By Kimberly Han and Erika Tang, with assistance provided by Jane Marie Russel, EALR Online Authors.
On Wednesday, October 24, the University of Pennsylvania East Asia Law Review proudly and successfully co-hosted a vibrant conference on Penn’s campus which featured distinguished Chinese administrative law scholars who discussed the current state, progress, and future of Chinese administrative law. The presentations were educational, timely, and thought-provoking. Each Chinese administrative law scholar’s presentation was followed by commentary from US administrative and Chinese law scholars who provided comparative context and insight that enriched the conversation. The discussions that took place advanced our understanding of Chinese administrative law, where it has been, where it stands today, and what its future might be.
In the first part of Panel I, Professor Xixin Wang, Vice-Dean and Professor of Law at Peking University Law School in Beijing, China, presented his paper “Chinese Administrative Procedure Reform in the Context of Governance Transition: What Changed? How to Move Forward?” Professor Wang focused his presentation on three points about the administrative procedure reform in China. First, what has changed in the past thirty years? Second, why were these changes possible? Third, why do these changes matter to both the administrative law system and political reform in China in the future?
The passage of the Administrative Litigation Law in 1989 introduced to the Chinese legal system judicial review of agency action. During the late 1970s and early 1980s, economic reforms called for an expansive role for the government and little attention was paid to administrative law. But under the Administrative Litigation Law, judicial review of agency action for the first time included reviewing the legality of administrative actions. Since 1989 China has seen the passage of various pieces of legislation that laid the foundation for individuals to bring a case against the government. Since the year 2000, there has been a new trend of administrative procedure reform and administrative law reform in China: government transparency in decision-making is increasing, and public participation in the administrative process has become both broader and deeper. There has been a shift from a traditional “managerial” model toward a “participatory” model. The reasons behind this shift include consideration by the central government about administrative efficiency and good performance of the administrative agency functions for the various agencies, as well as competition among the localities to provide for more reliable and open procedures. Moreover, the pluralization of social interests has gradually undermined the foundation of the managerial model – the diversification of interests has made it hard to identify “public interest” and thus the party-state’s status as the natural representative of the public interest has become contested. Lastly, in order to achieve more public acceptance of a particular policy and reduce public resistance in its implementation, the localities have started to attend to the public’s preference throughout the whole process of policy-making.
Professor Wang is optimistic that the dual track forces – top-down efforts to improve regulatory performance plus bottom-up demands of the public – ensure that the new trend of administrative reform in China, where the openness in the decision-making process of the government and the public participation in administrative process are increasing, is sustainable in the future.
In the second part of Panel I, Professor Chunyan Zheng, Associate Professor of Law at Zhejiang University Guanghua Law School in Hangzhou, China, and currently a Visiting Scholar at Yale China Law Center, presented her paper “Evaluating Negotiated Administrative Action in China.” China has focused on improvement of administrative efficiency. In China there are two types of “negotiated” administrative practices. On a macroscopic level such practices are mainly seen in the “privatization” of public administration, administrative rulemaking, and administrative decision-making, where the public takes part in the implementation of administrative goals by entering into administrative contracts with the relevant agency. On the microscopic level, which Professor Zheng calls “negotiated administrative practices,” a private party negotiates with an administrative agency through the various stages of implementation, and ultimately attains the power to make the final decision along with the agency.
Professor Zheng explained three special cases of Chinese negotiated administrative action: intervention administration (for example, administrative penalties); beneficial administration (for example, administrative awards); and planning administration (for example, environmental target regulation). Professor Zheng also divided negotiated administrative actions into three varieties: negotiated administrative action that can be legalized retrospectively, negotiated administrative action already provided for in the laws, and negotiated administrative action without statutory authority. Professor Zheng’s presentation then returned to the basic administrative law theory and to the challenges and opportunities that China’s administrative law is encountering when dealing with negotiated administrative action. Professor Zheng concluded that, among a number of theories, it is the concept of corrective-procedural rule of law that grants legitimacy to negotiated administrative actions through the negotiation and deliberation process.
The second portion of the Symposium featured Professor Hanhua Zhou from Chinese Academy of Social Sciences, Institute of Law, and Professor Hualin Song from Nankai University Law School. Their scholarship and commentary focused on China’s philosophical and practical approaches to regulation.
Professor Zhou gave a presentation entitled “China’s Regulatory Reform: Experience, Challenges, and Prospects.” Professor Zhou explained that traditional Chinese regulatory management philosophy has always been intricately tied to economic reform and will continue to be in the foreseeable future. Ever since the era of more capitalistic economic reforms ushered in by Deng Xiaoping in the end of the 1970s, China has seen a trend of separation of government and enterprises, away from government ownership and management to government oversight. Under the modern regime, the government realized that it has four basic roles in a regulatory state: macroeconomic adjustment; macroeconomic regulation; public service; and social management. These roles are increasingly separated and handled by different and new agencies. Although great changes have been made, challenges lay ahead. China is in a period of transition and tensions are high as political and governmental institutions face difficulties of adaptation. Although there have been attempts to separate powers in the different agencies, lack of a strong legal tradition and robust judicial independence prevent the Chinese regulatory regime from more fully decentralizing and modernizing. The most pressing issues still concentrate in the central government.
Professor Song presented on “Drug Safety Regulation and its Reform in China.” Professor Song offered the Chinese drug and safety regulatory regime as an illustration of China’s centralized, top-down regulatory approach . Current regulations reflect an effort of sustained and focused control exercised by a public agency over activities that are valued by the public community. Government drug safety regulation is divided between the Central Government (State Council) and local governments, but the central government reigns supreme. It is hard to define the private rights of the public when government intervention in this area is not transparent and goes far beyond general domains of tort law. Professor Song offered some recommendations for improvement. He argued that the Chinese state should clarify conflicting regulatory goals and confused regulatory styles so that regulatory agencies do not consider irrelevant factors. The state should also create accountability and tell the public who regulates the regulators, introduce requirements of self-discipline within enterprises, create a “risk warning system” and establish risk communication protocols.
The afternoon session of the Symposium featured Professor He Haibo from Tsinghua University Law School and Professor Yan Lin from Shanghai Jiaotong University Law School. Both scholars offered a wealth of information about the external oversight on the implementation of administrative law in China.
Professor He gave a presentation entitled “Administrative Litigation Law on the Ground.” China enacted Administrative Litigation Law in 1989 under which, for the first time ever, ordinary citizens can bring an action against agency officials. However, the actual implementation of this legislation, intended to move China closer to being a rule of law nation, has wandered far from the ideal and has turned into what Professor He calls the “disillusion of judgment of law.” Professor He mainly demonstrated this “disillusion” through the high and upward trending rate of plaintiff withdrawal in administrative cases. Professor He identified three key reasons that a plaintiff would withdraw: (1) Citizens lose hope in their cases; (2) Judges are reluctant to rule in favor of plaintiffs because the challenged initiatives come from strong administrative agencies and political mandates, and the judges do not want to defy the wishes of these agencies and central policy ; and lastly, but most importantly, (3) the concept of “coordination” has become a preferred and growing phenomenon that judges use to resolve cases in an informal, case-by-case basis without the full adjudication provided for in the Administrative Litigation Law. Although judicial mediation itself is not expressly lawful under the Administrative Litigation Law, judges routinely encourage withdrawal sometimes after an off-the-record settlement among the litigants. Professor He concluded by reminding us that a necessary ingredient to the faithful implementation of the full intent of the Administrative Litigation Law in China is an independent judiciary.
In his presentation, “The Role of the National People’s Congress Standing Committee in Administrative Oversight,” Professor Lin Yan provided an overview of the far-reaching oversight of the National People’s Congress Standing Committee in the implementation of Chinese administrative law. Professor Lin argued that we must not equate the Standing Committee’s legal supervisory role primarily as a legislative body to the role of administrative judicial review in the US played by the judiciary. Professor Lin used a very illuminating analogy to describe the difference. If the legal system is a city, the courts play the role of traffic police that make sure each car obeys the traffic lights. They adjudicate each case according to the legal rules given to them. The Standing Committee, on the other hand, plays the role of an urban transportation planner who makes policy decisions as to which traffic laws are to be prioritized, and what rules to enforce and how. This centralized and potentially expansive role raises many question about the allocation of powers, both among the different branches of government and also between the central government entities and local governments, and grassroots political participation. These questions are central to a thorough assessment of Chinese administrative law.
The symposium closed with remarks from professor deLisle who emphasized the importance of the day’s discussions. We thank the speakers for their insights and dedication to these important and dynamic issues.
- Co-sponsors are University of Pennsylvania’s Center for the Study of Contemporary China and Center for East Asian Studies, the Penn Program on Regulation, and the Cardozo Law School’s Floersheimer Center for Constitutional Democracy, in conjunction with the American Bar Association’s Section of Administrative Law & Regulatory Practice and with financial support from the U.S. Chamber of Commerce.↵