The Interpretation of the Supreme People’s Court on the Application of the Administrative Litigation Law of the People’s Republic of China has been released on 13th, Nov, 2017, and came into force on 8th, Feb, 2018. The new judicial interpretation revised some inopportune rules and added several new provisions which will cause significant influences on judicial practice and the protection of citizen’s lawful rights and the building of the government under the rule of law.
Ⅰ Negative list of the scope of cases accepted expanded
The new judicial interpretation listed five kinds of complaints filed by citizens are out of the scope of cases accepted. Scholars argued that the expansion of negative list made administrative petition harder for citizens, not easier. However, from another aspect this list provides legitimate basis for the actionability of internal administrative actions of tax authorities.
Inquiry Request on Crime of Falsely Making Out Counterfeiting or Illegally Selling Specialized AT Receipts was commonly sent between tax authorities to request immediate assistants and inquiry on potential crimes concerning taxation. It was not seen by citizens as well as had no effect on them. However, if the Inquiry Request causes direct effects on citizens, on the condition that tax authorities merely use it as their grounds to decision, complaints on this Inquiry Request shall be heard by the court.
Ⅱ The joint onus of proof of the reconsideration agency clarified
The new judicial interpretation provided that the administrative agency taking the original administrative action and the reconsideration agency shall bear the joint onus of proof. The evidences could be provided by one party of the two agencies. And the reconsideration agency shall bear the onus of proving its decision is subjected to the law.
For a case that the two agencies be co-defendants, evidences lawfully collected by the reconsideration agency during the reconsideration procedure shall be taken by the court as proving its decision is subjected to the law, it added.
Above provisions helped the functioning of administrative supervision, restricting the power of administrative agencies. Nevertheless, from the perspective of relief, the added article weakened the effeteness of administrative reconsideration as well as the protection of citizen’s lawful rights.
Ⅲ New rules on evidence strengthen Procedural Justice
The new judicial interpretation re-organized the chapter Evidence and made several adjustments. Compared with former provisions, the new rules on evidence put more emphasis on procedural justice.
It pointed put two conditions that administrative officers shall attend the court to state facts and accept questioning: when the plaintiff request or the court thought necessary.
It also said that if the plaintiff can prove that the defendant held evidences beneficial to them, the court shall demand the defendant to provide those evidences. On the condition that the defendant refused to provide evidences without reasons, even destroyed those evidences, the court shall consider the fact the plaintiff said is true.
In no doubt the new rules will be warmly welcomed by the plaintiff who are always take disadvantages in the administrative lawsuit.
Ⅳ Govt reps required to attend court cases
According to the new judicial interpretation, government departments should send representatives to attend case hearings when the authorities are taken to court. The interpretation clarifies government department representatives as heads, deputy heads and those responsible for the authority’s management, stating these people should attend trials if their workplace is subject to a lawsuit. If these representatives cannot take part in a case hearing, they must submit an explanation to court and should ask other officials to attend, it said, adding that only entrusting a lawyer to face a lawsuit is not allowed.
There could be consequences if a representative is absent without explanation, it added. With consequences, the administrative agency will act with more prudent and caution.
Ⅴ Tax Departmental Rules and Tax Regulatory Documents doomed to judiciary review
Again, the new judicial interpretation declared that the power of judiciary review belongs to the court and gave guidance to practice it.
First, the plaintiff shall ask for judiciary review before the hearing. With right reasons, this request can be put forward during court investigation.
Second, it listed the situation where the regulatory documents were not legal. State Taxation Administration has made piles of departmental rules and regulatory documents, while now the legitimacy of those rules and documents were questioned.
Third, for the purpose of citizen’s rights, if the regulatory documents were considered illegal, this matter shall be reported for the record to higher court at each level after the judgment came into force. Where those regulatory documents were made by departments of the State Council or the provincial administrative agencies, this matter shall be reported till SPC or the Higher Court.