Laws of the People's Republic of China

Supreme People's Court

Circular of the Supreme People's Court on Printing and Issuing the Summary of the Symposium on Issues Concerning Applicable Legal Norms for the Trial of Administrative Cases

Fa [2004] No.96

To higher people's courts of various provinces, autonomous regions, and municipalities directly the Central Government, as well as the Higher People's Court of Xinjiang Uygur Autonomous Region Production and Construction Corps Court:

The Summary of the Symposium on Issues Concerning Applicable Legal Norms for the Trial of Administrative Cases is hereby printed and issued to you, please conscientiously put it into practice. In case of any question during the implementation thereof, please timely report it to this court.

Supreme People's Court

May 18, 2004

The Summary of the Symposium on Issues Concerning Applicable Legal Norms for the Trial of Administrative Cases

Since there are relatively more levels and categories of legal norms involved in the trial of administrative cases, great changes have taken place in relevant rules for application of laws after the implementation of the legislative law, thus giving rise to all kinds of difficult problems often appearing in the course of the application of laws on how to identify legal base and solve conflicts of legal norms. Whether or not such problems can be properly solved will directly affect the fairness and efficiency of the trial of administrative cases. Furthermore, with the enhancement of the level of rule of law in our country and requirements adaptable to the accession to the World Trade Organization, the trial of administrative cases is becoming more and more outstanding in solving conflicts of legal norms and safeguarding the uniformity of the legal system. For the purpose of accurately applying legal norms, ensuring the fair trial of administrative cases, maintaining the uniformity and sanctity of national legal system, and promoting the exercise of administrative functions according to law, the administrative division for the trial of administrative cases of the Supreme People's Court once conducted an investigation into a special topic concerning prominent issues on applicable legal norms for the trial of administrative cases, and sought opinions from relevant departments. In October, 2003, during the symposium held by the Supreme People's court in Shanghai on the trial of administrative cases carried out in people's courts throughout the nation, the Supreme People's court had a discussion on a special topic concerning issues on applicable legal norms for the trial of administrative cases, and the participants reached a consensus on some common problems by summarizing experiences from the trial of administrative cases subject to the legislative law, the administrative procedure law and other pertinent laws. Minutes of this symposium are hereby notified as follows:

1.

With Regard to the Base for the Trial of Administrative Cases.

According to related provisions of the administrative procedure law and the legislative law, people's courts shall try administrative cases in compliance with laws, administrative regulations, local regulations, regulations on the exercise of autonomy, and specific regulations, as well as with reference to rules. When referring to such rules, whether or not the provisions thereof are legal and valid shall be judged, and those lawful and effective rules shall be applied. In accordance with the provisions in the legislation law, ordinance on the procedures for the formulation of administrative regulations and the ordinance on the procedure for formulation of rules governing the interpretation of laws, administrative regulations and rules, people's courts shall, adopt legal interpretation formulated by the Standing Committee of the National People's Congress, the interpretation of administrative regulations as promulgated by the State Council or departments authorized by the State Council as legal base of the trial of administrative cases; as for the interpretation of rules which are made by formulating authority of such rules and have the same legal force as the said rules, people's courts shall refer to it when trying the administrative cases.

In consideration of the course of change and development in our legislative procedure since the founding of the People's Republic of China, the existing effective administrative regulations are classified into three categories: first, administrative regulations as formulated and promulgated by the State Council; second, administrative regulations, prior to the implementation of the legislation law, promulgated by departments under the State Council upon the approval of the State Council according to the procedures for formulation of administrative regulations effective at that time. However, after the implementation of the legislation law, legal documents promulgated by departments under the State Council upon the approval of the State Council don't fall under the scope of administrative regulations any more; third, other administrative regulations confirmed by the State Council when sorting out the administrative regulations.

In the practice of trial of administrative cases, interpretation for specific application and other legal documents made by relevant departments to guide the execution of laws or implement administrative measures are often used, mainly including: interpretations for specific application of laws, regulations or rules as made by departments under the State Council, people's government or their competent departments of provinces, municipalities, autonomous regions and major municipalities ; decisions, orders or other legal documents with general binding force as formulated and promulgated by people's governments at and above the county level and their competent departments. Such interpretation for specific application and other legal documents, which are often used by administrative authorities as direct base for specific administrative acts, are not formal legal sources, thus failing to be legal norms with legal force upon people's courts.

However, if interpretation for specific application and other legal documents, on which the specific administrative acts of the sued are based, are legal, valid, justifiable and appropriate after examined by people's courts, such administrative acts shall be deemed to be valid when their legality is confirmed; People's courts may make comments on reasons for their decisions in terms of whether or not the interpretation for specific application and other legal documents are legal, valid, justifiable or appropriate.

2.

With Regard to the Rules for the Application of Conflicts of Legal Norms

If there are conflicts arising from different legal consequences specified by two or two more legal norms in respect of the same matter, in all cases with a view to deciding and selecting applicable legal norms, such rules for the application of laws shall be followed that a higher level law shall prevail over a lower level law, lex posterior derogat priori, and a special law shall prevail over a general law according to provisions of the legislation law. Since matters involved in conflict rules are of relative significance, if pertinent authorities have different opinions on whether or not there are conflicts, or there is any question in terms of the legality and validity of legal norms that shall prevail or the application fails to be decided according to the rules for the application laws, all such cases shall be submitted to competent authorities for decision level by level according to the provisions of the legislation law.

(1)

Judgment and Application for the Incompliance of a Lower Level Law with a Higher Level Law

Should provisions of a lower level law fail to comply with those of a higher level law, people's courts shall apply such a higher law in principle. Under such circumstances that many current specific administrative acts are conducted subject to a lower level law without referring or applying to a higher level law, therefore, people's court shall, upon examining the compliance of specific administrative acts with laws, judge whether or not a lower level law conforms to a higher level law at the same time so as to safeguard the uniformity of the legal system. If a lower level law comes in conflicts with a higher level law by such judgment, the legality of specific administrative acts conducted by the sued shall be confirmed according to a higher level law. From the practice of the trial of administrative cases, common circumstances that a lower level laws contravenes a higher level law are noticed as follows: In a lower level law, the scope of subject of right stipulated by a higher level law is narrowed or such scope is broadened in violation of legislative purposes for such higher level law; Under a lower level law, rights laid down in a higher level law are restricted or deprived or scope of such rights is widened in violation of legislative purposes for such higher level law; The scope of administrative subjects or the scope of functions and duties of such administrative subjects are enlarged by a lower level law; The period to perform legal functions as laid down by a higher level law is extended by a lower level law; In a lower level law, obligations or the scope, nature or conditions of subjects with such obligations as defined by a higher level law are enlarged or limited by the means of reference and permission for use; Applicable conditions in contravention of a higher level law are increased or limited by a lower level law; Under a lower level law, acts to which administrative punishments shall be given, their categories and margins as stipulated by a higher level law are enlarged or limited; Nature of illegal activities having been stipulated by a higher level law is changed by a lower level law; the scope of application of compulsory measures, their categories and means as stipulated in a lower level low go beyond their counterparts in a higher level law, and conditions for application of such measures under a higher level law are also increased or limited in the same lower level law; Administrative licenses in nonconformity with provisions of the administrative licensing law are prescribed by, or administrative licensing requirements in violation of a higher law are added by laws, regulations or other legal documents; or other circumstances of conflicts.

Should provisions concerning the implementation of laws, administrative regulations or local regulations be not abolished explicitly after amendment thereto, people's courts shall, upon applying such laws, administrative regulations or local regulations, deal with the following circumstances separately: Where there are discrepancies between provisions in respect of enforcement, and amended laws, administrative regulations or local regulations, such provisions shall not be applicable; In case enforcement provisions corresponding to the amendment to laws, administrative regulations or local regulations loss their own grounds for enforcement, thus failing to be implemented separately, such provisions shall not be applicable; In the event enforcement provisions are not inconsistent with revised laws, regulations or local regulations, such provisions shall be applicable.

(2)

Relationship between the Application of Special and General Provisions

Should there are respectively general and special provisions under different clauses of the same law, administrative regulation, local regulations, regulations on the exercise of autonomy and separate regulation as well as rules in respect of the same matter, the special provisions shall prevail.

Where there are differences between new general provisions and old special provisions in respect of the same matter among laws, administrative regulations or local regulations, people's courts shall deal with the application of either kind of such provisions under the following circumstances in principle: Should new general provisions stipulate the continuous application of old special provisions, such new special provisions shall be applicable; If old special provisions are repealed by new general provisions, such new general provisions shall be applicable. In case of failure to decide whether or not new general provisions approve the continuous application of old special provisions, people's courts shall cease the trial of administrative cases. In the event the case falls under the scope of laws, it shall be submitted to the Supreme People's Court level by level for a decision of the Standing Committee of the National People's Congress; If the case falls under the scope of administrative regulations, it shall be submitted to the Supreme People's Court level by level for a decision of the State Council; Should the case fall under the scope of local regulations, it shall be submitted to higher people's courts for a decision of formulating authorities.

(3)

Selective Application of Conflicts between Local Regulations and Ministerial Regulations

If local regulations differ from ministerial regulations in terms of the same matter, people's courts shall deal with application under circumstances as follows:

1)

If ministerial regulations are empowered by laws or administrative regulations to stipulate enforcement provisions, such enforcement provisions shall prevail;

2)

Should ministerial regulations, in case of no formulation of laws or administrative regulations, prescribe provisions on matters authorized by decision or order of the State Council or matters concerning macroeconomic control of the Central Government and matters required to be unified by the State in terms of rules of marketing activities as well as foreign trade and foreign investment, such provisions shall prevail;

3)

If local regulations empowered by laws or administrative regulations to prescribe specific provisions in line with the actual situations within the same administrative area, such provisions shall prevail;

4)

If local regulations specify provisions on matters concerning local affairs, such provisions shall prevail;

5)

Where local regulations, in case of no formulation of laws or administrative regulations, prescribe provisions on matters other than those required to be stipulated uniformly by the State, according to the specific situations in the same administrative area, such provisions shall prevail; and

6)

Other circumstances under which application can be made directly. In case of failure to determine what to be applied, the trial of administrative cases shall be ceased and such cases shall be submitted to the Supreme People's Court level by level, which shall, in accordance with subparagraph 2, paragrph1 of Article 86 in the Legislation Law, render such cases to competent authorities for handle.

(4)

Selective Application of Conflicts of Rules.

In case of any discrepancy in respect of the same matter between ministerial regulations and local government regulations, people's courts shall deal with the application according to the circumstances as follows:

1)

Where laws or administrative regulations empower ministerial regulations to stipulate enforcement provisions, such provisions shall prevail;

2)

Should ministerial regulations, in case of no laws or administrative regulations, prescribe provisions on matters authorized by decision or order of the State Council or matters concerning macroeconomic control of the Central Government and matters required to be unified by the State in terms of rules of marketing activities as well as foreign trade and foreign investment, such provisions shall have prevail;

3)

If local government regulations empowered by laws or administrative regulations to prescribe specific provisions in line with the actual situations within the same administrative area, such provisions shall prevail;

4)

If local government regulations specify provisions on affairs concerning the specific administrative management within the same administrative area, such provisions shall prevail; and

5)

Other circumstances under which application can be made directly. In case of failure to determine what to be applied, the trial of administrative cases shall be ceased and such cases shall be submitted to the Supreme People's Court level by level for the decision of the State Council.

Should regulations enacted by various ministries under the State Council vary from each other in terms of the same matter,people's courts shall select the application according to the following circumstances:

1)

Ministerial regulations having no conflicts with their higher level law shall be applicable;

2)

In case of no conflicts with a higher level law, provisions of regulations as formulated according to exclusive functions and powers shall prevail;

3)

Provisions of regulations as jointly formulated by two or more ministries under the State Council in terms of matters on the scope of their functions and powers, shall prevail over provisions as separately enacted by one of the said ministries ; and

4)

Other circumstances under which application can be made directly. In case of failure to determine what to be applied, the trial of administrative cases shall be ceased and such cases shall be submitted to the Supreme People's Court level by level for the decision of the State Council.

Should other legal documents enacted by ministries under the State Council or people's governments of various provinces, municipalities and autonomous regions be inconsistent with each other in respect of the same matter, application shall be dealt with in light of the abovementioned spirits.

3.

With Regard to Rules for the Application of New and Old Legal Norms

According to the general awareness and practice in the trial of administrative cases, if opposite persons for administration commit acts prior to the implementation of new laws, while their specific administrative acts are conducted after the implementation thereof, provisions of old laws shall be apply to substantial problems and new laws shall be applicable to procedure problems when the legality of such specific administrative acts is being verified by people's courts, excluding the circumstances as follows:

(1)

Otherwise provided for by laws, regulation or rules;

(2)

Application of new laws is more favorable for protecting legitimate rights and interest of opposite persons for administration; and

(3)

Substantial provisions of new laws shall be applicable subject to specific administrative acts.

4.

With Regard to Issues on the Interpretation for the Specific Application of Legal Norms

Interpreting legal norms in the decision of cases is an important part for people's courts to conduct application of laws. Legal norms applied by people's courts shall be usually interpreted pursuant to their common meanings; Where there are professional meanings for such legal norms, such meanings shall prevail; In case of unclear or ambiguous understanding, their meanings may be confirmed according to the context, legislative purposes, target and principles.

Where wordings like "etc." and "others" are expressed under legal norms besides enumeration of typical examples to which such norms are applicable, such norms shall fall under the category of exemplified provisions with incomplete examples. All matters synoptically expressed with words of "etc" and "other" and so on shall be matters other than those explicitly enumerated and include circumstances similar to matters enumerated.

People's courts shall, upon interpreting and applying laws, appropriately handle the relationship between legal effects and social effects, not only strictly apply provisions of laws, maintain the sanctity of such provisions, and ensure the accuracy, uniformity, and continuity of legal application, but also attach importance to keep pace with the times, focus on social effects as a result of trial of administrative cases, avoid rigidly understanding and application of legal clauses and maintain interests of the State and the public in the legal application.