General Principles of Administrative Law
General Principles of Administrative Law
1. Definition
Principles of administrative law are fundamental legal norms.
They are of fundamental importance for the entire law or its branches.
They are located at the top of the hierarchy of norms.
Other norms must be consistent with them.
They are expressed directly in law (primarily in the constitution) or are the results of interpretation by the courts.
2. Legality
Authorities act only under and within the framework of legal norms.
Examples of infringement:
The decision was issued by the wrong authority.
The authority applied regulations that are not in force.
Regulations are in force, but regulate a different matter.
3. Equality
People in the same situation should be treated comparably.
Prohibition of discrimination based on gender, nationality, race, religion, or political beliefs.
Public authorities must treat similar subjects in similar situations equally.
The principle of equality must be considered when shaping existing laws.
Two dimensions:
Procedural: Equal treatment of parties in administrative proceedings, actualized during proceedings, refers to the realization of rights and obligations of a procedural nature. Evident in proceedings involving more than one party.
Material: Manifests in different proceedings but in cases of similar factual or legal status.
4. Impartiality
Activities of public bodies should be independent of any collateral influences.
Aimed at fulfilling the tasks of the state and deepening citizens' trust in state bodies.
Includes the idea of equality in law.
One must not be guided by motives that are inappropriate in a particular case.
The conduct of proceedings and the issuance of a decision should be based on impartial reasons and arguments, relevant to the specific case.
Prohibits the consideration of certain rationales, such as self-interest, kinship with a party to the proceedings, personal attitude to the case, etc.
5. Legal Certainty
Can be reduced to the formal concept, placing emphasis on the procedural aspects of its validity.
Considerations:
Was it established by a properly legitimized entity?
Were the proper procedures for its creation observed?
Was it properly promulgated?
Are the legal regulations created in this way transparent, clear, meet the standards of public order?
Is their application widely accepted?
Stability, sustainability, and consistency with other legal regulations.
Linked to the doctrine of legitimate expectations and to the non-retroactivity of the legal effects of an act.
Principle of legality in British common law (Hayley J. Hooper):
A common law rule of statutory interpretation mandates that Parliament may only legislate to override constitutional norms using clear language.
Pertains to statutes alone; it is not a freestanding principle of the constitution applicable to all exercises of public power.
Foundational principle of legality cases arose in the context of claims about ultra vires administrative action, i.e. claims that the executive had exceeded the scope of powers granted by an Act of Parliament.
6. Legitimate Expectations in EU Law
Concerns the relationship between public administration and individuals.
Solves the conflict between the administration’s goal to protect confidence in its activities and the need for change of the objectives of administrative policy.
Expressed in art. 10 of the European Code of Good Administrative Behavior.
"The official shall be consistent in his own administrative behaviour as well as with the administrative action of the Institution. The official shall follow the Institution’s normal administrative practices, unless there are legitimate grounds for departing from those practices in an individual case; these grounds shall be recorded in writing."
"The official shall respect the legitimate and reasonable expectations that members of the public have in the light of how the Institution has acted in the past."
Formed in the process of the judiciary activity of the CJEU.
Ensured fair dealing and good faith as minimum standards of Community administration.
It would be unfair for the administration to raise certain expectations as to its further conduct which are then subsequently disappointed, without good reason.
Allows the European Court to strike a balance between justice and the legal rigor.
Doctrine of legitimate expectations is “undeniably part of Community law”.
Originates from the principle of legal certainty.
Violation of legitimate expectations is seen as a violation of “the primary rule of law and order”.
Three conditions to justify a claim for entitlement to the protection of legitimate expectations:
Precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Community authorities.
Those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed.
The assurances given must comply with the applicable rules.
In EU law, primarily called for in cases concerning the agricultural market and industry.
Mulder case (judgment of the Court of 28 April 1988, J. Mulder v Minister van Landbouw en Visserij, Case 120/86, full text):
Some milk producers entered into a joint programme through which for five years they received compensation for suspending their milk production and trade.
The European Court decided that the resolution was illegal because it violated the principle of legitimate expectations. A producer who suspended his production of milk cannot expect that he would not be subject to market or structural policy which is adopted in the meantime.
A producer encouraged by a communal scheme to suspend his milk production for a given period has the right to expect that he/she would not be subject to restrictions for the exclusive reason of benefiting from communal regulations. Producers could not have foreseen that they would be excluded from the common market.
7. Subsidiarity, Decentralization, Participation
Subsidiarity:
Expressed in the European Charter of Local Self-Government.
Organs of the state, including public administration bodies, should be located as close to the citizen as possible.
Citizens should participate to the greatest possible extent in the exercise of public authority.
The chief function of the state is limited to satisfying the needs of persons who are unable to do so by themselves.
The role of the state is secondary.
Aimed at limiting the power of the state, and enhancing at the same time the autonomy of social groups and individuals.
Postulates a multi-level organization of society.
There are various intermediate-level communities situated between the individual and the state.
Decentralisation:
Lower-level bodies are not hierarchically subordinate to higher bodies.
They carry out the tasks entrusted to them by law independently and autonomously.
Subject to supervision usually only from the point of view of the criterion of legality.
Participation:
A process through which all members of a community or organization are involved in and have influence on decisions related to development activities that will affect them.
Development projects will address those community or group needs on which members have chosen to focus.
All phases of the development process will be characterized by active involvement of community or organization members.
Examples:
European Charter of Local Self-Government of 15.X.1985:
The preamble states that the right of citizens to participate in the conduct of public affairs is one of the democratic principles that are shared by all member States of the Council of Europe.
Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters adopted on 25th June 1998 (the Aarhus Convention).
The Aarhus Convention guarantees the public three key rights in environmental matters:
Access to information.
Public participation.
Access to justice.
8. Control and Accountability
Access to information:
Refers to the public's right to receive environmental information held by public authorities.
Includes information on the state of the environment, policies or measures affecting the environment, public health and safety where the state of the environment affects them.
Public participation:
Refers to the right of the public to participate in environmental decision-making.
Public authorities are obliged to allow the public and environmental non-governmental organisations to participate meaningfully in decisions on projects affecting the environment and environment-related plans and programmes.
Access to justice:
Refers to the public's right to review by a court or other independent body to ensure that public authorities respect the right of access to information and public participation and environmental law in general.
9. Proportionality
Public administrative bodies, when taking any action, should moderate the objectives and the severity of the measures.
Proportion between protecting the general (public) good (interest) and the individual good (interest).
Supplementary principles:
Utility: using only means useful for a given purpose.
Necessity: using only means necessary in a given situation.
Expressed in Article 5(4) of the Treaty on European Union states that "Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties."
10. Transparency
A central element of accountability.
An element of a public life in a democratic society.
Related to the right to know.
11. The Necessity of Control
Administration is responsible for the state of public affairs in various areas of social, economic, political, cultural life, and so on.
The performance of the administration's broad tasks and functions must be subject to appropriate checks and evaluations.
The administration has the power to decide on individual rights and interests, and imposing obligations.
In a democratic society and state, public authority cannot stand outside of control.
The administration is required to be effective and efficient.
Many standards addressed to the administration other than efficiency and effectiveness, e.g. rule of law, legality, good administration presuppose the need to control the administration's activities.
12. Control - Definition
Can be viewed as a function or as an organizational system.
Control as a function:
Examination of the existing condition.
Comparison of the actual state with the desired or postulated condition.
Determination of the extent and causes of discrepancies noted.
Different types of control, e.g., external and internal control.
In this case, the location of the controlling entity is important.
13. Administrative Courts
Specialize in administrative law.
Adjudicate cases of litigation involving the state and private entities: individuals and corporations.
No single model of administrative justice.
History:
France:
Intense conflicts between officers responsible to the Crown in charge of the provinces’ administration and (powerful courts controlled by local elites).
"Judicial courts lack jurisdiction over administrative acts of the State” .
Council of State created by Napoleon: the first specialized administrative court.
Dual function of adjudicating cases against the French administration and drafting government laws and rules.
Ordinary courts were not allowed to adjudicate claims against the government.
England:
The distinction between public and private law has been historically less sharp not because England lacks public-law courts but because ordinary courts have jurisdiction over all types of disputes.
Constitutional struggle developed in the seventeenth century between the Stuarts and judges with respect to the judges’ right to decide cases related to the royal power or to decide cases in which the king had an interest.
Courts developed judicial review, i.e., the revision of administrative decisions, as a way of supervising inferior government bodies administrative tribunals developed during the twentieth century which, in a very simplistic way, can be thought of as an adjudicatory body that is not a court.
German model of judicial review:
German liberals endeavored to implement legal structures that would limit state power by the monarchs of German states.
Jurist Rudolf von Gneist advocated an independent judicial review system to ensure the protection of citizens’ rights.
There should be a generalist administrative court independent of the executive.
The composition of the court should allow an independent judicial control of administrative power, so it would be staffed by professional administrators and respected citizens
In 1872 Gneist’s ideas were implemented with the Prussian Supreme Administrative Court, which was the highest judicial body of a threetier system of administrative courts.
14. Administrative Tribunals in England
In the 19th century in response to multiple social and economic problems, Parliament created agencies that were called boards or commissions.
They performed a mixture of legislative, executive and adjudicatory functions.
Multifunctional agencies were left with only the adjudicatory function.
Proceedings before tribunals were faster, less expensive, informal in nature, and those adjudicating in them had specialized knowledge.
The advantages of tribunals outlined were believed to be particularly important in those areas where many decisions are made, such as on social welfare benefits.
Thus, the existence of tribunals reduces the problems of courts that would not be able to handle a large number of cases in the ordinary course of proceedings.
Before the third decade of the twentieth century, the same ideas of judicial independence from the government departments whose decisions they controlled should also apply to them.
At the beginning of the 21st century, there were strong opinions that the tribunals could not be embedded in government departments, but should be fully independent of them.
In 2007 under the Tribunals, Courts and Enforcement Act 2007 the system of administrative tribunals was created.
The First-tier Tribunal decides general appeals against a decision made by a Government agency or department.
The Upper Tribunal hears appeals from the First-tier Tribunal in points of law.
The position of the tribunals as judicial institutions was strengthened by naming the Upper tribunal as the superior court of record [Section 3(5) of TCEA07].
The intention of the legislature was that the Upper Tribunal should have the same position as the Administrative Court.
15. Models of Adjudicatory Powers of Administrative Courts in Europe
Two models of adjudication in administrative cases:
Cassation.
Reformatory.
Cassation adjudication:
Possibility of revoking the contested decision of the authority and obliging it to resolve the case taking into account the judgment of the court.
Reformatory model:
The court decision replaces the decision of the administrative authority.
Reformatory model (doubts):
Adjudication on the merits, especially based on administrative discretion, raises yet another problem.
Additional burden on judges, which may contribute to the lengthiness of proceedings, which is more often faced by substantive courts than cassation courts.
Cassation model (doubts):
The fundamental disadvantage of cassation-type adjudication is the difficulty in forcing the administration to comply with the court's ruling.
There are no proper mechanisms (mainly sanctions) that can be applied when an authority ignores the opinions expressed in the court's decision and either makes no decision at all or reissues a decision that is essentially identical to the one previously overruled by the court.
Systems in which substantive (reformatory) adjudication prevails:
Switzerland, where, in the event that a complaint is found to be justified by the Federal Administrative Court, the rule is to issue a reformatory ruling.
France, administrative courts can rule on the merits in whole or in part in many categories of cases (i.e., environmental cases, some tax and financial contract cases, election cases, construction law cases and demolition orders, and audiovisual policy).
Systems of administrative justice in which the relatively broad power to replace a decision made in administrative proceedings with a court ruling is combined with the ability to conduct extensive evidentiary proceedings - including the use of witness testimony, expert opinions and visual inspections, np. (e.g., in Finland, Sweden or the Netherlands)
The clear dominance of cassation jurisprudence with the introduction of several exceptions in which it is possible for the court to finally resolve the case or issue a judgment in which it clearly indicates to the administrative body how to resolve the administrative case, e.g. Austria.
In the UK, the court usually has only the power to censure a defective decision (of an administrative authority, an administrative tribunal, a lower court or an entity performing a public function).
In many cases, associated with the cassation model of adjudication is the authority of the administrative court to formulate an order to the administrative authorities to issue a decision and binding guidelines on its content, e.g. Germany.
The nature of the judgments of administrative courts of the first instance generally depends on the type of complaint filed.
A distinction is made between, among others: a complaint for the repeal of an administrative act, a complaint for the issuance of such an act, a complaint for a benefit - a factual action other than an administrative act, a complaint for an omission, a complaint for the establishment of a legal relationship, and a complaint for the control of a norm issued by an administrative body.
Depending on the nature of the complaint and the circumstances of the particular case, the court may issue a judgment that includes a ruling on the granting of a benefit (including a benefit in a different amount than originally granted or a replacement), or it may recognize the existence or nonexistence of a legal relationship or oblige the body to issue an administrative act (e.g., with the administration's silence) or settle the case in accordance with the court's legal opinion.
The court may also rule in cassation, i.e. repeal an administrative act or declare it invalid.
16. Ombudsman
The primary function of modern ombudsmen is to control the activities of public administration.
Common features in the international cross-section:
Protection of individual freedoms and rights.
Independence, at least from those bodies whose activities it can control.
The absence of formalized proceedings before it and the wide and free accessibility to it by citizens (and other entities).
The ability to act not only on request but also ex officio (ex officio); France and the United Kingdom are exceptions.
Reaction to inaction and prolongation of proceedings.
The ability to demand explanations from controlled entities, request files, check facts.
The right to address recommendations to the controlled entities, to demand their response, and obligation to notify the ombudsman of the position taken and actions taken.
Lack of power to impose its position on controlled entities.
17. Civil Service
The term “accountability” implies the duty to act in a responsible way and to be accountable to others for one’s actions, in order to maintain effective and logical links between planning, deciding, action, and verification.
No universally accepted definition of civil service or civil servant.
A civil servant is an employee of the executive power, who has special duties and responsibilities, and should often meet specific requirements.
Art. 21.2 of the Universal Declaration of Human Rights from 1948: everyone has the “right of equal access to public service in his country” .
According to the ECtHR:
Civil servants participate in the exercise of public power and that there is a special bond of trust and loyalty between the civil servant and the State, as an employer (Vilho Eskelinen and Others v. Finland, 63235/00, 2007, § 62).
A public servant is a depositary of public authority responsible for protecting the general interests of the State or other public authorities (e.g. armed forces and the police).
The State, therefore, has a legitimate interest in requiring, of these officials, a special bond of trust and loyalty (Pellegrin v. France, 28541/95, 1999, § 66)
The terminological framework, tailored for the comparative analysis of the civil service law in Europe, should be based on the distinction between public service and civil service.
Public service is a broader concept—a type of professional activity related to the exercise of every public power (executive, legislative, and judiciary).
The civil service is a core part of the public service. It constitutes a segment of the public workforce which includes the officials employed by the executive power, who have special duties and responsibilities, and should often meet specific requirements.
18. Models of Civil Service
The features of the career model of civil service:
The public contract and appointment of a civil servant.
Recruitment only for the lowest positions.
Formalized recruitment procedures.
Statutory educational requirements (diplomas and certificates).
Statutory requirements for training and probationary(preparatory service).
Limited recognition of professional practice brought from the non-public.
Statutory salary system.
Statutory special pension system.
Predetermined promotion (career) system.
Guarantee of employment stability.
Code of ethics for civil servants.
The features of the contractual model of civil service:
Recruitment for all jobs.
No statutory education requirement, relevant specific skills for a specific position.
No statutory requirement for training and preparatory service.
Acceptance of work experience acquired in the non-public sector.
Lack of formalized recruitment procedures depending on the position.
Optional seniority rules in determining salaries.
Lack of a formalized career advancement system.
No guarantee of employment stability.
Lack of a statutory special pension system.
Contractual salary system based on collective agreements.
Salary dependents on performance.
19. Accountability of Civil Servants
Disciplinary Proceeding in France:
When the behaviour of a civil servant threatens the good functioning of the state administration orundermines public confidence in the state administration.
Differnet sanctions: warning, reprimand, level degradation, temporary removal from the post withoutpay, transfer, degradation,temporary removal without wage claim, ealy retirement, removal
First instance and appellate commission; after: Supreme Council for Civil Service or file an administrative suit.
Disciplinary Proceeding in the UK:
The Constitutional Reform and Governance Act of 2010 addresses, among other things, the civil service.
For the state administration and civil service, it represented the first comprehensive standard in the form and strength of law.
According to this law, the state administration is managed by the Minister for State Administration in the case of civil servants and by the Minister of Foreign Affairs in the case of diplomats.
The Civil Service Code and the Civil Service Management Code (CSMC)
The Civil Service Code, which does not have the force of law, but is generally accepted and supported by the Prime Minister (soft law), regulates in more detail the relations between the ministers and civil servants.
The Code also contains a commitment to treat government civil servants apolitically and not to require them to act in violation of the Code or another legislation.
According to CSMC the service authority has the authority to set the disciplinary measures (sanctions).
Under CSMC It is for departments and agencies to decide the level at which decisions are made, whether or not to proceed with disciplinary action, the disciplinary procedures to be followed, and the arrangements for appeals.
However, departments and agencies must comply with these rules.
The Cabinet Office recommends setting up simple, clear procedures which closely follow the ACAS Code of Practice and guidance rather than adding additional steps.
Disciplinary decisions must be taken by someone at least one level higher than the individual concerned and appeals on disciplinary matters must be heard, where this is possible, by someone at least one level higher than the person making the decision being appealed.
Wherever possible, appeal decisions should be taken by someone independent of the original disciplinary decision.
20. Public Administration in Japan and China
20.1 Japan - Some History
Premodern Bureaucracy
The feudal period, which involved warring lords and a samurai class of administrative officials.
Japan had maintained a cohesive administrative class called samurai, a word that came from the saburau (“to serve”) aristocrats.
Samurai generally means military officials, and they had come to constitute a class in the Edo period (1603–1863).
This era was ruled by the Tokugawa shogun government in Edo (now Tokyo).
The position of shogun (“general” in English) was at the very top of the samurai.
Government in this period was not a unitary, centralized system.
The Tokugawa government was a feudal system in which each one of the local lords controlled his own han (sometimes translated as “clan,” but more appropriately a “domain” headed by lords).
A han enjoyed prerogatives like exercising its own currency, tax, police, and laws.
Local lords were put under strict control by the shogun (e.g., half of the year they had to live in Edo), and if local rule was not working, the lord’s family might be terminated or relocated to less affluent areas.
But as long as they remained loyal to the shogun and ruled well, the positions of the lords were secure.
This was a very decentralized system.
Prewar period: began with the Meiji Restoration in 1868 and lasted until the end of Word War II.
In 1868, the first centralized government (called dajokan) was established under the emperor.
The top jobs were occupied mainly by former members of the four han, creating “cliques” in government.
In 1885, the cabinet system was established and the first prime minister, Hirobumi Ito, proclaimed soon after taking the position that the basic rule of recruitment should be based upon competitive examination.
In 1886, Tokyo Imperial University (now the University of Tokyo) was established.
The most important function for this university was to produce young talent willing to enter the central bureaucracy.
In 1889, the Meiji government established a nationwide local administrative system, thereby centralizing control over lower levels of government.
The Meiji local system had two tiers: prefectures and city/town/village or municipalities.
Bureaucracy in Japan was modeled after Germany.
Postwar Japan
The Constitution of November 3, 1946
The principle of separation of powers guaranteed in the Constitution of Japan became effective on May 3, 1947.
The Diet is granted legislative power.
The Cabinet is vested with executive power.
The Supreme Court and lower courts are given judicial power.
Article 41: The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State.
Article 65: Executive power shall be vested in the Cabinet.
Article 66: The Cabinet shall consist of the Prime Minister, who shall be its head, and other Ministers of State, as provided for by law. The Prime Minister and other Ministers of State must be civilians. The Cabinet, in the exercise of executive power, shall be collectively responsible to the Diet.
Article 76: The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law. No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power. All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the law.
Local self-government in the Consitution
Article 92: Regulations concerning organization and operations of local public entities shall be fixed by law in accordance with the principle of local autonomy.
Article 93: The local public entities shall establish assemblies as their deliberative organs, in accordance with law.
Japan has a parliament–cabinet system of government.
The local government consists of prefectures and the municipalities that make up the prefectures.
20.2 Japan - Administrative Values
Legality
Administration acts only after the law allows them to.
Equilibrium
Administration should consider every possible factor, opinion, and interest.
Seniority
Determined by which year one entered a ministry.
20.3 Japan - Administrative Adjudication
Administrative procedure is regulated in the Administrative ProcedureAct of 1993
Judicial review over administrative actions is regulated by the Administrative Case Litigation Act of 1962
Two modes of judicial review over administrative actions:
Review by the method of replacing an administrative judgment with its own.
Review of going beyond the bounds of or abusing of discretionary powers
20.4 China - Some History
Royal administration prior 1912
Royal administration experienced a long-term, gradual evolution, leading to its verydelicate and complex structures and institutions.
The ancient Chinese history showed a roughly 200-year cycle of new dynasty, prosperity, decline, peasant rebellion, and another new dynasty.
Features of China’s ancient administration:
It developed a highly centralized structure of power.
A formal examination system was adopted to recriut talneted officials.
Morality was recognized as the base of good governance.
Advanced administrative institutions were develpoed and covered by laws and regulations, e.g. revenue collection, personnel management, administrativeinspection and anticorruption, hierarchical control.
State Administartion (1912-1978)
1912-1949: Period of battles , wars and disintegration, e.g. the two civil warsbetween the Kuomintang and the Chinese Communist Party (CCP).
1949-1978: In 1949 the People’s Republic of China was created
The administrative power was concentrated in the central government and major party leaders at all levels of government.
The party and the government hadoverlapping organizational structures, which afforded the CCP direct control of administration.
The economic sector was to a large extent a part of the administrative system, whichused strict plans and quotas to decide prices, capital investment, industrial inputs and outputs, and distribution of consumer goods.
Public Administration (after 1978)
The period of reforms however marked with two considerable facts:
The recent modernization efforts emerge from the background of China’s administrative history, which sets the context and starting conditions of these efforts; they include processes and values that strongly influence efforts today.
Two fundamental path-dependent effects stand out.
First, is the politicized bureaucracy. Due to the nonexistence of popular election and a competitive party system, control on bureaucracy was a major leverage to maintaining political power. Political compliance was assigned a higher priority than expertise in evaluating bureaucrats. Such a system tended to hinder the efforts to make the bureaucracy more professional.
Second is the moralized, but sometimes immoral bureaucracy. Moral doctrines easily substituted for rationalized institutions and the spirit of rule of law; the opaqueness and complexity of the bureaucratic system further helped bureaucrats evade results and accountability. The traditional dominance of bureaucracy on society and its moral self-sufficiency made law abidance primarily an obligation of civilians. Bureaucratic dysfunctions commonly occurred due to high-powered, self-seeking behavior as well as the rigid conformity to rules or routines.
20.5 Separation of Powers in China
The Chinese Constitution does not establish the principle of separation of powers.
The powers of state are concentrated into the people’s congresses, including National People’s Congress and local people’s congresses (Article 2 of the Chinese Constitution).
20.6 China - Administrative Adjudication
China’s Supreme People’s Court is the highest court with the power of final adjudication.
Local people’s courts are composed with the higher people’s courts atthe provincial level, the intermediate people’s courts at the municipallevel and the people’s courts at district level which are the trial courts in most cases.
There are no administrative courts in China.
Letter-and-Visit Complaint
Before the foundation of the PRC, the party leader had already established a special institution to deal with the letter complaints.
Although a plaintiff could not get a formal judgment, an order or a dictum through the letter- and-visit complaint, he/she might possibly solve the problems and settle down the disputes by complaining to the higher level administrative organs or the central government.
Therefore, many people were accustomed of resorting to complaints rather than suing in the courts, or even going to complain after obtaining the judgments.
Recently, the central government has already undertaken some reforms to reduce inappropriate use of complaint mechanism and encourage the citizens to solve the disputes through legal procedures.
Administrative Reconsideration
A mechanism of dispute resolution within the administrative branch.
The citizens can bring up their complaints to the superior administrative organs or the people’s governments at the same level.
Legal provisions which stipulate the subject, procedures and remedies of administrative reconsideration.
The plaintiffs can obtain formal decisions after the reconsideration, which could be sued in the courts.
The Remedies of Judicial Review Administrative Litigation Law regulates several remedies:
To repeal or partly repeal the controversial administrative action possibly with the request for the administrative organ to re-make the decision.
To order the performance for the case of negligence.
To declare the illegality of the concerned administrative action but not to repeal it.
To decide it as void
To modify the administrative action in case of obvious inappropriateness.
To order the administrative organs to continue the compulsory performance.
20.7 China - The Civil Service
Law of the People’s Republic of China on Civil Servants of 2005 stipulates the obligations, rights and management of civil servants.
The term“ civil servant” means an employee who performs official duties in accordance with law, whose job is a part of government organizational set-up and whose salary and benefits are paid by the State. (art. 2 )
Article 5 Civil servants shall be managed in accordance with the principle of openness, equality, competition and selection on the basis of merits, and in accordance with statutory powers, requirements, standards and procedures.
Article 6 Civil servants shall be managed in accordance with the principle of placing equal emphasis on supervision and constraint and on incentives and work related benefits.
Article 7 Civil servants shall be appointed on the basis of both moral integrity and professional competence, with the former taking precedence. Their appointment should be merit-based and widely inclusive in nature. Those who are appointed should be dedicated to work, impartial and upright, meet high political standards and deliver good performance.
Article 23 Civil servants for the posts of principal staff member at level 1 or below and other grades at corresponding levels shall be recruited through open examination, strict review, competition on an equal footing, and merit-based selection. There are Posts, Grades and Levels. On the one hand, Chinese civil service adopted scientific management principles, a job classification system, recruitment by open competitive examination, and modern performance evaluation mechanism. On the other hand, the Chinese reform emphasized that the civil servant should be loyal to the CCP. The distinctive Chinese characteristic lies in combining Western merit-based concepts with a very high sense of heightened political responsiveness and control.