Politics of administrative litigation in contemporary china

Chapter 1 Introduction

BACKGROUND
On April 4, 1989, the People's Republic of China adopted its first Administrative
Litigation Law (ALL) at the Second Session of Seventh National People’s Congress.
Under this law, a legal redress system was established and came into effect on
October 1, 1990 in China. Citizens can sue the governments for their infringement of
their lawful rights and interests. The promulgation and enforcement of the ALL has
been perceived as a crucial step in “China’s long march toward rule of law”,1 because
it established the first system of judicial review in China to restrain the arbitrary
power of government.
However, in the context of authoritarian China, implementing the ALL is not an easy
task. On one hand, the government departments are not willing to be sued and try to
handicap the impartial law enforcement by all possible means. On the other hand,
due to the existing institutional arrangements, the courts are constrained by the
governments and thus do not have the power and courage to challenge them.
Consequently, the ALL has encountered serious and wide-ranging problems since
implementation. Many of the Chinese citizens are not familiar with the use of legal
measure and confrontation with authorities for protecting their interests. Many of the

1

See Randall Peerenboom, China’s Long March toward Rule of Law，(Cambridge: Cambridge University Press, 2002).

1


state officials are not used to answering to the citizens, being examined by the courts,
and abiding by the laws. In general, the individuals are all too weak and loosely
organized to protect themselves; the state officials are still all too powerful and well
established to be challenged; and the legal system is still not sufficiently well

established to provide relief. When litigation is to be pursued, there are, indeed,
many obstacles to be overcome, high costs to be paid, and great risks to be taken.

0

20000

Accepted Cases
40000 60000

80000

100000

Figure 1.1 Number of Administrative Litigation Cases of First Instance 1988-2001

1985

1990

1995
Year
Data Source: Law Yearbook of China 1989-2002

2000

2005

Yet, fourteen years' practice of the ALL shows that it has made steady and significant
progress in many aspects since its enforcement in 1990 despite of the resisting

governments and imperfect institutional arrangements. In the first place, the number
of administrative litigation cases accepted by courts has increased steadily after the
institution of administrative litigation was formally set up in 1990. In the past,
2


citizens suing government was very unusual. Even under the sanction of the Civil
Procedure Law of 1982, the pursuit of administrative litigation was very difficult and
the number of the filed cases remained rare. But when the ALL began to take effect
in 1990 and administrative litigation courts were set up at all levels specifically
responsible for accepting and hearing administrative litigation cases, the first hearing
administrative cases surged by 30 per cent to 13006 in 1990 and by 97 per cent to
25667 in 1991 (see Figure 1.1). In particular, 40 per cent of the 1990’s annual total,
i.e. 5258 out of 13,006 cases, were received from October to December when the
Law took effect, which represented a 96 per cent increase over the same period in the
previous year.2 It indicates that the citizens did have great expectation when
administrative litigation was promulgated in 1989 and were eager to make use of it
when it became effective in 1990. The rise slowed down to five per cent and two per
cent in the following two years, suggesting there were indeed operational problems
that were unrecognized before but soon manifested when the institution was put into
effect. Yet, the annual growth rate picked up again from 25 per cent in 1994 to 49 per
cent in 1995, and 52 per cent in 1996 during the years of rapid economic growth.
After two years’ gentle growth, the accepted cases decreased to 97569 in 1999 and
only 85760 in 2000. But in 2001, the first hearing cases jumped up again to a head of
100921. Despite many underlying problems and a zigzag development, it is
undeniable that the magnitude of growth has been very substantial over a span of
thirteen years, i.e. almost ten-fold increase from 9,934 cases in 1989 to 100,921 cases
2

Ren Jianxin, “1990 Work Report of the Supreme People’s Court at the Fourth Plenum of the 7th National People’s

Congress,” Gazette of the PRC Supreme People’s Court, No. 2, (1991), pp. 42-49.

3


in 2001. As a matter of fact, more and more numbers of the citizens are using the
new institution to protect their lawful rights and interests. The substantial increase in
the number of accepted cases indicates that the ALL has not been left as just a
window display but has indeed opened up a new era in the relationship between the
state and individual in China since 1990.
In the second place, the types of the accepted administrative litigation cases, as
shown in Table 1.1, have expanded rapidly since 1990. It indicates that the ALL has
broadened its role in protecting the citizens from various types of governmental
infringement. During the years before and immediately after the establishment of the
ALL, the types of administrative litigation were limited to the government acts in the
fields of public security and lands administration only.3 These two types of litigation
are related to personal subsistence and survival.4 Therefore, it is fair to say that only
the fundamental interests and rights were protected under the ALL in the early years
of implementation. The administrative lawsuits have rapidly extended into the fields
other than public security and land administration since 1993. In 1997, the scope of
accepted administrative litigation cases had expanded to more than 50 categories,
covering almost all fields of public administration.5 It is obvious that the
administrative litigation has developed from serving only two kinds of administrative
It was to process an administrative lawsuit of public security that the first administrative tribunal was founded in Gu Luo
County of Hunan province . Later-established courts were also occupied mostly by the same type of cases and the cases of
land dispute between government and the citizens as well.
4
The sued acts in the field of public security involve birth control, personal liberty as well as political rights. In the field of
land administration, the lawsuits involve arable land distribution, house demolition and clearance, and so on.
5

Law Yearbook of China, 1998, pp.134. Some other kinds of administrative litigation cases like statistic, technology
supervision are not listed in Table 1.1. Among all the administrative cases accepted in 1990, public security and lands
cases each contributed to around one third of the total, but the two had fallen to only 15 percent and 16 percent respectively
in 1999. In contrast, “other” types of cases had increased from 34 percent to 53 percent over the same period.
3

4


complaints in the past, to a wide range of protection to the citizens in the PRC
recently. It also suggests that the Chinese citizens are readier to resort to
administrative litigation on a diverse range of issues involving their individual rights
and interests apart from sheer survival.

Table 1.1 Types of Administrative Litigation Cases of First Instance 1990-2001
Year Public Security
Cases /%
1990 4519 /35
1991 7720 /30
1992 7863 /29
1993 7018 /25
1994 8624 /25
1995 11633 /22
1996 15090 /19
1997 14171 /16
1998 14288 /15
1999 14611 /15
2000 13173 /15

Lands

Cases /%
4038 /31
8162 /32
8330 /31
8063 /29
7962 /23
10012 /19
13932 /17
12986 /14
15121 /15
15503 /16
13357 /16

City Building
Cases /%
---2038 /7
2303 /7
3062 /6
4526 /6
4848 /5
6232 /6
7608 /8
8184 /10

Forestry Industry &Commerce
Cases / % Cases /%
------1971 /7 572 /2
2159 /6 886 /3
2561 /5 1556 /3
2727 /3 1486 /2

2854 /3 1817 /2
2357 /2 2640 /3
2183 /2 2708 /3
1738 /2 2897 /3

Transport
Cases /%
-----1385 /3
1869 /2
2094 /2
2645 /3
3322 /3
2658 /3

Others
Cases /%
4449 /34
9785 38
10932 /40
8250 /30
13149 /37
22387 /43
40336 /50
51787 /57
55067 /56
51634 /53
43753 /51

Total
Cases

13006
25667
27125
27911
35083
52596
79966
90557
98350
97569
85760

Data Source: Law Yearbook of China 1991-2002 (% added, 100 ± 1 per cent).

In the third place, the increasing probability of citizens' winning over governments in
courts shows that the reliability of the ALL as a legal relief for the encroached has
been improved significantly in the past fifteen years. The Figure 1.2 shows the
change of percentage that the sued administrative acts have been upheld by courts in
the first hearing from 1988 to 2001. It can be learned that the rate of winning suits by
the governments has dropped steadily over the fourteen years of implementation. In
1988, there was 49 percent of chance for government agents to uphold their acts in
the courts. After a decade of continual decrease, the governments' chance of winning
5


judicial support bottomed out in 1997 at only 13 percent. Although the chance has
increased with gentle slope since 1998, it may be attributed to the fact that the
governments have realized the power of the ALL and endeavored to adjust their
behavior to meet at least the requirements set by the laws.

.1

Percentage of Upholding
.2
.3
.4

.5

Figure 1.2 Percentage of Upheld Cases 1988-2001

1985

1990

1995
Year
Data Source: Law Yearbook of China 1989-2002

2000

2005

As a matter of fact, many officials admitted that they were more careful in exerting
administrative power because of the law. In recent years, most of the government
organizations have established legal advisory branch in order to reduce possible
unlawful acts. These evidences illustrate the real impact of the ALL on bureaucracies
has increased significantly. Besides, despite the percentage of upholding cases has
fallen over years; the rate of withdrawn cases by plaintiffs has remained
uncommonly high. One may thus argue that the institution has not been performing

6


very well in resolving conflicts between the state and the citizens. But, if the data are
examined elaborately, we can find that this is not the whole story. The data in Figure
1.3 show the changes in the percentage of withdrawn cases over the past fourteen
years. Despite the very high withdrawing rate of cases by plaintiffs, it has dropped
dramatically from the highest rate of 57 percent in 1997 to 31 percent in 2001.
Furthermore, among those withdrawn cases, there were approximately 38 percent
withdrawn after the defendants rescinded the disputed administrative actions to the
satisfaction of the plaintiffs.6 In such cases, though the lawsuits filed by citizens
under the ALL were given up mid-way, it generated substantial reciprocal benefits
for the plaintiffs. This result shows that the ALL may help resolving the
administrative dispute between the state and citizens even without bringing the
lawsuits to trial.
To sum up, although the adverse environment has created various problems for the
enforcement of the ALL and has prevented the institution of administrative litigation
from doing what it could and should do, an undeniable fact is that the ALL has
survived and played an increasingly important role in restraining government power
as well as protecting rights of ordinary citizens. The gradual developments of the
ALL, including the consistent and dramatic rise in terms of both the number and
scope of administrative cases accepted, the falling in the percentage of rulings in
favor of state agencies, indicate that the ALL is being consolidated as a legal
6

Minxin Pei, "Citizens V. Mandarins: Administrative Litigation in China," The China Quarterly, No. 152 (Dec.,1997).pp.
832-62.

7

institution in China.

Percentage of Withdrawn Cases

1988-2001

0

Percentage of Withdrawn Cases
10000
20000
30000
40000

50000

Figure 1.3

1985

1990

1995
Year

2000

2005

Data Source: Law Y earbook of China 1989-2002

RESEARCH QUESTION AND ITS SIGNIFICANCE
The ongoing consolidation of the ALL 7in China raises an interesting question that
the author wants to explore in this thesis project: what accounts for the consolidation
of the newly emerged ALL? In other words, why and how is a legal institution that
aims to restrain the government power feasible to work and develop in an
authoritarian state like China? More abstractly, why and how can an institution
survive and develop in the environment not conducive to its evolution?

7

The concept of “consolidation” in this thesis is defined as a process that the law becomes increasingly viable and credible.

8


Answering the above question has both practical and theoretical significance:
Practically, it will provide some policy implications for China’s construction of
“socialist democracy and the rule of law”. The rule of law is set as one of the most
important targets of China’s political reform. In 1997, the 15th Congress of the
Chinese Communist Party announced that “China adopts governance according to
law and will be constructed as a socialist country of rule of law”; in 1999, this
statement was incorporated into the constitution as an amendment. Nevertheless, to
achieve this goal in China, where there is no full-fledged democracy and legal
culture, many obstacles have to be overcome. An essential problem to be urgently
solved is how to build a credible and viable legal institution to work out the rule of
law. This study will shed some lights on the mechanisms of legal institution building
in authoritarian context. Thus, a clear and logically consistent explanation to the
research question will certainly provide important policy implications for China’s

successful transition towards “the rule of law”.
In addition, this study is theoretically significant as well. Firstly, it will complement
the inadequate studies on the politics of the rule of law in China. While the existing
studies emphasized the institutional features and performances of the ALL, the
mechanisms that make the law work and develop over time in authoritarian China
have been inadequately addressed. This study will complement the existing literature
through filling this needed niche. Moreover, this study will better our understanding
of transition to the rule of law in authoritarian context through the case of
9


administrative litigation. Current analysis of China’s movement towards rule of law
focus on the judicial reform and the law enactment. However, in authoritarian China,
where there is no tradition of rule of law, the legal institution, which are transplanted
from the western tradition may not be able to work and sustain. Therefore, to
understand China’s transition towards the rule of law, we need to explain the
mechanisms that facilitate consolidation or development of the legal institutions. The
last but not the least significance of this study is that it aspires to contribute new view
to the literature of institutionalism. The change and persistence of institution have
attracted much academic attention and constitute an essential research topic in the
literature of institutionalism. Yet, the issue that has been inadequately addressed is
why and how an institution can evolve in the adverse context. This study explores
this problem through the case of Chinese legal institution consolidation. It aims to
illustrate how the interplay between the institution and the actors makes the
institution develop in an incompatible environment.

LITERATURE REVIEW
Although the development of the ALL, as mentioned above, has not attracted
sufficient academic attention from the students of Chinese politics, it cannot be
denied that some significant literatures have been contributed by both legal scholars

and political scientists. The author believes that it will be helpful to look at the
accumulation of the literature on this topic as a whole. It can be learned from the
10


literature that the existing studies on the ALL center on two aspects----one is the
textual analysis on the legislative features of the ALL, the other is the assessment of
its performance.
The Structure of the ALL and Its Potential Effectiveness
Most works in this line of study are to assess the potential effectiveness of the ALL
based on the textual analysis of the legal provisions. They try to answer the
following questions: what is the structure or features of the ALL? Whether or to what
extent the ALL has the potential to restrain the discretionary power of government
and protect the lawful interests and rights of citizens?
It appears that scholars are at variance with the potential effectiveness of the new
law. Susan Finder is one of the scholars who are optimistic with the effectiveness of
the ALL. In her introductory paper, Susan Finder discussed the issues of availability
of judicial review, time limits, adjudication of the administrative litigation, and the
scope of review. Based on the analysis of the legal provisions, she argued that the
ALL “may prove to possess far greater potential than expected.” It may serve to put
an increasingly broad range of administrative actions under judicial review and have
the potential to balance the power between the citizens and the government as well. 8
Pitman B. Potter’s assessment is more comprehensive with the notice of the inherent
tension between the law’s provisions supporting judicial review and the various
8

Susan Finder, "Like Throwing an Egg against a Stone? Administrative Litigation in the People's Republic of China,"
Journal of Chinese Law, Vol.3, No. 1 (Summer, 1989).pp.1-28.

11

problems undermining such support. He argued that the ALL, on one hand, provides
broader opportunities for judicial review over administrative actions through the
supporting provisions on the scope of cases accepted; the types of parties that may
file lawsuit or that may be compelled to appear as defendants; trial procedures and
enforcement; and the tort damage remedies. On the other hand, the ALL contains a
number of problematic provisions that dilute the effectiveness of judicial review as
well. These, as he enumerated, includes: 1, conceptual uncertainties about the
distinction between administrative litigation and ordinary civil litigation; 2, limits on
the scope of review and the range of matters subject to review under the ALL; 3,
limits on the power of the courts to revise administrative decisions; 4, ambiguities
regarding court jurisdiction and refusal of cases; 5, restrictions on judicial suspension
of administrative decisions, secrecy of hearings and procuracy review. He believed
that the effectiveness of the ALL would depend on the outcome of the inherent
tension of the ALL.9
Hon S. Chan, however, emphasized the inability of judiciary to control discretionary
powers over the administration. He characterized the ALL as “a street-level
management law”, meaning that the ALL sets the limits for judicial control on
administrative operation through restricting the jurisdiction of courts to the questions
of legality and the scope of judicial review to the specific administrative acts. These
limits make it difficult to control the institutionalized form of the abuse of powers.
9

Pitman B. Potter, The Administrative Litigation Law of the PRC: Judicial Review and Bureaucratic Reform, in Pitman B.
Potter (ed.), Domestic Reforms in Post-Mao China (Armonk, NY: M. E. Sharpe, 1994).pp. 270-304.

12

Because of the existence of an informal structural network---Guanxi Wang, the abuse
of power in China “involves not merely acts of an individual but also acts of
individuals at different levels of the hierarchy in administrative authorities”, thus,
“holding street-level bureaucracies responsible through court rulings means
challenging the whole of administrative operations.”10
This stream of studies depicted the basic structure or features of the new law and
assessed its potential effectiveness. But this line of study, featured by the textual
analysis, fails to provide insights to the operation of the institution in reality. This
issue, however, is emphasized by the other line of study, which concerns the
operation of the ALL in reality.
The Operation of the ALL in Reality
In contrast, the studies on institutional operation of the ALL highlights “the law in
action” rather than “the law on the books”. Most of the studies on this aspect are
designed as empirical study to explore how the institution works in reality and why.
However, scholars take different approaches to such questions.
In 1991 and 1992, Gong Xiangrui and his coworkers conducted the first empirical
study on the implementation of the ALL.11 In this study, they used cross-national
survey data to assess the public perception of the ALL and relied on two case studies
10

Hon S. Chan, "Judicial Review and Control over Administrative Discretion in the People's Republic of China," Review
of Central and East European Law, Vol. 18, No. 2, (1994), pp.135-63.
11
Gong Xiangrui (ed.), Fazhi De Lixiang Yu Xianshi (The Ideal and Reality of the Rule of Law ), (Beijing: China
University of Law and Politics Press, 1993).

13


to investigate how the ALL was implemented at the grass-roots level. This study

provided rich empirical observations and thus contributed the following basic
information to our understanding of the institution: first, the ALL had made some
significant achievements in terms of increased case acceptance, strengthened legal
consciousness, governance according to the enhanced law, and the improved quality
of judgment; second, due to the political and institutional constraints, the ALL was
faced with serious problems of the scarcity of administrative case and the high rate of
case withdrawing. Nonetheless, this study has its weaknesses as well. It suffers from
unreliable polling, insufficient data and not in-depth analysis.
Compare to the 1992 study, Minxin Pei’s study is more systematic. Using official
national data on administrative litigation during 1986-96, he systematically analyzed
the increase of administrative litigation lawsuits, regional variation, scope of
administrative litigation and the outcome of the litigation. Based on the analysis, he
provided an overall description and preliminary explanation for the patterns that the
ALL is implemented. Then, he showed how the law works in reality by examining
who sues, who sues whom, sues for what kind of administrative violations and what
plaintiffs get on the evidence of 236 available court cases. After that, he concluded
that “although the constraints of China’s closed political system seriously limit the
effectiveness of the ALL, the institution of judicial review of administrative actions
is gradually being consolidated.” This consolidation process indicates that the
institution of administrative litigation evolves through “a process of mutual
14


adaptation---new institution adapt to the existing political system and its constraints
and the existing political system adapts to the new norms and rules stipulated and
embodied in the new institutions” and follows the logic of path-dependency. Minxin
Pei’s study is contributive in the sense that it figured out the patterns that the ALL
works in reality and proposed a plausible explanation for the consolidation of the
newly built institution of administrative litigation. However, there are two defects in
his study. First, the 236 cases he relied on are not randomly selected. The nonrandom selection, as he himself realized, may cause the problem of selection bias.

Second, this study lacks the dynamic perspective and thus fails to explain the
political process of administrative litigation. Some important questions like how the
law is mobilized by citizens and intervened by state actors and how the interaction
among key actors shape the outcome of the administrative litigation are left
unanswered.12
The recent research by Kevin A. O’Brien and Lianjiang Li paid respect to the above
questions by examining the dynamics of administrative litigation in rural China. With
rich empirical evidences, O’Brien and Li not only enumerated the tactics that the
litigants and their targets employed both in and out of court but also depicted the
vivid scenario of political struggle at each stage of litigation. They found that local
officials often attempt to preempt, derail or undermine administrative lawsuits by
blocking the access to official documents and regulations, pressuring the courts to
12

Minxin Pei, “Citizens v. Mandarins: Administrative Litigation in China”, China Quarterly, No. 152, (Dec., 1997), pp.
832-62.

15


reject cases, failing to appear in court or perjuring themselves, discrediting attorneys,
and intimidating litigants. However, villagers also fight back by drawing in
sympathetic elites such as people’s congress deputies and the media, and mobilizing
collective appeals even staging public protestors. According to their observation, the
mobilization in administrative litigation, “seldom involves a choice between recourse
to the law or to other strategies, but recourse to the law and to other strategies”.
Thus, they concluded that administrative litigation provides a useful window on
Chinese state-society relations and on the interplay of legal and political
mobilization. In addition, they suggested that “should more villagers incorporate
administrative litigation into their repertoire of contention, a reform designed to

extend the life of an authoritarian regime may play a part in nudging China a step
closer to rule of law.” Needless to say, this study enriched our knowledge of China’s
administrative litigation as it offered an in-depth description of the dynamic process
of administrative litigation. But, it did not provide compelling explanation to the
questions needed to be answered, for example, why citizens are willing to go to court
to file lawsuits despite the presences of costs and the risks? Under what condition
can the plaintiffs obtain the favorable rulings even if their targets have exerted
influence on the courts? 13
In short, the existing studies analyzed the legislative features of the ALL and
evaluated the performance of the institution in reality. Most scholars, either by
13

Kevin J. O'Brien and Lianjiang Li, "Suing the Local State: Administrative Litigation in Rural China," The China
Journal, No. 51 (Jan., 2004). pp. 75-96.

16


textual analysis or by empirical examination, noted that the institution of
administrative litigation is being consolidated. The question that has insufficiently
explained is why the institution of administrative litigation can survive and develop
in authoritarian China. This study tries to construct a theory to answer explain this
insufficiently addressed question.

ANALYTIC FRAMEWORK AND CENTRAL ARGUMENT
Then, what accounts for the consolidation of the ALL in authoritarian China? To give
an answer, this study stresses the importance of the fragmented authoritarian context
and the endeavor that citizens have paid in the legal battles. The argument proposes
that the consolidation of the ALL in China results from citizens' perseverant efforts
of exploiting the legal-political space that is embedded in the fragmented

authoritarian regime. The causal link between the two explanatory factors and the
explained consequence is outlined in the theoretical framework shown in the Figure
1.4.
This framework includes the fragmented authoritarianism as contextual variable
because it has not only shaped the judicial behavior of courts but also conditioned the
litigation behavior of citizens as well. On the one hand, authoritarian institution
arrangements have deprived courts of judicial independence and confronted courts
with various non-judicial pressures. But on the other hand, the fragmentation of the
17


Party-state has also presented a political-legal space that can be exploited by citizens
to facilitate their legal battles.

Figure 1.4 Analytic Framework of the Study

Fragmented
Authoritarianism

Citizen
Activism

Judicial
Behavior

In China, courts are inferior to executives in political hierarchy and dependent upon
governments in some important aspects of everyday operation like finance, personnel
and material resources supply.

Consequently, when dealing with administrative

lawsuits, courts have to consider their relationship with governments and thus losing
courage and power to challenge the governments. Besides, in authoritarian China,
court is not really being treated as a judicial institution dealing with legal affairs. In
fact, it has long been regarded as an “instrument” of the Party-state.14 Courts are
subjected to the leadership of the Party and often burdened with various extrajudicial responsibilities such as maintaining social stability, serving core policies of
the Party-state and assisting local economic development. Without insulation from
Lubman argued that although efforts have been paid to legal reform, the bird of Chinese legal institution still remained in
the cage of the Party-state. See Stanley B. Lubman, Bird in a Cage: Legal Reform in China after Mao, (California:
Stanford University Press, 1999).
14

18


political control, courts, when deciding an administrative litigation case, have to
take into account the possible political consequence that certain ruling may bring
about. Finally, court system in authoritarian China is organized and administered like
a bureaucratic organization.15 Judges are responsible to their higher-ranked
supervisors; lower-level courts are answerable to the courts at higher-level. Under
such a hierarchical structure, judges are restrained by various intramural
administration regulations. When they decide administrative litigation cases,
concerns regarding promotion, performance, and adjudication responsibility often
carry great weight. Due to the institutional constraints of the authoritarian regime,
courts are exposed to extra-judicial pressures imposed by governmental, political as
well as internal administration authorities. As a result, judicial decision on
administrative adjudication is not simply based on legal norms but contingent upon
the pressure structure that is defined by the propensity of the involved authorities.
Although authoritarian regime has constituted an impediment to the impartial
enforcement of the ALL, it still leaves possibility for citizens winning over the

government under the law. The reason is that the fragmentation of the Party-state
provides a checking mechanism in administrative adjudication. When local
governments try to obstruct judicial review over their illegal acts, higher-level
authorities or other branches of local authority, depending on their judgment on the
situation, may intervene the judicial process and press the courts to dispose the
This is referred as “bureaucritization of court system” by some Chinese scholars. See among others, He Weifang,
“Zhongguo sifa zhidu de liangge wenti”, (Two Problems of Chinese Judicial System ), Social Sciences in China, No. 6,
(1997), pp. 117-130.
15

19


disputes justly. Chinese Party-state is not a homogeneous entity but rather a
fragmented system with diverse actors pushing from different directions.16 Vertically,
the Party-state at different levels have diverging policy concerns and thus often
moving in opposite ways. Generally, lower level Party-states pay more attentions to
local economic interests and administrative achievements (zhengji). They are thus
more likely to transgress the rule of law and exert wrongful influence on courts to
side-step legal responsibilities. On the contrary, higher level authorities concern
socio-political stability and legitimacy more than lower level Party-states do.
Therefore, they have stronger incentive to promote the rule of law and maintain
public credibility. Horizontally, different sections of the Party-state, in order to
intensify their organizational capacities or to expand clarified jurisdictions, tend to
compete with each other for power. Although communist China has never adopted
power separation system, some reforms on administration-Party division, People's
Congress restructuring, and media commercialization have intensified the functional
differentiation among the state agencies. In order to enhance their own authority,
these state agencies are ready to exercise power over others under certain conditions.
The framework also stresses the importance of citizen's efforts to exploit legalpolitical space for consolidating the ALL. Citizen activism is relevant because in

16

This point draws on the insight of Joe S. Migdal's “state-in-society” approach to the study of state, in which he argues
that state should not be assumed as a holistic entity with all parts move in the same direction. See, Joe S. Migdal, State in
Society: Studying How States and Societies Transform and Constitute One Another, (New York: Cambridge University
Press, 2001).
In this thesis, I borrow Lieberthal's “fragmented authoritarianism” to term this characteristics of the Chinese Party-state but
the meaning of the term in this thesis is different from that of Lieberthal's original concept. For Lieberthal's concept of
“fragmented authoritarianism”, see Keneth G Lieberthal and David M Lampton, Governing China: Bureaucracy, Politics,
and Decision Making in Post-Mao China, (Berkeley: University of California Press, 1992).

20


order to win over the powerful governments, citizens must exert significant influence
on courts to prevent them from favoring the established power. In their legal battles,
citizens have not only been active in legal actions but also paid great efforts to
mobilize political supports. This effort of dual mobilization may help to shift the
pressure structure that courts confronted in judging litigation cases and thus leading
to the litigation outcomes that favor citizens. The patterns that how citizens' efforts
influence the judicial behavior in administrative adjudication are given in Figure 1.5.

Figure 1.5 Citizen Activism and Judicial Behavior in Administrative Adjudication
Legally Active

Legally Inactive

Politically Active

Ⅰ. Most Impartial

Ⅲ. Contingent

Politically Inactive

Ⅱ. Mediation

Ⅳ. Least Impartial

It illustrates that given institutional constraints of courts, the judicial behavior in
administrative litigation is significantly shaped by the types of pressures that citizen
activism brings about. If citizens neither make strong legal claims nor take effective
political actions, there will be least possibility for courts to make impartial rulings for
a number of reasons. First, other branches or levels of political authorities may not
intervene in judicial process because citizens' inaction does not provide them any
incentive. Furthermore, citizens' feebleness in legal mobilization may render courts a
nerve to pervert the law. Without political and legal restraints, courts only confronted
21


with pressures from the governments, therefore, the

judgments favoring

governments are most likely to be made in this situation.
In the second scenario, where citizens are active in legal mobilization but not
political effort, courts are prone to mediate the administrative disputes partly in favor
of the citizens. The rationale for this mode of judicial behavior is that it is safe. On
one hand, courts can avert confrontation with governments while they are appeasing
citizens' complaints. On the other hand, there is no responsibility for any misjudging

cases when the cases do not enter judicial process at all.
In the third scenario, citizens do not focus on legal actions, instead, they pay more
efforts either to mobilize sympathetic support from political authorities or to exert
political pressures on courts directly. Under such condition, the court's rulings are
contingent upon the effectiveness of citizens' political efforts. If citizens successfully
mobilize sympathetic supports from political authorities and get them intervene in
judicial process, courts will be pressed to support citizens' claims. If not, courts may
simply refuse to accept the lawsuits or favor the sued.
Courts are most likely to dispose administrative lawsuits in favor of citizens when
they are active in both legal mobilization and political action. This dual mobilization
makes difference firstly because legal mobilization may enrich citizens' legal
knowledge and help them obtain resources necessary to achieve litigation success,
thus, their capacity to assert rights in court will increase significantly. For the second
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reason, by taking political actions, citizens maybe able to attract sympathetic support
from other political authorities and thus impose political pressures on judicial
decision makers.
The above analytic framework suggests that it is feasible to consolidate the ALL in
authoritarian China because citizens have paid great efforts to exploit the legalpolitical space embedded in the fragmented Party-state. It implies that legal
institution building in authoritarian context relies heavily on the driving forces in
both society and the state.

RESEARCH METHOD AND DATA SOURCES
This study is not a contextual analysis of the ALL but an empirical study on the
politics of administrative litigation. It tries to uncover the mechanisms that make the
ALL feasible to be consolidated in authoritarian China. Given the presented above
theoretical framework, the author believes that configurative case analysis is a
suitable approach to this study because the deep descriptions generated in

configurative analysis make it possible to probe into the logic of the interaction
among legal institution, political elites and ordinary citizens.17
This study relies heavily on event data. In order to collect primary data, the author
17

Configurative case study emphasizes the thick description of a small number of cases so that the consumer of the
research will be able to comprehend the logic of political life in that limited number of settings. About configurative case
study, see A. Lijphart, “Comparative Politics and the Comparative Method”, American Political Science Review, Vol. 65,
(1971), pp. 682-93.

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conducted a two-month fieldwork in Wuhan, a capital city located in the central part
of China. During the fieldwork, I conducted 41 in-depth interviews with the people
who had got or were getting involved in administrative litigation. The interviewees
include judges, lawyers, legal scholars, plaintiffs, and government officials. In order
to guarantee the reliability of data, I tried to compare the accounts of interviewees
with those of others on the same events. In addition to the interview data, I copied
numerous archival materials including indictments, attestation, written judgment, as
well as some official intramural documents. I also used a number of secondary data
source from websites, newspapers, and journals.
ORGANIZATION OF CHAPTERS
Chapter One offers an introduction to this research. It includes the research question,
topical literature review, theoretical framework, and research methodology. Chapter
Two examines the efforts that have been paid in building the institution of
administrative litigation. It tries to explain why and how the ALL was able to emerge
in authoritarian China. Chapter Three analyzes the government attitude towards
administrative litigation and how government obstructs the enforcement of the ALL.
Chapter Four explains the institution settings of people's court and the logic of

judicial behavior in administrative litigation. Chapter Five addresses citizen activism
in administrative litigation. It shows how citizens pursue legal justice under the ALL.
Chapter Six concludes the study by discussing some theoretical and policy
implications.
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Chapter 2 Building the Institution of Administrative Litigation

Restraining the discretionary power of the government by law is not an easy task. In
fact, China has paid great efforts in building up the institution of administrative
litigation. To understand consolidation of the administrative litigation law, the
process of institution building should be firstly appreciated. This chapter was thus
devoted to the analysis of why the ALL was able to emerge in authoritarian China
and how the state promotes the implementation of the law.

RATIONALE OF INTRODUCING THE ALL
China’s administrative litigation system was created in the course of the post-Mao
reform. It was the political and economic changes generated by the reform that gave
the impetus to the birth of the institution. First of all, the policy taken by the postMao leaders towards the rule of law laid the foundation of the emergence of
administrative litigation. Many of the post-Mao leaders had experienced the calamity
of Cultural Revolution. Because of the ubiquitous violation of individual rights, the
capricious and arbitrary exercise of power, and the general collapse of law and order
took place during the Cultural Revolution, Post-Cultural-Revolution leaders realized
that restraining the arbitrary government power was necessary. In 1978, Deng
Xiaoping declared that, “democracy has to be institutionalized and written into law,
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