The Standing Committee of the National People’s Congress(NPC) has reviewed and passed the Decision on Modifying the Administrative Procedure Law of the People’s Republic of China, in which 61 articles have been included and shall take effect on May 1,2015.
This is the first amendment for the Administrative Procedure Law after its formulation in the year of 1989. From the perspective of legal profession, the biggest highlight of this revision is to expand the scope of accepting cases for administrative litigation.
The administrative lawsuit may increase sharply
According to provisions made by the Administrative Procedure Law before its revision, the standard that courts to accept cases is only the action involving the specific administrative behavior. Zhan Chongwen, a deputy director of the Governmental Legal Affairs Committee of Beijing Bar Association, pointed out that the original legislative view regards the specific administrative behavior as the opposite side of the abstract administrative behavior, while the so-called abstract administrative behaviors refer to some laws, regulations and regulatory documents. The revised Administrative Procedure Law has made a breakthrough on this issue, in which there are no difference between specific behavior and abstract behavior when mentions administrative behaviors. Besides, the newly-revised Administrative Procedure Law has added stipulations in 12 areas, hereby determined the scope of accepting cases for administrative litigation.
Zhan Chongwen indicated that after careful analysis, we can find that the scope of accepting cases and the business of lawyer have been expanded a lot comparing to the previous Administrative Procedure Law.
Lv Liqiu, a director of the Administrative Law Committee of the All China Lawyers Association, agrees the standpoint made by Zhan Chongwen. He said that since the difficulty for filing a case has been solved to a certain extent, therefore, the number of cases shall increase significantly. In addition, as the reconsideration organ can be regarded as the defendant, so the subjects to handle cases represented by lawyers have increased. On this ground, cases and administrative cases represented by lawyers will increase markedly.
Zhan Chongwen noticed that when he buried himself into the new-revised articles stipulated in this Administrative Procedure Law, there are only 8 items for accepting cases according to previous Administrative Procedure Law, while in the newly- revised law, the items for accepting cases have reached 12. Besides, the contents added in the new law originally belong to the Civil Procedure Law when adjusting cases; however, they have been categorized in the new revision.
Since the law has created more tough rules for lawyers` legal practice, Zhan Chongwen suggested that lawyers should pay close attention to the newly-revised Administrative Procedure Law from two aspects. One aspect is that the administrative behaviors carried out by administrative organs when involving administrative proceedings. As the functional difference exists among Ministries, Commissions, Offices, and Bureaus, so, the laws, regulations and other regulatory documents are different when they are put into force. Therefore, lawyers as agents of administrative litigation must be familiar with the relevant laws, regulations and regulatory documents. The other aspect is that given the Administrative Procedure Law is one of the basic laws, it can not cover all the operational details. So after the revision and enforcement of the new law, detailed implementing rules are needed for lawyers to follow, which are enacted by the Supreme Court and other relevant departments.
The ability for lawyers` practice should be improved
Lv Liqiu said that to make law practice in administrative proceedings, the knowledge quality is the basic requirement for lawyers. The administrative litigation lays more eyes on the types and the nature of behavior, so, these require lawyers to have a theoretical foundation of Administrative Law. That is to say, they should be familiar with the Administrative Permission Law, the Administrative Punishment Law, the Administrative Compulsory Law, and the Regulation of Government Information Disclosure, as well as the Legislative Law and the Constitution.
Lv Liqiu considered that administrative litigation lawyers with high quality can be found from three aspects. The first aspect is that the lawyer has a profound administrative theoretical foundation. The second aspect is that the lawyer should be familiar with department laws. The third aspect is that there is a more special requirement for the administrative litigation lawyer who is the agent of the defendant. For example, the overall consciousness, and the confidentiality requirement.
Source from China Daily