Administrative litigation

1. The concept of administrative litigation: refers to the activities in which the People’s Court resolves administrative disputes in accordance with the law with the participation of administrative litigation parties and other litigation participants (people sue officials litigation).

2. How to file administrative lawsuits

(1) What types of administrative lawsuits can be filed (scope of cases)

① Dissatisfaction with administrative penalties; ② Administrative coercion Dissatisfaction with measures; ③ dissatisfaction with administrative licensing; ④ dissatisfaction with administrative inaction; ⑤ infringement of business autonomy; ⑥ failure to issue pensions in accordance with the law; ⑦ illegal requirements to perform obligations; ⑧ other violations of personal rights and property rights.

(2) Conditions for prosecution

A. There is a qualified plaintiff (a citizen, legal person or other organization who believes that specific administrative actions infringe upon his legitimate rights and interests); B. There is a clear Defendant; C. Has specific litigation claims and factual grounds; D. It falls within the scope of the People's Court and the jurisdiction of the People's Court subject to the lawsuit.

(3) Who sues? Who to sue (plaintiff, defendant)

①Plaintiff: A. A citizen, legal person or other organization that files an administrative lawsuit in court in accordance with the law; B. If a citizen who has the right to file an administrative lawsuit dies, his close relatives can file an administrative lawsuit Litigation; C. The legal person or other organization that has the right to initiate administrative litigation terminates, and the legal person or other organization that assumes its rights and obligations can initiate administrative litigation.

②Defendant: A. If the lawsuit is filed directly with the court without review, the administrative subject that made the original specific administrative act shall be the defendant; B. After review, if the original specific administrative act is upheld by review, the original specific administrative act shall be the defendant. The administrative subject is the defendant. If the original specific administrative act is changed after reconsideration, the review agency is the defendant; C. Two or more administrative subjects *** who make the same specific administrative act at the same time are *** and co-defendants; D. Regarding laws and regulations If you are dissatisfied with the specific administrative actions taken by an authorized organization, the organization authorized by laws and regulations shall be the defendant; E. If law enforcement is entrusted, the entrusted administrative subject shall be the defendant; F. If you are dissatisfied with the specific administrative actions taken by the dispatched agency of the administrative agency, the dispatched agency shall be the defendant. The administrative subject is the defendant; G. If the administrative subject and the non-administrative subject *** jointly make specific administrative acts, the administrative subject shall be the defendant.

(4) Which court should you file a lawsuit with? (Jurisdiction)

①Regional jurisdiction: A. General geographical jurisdiction, which is governed by the court where the defendant is domiciled. B. Special geographical jurisdiction: a. Dissatisfaction with compulsory measures that restrict personal freedom shall be under the jurisdiction of the court where the plaintiff or defendant is located; b. Administrative litigation filed over real estate shall be under the jurisdiction of the court where the real estate is located.

② Level of jurisdiction: A. Cases under the jurisdiction of the Intermediate People’s Court: confirmation of invention patent cases, cases handled by customs; cases of dissatisfaction with specific administrative actions taken by provincial and ministerial administrative entities; major and complex cases within the jurisdiction case. B. The Higher People's Court has jurisdiction over major and complex administrative cases within the province. C. The Supreme People's Court has jurisdiction over major and complex administrative cases nationwide. D. Basic-level courts have jurisdiction over administrative cases other than A, B, and C.

③ Transfer to jurisdiction.

④Transfer of jurisdiction: upward adjustment and decentralization.

⑤Designated jurisdiction: unwilling to take charge, fighting to take charge.

(5) When can I file a lawsuit? (Limitation of Actions)

① If you file a lawsuit directly with the court, you must file it within 3 months from the date when you know or should know that the specific administrative action was taken;

② If you are dissatisfied with the reconsideration, file a lawsuit with the court. If the review decision is not made within 15 days after receiving the review decision, if the review decision is not made within the time limit, the review decision shall be filed within 15 days after the expiration of the 2-month review period;

③ If the right of action and the time limit for prosecution are not notified, the review decision will be filed from the date of knowledge or It shall be calculated from the date when the right of action or the time limit for prosecution should be known, but the longest period shall not exceed 2 years (from the date when the content of the administrative action is known);

④ If the content of the administrative action is not known, the time limit shall be calculated from the date when the content of the administrative action is known or should be known. From the date of administrative action, the longest period shall not exceed 20 years if it involves real estate, and the longest period shall not exceed 5 years for other matters (calculated from the date of issuance).

(6) How to file a lawsuit? (General procedure)

Prosecution→acceptance→defense (evidence)→hearing→collegial discussion→trial (first instance→second instance→review and supervision)→execution

3. Remedies for administrative litigation

(1) Second instance procedure

Appeal: 15 days for judgment and 10 days for ruling.

(2) Trial supervision procedures

A. Appeal by the parties (no 2-year limit); B. The president of this court submits a request to the review committee for a retrial decision (application by the parties); C. , Procuratorate protest (application by the parties); D. Submit to the National People’s Congress and the Political and Legal Affairs Committee for supervision.

Administrative review

(1) The concept of administrative review: refers to the specific administrative actions taken by the administrative review agency based on the application of the administrative counterpart to the administrative counterpart who is dissatisfied with the administrative subject , the activity of conducting trials and making decisions in accordance with the law.

(2) Scope of administrative reconsideration cases

1. Dissatisfaction with administrative penalties;

2. Dissatisfaction with administrative coercive measures;

3. Dissatisfaction with the revocation or change of administrative license;

4. Dissatisfaction with the denial of administrative license;

5. Infringement of business autonomy;

6. The administrative subject changes or cancels the agricultural contract;

7. Unsatisfied with the administrative power confirmation (confirming the ownership of natural resources);

8. Illegal requirements to perform obligations;

9. Those who are dissatisfied with administrative inaction;

10. Those who fail to pay pensions, social insurance funds and minimum living allowances in accordance with the law;

11. Others .

(3) General procedures for administrative reconsideration

Application→Acceptance→Reply (evidence)→Trial→Decision→Execution

Application: ① Time: self-knowledge Within 60 days from the date of specific administrative action.

②Applicant: A person who believes that the specific administrative actions taken by the administrative subject infringe upon his or her legitimate rights and interests: A. If the person who has the right to apply for reconsideration dies, his or her close relatives can apply; B. The person who has the right to apply for reconsideration , is a person without capacity for civil conduct or a person with limited capacity for civil conduct, his or her legal representative may apply on his behalf; C. If the legal person or other organization that has the right to apply for reconsideration is terminated, the legal person or other organization that assumes its rights and obligations may apply.

③Respondent: the administrative subject who made specific acts.

④Application form: written or oral.

⑤Reconsideration authority: A. If you are dissatisfied with the specific administrative actions taken by the government departments at or above the county level, apply to the government at the same level or the superior department; B. If you are dissatisfied with the specific administrative actions taken by the governments at all levels If you are dissatisfied with the behavior, you can apply to the higher-level government; C. If you are dissatisfied with the specific administrative actions of vertically managed administrative agencies such as customs, national taxation, finance, and foreign exchange, and national security agencies, you can only apply to the higher-level competent authority; D. If you are dissatisfied with the specific administrative actions of vertically managed administrative agencies such as customs, national taxation, finance, and foreign exchange, and national security agencies, you can only apply to the higher-level competent authority; D. If you are dissatisfied with a specific administrative act taken by a state administrative agency at the same level, you may apply to the administrative agency that originally made the specific administrative act.

(4) Remedies for administrative reconsideration

1. Prosecution: ①Plaintiff (plaintiff): Applicant for reconsideration.

②Respondent (Defendant): If the original specific administrative act is maintained upon review, the original administrative agency is the defendant; if the original specific administrative act is changed upon review, the review agency is the defendant.

③ Time for filing a lawsuit: File a lawsuit within 15 days after receiving the reconsideration decision. If the reconsideration authority fails to reconsider within the 2-month review period, file a lawsuit within 15 days after the expiration of the 2-month period.

④ Several issues that should be paid attention to when suing: A. For cases that are either reconsidered or sued (you can only choose one of reconsideration or prosecution), you can no longer sue to the court after choosing reconsideration, such as: entry and exit management ;B. Cases that are only filed without litigation (cases with final ruling) cannot be sued in court, such as utility models, design patents, and trademarks; C. Cases that are filed first and then litigated (administrative processing takes precedence) must be Review first before prosecution, such as: public security management penalties, confirmation of natural resource rights; D. Cases that are reviewed first and then prosecuted must first undergo a second review before prosecution, such as customs cases; E. Most cases can be directly To file a lawsuit in court, you can also reconsider first and then file a lawsuit.

2. Apply for a State Council ruling

If you are dissatisfied with the specific administrative actions taken by various departments of the State Council or provincial governments, and apply for reconsideration to the original authority that made the specific administrative actions, you can also file a lawsuit in court. You can apply to the State Council for a ruling. The ruling issued by the State Council is final and cannot be filed in court.