In order to thoroughly implement General Secretary Xi Jinping's important instructions on "putting the non-litigation dispute resolution mechanism in the front", better play the role of administrative adjudication functions, and further promote the diversified resolution of administrative disputes in the people's courts, the Supreme People's Court recently issued the "Opinions of the Supreme People's Court on Further Promoting the Diversified Resolution of Administrative Disputes" (hereinafter referred to as the "Opinions"), the full text and answers to reporters' questions, see the third edition). The "Opinions" has a total of 24 articles in five parts, which stipulate the overall requirements, source prevention, front-end resolution, work connection, and organizational safeguards for people's courts to participate in the governance of litigation sources in administrative trial work and promote diversified solutions to contradictions and disputes.
The "Opinions" emphasize that it is necessary to always adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, thoroughly implement Xi Jinping Thought on the Rule of Law, put the non-litigation dispute resolution mechanism in the forefront, prevent and resolve administrative disputes from the source, and promote the governance of the source of administrative dispute litigation. It is necessary to always adhere to the party's leadership, actively strive for government support under the leadership of the party committee and the supervision of the people's congress, and better play the role of the people's courts in participating, promoting, standardizing, and guaranteeing the diversified solution. It is necessary to always adhere to the people-centered approach, earnestly protect the legitimate rights and interests of citizens, legal persons, and other organizations, prevent and substantively resolve administrative disputes, and improve the people's quality of life.
The "Opinions" pointed out that it is necessary to strengthen the prevention of the source of administrative disputes. Participate in the governance of litigation sources from aspects such as administrative legislation, administrative decision-making, administrative law enforcement, comprehensive social governance, internal risk prevention of people's courts, popularization of the law by the whole people, and compliance with the law, and promote the resolution of the source of administrative disputes. It is necessary to promote the front-end resolution of administrative disputes. People's courts shall strengthen the establishment of pre-litigation guidance diversion mechanisms and pre-litigation mediation mechanisms. Guide, encourage and support parties to actively choose non-litigation methods such as administrative settlement, administrative reconsideration, administrative ruling, administrative mediation or application for arbitration to resolve disputes before administrative litigation procedures begin. It is necessary to straighten out the linkage mechanism between litigation and non-litigation for resolving administrative disputes. On the premise of clarifying that cases suitable for mediation should be mediated and that cases suitable for adjudication should be adjudicated, establish and complete content including pre-litigation mediation and pre-litigation evidence preservation, judicial confirmation of pre-litigation mediation agreements, transfer of litigation, determination of non-controversial facts, and penalties for dishonest mediation. At the same time, in order to protect the legitimate litigation rights of the parties, the Opinions make it clear that in cases where the parties have no willingness to substantively resolve disputes, insist on initiating litigation, mediation is protracted for a long time, the handling of cases involves major issues concerning the application of law, and the impartiality of the mediation institution itself is questioned, mediation should be terminated in a timely manner, and on the premise of linking mediation and litigation work, the case shall be transferred to litigation procedures in accordance with the law to ensure the legitimacy of dispute resolution.
The "Opinions" require that people's courts at all levels should attach great importance to the work of diversified resolution of administrative disputes, and promote the establishment and improvement of systems and mechanisms for the management of litigation sources and the diversified resolution of contradictions and disputes. It is necessary to strengthen the organization and leadership of the work of resolving administrative disputes in a diversified manner, enrich the staffing, and improve the working mechanism and the supervision and evaluation system. It is necessary to take the initiative to win the policy support and funding guarantee of local party committees and governments for the reform of the diversified resolution mechanism for administrative disputes. It is necessary to promptly summarize the successful experience of the reform of the diversified solution mechanism for administrative disputes, actively strive for local people's congresses and governments to issue local regulations, rules or normative documents on the work of diversified solutions, institutionalize and legalize the results of reform practice, and promote the healthy development of reform on the track of the rule of law. (Source: People's Court Daily Reporter: Sun Hang Correspondent: Yan Wei)
Supreme People's Court
Opinions on Further Promoting the Diversified Resolution of Administrative Disputes
Fa Fa [2021] No. 36
These Opinions are formulated on the basis of the provisions of the Administrative Procedure Law of the People's Republic of China (hereinafter referred to as the Administrative Procedure Law) and relevant judicial interpretations, combined with the actual conditions of trial work, so as to further advance the work of the people's courts and give full play to the role of administrative adjudication functions.
First, the general requirements
1. Always adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, thoroughly implement Xi Jinping Thought on the Rule of Law, put the non-litigation dispute resolution mechanism in the forefront, prevent and resolve administrative disputes from the source, and promote the governance of the source of administrative dispute litigation.
2. Always adhere to the party's leadership, under the leadership of the party committee and the supervision of the people's congress, actively strive for government support, better play the role of the people's courts in participating, promoting, standardizing, and guaranteeing diversified solutions, mobilize all kinds of dispute resolution resources in accordance with law, and further improve the mechanism for diversified resolution of administrative disputes that is smoothly connected and coordinated.
3. Always adhere to the people-centered approach, earnestly protect the lawful rights and interests of citizens, legal persons, and other organizations, boost administrative organs' administration according to law, prevent and substantively resolve administrative disputes, improve the people's quality of life, and promote common prosperity.
Second, pay attention to source prevention
4. Actively promote the establishment of a lawful administrative system system. Through joint consultations between governments and procuratorates, provision of advice, and strengthening the simultaneous review of normative documents, we will promote the systematic, integrated, and coordinated nature of administrative regulations, rules, and other normative documents, and prevent and reduce the occurrence of administrative disputes from the source of the system.
5. Encourage and support administrative organs to establish risk assessment mechanisms for major decisions. For matters such as the promulgation of major reform measures, the formulation or adjustment of major policies, the construction of major engineering projects, the holding of major activities, and the handling of major sensitive events that have a bearing on the vital interests of the masses and may cause problems affecting social stability, it is necessary to provide effective judicial services for the scientificization, democratization, and rule of law of major administrative decisions through methods such as participating in argumentation and providing legal advice.
6. Establish mechanisms for analyzing and judging contradictions and disputes. Periodically conduct investigations and sorting out areas with high incidence of administrative litigation cases and areas with prominent contradictions, and make full use of judicial recommendations, administrative trial white papers, and other such forms, to promptly provide early warning and governance suggestions for universal, tendentious, and trending issues in administrative law enforcement.
7. Promote the governance of litigation sources to better integrate into the social governance system. Actively participate in the construction of a one-stop social contradiction and dispute mediation and resolution center led by the party committee and government, improve the work docking mechanism in the fields of litigation services and public legal services, and broaden the docking channels with the government and its functional departments. Give full play to the people's courts' role in providing guidance, do a good job of coordinated guidance and resolution efforts, and promote pre-litigation resolution of disputes.
8. Improve internal risk prevention mechanisms for people's courts. When promulgating major judicial interpretations and judicial policies and handling major sensitive administrative cases, we should persist in taking risk assessment as a precursor link, improve risk disposal plans, actively prevent sudden and mass incidents, ensure effective control of the situation at the first time, and strive to nip contradictions in the bud.
9. Coordinate and combine administrative adjudication with legal popularization. Make full use of such forms as the publication of judicial interpretations, the internet of judgment documents, the release of typical cases, circuit trials, the disclosure of court hearings, and lectures on special topics on the rule of law, to publicize knowledge of administrative law, and guide the broad masses to consciously abide by the law, find the law when encountering problems, and rely on the law to solve problems.
Third, highlight the front-end solution
10. After the people's court receives the prosecution materials, it shall take the initiative to understand the cause of the case from the prosecutor and assess the litigation risks. In the following cases, the prosecutor may be guided to choose an appropriate non-litigation method to resolve:
(1) Where administrative disputes have not been handled by administrative organs, the complainant may be guided to apply to be handled by the administrative organ that made the administrative act or relevant departments first;
(2) Where administrative disputes have not been handled by the administrative reconsideration organ, the prosecutor may be guided to apply for an administrative reconsideration to the reconsideration organ in accordance with law;
(3) Where the resolution of administrative disputes needs to be based on the resolution of relevant civil disputes, the plaintiff may be guided to resolve the relevant civil disputes in advance in accordance with law through procedures such as people's mediation, administrative mediation, commercial mediation, industry mediation, administrative rulings, labor arbitration, and commercial arbitration;
(4) Where there are other legally prescribed non-litigation resolution channels for administrative disputes, the plaintiff may be guided to submit an application to the relevant departments.
11. In cases where administrative compensation, compensation, or administrative organs exercise discretionary power provided for by laws and regulations, before registering and filing a case, the people's court may guide the prosecutor to apply for pre-litigation mediation to a mediation organization established in accordance with law:
(1) It is difficult for the prosecutor's litigation claim to be supported, but there are indeed practical difficulties that need to be resolved urgently;
(2) Where the administrative act being sued may be judged to confirm the validity of the unlawful reservation, and it is necessary to employ remedial measures;
(3) Where administrative disputes arise due to policy adjustments, problems left over from history, or other such reasons, and the administrative organs handle them more conducively to dispute resolution;
(4) Where administrative disputes are triggered by deep-seated reasons such as misunderstandings of legal norms or emotional antagonisms between parties, and it is difficult to substantively resolve the dispute through adjudication methods, and may even increase unnecessary emotional antagonisms between the parties;
(5) Where there are already clear legal norms or effective adjudication guidelines for the resolution of similar administrative disputes, and there is no dispute over the outcome of the adjudication;
(6) The circumstances of the case are major or complex, there are a large number of people involved in the case, or they have a certain sensitivity, which may affect social stability, and it is difficult to substantively resolve them by relying solely on administrative adjudications;
(7) The resolution of administrative disputes involves not only the relief of infringements that have already occurred, but also the prevention or avoidance of infringements that may occur in the future;
(8) Where administrative disputes involve professional and technical knowledge or industry practices, and are mediated by relevant professional bodies, which is more conducive to the resolution of disputes over professional issues;
(9) Other cases that are appropriate to be handled through pre-litigation mediation.
12. In cases where pre-litigation mediation or other non-litigation mechanisms resolve disputes, the people's courts are to do a good job of guiding and coordinating the following work in accordance with the needs of substantive administrative dispute resolution work:
(1) Guide relevant institutions and personnel to fully understand the background in which administrative disputes are formed;
(2) Guide relevant institutions and personnel to correctly determine the parties to the dispute, the administrative acts of the dispute, and the focus of the dispute, and urge the parties to cooperate with mediation efforts around the focus of the dispute;
(3) Guide relevant institutions and personnel to promote parties to reach an agreement on the premise of making a preliminary judgment on the legality of the administrative act being sued;
(4) Guide the parties to automatically and promptly perform the mediation agreement;
(5) Other work that is conducive to substantively resolving disputes and does not violate the relevant provisions of the people's courts' lawful, independent, and impartial exercise of adjudication power.
Fourth, strengthen the convergence of work
13. In the course of pre-litigation mediation, where evidence may be destroyed or lost or it is difficult to obtain it later, and the parties apply for evidence preservation, the people's court shall rule in accordance with law to preserve the evidence. However, if the evidence is not related to the facts to be proved, is meaningless in proving the facts to be proved, or is otherwise unnecessary for preservation, the people's court rules not to preserve.
14. Where a mediation agreement is reached through pre-litigation mediation, the parties may, within 30 days from the effective date of the mediation agreement, jointly apply to the people's court with jurisdiction over the administrative dispute involved in the mediation agreement for judicial confirmation. The people's court shall conduct a review in accordance with article 60 of the Administrative Procedure Law, and where the mediation agreement complies with the provisions of law, issue an administrative pre-litigation mediation document.
15. Where upon review it is found that the mediation agreement has any of the following circumstances, the people's court shall rule to reject the application:
(1) Where it does not meet the scope of administrative cases that may be mediated as provided for in article 60 of the Administrative Procedure Law;
(2) Violating the principle of voluntariness of the parties;
(3) Violating mandatory provisions of laws, administrative regulations, or local regulations;
(4) Violating public order and good customs;
(5) Harming the national interest, the societal public interest, or the lawful rights and interests of others;
(6) The content is unclear and cannot be confirmed or enforced;
(7) There are other circumstances that should not be confirmed.
Where the people's court rules to reject the application for confirmation, the parties may initiate an administrative lawsuit in accordance with law on the administrative act involved in the disputed matter.
16. Where any of the following circumstances occur in pre-litigation mediation, mediation shall be promptly terminated:
(1) Where the parties have false mediation, malicious delay, or otherwise have no substantive intention to resolve the dispute;
(2) Where the parties insist on resolving disputes through litigation channels;
(3) The handling of disputes involves differences in the application of law;
(4) The dispute itself is caused by the pre-litigation mediation mechanism, or the parties have reasonable doubts about the ability, qualifications, and impartiality of the pre-litigation mediation organization and relevant mediators for other reasons;
(5) Handling through pre-litigation mediation mechanisms, where substantive progress has not been made for more than one month, or has not been resolved within three months;
(6) Other disputes that are not suitable for resolving disputes through mediation.
In cases where mediation is terminated, the pre-litigation mediation organization shall issue a report on the mediation situation, stating the basic circumstances of the case, the parties' mediation opinions, the reasons for the failure to resolve it, the exchange of evidence, cross-examination, and other circumstances, and transfer it to the people's court for registration and filing in accordance with law.
17. Where the time limit for resolving an administrative dispute is delayed by non-litigation means, when the people's court calculates the time limit for filing a lawsuit, it shall deduct it in accordance with Article 48 of the Administrative Procedure Law, except where there are circumstances provided for in Article 19 of these Opinions.
18. For undisputed facts recognized by the parties in pre-litigation mediation, with the consent of the parties in the litigation, there is no need to present or cross-examine additional evidence, except where there is evidence to the contrary that is sufficient to overturn.
Facts recognized by the parties to make concessions or compromises to reach a mediation agreement shall not be used as evidence against them in litigation without the consent of the parties.
19. Where parties have dishonest conduct such as false mediation, malicious delay, or malicious preservation in pre-litigation mediation, obstructing litigation activities, the people's court may, after filing the case, verify that it is true, it may be handled in accordance with law depending on the seriousness of the circumstances.
20. For cases entering litigation procedures, persist in taking the facts as the basis and the law as the yardstick, further strengthen the reasoning of judgment documents, improve the accuracy, necessity, and pertinence of reasoning, and strive to launch more high-quality administrative judgment documents, providing better demonstration guidance for the resolution of similar disputes.
V. Strengthen organizational safeguards
21. People's courts at all levels should attach great importance to the work of diversified resolution of administrative disputes, promote the establishment and improvement of systems and mechanisms for the management of litigation sources and the diversified resolution of contradictions and disputes, strengthen ties with other state organs, social organizations, enterprises and public institutions, actively participate in and promote the innovation of various non-litigation dispute resolution mechanisms, and continuously meet the people's diversified judicial needs.
22. People's courts at all levels should strengthen organizational leadership of efforts to resolve administrative disputes in a diversified manner, enrich staffing, improve working mechanisms and supervision and evaluation systems; strengthen management and training of relevant institutions and personnel, and assist relevant departments in establishing and improving institutional certification and personnel qualification recognition and evaluation systems for resolving administrative disputes outside litigation.
23. People's courts at all levels should take the initiative to seek policy support and funding guarantees for local Party committees and governments for the reform of mechanisms for the diversified resolution of administrative disputes, and effectively ensure the smooth progress of reform work through methods such as government purchases, separate expenditures, or inclusion in the court's annual financial budget.
24. People's courts at all levels should promptly summarize the successful experience of reforming mechanisms for diversified resolution of administrative disputes, actively strive for local people's congresses and governments to issue local regulations, rules, or normative documents on diversified resolution work, institutionalize and legalize the results of reform practice, and promote the healthy development of reform on the track of the rule of law.
December 22, 2021
Source: Supreme People's Court
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