Text | Reporter of this magazine, Hua Bud
General Secretary Xi Jinping pointed out: "Comprehensively governing the country according to law is a profound revolution in national governance, which is related to the party's governance and rejuvenation of the country, the happiness and well-being of the people, and the long-term stability of the party and the country." ”
The fairness of administrative dispute resolution is related to the vital interests of the people and the construction of a government under the rule of law. With the "people" in one hand and the "officials" in the other, how can administrative adjudication achieve "win-win, multi-win, and win-win"? And how can we implement the concept of active justice in the new era in administrative adjudication, and transform the advantages of the socialist system with Chinese characteristics into governance efficiency?
On March 10, the Supreme People's Court held the fifth interview in a series of all-media live broadcasts of the "Work Report of the Supreme People's Court" (hereinafter referred to as the "Report"), and Geng Baojian, President of the Administrative Trial Division of the Supreme People's Court, interpreted the "Report".
On March 10, the Supreme People's Court held the fifth interview in the series of all-media live broadcasts of the 2024 National People's Congress and the National People's Congress and the National People's Congress "Work Report of the Supreme People's Court", introducing the effectiveness of the people's courts in focusing on administrative dispute resolution and responding to the people's substantive demands
Geng Baojian said that the administrative trial cadres and police of the four levels of courts strive to practice the concept of active justice in the new era: with the judicial concepts of "as I am suing" and "sitting on the side of the people", pay attention to the substantive resolution of administrative disputes, respond to the demands of the masses in a timely and effective manner, and promote "the case is concluded and the government is harmonious"; from the political height of strengthening the party's ruling foundation, implement the work requirements of "supervision is support, support is supervision", win the trust of the people through fair judgments, and promote the improvement of the level of administration according to law; "Prevent disease", actively integrate into national governance and social governance, and work with administrative organs to promote the construction of a rule of law country, a rule of law government, and a rule of law society.
Seek progress while maintaining stability
Lay a solid foundation for "improving quality and efficiency".
"Under the guidance of the new party group of the Supreme People's Court and the concept of active judicial adjudication in the new era, the overall administrative adjudication of the whole country in 2023 has achieved 'seeking progress while maintaining stability'. Geng Baojian said.
This is also confirmed by the administrative adjudication data in the Report. In 2023, courts across the country will accept 310,000 new first-instance administrative cases, an increase of 6.4% year-on-year, and close 308,000 cases, an increase of 3.6% year-on-year. Specifically, 22.2% of cases were closed by ruling not to file a case or rejecting a lawsuit, 25.1% were closed by mediation or withdrawal of litigation, and 52% were closed by judgment.
Article 60 of the "Administrative Litigation Law of the People's Republic of China" (hereinafter referred to as the "Administrative Litigation Law") stipulates: "The people's courts shall not apply mediation to the trial of administrative cases. However, cases of administrative compensation, compensation, and the exercise of discretionary powers provided by laws and regulations by administrative organs may be mediated. "Many types of administrative cases do not allow mediation, so after the judges have done preliminary work, the parties reach a mediation agreement, and finally close the case by withdrawing the lawsuit.
At the same time, the Supreme People's Court's administrative adjudication work practices the concept of active justice. After the expiration of the two-year pilot reform of the trial function positioning of the four levels of courts, the Supreme People's Court took the initiative to apply to the Standing Committee of the National People's Congress to terminate the deliberation of the draft amendment to the Administrative Litigation Law.
This move is very rare, and it has also caused a sharp increase in the number of cases directly handled by the Supreme People's Court, and the contradiction between the number of cases and the small number of cases has become more prominent, which has brought tremendous pressure to the Supreme People's Court. Geng Baojian still remembers it vividly. He said that in fact, this strategic decision can better protect the right of the parties to apply to the Supreme People's Court for retrial in accordance with the law, can better play the function of the Supreme People's Court to supervise retrial, and better realize the function of unified adjudication standards, and fully reflects the new party group's feelings for the people, political responsibility, and rule of law.
In the face of a substantial increase in the number of cases, the Administrative Division of the Supreme People's Court resolutely carried out the tasks assigned by the party group of the court, and from the perspective of strengthening the foundation of the party's governance, properly tried every administrative application for retrial, and directly brought the case to trial and changed the judgment and coordinated the resolution of a number of cases.
Geng Baojian said that while handling these cases, the judges profoundly realized that "support" for illegal and erroneous administrative acts may have damaged the masses' trust in the party and the government on the surface, while on the surface it has safeguarded the face, image, and authority of the administrative organs.
Treat both the symptoms and the root causes
Practice the concept of active justice in the new era
The report mentions that in recent years, the appeal rate of administrative cases has remained high. "Comprehensively and accurately adhering to the concept of active justice in the new era is the answer to this problem, and it is also an action plan. Geng Baojian said that in the past year, the Supreme People's Court took the initiative to include the high rate of appeals in administrative cases and the high rate of applications for retrial into the scope of special rectification of theme education, and implemented rectification measures one by one, and has achieved phased results.
The data shows that the appeal rate in some local high court jurisdictions has dropped by nearly 20%. In 2023, a quarter of the administrative cases that have been concluded in the first instance will be concluded by mediation or withdrawal, an increase of 2.8% year-on-year, which has better promoted the harmonious relationship between the government and the people. As a result of the comprehensive measures, the appeal rate of first-instance administrative cases nationwide has dropped by 1.68 percent.
"1.68%, this number does not sound big, but it is also the case 'handled' by the judges of the fourth-level courts. Geng Baojian took the "small cases of popular support" caused by expropriation and demolition mentioned in the report as an example to tell the story of the people's court's practice of active justice. In 2000, a supply and marketing branch was in trouble due to its operation, and organized employees to raise funds to build houses in the courtyard of the unit, and agreed that the completed houses would be operated by the employees, and the property rights would belong to the supply and marketing cooperatives after 20 years. At that time, Zhou and others acquired the house at a low price, and later, the house was demolished. So, is it to be compensated according to the price of local commercial housing, or according to a fair and reasonable price? In fact, this is a question of compensation standards.
However, under the interweaving of various factors, such as the collection of funds to build houses, the separation of housing and land, and the layoff of workers, the antagonism among the masses is serious, and the contradictions are accumulating deeper and deeper. In a situation where the county government has clearly decided not to make compensation, the court of second instance twice rejects the compensation judgment already made by the court of first instance and requires the county government to make another compensation decision, instead of directly determining a specific, definite and enforceable amount of compensation. In Geng's view, "this will lead to litigation entering a cycle with no end in sight." ”
In order to properly resolve this series of cases, the Supreme People's Court dispatched a special team to the local area to carry out coordination and resolution work. Several judges spent two days and three nights communicating face-to-face with local government workers and the public, and finally facilitated a reconciliation between the two parties. After three years and four rounds of litigation, the dispute was substantively resolved.
"It is precisely because the Supreme People's Court implements the concept of active justice and pays attention to coordination and resolution that the case is finally concluded and a 'win-win, multi-win, and win-win' situation is realized. This is the 'non-litigation' effect that administrative judges should pursue, and it should also be the responsibility and feelings that administrative judges should have. In Geng Baojian's view, "to practice the concept of active justice in the new era, administrative adjudication must change from the traditional case-handling to 'penetrating trial', and cannot only focus on 'closing the case' and not paying attention to 'the case is closed'." A good doctor should prescribe the right medicine to cure the disease, and a good judge should treat both the symptoms and the root causes, and the case should be closed. ”
In accordance with the law
Administrative punishments should also be reasonable and reasonable
The rule of law is the best place to do business. At present, the CPC Central Committee and the State Council are vigorously promoting the construction of a unified national market, vigorously protecting the legitimate rights and interests of private enterprises, and building a business environment based on the rule of law. Geng Baojian said: When enterprises, especially private enterprises, have disputes with administrative organs in the course of market economic activities, the people's courts should promote the combination of inclusive and prudential supervision with goodwill and civilized law enforcement, equally protect the legitimate rights and interests of private enterprises in accordance with the law, and let the private enterprises involved in litigation truly feel the strength and warmth of the protection of administrative trials.
The land administrative penalty of Sanjian Company v. Xingning Municipal Bureau of Natural Resources of Guangdong Province mentioned in the Report is one of the typical cases of retrial involving the property rights of private enterprises and the protection of the legitimate rights and interests of entrepreneurs issued by the Supreme People's Court in 2023. Geng Baojian was also the presiding judge in the case.
The facts of the case are not complicated: around 2004, Sanjian Company obtained some formalities such as a planning permit for construction land, but the land use procedures were incomplete. In 2014, the Xingning Municipal Bureau of Natural Resources determined that the construction carried out by the company without obtaining approval procedures for construction land was illegal land use, and decided to confiscate the building. The Supreme People's Court held in the retrial that both parties were liable for the fact of illegal occupation. Therefore, when imposing penalties, administrative organs should fully consider the historical reasons and the magnitude of the responsibilities of all parties, follow the principles of proportionality of punishment and trust protection, correctly treat the non-compliant behaviors of private enterprises due to historical problems, and protect the reasonable expectations and legitimate rights and interests of private enterprises in accordance with the law. In the end, the Supreme People's Court changed the judgment of the sued administrative penalty decision in accordance with the law, and protected the property rights of the enterprise. "This case is a profound lesson in the rule of law for both entrepreneurs and administrative organs: compliance with laws and regulations is the 'talisman' for the long-term development of enterprises, and administrative organs have the right and cannot be capricious. Geng Baojian said.
With regard to the existence of a small number of administrative organs such as "new officials ignoring old accounts," how should the people's courts promote the trustworthiness of administrative organs and the fulfillment of their promises? Geng Baojian said: "Government creditworthiness is an important part of the establishment of a social creditworthiness system, and it is also a bellwether of social creditworthiness. If administrative organs can not abide by the law, how can they require the whole people to abide by the law, and if administrative organs can breach the contract at will, how can they require enterprises to abide by their contracts in good faith? Therefore, in administrative management links such as expropriation and compensation, investment promotion, and public-private partnerships, administrative organs should especially follow the principle of good faith and fulfill the commitments made to the other party in accordance with the law and agreements. ”
According to reports, for these acts of untrustworthiness and fulfillment, the people's courts supervise the performance of obligations by administrative organs in accordance with the law and the contract, and protect the trust and interests of the other party to the contract through lawful judgments, active mediation, and the formulation and issuance of judicial recommendations.
Geng Baojian cited two examples: in the case of a company v. a county natural resources bureau administrative agreement, the county natural resources bureau signed a transfer contract without meeting the conditions for land transfer, and collected more than 30 million yuan in transfer fees, and then a dispute arose because it could not hand over the land in time. In the case of a company v. a district natural resources and planning bureau for an administrative agreement, the district natural resources and planning bureau returned the land transfer fee and interest of 200 million yuan received due to the administrative agency's "reversal" and refusal to issue a work safety license in 2022 with written consent in 2019, resulting in the company's inability to mine. In Geng Baojian's view, "In cases like this, administrative adjudication has always adhered to both law and contract, both mediation and judgment, resolutely corrected 'new officials ignore old accounts', and resolutely supervised administrative organs to keep their promises and fulfill their promises, which has better played the role of the rule of law in consolidating the foundation, stabilizing expectations, and benefiting the long-term." ”
The penalty is comparable
Administrative law enforcement is more vigorous and warm
In recent years, many cases of administrative fines, especially cases of "small and excessive fines", have aroused widespread concern in society. According to Geng Baojian's analysis, a small number of law enforcement agencies mistakenly believe that "management is punishment, and strict management is heavy punishment", resulting in "top punishment" and "small excessive punishment" from time to time. In 2023, administrative cases caused by administrative penalties accounted for 12.2%, ranking first.
"The administrative penalty case of an electronic technology company in Henan suing the Market Supervision Bureau of a district has truly realized 'political communication and people's trust and trust'. Geng Baojian introduced, a district market supervision bureau monitoring found that an electronic technology company in its website published advertising, there is "the best choice for infrared thermal imaging professional detection" content, because the "People's Republic of China Advertising Law" prohibits the use of "best, best, favorite" and other words, so an electronic technology company was fined 200,000 yuan. An electronic technology company believes that the administrative punishment is too heavy and files an administrative lawsuit.
The Intermediate People's Court of Zhengzhou City, Henan Province, made a judgment to revoke the punishment decision. The judgment held that when imposing penalties on enterprises, they should fully consider factors such as the severity of the circumstances and the harmful consequences on the basis of ascertaining the illegal acts, so as to ensure that the law enforcement is both vigorous and warm. After the case was handled, the administrative authorities issued relevant provisions and a list of exemptions from punishment for minor violations.
In Geng Baojian's eyes, "the value of administrative litigation lies in promoting the improvement of the level of social governance and governance capacity of administrative organs through judgments that correct illegal acts one by one. ”
"In 2024, we will strictly implement the Administrative Punishment Law of the People's Republic of China, as well as the requirements of the government work report on building a rule of law government that is satisfactory to the people, and supervise the administrative organs to implement administrative punishments in accordance with the principles of statutory punishment, fairness and openness, proportionality of punishment, and combination of punishment and education. Administrative punishments should conform to legal principles, as well as facts and reasonableness. Geng Baojian said.
Reduce disputes at the source
Continuously expand the "circle of friends" of litigation source governance
In Geng Baojian's view, the practice of the concept of active justice in the new era of administrative adjudication has a deeper meaning, which requires administrative judges to learn "medicine", "grasp the front end, and treat diseases before they occur", promote the prevention and reduction of administrative disputes from the source, and promote the harmonious relationship between the government and the people.
The case of Zhou's request to change the marriage registration information mentioned in the "Report" confirms this point. After Zhou was divorced through mediation by a court in Jiangsu, when he handled the provident fund matters online, he found that the marriage registration information was still "married", which made it impossible to handle it online. Zhou applied to the District Civil Affairs Bureau to correct his marriage information to "divorce". The District Civil Affairs Bureau held that the marriage registration system only shared the marriage registration information handled at the marriage registration authority, and the handling of divorce information involving court judgments and mediation did not fall within the scope of the Civil Affairs Bureau's duties, and informed Zhou that it could not be handled. Zhou filed an administrative lawsuit after reconsideration, and the court ordered the District Civil Affairs Bureau to perform its responsibilities in accordance with the law, and Zhou's appeal was realized.
"In this case, the administrative trial did not stop at 'the case is closed'. Jiangsu courts actively do a good job in the 'second half of the article', and work with civil affairs and other departments to jointly promote the establishment of a marriage registration information sharing mechanism, timely and proactively exchange marriage registration information, and effectively prevent the occurrence of similar administrative disputes by 'letting the data run more and let the masses run less errands', and truly 'grasp the front end and cure the disease before it happens'. Geng Baojian introduced that in order to promote the prevention and reduction of administrative disputes from the source, in 2023, the four-level courts across the country will actively participate in the consultation of major administrative decisions of administrative organs and the legality of major construction projects. A total of 1,524 administrative dispute resolution centers of various types have been established across the country, resolving 61,864 administrative disputes; focusing on analyzing and judging the reasons for the high incidence and frequent occurrence of administrative cases, courts at all levels have formulated and issued 7,231 administrative judicial recommendations, 6,289 administrative organs have given feedback, and 837 white papers on administrative adjudication have been issued; in 2023, under the leadership of the Supreme People's Court, the high people's courts will promote a total of 200 provincial-level government-court linkages, giving full play to the greatest political advantage of the party's leadership and continuously expanding the governance of litigation sources"Circle of Friends".
Geng Baojian also focused on the important value of the people's court's case database in preventing and resolving administrative disputes, promoting the development of administrative law theory, and unifying the adjudication standards of administrative cases at the four levels of courts. Hu Jianmiao, a member of the National Committee of the Chinese People's Political Consultative Conference (CPPCC) and a first-class professor at the Central Party School (National Academy of Administration), as a user of the people's court's case database, said that the mainland's administrative rule of law is characterized by an administrative litigation system first, followed by a mature theory of administrative rule of law. From the perspective of administrative law, the people's court case database has played a good role in promoting the maturity of China's administrative law theory.
In order to implement President Zhang Jun's "report" clearly put forward "strengthen administrative adjudication work, supervise and support administrative organs to administer according to law and strictly enforce the law", Geng Baojian revealed that the Supreme People's Court has studied and decided to take 2024 as the year to improve the quality and efficiency of administrative adjudication in courts across the country. At present, the Administrative Division of the Supreme People's Court has researched and formulated the "Key Points of the Work of the Administrative Division of the Supreme People's Court in 2024" and the "Work Plan for the Special Action for Improving the Quality and Efficiency of Administrative Adjudication (2024)" to further refine the work measures and clarify the work tasks.
Cover and table of contents of this issue
China Trial, Issue 5, 2024
China Trial News Semi-Monthly No. 339
Editor/Xu Chang