Social Sciences in China (Chinese Edition)

No. 11, 2023

The Construction of a Systematic Chain of Judicial Review of Administrative Non-Performance

(Abstract)

Wang Qingbin

Judicial review of cases of administrative non-performance is controversial in theory and practice. The construction of a chain of judicial review systems for administrative non-performance is highly significant for the promotion of the administrative rule of law. In terms of determining statutory duties, in addition to clarifying the scope of the duties of administrative agencies on the basis of laws, regulations and rules, normative documents and the “three stipulated provisions” can be used as the basis for determining statutory duties. Prior acts and administrative promises, administrative agreements, and lists of powers and responsibilities are not the basis of judgment, and meeting minutes can only be used as a supplementary basis for judgment of legal duties. The administrative duties that can be claimed must satisfy a series of conditions, including the duties’ specificity and clarity and the effect of their actual performance. Only when the defendant has specific and clear administrative duties, and the duties subject to claim have actual performance effects, can claims be lodged against the defendant. Depending on its manifestations, non-performance can be divided into three types: explicit refusal to perform, slackness in performing and failure to perform in full. For different types of non-performance, judicial authorities should adopt different judicial review standards. When the judicial authority determines that the administrative agency has failed to perform its statutory duties and the agency’s grounds of defense meet the formal requirements, the judicial authority should conduct a substantive review of the grounds of defense raised by the administrative agency.