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Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Administrative Procedure Law of the People's Republic of China
[2015-05-03]

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Administrative Procedure Law of the People's Republic of China, adopted at the 1648th session of the Judicial Committee of the Supreme People's Court on April 20, 2015, is hereby promulgated for implementation as of May 1, 2015.


The Supreme People's Court
April 22, 2015


To properly apply the Administrative Procedure Law of the People's Republic of China which has been revised at the 11th Session of the 12th Standing Committee of the National People's Congress, interpretation to the issues concerning the application of the relevant articles is hereby given as follows based on the actual situations of administrative litigation of the people's courts:
 Article 1 The people's court shall file a case that meets the litigation conditions and guarantee that the parties concerned exert their litigation rights by law.
As for the lawsuits lodged by the parties concerned according to law, the people's court shall accept the petitions as required by Article 51 of the Administrative Procedure Law. Where the people's court can determine that the lawsuit meets the aforesaid litigation conditions, the said people's court shall file the case on site; where the people's court cannot determine whether the lawsuit meets the aforesaid conditions or not, the said people's court shall decide whether to file the case or not within seven days upon receipt of the petition. Where the people's court still cannot make such determination after seven days, the said people's court shall file the case first.
Where the petition lacks contents or materials, the people's court shall inform the parties concerned, in full details, of the contents and materials needed to be supplemented and the period of supplementation all at once. Where the contents and materials are supplemented within the specified period and meet the required procedure conditions, the people's court shall file and register the case. Where the parties concerned refuse to supplement the contents or materials or the petition still does not meet the litigation conditions after supplementation, the people's court shall judge not to file the case and indicate the reasons for not filing the case. 
The parties concerned, if not satisfied with the judgment on not filing the case, may institute an appeal.
Article 2 "With detailed litigation requirements" specified in Item 3 of Article 49 of the Administrative Procedure Law refers to:
i. Request for judgment to withdraw or change the administrative act;
ii. Request for judgment which requires the administrative authority to perform the responsibilities or obligation of payment required by law;
iii. Request for judgment on confirmation of the administrative act to be illegal;
iv. Request for judgment on confirmation of the administrative act to be void;
v. Request for judgment which holds the administrative authority to make compensation or remedy;
vi. Request for judgment on settling disputes over an administrative agreement;
vii. Request for complete review of all normative documents under the rules and regulations
viii. Request for complete settlement of relevant civil disputes;
ix. Other litigation requests.
Where the parties concerned fail to express their litigation requests correctly, the people's court shall help to interpret.
Article 3 Where a case involving any of the following situations has been filed, the people's court shall judge to reject the lawsuit:
i. The case does not meet Article 49 of the Administrative Procedure Law;
ii. The case has exceeded the period for administrative prosecution specified by law without justifiable reasons;
iii. The case lists the wrong defendant and the party concerned refuses to correct;
iv. The litigation acts are not conducted by the legal agent, designated agent or representative as is required by laws;
v. No application for reconsideration has been made to the administrative authority as is required by the laws and regulations;
vi. The lawsuit has been made repeatedly;
vii. Another lawsuit is lodged without justifiable reasons after the original lawsuit has been canceled;
viii. It is evident that the administrative act does not have an actual impact on the legal rights and interests of the party concerned;
ix. The subject matter is subject to an effective judgment;
x. The case does not meet other litigation conditions required by laws. 
Where the people's court determines that no open trial needs to be held for the case after reviewing the files, making the investigation and questioning the parties concerned, the people's court can directly judge to reject the lawsuit.
Article 4 Where a citizen, legal person or other organization lodges a lawsuit against an administrative authority for not performing the responsibilities required by laws in accordance with the first paragraph in Article 47 of the Administrative Procedure Law, the said citizen, legal person or other organization shall lodge such lawsuit within six months after the expiration of the administrative authority's performance of such responsibilities.
Article 5 The "head of an administrative authority" in the third paragraph of Article 3 of the Administrative Procedure Law includes both the principal and the deputy heads of an administrative authority. Where the head of an administrative authority appears in court to respond to the lawsuit, another one or two agents ad litem can be engaged.
Article 6 "The authority of administrative reconsideration determines to maintain the original administrative act" specified in the second paragraph of Article 26 of the Administrative Procedure Law includes the application for reconsideration or the reconsideration request rejected by the authority of administrative reconsideration, except for the application rejected for the reason of not meeting the accepting conditions.
"The authority of administrative reconsideration changes the original administrative act" specified in the second paragraph of Article 26 of the Administrative Procedure Law refers to the settlement result that the authority of administrative reconsideration changes the original administrative act.
Article 7 Where the authority of administrative reconsideration maintains the original administrative act, the administrative authority conducting the original administrative act and the authority of administrative reconsideration shall be the co-defendants. Where the plaintiff lodges a lawsuit only against the administrative authority which has conducted the original administrative act or the authority of reconsideration, the people's court shall inform the plaintiff to add the other authority as a defendant. Where the plaintiff refuses to add such authority as a defendant, the people's court shall list the other authority as co-defendant.
Article 8 Where the administrative authority which has conducted the original administrative act and the authority of reconsideration are listed as co-defendants, the level of jurisdiction of the case shall be determined according to the level of the administrative authority that has conducted the original administrative act.
Article 9 Where the authority of reconsideration determines to maintain the original administrative act, the people's court shall investigate in the legality of the reconsideration procedure while investigating in the legitimacy of the original administrative act.
Where the administrative authority which has conducted the original administrative act or the authority of reconsideration jointly assume the responsibility of evidence presentation for the legality of the original administrative act, either of the two authorities can carry out the evidence presentation act. The authority of administrative reconsideration shall assume the responsibility of evidence presentation for the legality of the reconsideration procedure.
Article 10 The people's court, when making judgment on the original administrative act, shall make a relevant judgment on the decision of the reconsideration.
Where the people's court judges to withdraw the original administrative act and decision of reconsideration, the said people's court can make a judgment requiring the administrative authority which conducted the original administrative act to perform the administrative act again.
Where the people's court makes a judgment requiring the administrative authority which conducted the original administrative act to perform the responsibilities or the obligation of payment required by laws, the said people's court shall also make a judgment on revoking the decision of reconsideration.
Where the administrative act is legal but the decision of reconsideration violates the procedure required by laws, the people's court shall make a judgment determining the decision of reconsideration to be against the procedure specified by laws and make a judgment on rejecting the plaintiff's lawsuit against the original administrative act.
Where the original administrative act is revoked or recognized as illegal or void, which has brought losses to the plaintiff, the administrative authority which has conducted the original administrative act shall assume relevant liability for damages. Where losses occur to the plaintiff resulting from the illegal procedure of reconsideration, the authority of reconsideration shall assume the liability for damages.
Article 11The agreement with contents concerning rights and duties specified in the administrative laws reached between an administrative authority within its legal scope of responsibilities with a citizen, legal person or other organization for the purpose of realizing public benefits or administrative management goals belongs to the administrative agreement specified in Item 11 in the first paragraph of Article 12 of the Administrative Procedure Law.
Where a citizen, legal person or other organization lodges an administrative lawsuit against the following administrative agreements, the people's court shall accept it as is specified by laws:
i. Government licensed operation agreement;
ii. Compensation agreement for land or house expropriation;
iii. Other administrative agreements.
Article 12Where a citizen, legal person or other organization lodges a lawsuit against an administrative authority for the latter's failure of performing the agreement as is required by laws or the agreement, the people's court shall refer to the provision of the civil laws on the effective period of litigation.
Article 13As for the case where a lawsuit is lodged against an administrative agreement, the Administrative Procedure Law and its judicial interpretation shall be applied to determine the people's court of jurisdiction.
Article 14 Where the people's court investigates in whether an administrative authority has performed an agreement according to law or in a way that is agreed upon, or whether it has unilaterally modified or terminated the agreement in a legal manner. The civil laws and regulations not violating the administrative laws and the Administrative Procedure Law can be applicable in addition to the administrative laws and regulations.
Article 15 Where the reasons claimed by the plaintiff for the defendant's failure in performing an agreement according to laws and as is specified by the agreement or for the defendant's  unilateral modification or termination of the agreement are grounded, the people's court can make a judgment on recognizing the agreement to be valid according to the litigation request of the plaintiff, and hold that the defendant shall continue to perform the agreement and specify the detailed contents to be performed. Where the defendant cannot continue to perform the agreement or further performance of the agreement is of no actual significance, the people's court shall make a judgment that the defendant shall adopt relevant remedy measures. In case of any losses caused to the plaintiff, the people's court shall make the judgment requiring the defendant to compensate.
Where the plaintiff requests to terminate an agreement or recognize an agreement to be void for reasons grounded, the people's court shall make a judgment to terminate the agreement or recognize the agreement to be void and process the case in accordance with relevant laws and regulations such as the Contract Law.
Where the defendant unilaterally modifies or terminates the agreement for the purpose of public benefits or other legal reasons, which results in losses to the plaintiff, the people's court shall make a judgment requiring the defendant to compensate.
Article 16Where a lawsuit is lodged against an administrative authority for its failure in performing an agreement according to laws or as is specified in the agreement by the latter, the litigation fee shall be charged based on the standard for quasi civil cases. Where a lawsuit is lodged against an administrative authority for unilaterally modifying or terminating an agreement by the latter, the standard for litigation fee on administrative cases shall be applicable.
Article 17A citizen, legal person or other organization shall make the request for joint trial of relevant civil disputes specified in Article 61 of the Administrative Procedure Law if any. Such request can also be raised during the court investigation if there is any justifiable reason.
The people's court shall make the decision to not approve the request for joint trial of civil disputes in any of the following situations and inform the parties concerned of claiming their rights through other channels:
i. Where the civil disputes shall be first processed by an administrative authority according to laws and regulations;
ii. Where such request violates the article on special jurisdiction of the Civil Procedure Law or the agreement on agreed jurisdiction;
iii. Where a request for arbitration or civil lawsuit has been made;
iv. Other civil disputes that should not be jointly tried.
Where the people's court makes the decision of not approving the request, the application for reconsideration can be made one more time.
Article 18Where the people's court tries relevant civil disputes in an administrative lawsuit, the civil disputes shall be separately filed while the trial can be organized and conducted by the same judging group.
Where the people's court tries a case concerning civil disputes which is judged by the administrative authority and the civil disputes are jointly tried, the civil disputes shall not be separately filed.
Article 19Where the people's court tries relevant civil disputes jointly, relevant provisions of the civil laws and regulations shall be applicable, unless otherwise provided by laws.
The solution of the civil rights and interests adopted by the parties concerned in the mediation shall not be taken as the basis for the trial of the legality of the disputed administrative act.
The administrative dispute and the civil dispute shall be separately judged. Where a party concerned only lodges a lawsuit against the administrative judgment or the civil judgment, the judgment not involved in the lawsuit shall take legal effect immediately after the expiration of the appeal period. The people's court of first instance shall transfer all documents and files to the people's court of second instance for the trial by the administrative tribunal. Where the people's court of second instance finds any error in the effective judgment which is not involved in the lawsuit, the said people's court shall retry the case according to the procedure for trial supervision.
Article 20A citizen, legal person or other organization shall make the request for joint trial of the normative documents, if there are any, specified in Article 53 of the Administrative Procedure Law. Such request can also be raised during the court investigation if there is a justifiable reason.
Article 21Where the normative documents are found illegal, the people's court shall not take such documents as the basis for judging the administrative act to be legal and shall give the explanation in the reasons for the judgment. The people's court which has made an effective judgment shall make suggestions to the authorities which have made the normative documents and copy the suggestions to the people's government at the same level or the superior administrative authorities of such authorities.
Article 22Where the reasons for the plaintiff's request for the defendant to perform the responsibilities required by laws, and the defendant violates the laws and rejects to perform such responsibilities or does not give any response within the specified period without any justifiable reason, the people's court can make the judgment requiring the defendant to perform its legal responsibilities requested by the plaintiff within a specified period according to Article 72 of the Administrative Procedure Law. Where an investigation or judgment needs to be made by the defendant, the people's court shall make the judgment requiring the defendant to settle the case again based on the request of the plaintiff.
Article 23Where the reasons for the plaintiff's requesting the defendant to perform the obligations of payment such as pensions, the basic subsistence allowances or social insurance are grounded, and where the defendant shall have the obligation of payment but has rejected or delayed the performance of such obligations without justifiable reasons, the people's court can make the judgment requiring the defendant to perform relevant obligations of payment within a specified period in accordance with Article 73 of the Administrative Procedure Law.
Article 24The party concerned shall submit the retrial request to a superior people's court within six months after the mediation documents take effect. In any of the following situations, the request shall be made within six months from the date when the party concerned has known or should have known such situations:
i. Where there is new evidence sufficient to overturn the original judgment and ruling;
ii. Where the facts serving as the basis for the original judgment and ruling are faked;
iii. Where the legal instruments serving as the basis for the original judgment and ruling have been revoked or modified;
iv. Where the judge has committed embezzlement, accepts bribes, practices favoritism for personal gains, or adjudicates by bending the law when trying the case.
Article 25The party concerned can apply to the people's procuratorate for a counter appeal or procuratorial suggestion in any of the following situations:
i. Where the people's court has rejected the request for retrial;
ii. Where the people's court fails to make the judgment on retrial after expiration of the specified period;
iii. Where there is any apparent error in the retrial judgment or ruling.
Where a party concerned requests for retrial after the people's court has made the judgment and ruling of the trial based on the protest or the procuratorial suggestion, the people's court shall not file the case.
Article 26The provision on the period for administrative prosecution of the revised Administrative Procedure Law is applicable to a case where the period for administrative prosecution has not expired by May 1, 2015.
The provision on the period for administrative prosecution of the original Administrative Procedure Law before revision is applicable to a case which has not been closed by May 1, 2015. The procedure items which have been completed according to the original Administrative Procedure Law before revision shall remain effective.
Where a party concerned, being unsatisfied with the judgment, ruling or mediation document on administrative compensation which have taken effect before May 1, 2015 or where the people's court conducts the retrial in accordance with the procedure for trial supervision, the procedures specified in the revised Administrative Procedure Law are applicable.
Article 27In case of any inconsistency between the judicial interpretation previously issued by the Supreme People's Court and this Interpretation, this Interpretation shall prevail.

 

 

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