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V. Administration by Law and Building a Government under the Rule of Law

Administration by law and building a government under the rule of law are essential for the overall implementation of the fundamental principle of governing the country by law. They are basic norms of the Chinese government for its administration. For many years the Chinese government has taken a series of measures to promote the work in a down-to-earth way in this regard. After promulgating the Decision of the State Council on Promoting Law-based Administration in an All-round Way in 1999, the Chinese government issued the Outline for the Implementation of Promoting Law-based Administration in an All-round Way in 2004, specifying the goal of building a government under the rule of law, and setting forth the guidelines and specific targets, basic principles and requirements, as well as major tasks and measures for the full-scale promotion of administration by law in the ensuing ten years. Currently, the administrative powers of the people's governments at various levels have been gradually guided along the track of a legal system; the legal system that regulates the acquisition and operation of government power has taken shape; and significant improvement has been achieved in administration based on the law.

-- Legal systems for subjects of administration. In accordance with the stipulations of the Constitution, Organic Law of the State Council, Organic Law of the Local People's Congresses and Local People's Governments, the Chinese government has five administrative levels: namely, the State Council; the people's governments of provinces, autonomous regions and municipalities directly under the central government; the people's governments of autonomous prefectures and cities that have districts; the people's governments of counties, autonomous counties, cities that have no districts, and districts under cities; and the people's governments of townships, townships of ethnic minorities and towns. The Constitution stipulates that the State Council is the central people's government, and is the executive body of the NPC and the highest state administrative organ; local people's governments at different levels are the executive organs of local people's congresses and local state administrative bodies at different levels and local people's governments at all levels are state administrative organs subject to the unified leadership of the State Council.

-- Legal systems for administrative acts. First, the administrative licensing system. The Law on Administrative Licensing sets strict limitations and stipulations on the matters and procedures of administrative licensing: Administrative licenses are not required for matters that can be decided by citizens, legal persons or other organizations themselves; that can be effectively regulated by the market competition mechanism; that may be subject to the self-discipline management of trade organizations or intermediary institutions; that can be handled by the administrative organs by means of supervision afterwards or through other administrative methods. The Law on Administrative Licensing also stipulates that the administrative licensing work conducted by administrative organs must be legitimate, open, impartial and convenient for the people, and must not contradict the trust protection principle by altering an effective administrative license without authorization.

Second, the system of administrative expropriation and administrative requisition for use. According to the Constitution and the Property Rights Law, in order to meet the demands of public interest, the state may expropriate collectively owned land, housing properties and other immovable properties owned by entities and individuals according to authorization and procedures prescribed by law. Adequate amount of land compensation fee, relocation subsidy and compensation for attachments on the ground and young crops, etc. shall be paid for expropriation of collectively owned land; social security fees shall be arranged for farmers affected by the land expropriation, so that the livelihood of farmers affected by the land expropriation shall be assured and the legitimate rights and interests of farmers affected by the land expropriation shall be safeguarded. Compensation for relocation shall be made according to law for expropriation of housing properties and other immovable properties of entities and individuals, so that the legitimate rights and interests of the persons affected by the expropriation shall be safeguarded. In the case of expropriation of residential property of individuals, the living conditions of the persons affected by the expropriation shall be assured.

Third, the administrative penalty system. The Law on Administrative Penalties prescribes that where administrative penalties need to be imposed for violations of the order of administration, they shall be prescribed by laws, regulations or rules, and enforced by administrative organs according to the procedures prescribed by relevant laws, regulations or rules. Any administrative penalty that is not imposed in accordance with the law or legal procedures shall be invalid. Administrative organs, upon discovering that citizens, legal persons or other organizations have committed acts for which administrative penalties should be imposed according to law, shall conduct investigation in a comprehensive, objective and fair manner to collect relevant evidence. After an administrative penalty has been decided on, the penalized party shall have the right to apply for administrative review, lodge administrative litigation, or demand compensation in accordance with the law.

-- Legal systems for administrative supervision and remedy. First, the system of administrative review. The Law on Administrative Review stipulates that a citizen, legal person or any other organization considering that his/her or its lawful rights and interests have been infringed upon by a specific administrative act may apply for administrative review to an administrative organ. After the administrative review organ has examined the specific administrative act, it may annul, alter, or confirm the act as illegal in accordance with the law, and order the administrative organ concerned to perform its statutory duty and undertake a new specific administrative act within a time limit.

Second, the administrative procedure system. The Administrative Procedure Law stipulates that citizens, legal persons or other organizations refusing to accept a disposition imposed by an administrative organ or administrative official have the right to institute proceedings to a people's court. After hearing the case, the people's court shall make the judgment to annul or partially annul the disposition, or to require the defendant to undertake a new specific administrative act, if the specific administrative act has been found to have inadequacy of essential evidence, erroneously applied the law or regulations, violated legal procedure, exceeded authorization or abused power.

Third, the system of administrative compensation. The Law on State Compensation prescribes that the aggrieved person shall have the right to demand compensation when an administrative organ or its personnel has infringed upon his/her right of the person or property right in violation of the law when exercising administrative functions and powers. The law also contains provisions covering claimants for administrative compensation, organs having obligation for administrative compensation, compensation procedures, methods of compensation and calculation standards.

Fourth, the administrative supervision and auditing systems. The Law on Administrative Supervision stipulates that the supervisory organs shall exercise supervision over state administrative organs' problems in their observation and enforcement of laws, regulations, decisions and orders of the people's government. In accordance with the Auditing Law, audit institutions shall audit revenues and expenditures of departments of the State Council and the local people's governments at different levels, as well as revenues and expenditures of state-owned financial institutions, enterprises and public institutions.

-- Legal systems concerning civil servants. Administrative acts are mainly performed by civil servants. The Law on Civil Servants and the Regulations on Punishment of Civil Servants of Administrative Organs have defined the civil servants' qualifications, obligations and rights, posts and ranks, recruitment, assessment, appointment and removal, promotion and demotion, rewards and penalties, training, exchange of posts and withdrawal, salary and welfare benefits, resignation and dismissal, retirement, complaint and accusation, post appointment and legal liability. The law and the regulations have prescribed administration of civil servants by classification and a post appointment system, as well as a penalty system for civil servants in administrative organs.

In recent years, the Chinese government has further transformed its functions and stepped up the building of a government under the rule of law by strengthening its self-improvement. First, it has expedited the establishment of a public emergency response mechanism to enhance its capability to handle emergencies, and strives to build a government of service. The Standing Committee of the NPC has promulgated the Law on Emergency Response, and the State Council has issued the National Overall Emergency Response Program for Unexpected Public Emergency Incidents. Based on this overall program, relevant government departments have enacted 25 specialized emergency response plans, 80 sectoral emergency response plans, and 31 provinces, autonomous regions and municipalities directly under the central government have worked out their regional overall emergency response plans, thus basically bringing into being a nationwide system of emergency response programs. Second, further efforts have been made to build a government in "sunshine" by making government information more open and available to the public. The State Council has deliberated and adopted the Regulations on Open Government Information. In 2006, the central government launched its official web portal, and so far over 80 percent of the governments and their departments at and above county level have established their own official web portals. Seventy-four State Council departments and institutions, governments of 31 provinces, autonomous regions and municipalities directly under the central government have established the news release system and have their own spokespersons. Third, greater efforts have been made to enforce the administrative accountability system in order to establish a government of accountability. Governments at all levels and their departments have gradually adopted the administrative accountability system. According to the principle of whoever has made the decision is responsible for its consequences, where serious losses have resulted from decisions made by going beyond authorized power or violating the established procedures, liabilities of decision-makers shall be strictly investigated.

Pressing on with the accountability system of administrative law enforcement and continuously improving the government's capacity in this regard are inevitable requirements for building a government under the rule of law. The Chinese government sets great store by the reform of the administrative law enforcement system, requires its administrative organs at all levels to exercise their power within authorization and legal procedures, promotes the accountability system for administrative law enforcement in all aspects, and implements the accountability system in a stringent manner. As required by the Several Opinions on Pushing Forward the Administrative Law Enforcement Accountibility System issued by the General Office of the State Council in July 2005, all regions and all departments have focused on promoting the administrative law enforcement accountability system by defining law enforcement duties and responsibilities according to law, setting up law enforcement posts in a scientific way, standardizing law enforcement procedures, clarifying the duties and powers of law enforcement bodies, and removing illegal law enforcement bodies. According to incomplete statistics, since the adoption of the said accountability system, over 280,000 cases of irregularities of administrative law enforcement have been dealt with by administrative organs of various levels throughout the country.

In the process of building a law-based government, the Chinese government has been strengthening its responsibility for administrative supervision and taking an active approach to solving administrative disputes. More efforts have been made to supervise abstract administrative acts such as the formulation of regulations, rules and regulatory documents. On January 15, 2008, the premier of the State Council signed the order to issue the Decision of the State Council on the Annulment of Some Administrative Regulations. A total of 655 administrative regulations in force that had been promulgated before the end of 2006 have been reexamined, of which 49 have been repealed since the main content of these regulations have been replaced by new laws or administrative regulations; 43 declared invalid because their effective validity period had expired or they had lost their validity with the disappearance of their objects of regulation. While strengthening examination on regulations and rules filed for the record, the State Council has further improved the filing system concerning regulations and regulatory documents formulated by the governments of provinces, cities, counties and townships, and three lower levels of governments should file such regulations and regulatory documents to the next-higher levels for the record so as to promote law-based administration of local governments at different levels. From March 2003 to the end of 2007, the State Council examined 8,402 local regulations, autonomous regulations, separate regulations, local governments' rules and rules enacted by the departments of the State Council, which had been filed for the record by local governments and the departments under the State Council with legislative power, and addressed 323 problematic regulations and rules in accordance with the law. The State Council has enacted the Regulations on the Implementation of the Law on Administrative Review, and has made active attempts to reform the system of administrative review in order to enhance the ability of all personnel involving in the administrative review work. Since the Law on Administrative Review came into force in 1999, over 80,000 administrative disputes have been settled through administrative review each year.

(China.org.cn February 28, 2008)

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