusses Chinese current legal status and rules for human embryo gene editing in both administrative law and criminal law after several legislative modifications, and further systematically evaluates the values and the defects of these modifications. After He Jiankui's case, Chinese legislators devoted themselves to improve human embryo gene editing legislation. As a result, human embryo gene editing's legal status becomes more determined. Rules for human embryo gene editing in Chinese administrative law have gradually become a complete system centering on "CBL-regulation," and the promulgation of Amendment (XI) to the Criminal Law reconciles the controversy existed in academic circles. Chinese rules for human embryo gene editing are moving from "doubtful development" to "complete legal system."

Environmental Policy and Compensation in China: An Empirical Analysis of Article Eight of the Chinese Administrative License Law

Environmental Policy and Compensation in China: An Empirical Analysis of Article Eight of the Chinese Administrative License Law

The Chinese Tradition of Administrative Law

For most of the time during the last two millennia, China was a dynastic empire ruled by an emperor with the assistance of a highly developed mandarinate of imperial organs. “Administrative law” in the modern sense of a set of legal norms enacted by the legislature or developed by the judiciary that simultaneously empower and constrain state organs and officials for the purpose of protecting the rights and liberties of subjects or citizens did not exist in traditional China. But there did exist for more than two millenniums elaborate and sophisticated rules regulating the powers and functions of each component of the highly complex and extensive machinery of imperial organs and officials, and prescribing in detail the duties of officials as well as the multiple and complicated monitoring, supervisory and disciplinary mechanisms applicable to the exercise of powers and performance of duties by officials in different state organs. By the late 19th century, Qing China’s increasing subordination to Western imperialism and semi-colonialism convinced significant numbers of Chinese political and scholarly elite that there was a desperate need for China to “save” and strengthen itself by pursuing modernization. In the legal and political domains, this generally meant extensive borrowing or transplant of Western political and legal institutions. After China's defeat by Japan in the Sino-Japanese War of 1894–1895, Japan’s experience of successful modernisation was widely admired by Chinese intellectuals, and the Japanese model was perceived as one that China should imitate in its self-strengthening efforts. This essay will therefore begin with the introduction and reception of Japanese administrative law in China in the late Qing Dynasty. It will then survey the study of comparative law and the influence of foreign law on the development of Chinese administrative law in the Republic of China era (1911–1949) and after the establishment of the People's Republic of China (1949-). Major developments in Chinese administrative law in both the Republican era and the Communist era will also be briefly outlined as the context of administrative law scholarship. It will be seen that the story of the study of comparative and foreign administrative law in modern China is very closely intertwined with the story of the development of Chinese administrative law itself.

冲突、困境与出路：信息化时代下的中国行政法治

With the coming of the information era, Chinese administrative rule of law is experiencing an profound reform not only in the field of administrative basic theory, but in the field of administrative practice, not only in the field of administrative execution, but in the field of administrative legislation, not only in the field of real world but in the field of virtual world. Confronting such a reform, scholars of Chinese administrative law should scheme ahead to reflect upon the present theory of administrative law from all-round aspects, timely adjust related theory so as to the construction of administrative rule of law. This article mainly analyses the conflicts, dilemma of Chinese administrative rule of law, points out some outlets of Chinese administrative rule of law under the conditions of the information age.

The Conformity Of Chinese Administrative Law with The WTO Agreements

The Conformity Of Chinese Administrative Law with The WTO Agreements

A Study on the Case Scope of the New Chinese Administrative Procedure Law

2014年11月1日第十二?全?人民代表大?常?委??第十一次??通?了≪?于修改<中?人民共和?行政??法> 的?定≫。本次修法是自?施24年?的第一次修改，主要??司法??中立案?，?理?，?行?等“三?”??，???行政相?人合法?益的保障，加大司法?判力度，加强?行政?力的?督和制?，行政??中的??保?等??作了重大修改。?了解?立案?的??，新增加了立案等?制度、?大了受案范?；?了解??理?的??，引入集中管?和提?管?制度、完善了行政机???制度和?据制度；?了解??行?的??，新修?法?定可居留行政机?直接??的主管人?和其他直接?任人，可以?行政机?拒不履行的情?予以公告等。 ?≪行政??法≫ 修改?程?看，?大受案范???一直都是理?界和??界，甚至是老百姓?所?注的焦点。行政??受案范?不??系到公民?利的保?和司法机???行政机?依法行政的具?范?，直接影?行政机?、行政相?人、法院三方的?系。故此，如何界定行政??的受案范?，?于人民法院正?及?地?理行政案件，保障和?督行政机?依法行政，保?公民、法人和其他合法?益有着重要的价?。修?前的≪行政??法≫ 受案范?不??，??生活中?生的?多?????未?入??范?，?正有效的救??以??，使行政??逐?失去活力。?此，新≪行政??法≫ ?法律?定中“具?行政行?” ?一修改?“行政行?”, ??公民?利的保?范??一步?大，除人身?、???之外，?社?保障?、公平???、知情?等?入受案范?。?外，?在城?建?、城市???程中出?的?民宅基地???安置，土地房屋征收??等?需解?的社????入行政??受案范?，??合立案登?制的?施，通?立案渠道，推?了?公民?利的保?力度。 有?于此，本文???着行政??受案范???，全面梳理≪行政??法≫ 修改?程中??大受案范?的意?和建?，?我?≪行政??法≫ 受案范?的基本?架入手，具?分析行政??受案范?的立法模式、立法?准、立法?容，?而提出新≪行政??法≫ 中受案范??定的缺失及完善建?。

Suing the Leviathan—An Empirical Analysis of the Changing Rate of Administrative Litigation in China

This article analyzes the changing rate of administrative litigation in China. Using a set of provincial‐level data over seven years (2003–2009), the article evaluates a number of hypotheses derived from extant theories of social litigiousness, state‐society relations in authoritarian regimes, Chinese elite politics, and Chinese administrative law. It finds evidence that the rate of administrative litigation varies according to different levels of lawyer density and urbanization. It also finds preliminary evidence that casts doubt on the effects of top‐down legal and policy changes in China. The article is the first longitudinal study of the Chinese administrative litigation system, and it answers questions that have long been underexplored. In addition, the research contributes to our understanding of state‐society relations in authoritarian regimes. This article also evaluates the role of elite politics in the development of the administrative law regime and adds new evidence to the debate about lawyers' role in China's legal reforms. Finally, the article contributes to empirical and comparative studies of litigation rates, especially the less researched area of administrative litigation.

Suing the Leviathan—An Empirical Analysis of the Changing Rate of Administrative Litigation in China

This article analyzes the changing rate of administrative litigation in China. Using a set of provincial‐level data over seven years (2003–2009), the article evaluates a number of hypotheses derived from extant theories of social litigiousness, state‐society relations in authoritarian regimes, Chinese elite politics, and Chinese administrative law. It finds evidence that the rate of administrative litigation varies according to different levels of lawyer density and urbanization. It also finds preliminary evidence that casts doubt on the effects of top‐down legal and policy changes in China. The article is the first longitudinal study of the Chinese administrative litigation system, and it answers questions that have long been underexplored. In addition, the research contributes to our understanding of state‐society relations in authoritarian regimes. This article also evaluates the role of elite politics in the development of the administrative law regime and adds new evidence to the debate about lawyers' role in China's legal reforms. Finally, the article contributes to empirical and comparative studies of litigation rates, especially the less researched area of administrative litigation.

La procédure administrative en Chine

In Chinese law, the “ inferiority” suffered traditionally by the procedural aspect in comparison with the substantive aspect is more strongly marked in the field of administrative procedure, which, being a non-judicial procedure, is more subject to the imbalance between the powerful administrative authorities and the vulnerable citizens. The restriction of administrative power, which is one of the principal objectives of Chinese administrative law, has logically given rise to a first progress of the administrative procedure during the last twenty years, even if the adopted legal rules remain scattered. However, regarding the next step of the reform, the scholars’ enthusiasm for a codification on this subject with reference to foreign experiences is in contrast with the unwillingness of legislative and administrative authorities. Facing to this uncertainty, the notions of procedural legality and of “ minimal procedural justice” seem useful in order to push forward the evolution towards the recognition of the inherent value of the administrative procedure.

Reflections on Administrative Law in China: A Hong Kong Perspective

Under the constitutional framework of “one country, two systems” that has been put into practice since Hong Kong’s reunification with China in 1997, the legal system of the Hong Kong Special Administrative Region (HKSAR) and that of mainland China operate autonomously in such a way that they are largely independent of each other. The HKSAR retains almost all the features of its pre-1997 common law system. In the domain of public law, the legal history of the HKSAR has seen a number of high profile constitutional cases as well as cases in administrative law. There has been a notable increase in judicial review cases in Hong Kong since the handover. Administrative law in Hong Kong is thus not only alive and well in the post-1997 era, but has flourished and displayed an unprecedented degree of vibrancy and vitality. At the same time, across the Hong Kong-Shenzhen border, administrative law has also flourished in mainland China. In March 1999, the National People’s Congress (NPC) adopted constitutional amendments which provide, inter alia, for “ruling the State in accordance with law” and “building a socialist Rechtsstaat (State based on the Rule of Law)”. Later in the same year, the State Council promulgated the Decision on the Comprehensive Promotion of Administration in Accordance with Law. This Decision was followed by the very detailed and elaborate Implementation Outline for the Comprehensive Promotion of Administration in Accordance with Law promulgated by the State Council in 2004. The last decade has also seen major enactments in the field of Chinese administrative law, including three major laws enacted by the NPC Standing Committee -- the Law of Administrative Licensing 2003, the Law on Civil Servants 2005, the Law on Security Administrative Punishment 2005, and two major enactments by the Supreme People’s Court – its Interpretations on the Administrative Litigation Law in 2000, and its Provisions on Evidence in Administrative Litigation in 2002. Drafting work for the revision of the Administrative Litigation Law 1989 has also begun. In this short essay, I will reflect and comment on some aspects of administrative law in China from the perspective of a scholar of law in Hong Kong, and draw some broad comparisons between administrative law in mainland China and Hong Kong. I will begin with some thoughts on the historical development of Chinese administrative law. Then I will turn to the structure of contemporary Chinese administrative law as presented in leading textbooks, and compare it with that of administrative law in Hong Kong. Finally, I will comment on some key features of the law of administrative litigation in China, particularly the scope of and grounds for judicial review of administrative action.

Judgment of Modification and Related Legal Theory in Chinese Administrative Procedure Law

Judgment of Modification and Related Legal Theory in Chinese Administrative Procedure Law

How Does TRIPS Transform Chinese Administrative Law?

This paper argues that, after its accession to the WTO, Chinese administrative law has been transformed. Four elements are of great importance in this transformation process: the domestic constitutional function of the WTO law; the constitutional significance of China's Accession Protocol where the right to trade and the obligation to provide independent judicial review are explicitly referred to; China's perception as an impetus to widen and deepen its economic reforms, and subsequent legal reforms; and political pressures from other members of the WTO. Besides, owing to special features of the TRIPS agreement where detailed procedural and substantial requirements are included, the discretionary power of domestic administrative agencies is greatly narrowed down and thus controlled. This paper argues that detailed procedural and substantial rules provided in the TRIPS agreement can effectively act as a body of Global Administrative Law, which further controls the discretion of domestic governmental agencies. After the theoretical analysis of this "inevitable" transformation, this paper examines existent practices in Chinese administrative law. It starts with a general evaluation, and goes further to examine some case-laws in Chinese courts so as to evidence this transformation.

China's Deep Reform: Domestic Politics in Transition. Lowell Dittmer , Guoli Liu

China's Deep Reform: Domestic Politics in Transition, edited by Lowell Dittmer and Guoli Liu. Lanham: Rowman & Littlefleld, 2006. xiv + 517 pp. US$89.00 (hardcover), US$34.95 (paperback). This edited volume is a collection of journal articles and book chapters on Chinese politics during the reform period. Its seven sections include 18 chapters, excluding the introduction and the conclusion. The book starts with the introduction by Guoli Liu and Lowell Dittmer, which briefly describes the major themes: (1) leadership change and elite politics, (2) political and legal reform, (3) political economy in transition, (4) the changing public sphere, (5) village elections and workers' politics, and (6) the shadow side of reform (namely, emerging problems and challenges). Liu and Dittmer rightly point out that an exploration of these issues provides valuable lessons for other countries in the process of transition from a command economy to a market economy. In Chapter 1, Dittmer and William Hurst review the field of contemporary Chinese politics. They outline the changes in topics, levels of analysis, and methodological approaches and techniques in the field over the years. They propose that more research should be based on the middle-range level of analysis to avoid atheoretical research and over-generalizations; there should also be a combination of methodological approaches; and more research should be based on the field's substantive foci that can also speak to larger theoretical concerns. Chapters 2 to 4 deal with leadership change and elite politics. In Chapter 2, Dittmer and Yu-Shan Wu suggest that the informal dimension, particularly faction politics, has been an important characteristic of Chinese politics. A modified factional model is still crucial to understanding elite politics in China. Based on an impressive database, Cheng Li and Lynn White address the issue of political succession from Jiang Zemin to Hu Jintao. They stress the adaptability of the party's elite in the selection of successors. Bruce J. Dickson's article focuses specifically on the party's adaptation: co-opting new elites and forging links with nonparty organizations. But Dickson also points out that the inclusion of certain members may contribute to a Leninist party's disintegration. Chapters 5 to 7 focus on political and legal reforms. Baogang Guo's article suggests that the party has been able to adapt to the changing political environment and strengthen its political legitimacy by reinventing itself. In the new environment, the party needs to adopt new measures, such as legitimizing political participation from different groups, to maintain its legitimacy. The chapters by Andrew J. Nathan and Randall Peerenboom both point to the slow process of the implementation of rule of law in China. Nathan's article reviews the many proposals of Chinese political reform and suggests that the heart of most proposals is the empowerment of the National People's Congress. As elsewhere, the progress of transition to constitutionalism will not be smooth in China. Peerenboom analyzes Chinese administrative law reform and rule of law in the era of globalization. He suggests that there has been considerable progress in realizing the rule of law in China, but it is still far from adequate. The creation of a modern legal system is thus constrained by China's specific circumstances. Chapters 8 and 9 form the section Political Economy in Transition. Yingyi Qian's chapter examines two reform stages. In the first (1979-93), the economic system was incrementally reformed to improve incentives and increase the scope of the market. In the second (since 1994), new institutions supporting the market are built before old institutions are dismantled. He points out that China's reform experience contradicts some of the conventional wisdom that suggests the incompatibility between socialist systems and market reforms. Shaoguang Wang's chapter examines the relationship between openness and inequality. …

Chinese Administrative Law in the Northeast Asian Mirror

Over the past two decades China has been building a system of administrative law that in many respects resembles what one would expect in any modern legal system. This process has received a good deal of outside attention, which is not surprising given the role administrative law plays in structuring relations between the state and civil society, a crucial issue in China. Most of the existing commentary on China's administrative law is entirely China-focused, which is also not surprising given China's importance in the world. This paper broadens the discussion of China's administrative law by examining it through the lens of administrative law as it has developed in jurisdictions which neighbor China, namely Japan, South Korea, and Taiwan. The thesis is that China shares important similarities with its Northeast Asian neighbors in terms of its industrialization and development policies, and in terms of its political situation, and that these similarities will affect the path of administrative law in China, as they affected the path of administrative law in China's neighbors.