{"id":871,"date":"2020-07-10T15:58:01","date_gmt":"2020-07-10T22:58:01","guid":{"rendered":"https:\/\/blogs.ubc.ca\/cals\/?p=871"},"modified":"2020-07-10T16:08:30","modified_gmt":"2020-07-10T23:08:30","slug":"litigating-the-partys-internal-rules-written-by-yan-wang","status":"publish","type":"post","link":"https:\/\/blogs.ubc.ca\/cals\/2020\/07\/10\/litigating-the-partys-internal-rules-written-by-yan-wang\/","title":{"rendered":"Litigating the Party’s Internal Rules"},"content":{"rendered":"

Written By: Yan Wang<\/a><\/p>\n

Posted On: July 10, 2020<\/p>\n

A 2016 document jointly issued by the Chinese Communist Party (CCP) and China\u2019s central government put principal government and party officials in the drivers\u2019 seat for the promotion of rule of law<\/em> (\u6cd5\u6cbb) in the country. The document set out these officials\u2019 obligations to ensure the country\u2019s rule of law system and possible consequences if the officials fail to fulfill their duties. A few attempts to invoke the document in lawsuits that challenge administrative decisions in China, however, have been unsuccessful.<\/p>\n

The Regulations<\/u><\/p>\n

In December 2016, the General Office of the CCP Central Committee and the General Office of the State Council jointly issued the Regulations on the Principal Officials in Charge of the Party and the Government to Fulfill the Responsibility to Promote Rule of Law<\/em><\/a> (The Regulations<\/em>).[1]<\/a> The two-page document comprises 12 articles and applies to \u201cprincipal party and government officials above the county level\u201d (article 2). The document, however, does not define \u201cprincipal officials.\u201d<\/p>\n

According to the Regulations<\/em>, the principal officials shall \u201cpersonally make plans for important work in promoting rule of law, personally look into important issues, personally coordinate important links, and personally supervise important tasks\u201d (article 4). If a principal official fails to fulfill their duties, they \u201cshall be held accountable in accordance with the relevant Party regulations such as the CCP<\/em> Accountability Regulations<\/em><\/a>, as well as national laws and regulations\u201d (article 9).<\/p>\n

The cases<\/u><\/p>\n

Our research yielded 17 cases where the plaintiffs either referred to the Regulations<\/em> in their submissions or cited the Regulations<\/em> as evidence. The earliest case was in April 2017 and the most recent in November 2019. All of these cases were heard by local courts at the district, city or provincial levels.<\/p>\n

The majority of these cases concern government information disclosure. For example, in a 2019 case heard by the Guangdong High People’s Court,[2]<\/a> the plaintiffs sued their local governments at the district and city levels for failing to fulfill information disclosure obligations. In March 2018, the plaintiffs filed an information disclosure application regarding land acquisition with their local district government. In April 2018, the district government provided a response that directed the plaintiffs to several published government documents. Unsatisfied with the boilerplate response, the plaintiffs applied to the upper-level government, i.e. the city, for a review of the district government\u2019s response. The city government was of the opinion that the district government\u2019s response \u201cwas based on clear facts, followed proper legal procedures, and correctly applied the law.\u201d In August 2018, the plaintiffs filed their case at the local Intermediate People’s Court, seeking a court order to revoke the district government\u2019s response and the city government\u2019s review decision. The intermediate court dismissed the plaintiffs\u2019 claim for \u201clack of factual and legal basis.\u201d The plaintiffs then appealed to the provincial higher court. In their appeal, the plaintiffs argued that the governments have violated the Regulations<\/em>, as the district government failed to fulfill its legal obligation, and the city government\u2019s decision was biased.<\/p>\n

In a 2017 commercial dispute,[3]<\/a> the appellant submitted that a lower court judge\u2019s decision on their case \u201cdisrespected legal ethics and disregarded judicial responsibilities.\u201d The appellant urged the Hangzhou Intermediate Court to penalize the lower court judge per the Regulations<\/em>.<\/p>\n

Court responses<\/u><\/p>\n

In both the aforementioned two cases, the courts ruled against the plaintiffs. In the 2019 case, the Guangdong High Court upheld the intermediate court\u2019s decision and did not mention the Regulations <\/em>in its decision. In the 2017 case, the Hangzhou court dismissed the appeal on the issue and, similarly, did not mention the Regulations <\/em>in its decision.<\/p>\n

In fact, only 1 out of 17 decisions we found accepted the Regulations<\/em> as supporting evidence. The remaining cases that cited the Regulations<\/em> found them either \u201cunable to support the claims\u201d or \u201cirrelevant.\u201d<\/p>\n

The one case where the Regulations<\/em> were accepted as supporting evidence was an information disclosure case heard by the Beijing First Intermediate Court in April 2017.[4]<\/a> But the court did not talk about them again in its decision, and eventually, the court dismissed the plaintiffs\u2019 claim for \u201clack of factual and legal basis.\u201d The Beijing case was the earliest to receive a court decision among all 17 cases. In all of the ensuing decisions, courts shunned accepting the Regulations <\/em>as supporting evidence.<\/p>\n

None of the decisions provided reasons for the courts\u2019 refusal to apply the Regulations<\/em>, except for one decision made by a court in Jiangsu. In March 2019, the Jiangsu High People\u2019s Court dismissed an appellant\u2019s case against the local government for failing to respond to their application for administrative inspections (\u884c\u653f\u7763\u5bdf) on two particular local officials. The appellant cited the Regulations <\/em>as the legal basis for their application. The court held that the claim should be dismissed for falling out of the scope of administrative litigation. According to the decision, the substance of the appellant\u2019s application was the inspection and supervision of particular individuals, as well as the management and training of principal Party leaders. Therefore, the subject matter of the claim was about management issues within<\/em> the Party, rather than administrative behaviors.<\/p>\n

In two information disclosure cases in August 2018, the plaintiffs received favorable decisions from the same court in Beijing.[5]<\/a> In both cases, however, the court found the Regulations<\/em> irrelevant and unsuited as supporting evidence.<\/p>\n

Conclusion<\/u><\/p>\n

In general, local courts in China at both intermediate and higher levels have refused to engage with the Regulations<\/em> in their decisions on administrative issues. This is not surprising, because the Regulations<\/em> are unlikely to be intended to be rules open to private enforcement, and they are not formally binding on courts either<\/a>. What is more striking is that Chinese citizens have taken note of the Regulations<\/em>. This seems sufficient reason in itself for scholars to give the implementation of the Regulations<\/em> some attention<\/a>.<\/p>\n

 <\/p>\n

[1]<\/a> \u300a\u515a\u653f\u4e3b\u8981\u8d1f\u8d23\u4eba\u5c65\u884c\u63a8\u8fdb\u6cd5\u6cbb\u5efa\u8bbe\u7b2c\u4e00\u8d23\u4efb\u4eba\u804c\u8d23\u89c4\u5b9a\u300b<\/p>\n

[2]<\/a> \u4f55\u5fd7\u9e4f\u3001\u674e\u5c0f\u82f1\u4e8c\u5ba1\u884c\u653f\u5224\u51b3\u4e66\uff0c(2019)\u7ca4\u884c\u7ec892\u53f7<\/p>\n

[3]<\/a> \u5510\u5143\u79c0\u3001\u676d\u5dde\u767e\u6b27\u8fdb\u51fa\u53e3\u6709\u9650\u516c\u53f8\u4ea7\u54c1\u8d23\u4efb\u7ea0\u7eb7\u4e8c\u5ba1\u6c11\u4e8b\u5224\u51b3\u4e66\uff0c(2017)\u6d5901\u6c11\u7ec88886\u53f7<\/p>\n

[4]<\/a> \u9648\u7231\u65f6\u7b49\u4e0e\u4e2d\u534e\u4eba\u6c11\u5171\u548c\u56fd\u56fd\u5bb6\u53d1\u6539\u59d4\u5176\u4ed6\u6848\uff0c(2017)\u4eac01\u884c\u521d152\u53f7<\/p>\n

[5]<\/a> \u80e1\u6765\u6ee1\u4e0e\u5317\u4eac\u5e02\u6000\u67d4\u533a\u5317\u623f\u9547\u4eba\u6c11\u653f\u5e9c\u4fe1\u606f\u516c\u5f00\u4e00\u5ba1\u884c\u653f\u5224\u51b3\u4e66\uff0c(2018)\u4eac0116\u884c\u521d130\u53f7\uff1b\u9a6c\u660e\u6625\u4e0e\u5317\u4eac\u5e02\u6000\u67d4\u533a\u5317\u623f\u9547\u4eba\u6c11\u653f\u5e9c\u4fe1\u606f\u516c\u5f00\u4e00\u5ba1\u884c\u653f\u5224\u51b3\u4e66\uff0c(2018)\u4eac0116\u884c\u521d7\u53f7<\/p>\n","protected":false},"excerpt":{"rendered":"

Written By: Yan Wang Posted On: July 10, 2020 A 2016 document jointly issued by the Chinese Communist Party (CCP) and China\u2019s central government put principal government and party officials in the drivers\u2019 seat for the promotion of rule of … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":62920,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-871","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/blogs.ubc.ca\/cals\/wp-json\/wp\/v2\/posts\/871","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.ubc.ca\/cals\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ubc.ca\/cals\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ubc.ca\/cals\/wp-json\/wp\/v2\/users\/62920"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ubc.ca\/cals\/wp-json\/wp\/v2\/comments?post=871"}],"version-history":[{"count":2,"href":"https:\/\/blogs.ubc.ca\/cals\/wp-json\/wp\/v2\/posts\/871\/revisions"}],"predecessor-version":[{"id":879,"href":"https:\/\/blogs.ubc.ca\/cals\/wp-json\/wp\/v2\/posts\/871\/revisions\/879"}],"wp:attachment":[{"href":"https:\/\/blogs.ubc.ca\/cals\/wp-json\/wp\/v2\/media?parent=871"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ubc.ca\/cals\/wp-json\/wp\/v2\/categories?post=871"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ubc.ca\/cals\/wp-json\/wp\/v2\/tags?post=871"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}