Shiling Xiao (RPg) & Yang Lin (RPg) on Judicial Review of Administrative Rules in China: Incremental Expansion of Judicial Power (The Journal of Comparative Law)

"Judicial Review of Administrative Rules in China: Incremental Expansion of Judicial Power"
Shiling Xiao  (RPg: currently postdoc) & Yang Lin (RPg: currently ARO) 

The Journal of Comparative Law, Special Part: Issues in Administrative Justice, Volume XVII, Issue 2, pp. 371-392

published in 2022

Abstract: Since 1989 when China adopted its first Administrative Litigation Law (ALL), it had long excluded administrative rulemaking from the court’s purview in administrative litigation, known as the Chinese judicial review of government actions. The courts were not expressly vested with the power to review administrative rules until the first amendment to the ALL in 2014. This article examines the evolution of the Chinese judicial review of administrative rulemaking and the court’s practice in the last seven years (2014-2021). It argues that whereas the judicial empowerment in 2014 is a symbolically significant step toward improving Chinese administrative rulemaking, public accountability, and the rule of law, China has merely established a weak-form judicial review of administrative rules, and the timid and deferential approach of the courts to this new empowerment seriously limits the judicial function of supervising government’s policy-making. This article underlines that judicial review of administrative rules in China is tied to limitations with regard to the scope, intensity and effect of the review. Only administrative normative documents that are at the bottom of the hierarchy of the Chinese legal system and have the lowest legal force are amenable to judicial review. The courts are not expected to scrutinise the reasonableness and proportionality of these documents, and they cannot even strike down invalid ones. They employ the report and record procedure to transfer the decision power to high courts. In practice, the courts declined pleas for reviewing administrative rules in most cases. Even when they accepted the review requests, they seldom closely and effectively scrutinised the substantive content and merits of administrative normative documents. During administrative litigation, they also consulted with the executive authorities and deferred to their opinion.