In the case of administrative disputes, many argue that “any action by the executive can be brought before the courts”, but in practice not all administrative acts can be resolved through administrative proceedings。
So, which administrative action courts are not admissible? How can such acts be upheld
Today, tang løj elaborates on this issue from the standpoint of the law, the specific types of non-actionable administrative acts, the means of follow-up and the operational perspective。
Legal provisions: the “boundary of the case” in administrative proceedings
Our code of administrative procedure and related judicial interpretations clearly define the scope of the cases before the courts, four of which are excluded from administrative proceedings and inadmissible。
(i) state actions such as defence, foreign affairs, etc
Such acts, such as the signing of treaties on behalf of the state, military exercises, the appointment and dismissal of diplomatic envoys, are of national sovereignty and vital public interest, are highly political in nature, are supervised by the national people's congress and its standing committee and do not involve the courts。
(ii) abstract administrative acts
It refers to “rules of general application”, such as normative documents issued by the government, regulatory practices, circulars, etc. (targeted to an unspecified person and subject to repeated application)。
For example, a municipality has introduced the cyber car regulation, which, if you find it unreasonable, cannot be directly sued per se。
(iii) internal administrative acts
The executive branch regulates the conduct of “one's own people”, such as awards and penalties for civil servants, appointments and dismissals, transfers, etc. For example, a civil servant has been demoted by the unit for disciplinary offences and cannot sue the unit for disciplinary decisions。
(iv) acts for which the law provides for final adjudication by the executive
A small number of administrative acts are expressly provided for by law “by the executive and not by the courts”。
For example, some of the reviews of the provincial government have decided against it, and the law provides for a final decision by the government and is not open to prosecution。
(v) core logic
The purpose of administrative proceedings is to monitor the legality of the administrative acts of “specific individuals or enterprises”, while acts involving state sovereignty, general rules, internal administration or special provisions of the law are monitored by other more suitable means。
Types of administrative acts that are not justiciable: in these cases, the courts “do not file”
In addition to the cases expressly excluded by the above-mentioned law, several common types of conduct in practice also fall outside the scope of administrative proceedings and require special attention。
(i) executive direction acts
The “advice, advice” of the executive branch is not mandatory. For example, the market regulator reminds businesses to “regulate prices”, and the environmental department advises enterprises to “install emission reduction equipment”, and you do not listen, even if you are not satisfied — because it does not force you。
(ii) conciliation, arbitration
The conciliation of civil disputes (e. G. Wage disputes by the labour arbitration commission) or the award of an arbitral award (e. G. Labour arbitration) is a “middle decision” and not an administrative matter, but rather a complaint against the former civil dispute rather than against the administration。
(iii) procedural administrative conduct
“intermedial steps”, such as notification at the time of the investigation, notification prior to the hearing, notification of the assets held pending, etc., before the final decision is taken by the executive. For example, in cases of violation by the traffic police, “car arrest” is an interim measure for follow-up and detention cannot be prosecuted alone, pending a final decision on punishment。
(iv) duplicate behaviour
The administrative authorities “repeated” the decisions that had entered into force, such as the decision not to comply with the penalty, and after several complaints, the authorities responded “to uphold the decision”, a response which was repeated and could not be prosecuted (since the decision was the subject of a complaint)。
(v) responses to letters
Responses to correspondence matters (e. G., “your question has been referred to the relevant authority” “incorrectly investigated”) are dealt with in the correspondence procedure and are not mandatory and cannot be the subject of administrative proceedings。
Iii. How should rights be protected in case of non-action? Don't panic. There's an alternative
While these acts cannot be directly prosecuted, they are not “no way to complain” and the following options may be selected according to the type of act:
(i) against abstract administrative acts (e. G. Unreasonable normative acts)
“proposal of review” to the higher authority of the enacting authority: for example, if the regulations of the municipal education offices are found to be in violation of the law, they may be referred to the municipality or the provincial education department for review。
`subsidiary review': if the document is used for a specific penalty (e. G. A fine of $5,000 under a provision), you can request the court to review the legality of the document (but not separately)。
(ii) for internal administrative acts (e. G., civil service dispositions)
A “complaint” to a higher authority of the unit: a public servant who has been demoted, for example, may apply to his or her own government or to a higher authority for review and annulment。
2. Personnel arbitration: personnel of the enterprise may arbitrate the applicant's dispute if they disagree with the disposition。
(iii) responses to executive direction, mediation, letters and visits
1. Consultation or response to superiors: executive guidance is not enforceable and can be refused directly; mediation is not possible, and civil cases are brought before the courts in respect of former civil disputes; replies to letters of enquiry are not satisfactory and a request for review may be made to the higher department。
(iv) processual, repetitive behaviour
Once the “final act” has been made, the prosecution can take place, for example, after the seizure of the vehicle, if the organ decides to impose a fine; if repeated, the prosecution is directed against the initial decision (note that the six-month filing period is not exceeded)。
The tang løj perspective: first to identify the nature of the act and then to choose the course of rights protection
As a lawyer in administrative disputes, i've often been confronted with the "miscounting" of the client - – the insistence on prosecution, despite being non-prosecutive, has resulted in a waste of time and a missed opportunity for real and effective advocacy. Integrating substantive experience gives you three key tips。
(i) do not equate “not like” with “prosecutable” drawings
Many feel that the actions of the administrative authorities are “unreasonable” to prosecute, but the courts only examine “lawful or unlawful” (e. G., whether the procedure is unlawful or ultra vires) whether it is “reasonable or not” (e. G., a fine of 500 or 1,000, provided that the court does not intervene in accordance with the law). Not to mention those acts that are self-indeed, no longer “unreasonable” can be resolved through litigation。
(ii) understanding what behaviour is before action
For example, when a “notice” is received, it is decided whether it is a specific punishment (actionable) against me personally or a provision (non-actionable) to which everyone is subject? Is it final (actionable) or provisional (non-actionable) decision? If you can't, go to a lawyer and look at the documents. Don't go blind。
(iii) alternative approaches are often more effective
Dissatisfaction with normative documents, for example, is more direct through mass scrutiny, superior scrutiny than prosecution; complaints procedures are more relevant than litigation in cases of internal sanctions. At the heart of administrative defence is the “settling of problems” rather than the “must go to court”, and the choice of means is more important than the “no-go zone”。
Wrap-up: identify borders and make less of a turn
There is a clear “admissibility of borders” in administrative proceedings, and defence diplomacy, abstract regulations, internal management, etc. Are excluded. In case of these non-justiciable acts, do not panic or press charges and judge the type of conduct first: normative documents are examined by a superior, internal disposition is a complaint, and process sexual conduct is a final decision。
The key is to find out whether or not to sue before choosing the right course — sometimes bypassing the dead end — can solve the problem more quickly。
It was the most pragmatic option to consult professional lawyers in a timely manner and avoid wasting time on non-actionable acts。
(i graduated from the chinese university of political science and law, beijing. I served in a ministry of the state administration and law enforcement agencies, and participated in the publication of books on administrative law, focusing on administrative cases and cases of yellow gambling, with the idea of “probably speaking for the client and upholding justice” as a mission)
