The screening and handling of the abuse of the right to sue in administrative proceedings needs to be centred on the principle of good faith, combining three important elements: subjective malice, objective conduct, and the consequences of harm, so as to strike a balance between guaranteeing citizens ' legitimate right to sue and the maintenance of judicial order. The following analysis is based on legal grounds, screening criteria, common situations, coping mechanisms and boundaries of judicial practice:
I. Core legal basis
The regime of abuse of the right of action is premised on the right of “guarantee” and the bottom line is “prohibiting the abuse of rights”, based, inter alia, on:
Basic principles of the code of administrative procedure: article 1 “settlement of administrative disputes, protection of legitimate interests and supervision of the administration of justice” implies an honest credit requirement; article 51 (conditions for prosecution), article 59 (compulsory measures to obstruct proceedings) provides a basis for dealing with abuse of the right of suit. Judicial interpretation: interpretation of the supreme people's court on the application of the administrative procedure law (law interpretation (2018) no. 1, hereinafter referred to as “interpretative of actions”), art. 69 (procedure of non-conformity of prosecution), art. 94 (repeated decision of prosecution), art. 95 (assumption of costs of litigation); art. 101 (compulsory measures against litigation refer to the code of civil procedure). Special opinion: views of the supreme people's court on the further protection and regulation of the exercise of the administrative rights of the person concerned in accordance with the law (2017) no. 25) expressly “resolutely resists abuse of the right of suit” by introducing “coercive and obfuscious suits by statute”. Typical case: supreme people's court directed case no. 113, luangxia v. Public information of the government of nantung city development commission (2015), for the first time systematically establishing criteria and rules for the determination of abuse of the right of suit. Ii. Scientific standards for the abuse of the right to proceedings
The abuse of the right of suit is subject to the following elements:
(i) subjective element: at the heart of “bad faith”
The person must have an improper purpose, i. E. Not to defend his or her legitimate interests, but to cause malice, such as disturbing the order of the proceedings, delaying the performance of obligations, harming the public interest of others or the reputation of the administration. Common malicious acts:
(ii) objective element: “abnormal act” abuse of the right to suit
Specific violations of the integrity of the proceedings are required, and the common types include:
Repeated prosecution: repeated prosecution of the same administrative act or similar matter (violation of the test of “duplicate prosecution” under article 106 of the interpretation of public cases); re-prosecution (e. G. Prosecution-deposit-resention-reprosecution of the same matter); manifestly non-conformity of prosecution: without interest, beyond the time limit for prosecution, outside of the scope of the case to which the case is brought, where the court has determined to insist on prosecution; false facts or forged evidence: administrative action for forgery of identity documents, fiction of “penalized” facts; abuse of procedural rights: malicious application for avoidance (unjustifiably repeated application), abuse of jurisdiction challenge (not knowing that there is no jurisdiction), abuse of the right of appeal (infrequent appeal against manifestly innocent judgements); malicious collusion: collusion with others in a false administrative dispute (e. G. “falter justice” for state compensation); other unusual acts: extensive application for public information in the short term and action against a reply (no real need). (iii) result element: causing substantial damage
The consequences of wasting judicial resources, interfering with the normal course of justice, undermining judicial authority or the public interest need to be met. For example:
Iii. Common abuse of the right of suit and judicial findings
In the context of judicial practice, the following circumstances may be considered to be abusive:
(i) “professional prosecutor” type of repeated proceedings
Typically, individuals or organizations, in the name of “rights defence”, have repeatedly prosecuted numerous routine administrative acts of the same administration (e. G. Public replies to information, summary procedure cases of administrative penalties), without material dispute。
Key findings:
(ii) manifest non-conformity of prosecution
Typical performance:
(iii) fiction of facts or malicious collusion
Typical expression: fake of the fact of being “beated” to sue the public security authorities for inaction or for colluding with relatives in the false “demolition compensation dispute”。
Point of view: malicious collusion must be proved by evidence (such as alarm records, injury identification, witness testimony) or by the person's self-identification, audio-visual recording, etc。
(iv) misuse of procedural rights to delay proceedings
Typical performance:
Iv. Mechanisms for dealing with abuse of the right of suit
The treatment is governed by the principle of “structification, overpunishment”, which balances procedural justice with material justice:
(i) case-taking phase: careful review and clarification leading to a legal review of the conditions for prosecution: in cases where there is a manifest lack of conformity with article 49 of the code of administrative procedure (conditions for prosecution), no case is decided (in-person or within 7 days); in cases where a case has been opened, the complaint is dismissed (article 69 of the interpretation of the application). Reinforcement of the obligation of release: where there is a defect in the conditions for prosecution (e. G. Lack of clarity of interest), notification in writing of the matter of correction (e. G. Additional identification, statement of interest) and refusal of the party to do so may be rejected. (ii) trial stage: measures of constraint and decisions sanctioning measures of constraint against proceedings: fines under article 59 of the code of administrative procedure for abuse of the right of suit (e. G. Forgery of evidence, disturbance of court order) (under $100,000 for an individual, in units of $50,000 - $1,000,000), detention (under 15 days), which constitute an offence (e. G. Forgery of evidence, seditious search) and referral to the judiciary. Burden of costs of the proceedings: the court found the party who abused his or her right of action to bear the full costs of the proceedings (article 95 of the interpretation of the claims); in the case of a malicious appeal, the second hearing, which upheld the original decision, could increase the burden of the costs of the appeal. (iii) post-judicial phase: re-examination and credit re-examination restrictions: in cases where an abuse of the right of action has been dismissed, the court is generally not in a position to do so (art. 110 of the interpretation of the application); where it is necessary to do so, it is subject to the approval of the high court. Inclusion on the list of missing persons: persons who have seriously abused their right of action (e. G. Multiple malicious proceedings with adverse effects) may be restricted from subsequent proceedings (e. G. Raising the bond for prosecution) by including them on the list of missing persons in accordance with certain provisions of the supreme people's court concerning the publication of information on the list of missing persons. The border of judicial practice: the right to required to leave “badly”
The screening of abuse of the right of action requires strict control of the “bad faith” test and prohibits the denial of the right of action on the grounds that there is a “high risk of losing” “unjustified claim”
(i) right of due process vs. Abuse of right of suit
Relative dimensions
Right to due process
Abuse of the right of petition
Subjective purpose
Defending their legitimate rights and interests
Malicious disturbance of order and undue advantage
Grounds for prosecution
There's prima facie evidence of controversy
No evidence or fiction
Continuity of conduct
Single or limited indictments
Repeated, circular, mass prosecutions
Attitude to the administration of justice
Respect for the judicial process and cooperation in proceedings
Confronting justice, maliciously delaying or attacking judges
(ii) warning implications of typical cases
The “interests of the suit” standard established in the luxiangxia case: a person must have a “legitimate interest worthy of protection” in pursuing an action that is purely motivated by curiosity, emotions or a lack of real needs and does not constitute an interest in the suit and may be considered an abuse. However, the standard needs to be applied with caution — the “excessive defence” of vulnerable groups (e. G. Repeated challenges to compensation for eviction), even if part of the claim is unreasonable, its basic right to sue remains to be guaranteed。
Conclusion: balance between the protection of the right to sue and the judicial order
The screening and handling of abuse of the right of action in administrative proceedings must be based on the principle of good faith and be determined by a combination of the three elements of “subjective malice + objective conduct + injurious consequences” in order to avoid “one-size-fits-all” suppression of the right of due process. The core objectives are to “advantage and win” those who are genuinely in need of judicial remedies, to “pay and pay” those who abuse their rights, and ultimately to achieve substantive resolution of administrative disputes and optimal allocation of judicial resources。
In practice, courts need to establish “early warning mechanisms for abuse of the right of suit” (e. G. Statistics on high-frequency prosecution, analysis of the subject matter of the prosecution) and to reduce abuse of the right of action from the source by promoting legal literacy。
