THE RULE OF LAW AND THE REMEDIES IN CHINESE ADMINISTRATIVE LAW
-- COMPARING FROM THE JAPANESE POINT OF VIEW

This is the summary of my doctoral thesis, and it consists of
an Introduction, Part 1 - The Rule of Law and Remedies in
Administrative Law in China, Part 2 - The Theoretical and
Practical Problems of Administrative and Judicial Remedy in
China, Part 3 -  The Theoretical and Practical Problems of
Government Compensation Law in China, and a Conclusion. 

By Yong Zhang

The subject of this thesis is to make clear how the rule of
law should function in a system of concentration of powers by
investigating the concrete problems of the remedies in
administrative law, which have developed remarkably in China
since the beginning of the 1980s. 
                   
PART 1 
I concretize the subject in the light of the concept of the
rule of law, and indicate the inherent problems of the remedy
system in administrative law which is based on the Chinese
style of rule of law. China did not have a tradition of the
rule of law. After 1949, under the system of concentration of
powers, circumstances were not conducive for the emergence of
the idea of the rule of law, not only because of the
traditional absence of the rule of law, but also because the
law was regarded as an instrument of class rule. The
activities of the government being dependent mainly on the
Party's policies, government and politics as well as
government and enterprises were integrated into the same body,
and the affinity between the government and the people was
emphasized, prohibiting any kind of private transactions or
management. Especially because people or individuals did not
own property or means of production and enterprises therefore
did not have their own interests, nobody considered it
necessary to pass administrative laws and build a remedy
system. 
The enactment of the large number of administrative laws or
regulations, which started at the beginning of 1980s, meant a
victory over the "rule by the Party's policy" or "rule by man"
by the "rule by law", which is the objective standard that
excludes arbitrariness. This kind of rule of law, based on the
system of concentration of power, is a new form. There are
many problems inherent to this kind of Chinese style rule of
law, though, when it is compared to the Japanese point of view
of the same matter. Such problems include: the Legislature
(National People's Congress -NPC) and its Standing Committee
(PCSC) lack supreme power over its own executive organ
(Executive), the status of the NPC or the PCSC is
comparatively lower, the weakness of the safeguards of
people's rights and interests in statute laws, which are
mainly made by the Executive itself inherently weakens the
functions of the remedy system. Furthermore, the status of the
courts, which have no power to review the constitutionality of
laws or administrative regulations made by the Executive
itself, is also relatively lower. 
However, even though the Executive has a superior position
over the Legislature and the Judicature, exercising
administrative power based on the principle of the "rule by
law" may be the first step towards the modernization of the
Chinese legal system. In this respect, Chinese-style rule of
law is significant.  
                   
PART 2
I explain the reasons, why the system of legal remedy was
ignored, and why it was difficult to build up a system of
legal remedy between 1949 and 1982.   
This situation in which administrative laws were non-existent
changed at the end of the 1970s. In 1978, the Communist Party
decided on a new policy of modernizing the Chinese economy and
strengthening the Socialist legal system. After the amendment
to the Constitution in 1982, the movement towards making basic
laws and regulations started, and this was the third time
China formally introduce basic laws that had their origin in
Western countries.  The formal system of legal remedy,
Administrative Litigation Procedure Act (ALPA) and
Administrative Objection Review Order (AORO), was established
in 1989. 
However, both the topics of objection and suit in ALPA and
AORO are limited or designated, especially when the invasion
of political or spiritual freedom and so-called internal
administrative actions are eliminated from the subjects of
litigation. The reason for the limiting of the subjects
emanated from  the principle of Constitution ("four basic
principles", the preamble of the Constitution) and the
characteristic of the supremacy of the Executive. Apart from
the problems mentioned above, there are many technical
provisions which maintain the supremacy of the Executive.
These characteristics of the Chinese ALPA are similar to those
of the Japanese administrative tribunal system before 1946.
There are also some provisions that the Japanese
Administrative Litigation Procedure Act lacks, which seem
desirable to people, such as imposing the burden of proof on
the defendant, giving courts the power to order the defendant
to take action, prescribing that a sentence must be passed
within three months. However, it is impossible to value this
properly without briefly considering the state of Chinese
statute law and its short history of administrative law. For
example, the normal method of administrative activities in
China is authoritative administrative action or activity like
administrative punishment, forced administrative measures,
often imposed on a person who has transgressed a social order,
or an administrative order or duty. 
Compared with administrative guidance, which is called
powerless administrative action or actual activity and is used
frequently as a normal method of administration in Japan, the
Chinese method of normal administration is quite different,
but both of them may be the main reason why cases of
administrative litigation in China and in Japan are limited.
In Japan, administrative guidance cannot be the target of
administrative litigation. Conversely in China, authoritative
administrative action or activity can be the object of
administrative litigation. With regard to this point, we may
perhaps be permitted to say that the rule of law in Japan
lacks substance. However, because administrative authorities
have many decisive powers and often use them, citizens are
afraid to sue them, even though they are dissatisfied with the
outcome of an administrative action. They tend not to bring
their cases to court, if it is possible for them to be
patient.
In spite of this, the rule of law in Japan is different from
the rule of law or "Rule by Law" in China. The phenomenon
described above can perhaps occur only in Asian countries. 
                          
PART 3
I study the history of state immunity in China, and the
process of introducing the state compensation law, and analyze
the characteristics and problems of the existing
administrative compensation system (before the enactment of
State Compensation Act), by comparing it with the situation in
Japan. 
As opposed to Japan or other capitalist countries, the state
compensation liability does not have its roots in the tort
liability in civil law, so there was a different kind of
principle of state immunity in China. Because of this, the
law-makers have introduced some provisions of state
compensation liability into the ALPA, which is causing
considerable theoretical and practical problems. For example,
the prior exhaustion for seeking damages, the limited objects
or issues of compensation, the standards for judging
illegality, and the burden of proof, all of these problems are
linked to that of putting the provisions of state compensation
into the ALPA. Excluding invasion of spiritual rights from the
objects of compensation, interpreting the illegality in state
compensation litigation in the same way as the illegality in
administrative litigation, and treating the liability of
faults in managerial and maintenance activities of public
utilities as civil tort liability and letting plaintiffs seek
damages from civil procedure, which is disadvantageous to
sufferers and so on, all show that, under Chinese style rule
of law, the liability of state has been limited. 

CONCLUSION
Even in the system of the concentration of power, the rule of
law and the system of administrative law can be built up, and
it is also possible for a remedy system to be established in
that kind of administrative law. The key point, however, is to
lessen the gap between the rule of law and the citizens in
practice, and to shorten the distance between laws and
administrative regulations and the citizens.                   
                    
This thesis was based on my publications (in Japanese): Nagoya
University Journal of Law and Politics. No 140, 143, 144, 146,
147, 148, 152, 153, 156 (1992-1994).