Review of Regulations in the People's Republic of Chinal

It is in the interest of every eitizen (but especially of those who are engaged in work where they are subjeet to intensive govemmental regulations) to ensure that regulations are in aeeordanee with the law, that they do not violate eonstitutional or otherwise guaranteed rights, and to ensure that the bureaueraey follows its own regulations . The method most eommonly4 used to aehieve these aims is judieial review.5 The subordination of the

People's Courts shall not hear suits involving the following matters brought by citizens and legal persons or other organisations; namely ( . . . ) (ii) administrative laws and regulations or universally binding decisions or orders formulated and promulgated by administrative authorities.
Nevertheless, regulations and their application can be challenged by citizens and organi sations in various ways in China, and a review in the sense of evaluation of its legality is performed.I O It is necessary however, to first describe what is meant by "regulations" in the PR� legal system.

I.
The System of Regulations The legal system of the People's Republic of China has to a good part been built with and upon regulations.I I Although it has been said that "a state which is about to perish is sure to have many govemmental regulations," 12 perishing seems not to be on the agenda for the intermediate future and China has to find a way to deal with the problems these govemmental regulations create.
Reeent studies in the Chinese bureaueraey have stressed the need to understand the bureaueratie system through the terms and distinetions employed by the partieipants; one eannot fully interpret the nuanees of bureaueraey without viewing it in the eategories its partieipants employ.I 8 The division into these different eategories is not strietIy adhered to.One author, 19 for example does not reeognize loeal guizhang as guizhang at all but then further distinguishes into govemmental guizhang and those of departments or eommissions.20 In the area of regulations one wants to know what exaetIy is meant by a specifie name for a regulation and what is the seope of its applieability.

a) Fagui
If we equate forms with names, this question has for the eategory of ja gui in part been answered by the "Provisional Regulations eoneeming Proeedures for the Formulation of Administrative Regulations" of the State CouneiI of 21 April, 1987.
These regulations preseribe that only three different terms are to be used when issuing regulations, and to eaeh of the names a defined seope of their allowed eontent is given, when to apply that speeifie term: 21 tiaoli guiding banfa regulations shall mean regulations that are "eomparatively eomprehensive and systematic in their effeet on a partieular aspeet of administrative work"; provisions is intended for those regulations that affeet only "a part of a par tieular aspeet of administrative work"; and measures is to be applied to those that have "a eomparatively speeifie effeet on a partieular administrative undertaking".
Before this regulation eame into effeet more than 40 different designations were used, 22 and even now the applieation of this regulation is far from striet.23

b) Guizhang
The second category of administrative regulations are called guizhang.Most concrete administrative acts are based on them.24 Which forms of regulations belong to it is less clear.25 They include mies formulated by departments of the State Council, as Art. 3 Section 2 of the Procedures determines that they shall not be called ja gui (that is tiaoli, guiding or banja).26 They can make detailed mies (shixing xize), though (Art.6 Section 2).Occa sionally it is stated that the standards issued by relatively low level administrative organs do not possess the effect of law, their effect is dependent on whether the provisions are identical with high er level administration?7 But this is not the prevailing opinion.
Another author 28 asserts that they have legal nature, belong to the category of law and are an important part of the state legal system.They are flexible instruments and contain a high level of administrative expertise.29   To understand the extent of the usage of this form of administrative mle-making, one should know that out of the total of over 20,000 regulations in China about 80 are law, 22 Hsia / Johnson (Jan 1987), supra, note 21 at 6 with further references.A flavour of this situation is given from page 81 to 112 in the Xingzheng fa cidian (Administrative Law Dictionary), Li.Guozhi 23 Examples of that are the several names for documents not to be considered regulations, but still legally binding; especially popular is "tongzhi" = circular, also "yueding" = arrangement, and "xize" = detailed mIes can still be found in the 1990/1991 numbers of the State Council Gazette.A contradiction already exists with Order No. 48 Chinese legal scholars increasingly realize that secret law is a problem and give advice, for example on how to publish ja guilguizhang compilations. 36One author says that publication is necessary for regulations to become effective, but this would not apply to neibu regulations. 37Most deplorable, too, is that a proper index seems to be unknown in China (though alphabetical indexes would be possible both in Hanyu Pinyin and through a stroke number methods).It makes finding information in compilations of regulations or even simple law monographs awfully arduous.38

11.
The System of Review

Petitions
Article 41 of the Constitution gives citizens of the PRC the right to criticize and make suggestions to any state organ or functionary; to make complaints and charges against relevant state organs or exposure of any state organ or functionary for violation of the law or dereliction of duty.This so-called "letters and visits" system (xinjang) is a supra-legal practice to safe-guard socialist legaIity 39 that has no procedural framework attached to it, the only requirement for the state agency being to deal with the petition in a responsible manner after ascertaining the facts.40 The system nevertheIess seems to be a well-estab  plaints are able to seek assistance from them .43 The ombudsperson's office in China is the continuation of a tradition dating back to early imperial times, when specifically appointed officials were placed in charge of receiving complaints and requests for assis tance from the populace.44 It should be noted that the words used in the Constitution do not give the right to petition to non-Chinese citizens nor to legal entities.45 Sut eveh those who have no connection with the wrong doing of the state agency or govemment officials may bring a complaint.A personal damage or involvement is not necessary.This shows that the complaint proce dure is not aimed at redressing the infringed rights and interests of the citizen but at over seeing the activities of the state agencies and officials with the assistance of the citizens by using them as source of information.46 With the revitalization of the economy and the working of the vast regulatory apparatus established to control it, disputes have arisen that require more rational and institution alized methods of solving them.47 Sut Art.41 of the Constitution is the constitutional basis for aII provisions aIIowing review of administrative decisions.
the Constitution with an enforcement machinery.49 Administrative supervision has a long tradition in China.50 The Administrative Supervision Regulations (ASR) seem to exist primarily for the purpose of curbing corruption.5 1 The system of administrative supervision is collateral to the system of judicial review and the quasi-judicial administrative reconsideration proce dures, 52 although doubts remain conceming the independence of supervision organisa tions.53 The supervision organisations control the legal validity of administrative decisions, especially conceming matters of discipline (Art.1).According to Art. 23 Section 2 ASR, the formed supervision organisations are empowered to make suggestions if inappropriate decisions or orders 54 are issued which must be redressed or revoked.They themselves can alter inappropriate decisions within their jurisdiction (Art.25), i.e. lower level agencies.Generally, the supervision organisations shall act of their own accord, but according to Art. 7 ASR they shall also establish a system of reports and appeals, so that supervision can be carried out because of outside (e.g.citizen or companies) initiative.
49 Dieks, supra, note 47 at 569.50 See Zheng, Chuankuan, "Woguo xingzheng jiancha lishi fazhan jinkuang" (Brief outline of the historie development administrative supervision in our country) (4/1992)  Zhou, Weiping, "Xingzheng fuyi zhidu de shuxing pouxi" (Analysis of the attributes of the admin istrative reconsideration system) (5/1991) Faxue zazhi 6 at 7. 52 Heuser, supra, note 48 at 365. 53 It seems plausible that the organisations formed under the ASR are the same that carry out recon sideration under the ARR (see below), thereby reducing the chance that reconsideration will provide for alterations in decisions that already ran through the system of supervision.Not very cIear on this question is Zhou, Weiping, supra, note 51 at 6n .Speaking of two kinds of super vising organisations in the context of reconsideration is Wang, Deyi et al., supra, note 1 5 at 37.
The Chinese distinguish different relationships between agencies which cannot be captured by simple organisation charts; on this difference between a superior unit having "leadership relation" (lingdao guanxi) resulting in a substantial degree of direct control and its having just "professional relation" (yewu guanxi) see Lieberthai / Oksenberg, supra, note 18 at 394. 54 Inappropriate orders or decisions are those that conflict with other regulations, are not made according to proper procedures, are ultra vires or do not fulfil the goal of the regulations, Jiancha bu zhengce fa gui si (Law and Policy Office of the Ministry of Supervision) (ed.), "Zhonghua renmin gongheguo xingzheng jiancha tiaoli" shiyi (Interpretation of the "PRC Administrative Supervision Regulations" (Beijing: China University of Politics and Law, 1991) [hereinafter Jiancha] at 50/5 1. Reporters names will be kept secret in order to protect them from repercussions and as reporting is beneficial for the state, it should be encouraged and rewarded.55 Artide 49 ASR is interesting in that it provides for direct applicability of the ASR for personnel of state-owned enterprises which are appointed by state administrative organs.
They are subject to all the powers of the supervision organisations (Arts.19 to 28) which are very broad.It is therefore imaginable that a joint-venture formed by a state-owned enterprise and a foreign company is supervised under Art.22 of the ASR. 56Doubts remain conceming the real effectiveness of these supervision possibilities, but unfortunately, no data on it is yet available.By just looking at the text of the ASR, the powers gran ted to the supervisory organs are substantial and would allow order to be brought into the "regulations jungle".But generally, inner-administrative review has serious flaws and tends to be an insufficient method to check regulations.

Administrative Reconsideration
No systematic evaluation or study in English has yet been made on the Administrative Reconsideration Regulations (ARR), adopted by the State Council on November 9, 1990 and effective since January 1, 1991.57 The purpose of the law is to have a control mechanism available inside administrative organs to prevent and correct specific illegal or inappropriate administrative measures (Art. 1) without having to go to court.Art. 1 also mentions the aim to protect the legiti mate rights and interests of citizens and legal persons.
These regulations are an attempt to enlarge the system of objective control over admini stration with a subjective possibility : citizens ascertaining their rights.58 It is a faster and easier method than administrative litigation.59 Administrative reconsideration is not a condition for trial.But if described as mandatory by other regulations, those regulations 55 Jiancha, supra, note 54 at 15. 56 On this possibility see Heuser, supra, note 48 at 367 and Wang, fa n, "Xingzheng jiancha lifa de prevail (Art.37 ALL).Apparently, 70 % of the cases accepted by the courts have been previously reconsidered, and in public security cases the rate is 85 % . 60review of regulations is not available under the ARR.Art. 10 Section I exc1udes admin istrative laws, regulations or rules (fa gui, guizhang) or a universally binding decision or order from the matters for which review is at hand.Indirectly though, review of regula tions seems to be possible.Art.41 ARR determines that cases should be handled "on the basis of laws, administrative regulations, local regulations and rules (falü, xingzheng fagui), as weIl as universally binding decisions and orders Jo rmulated and promulgated according to law by higher level administrative agencies" (emphasis added).
This provision is ambiguous: on the one hand it suggests that regulations on which a concrete administrative act is based itself must be according to law, and this would imply the right of the reconsidering agency to evalue the legality of these regulations.61 On the other hand, the fact that these regulations are those of higher level agencies suggests that they have to be followed without a primary evaluation.62 This conflicting interpretation is not fully resolved by Art.43 ARR, which gives guidance in instances where the reconsid ering agency finds that the rules upon which the act being reconsidered is based on conflicts with laws or other regulations.The agency shall then quash such act according to law and to the extent it has power to so.
While it seems possible that by reconsidering a concrete administrative act an indirect review of the underlying regulations is carried out, only the act can be changed by the reconsidering agency.63 All matters concerning unlawful regulations have to be handled according to Art. 43 Section 2 ARR: report to the superior or appropriate agency to handle the matter and suspension of the case until a decision has been made. 60Wang, Deyi et ai ., supra, note 15 at 30.Of administrative acts reconsidered, 60 % would be aitered or rescinded, Heuser, supra, note 40 at 497 with further references. 61This interpretation is supported by Huang, Shuhai, supra, note 24 at 120-123 who gives four criteria to decide whether guizhang were legaily established or not.62 This opinion is hold by Wang, Deyi et ai ., supra, note 15 at 38, the organs have to rely on Ja , Ja gui and guizhang because otherwise their binding effect would be denied.The issue is however hotly debated in China, an overview about the different opinions give Ying, Songnian / Dong, Hao, "Xingzheng fuyi shiyong faiü wenti zhi yanjiu" CA study on the problems of application of law in administrative reconsideration) (1/1990) Zhengfa luntan 46.
63 See Ying, Songnian / Dong, Hao, supra, note 62 at 49.But if it is a regulation of a lower level agency, the reconsidering agency can change the regulations themselves.
The procedures (who can ask for consideration of what by whom) are set out in the ARR quite straight forwardly and need not to be discussed any further.64 The major difference between reconsideration under the ARR and review under the AlL is the possibility to have ad ecision quashed if the act is obviously improper (Art.42 Section 4 (e)) whereas the ALL allows this only when an administrative sanction is manifestly unfair (Art.54 Section 4).

Judicial Review
The review institutions mentioned thus far are all internaI organisations, meaning ones that belong to the administration itself, if not necessarily to the same level.The possibility that an administrative reviewing organ will change the decision under review is relatively slight, because bureaucrats in general have a common interest in upholding and protecting their decisions.65 The administration is the judge in its own case and cannot be expected to be impartial.Due to the politics of recruitment in the administration 66 and a common interest in their work, the terms of departmentalism and local protectionism (benwei zhuyi) 67 adequately describe Chinese administration.68 ludicial review, however, is characterized by the fact that an outside institution is looking at the administrative decision made.The courts as outside bodies are uniquely equipped to structure the existing body of regulations into a hierarchy.This happens in review in 64 The notes of the editor in China Law and Practice give the necessary overview about deadlines, jurisdietion, scope of application, ete.concrete litigation when judges decide which regulations to apply.Advantages of judicial review are that it regularizes the means of dealing with disputes, permits correction of clear abuses of discretion and thereby contributes to the willingness of those regulated to accept the results.69 Independent review is seen as the most important requirement for an administrative law under the rule of law, because without it the only practical restraint on administration would be the self-restraint of the administrator' ?O a) By the Supreme People 's Cour P I It has been argued that in China judicial review by the Supreme People's Court exists when the functions of judicial review are defined as: a device to protect the principle of checks and balances which gives the courts the final word in interpreting the constitution and thereby creates a method to adopt the constitution to changing circumstances.72   Although the Chinese Constitution nominally leaves these tasks to the National Peoples Congress (NPC) and its Standing Committee, it is a well-known fact that these two state organs have not exercised their rights, due to a lack of procedures and subsequent delega tion of the power to interpret laws or regulations, ?3 ludicial review by the Supreme People's Court would be exercised in three ways: -by selection and publication of typical cases; -by granting particular requests; and -by issuing documents on selected legal topics, ?4All these methods of review are dependent upon the decisions of the Supreme People's Court to be published in the Gazette 75 of the Supreme People's Court.ludicial interpre tation has resulted in additional stipulations to laws and definitions for terms included in the laws, ?6 69 Gilhooley, supra, note 7 at 39. 70 Schwartz, supra, note 6 at 428 with further references ; independent shall mean wholly inde But the limits of this kind of review are quite apparent: Up to now, the Constitution itself has never been directly interpreted, and national laws cannot be declared unconstitutional by the Court, ?7 Judicial review exercised by the Supreme People's Court in the way described operates in a very informal way and does not provide a thorough scrutiny of governmental actions.

b) Prescribed by Law
Up to the end of March 1989 there were more than one-hundred thirty laws and regula tions which stipulated that the people's courts have jurisdiction over administrative cases arising out of them, ?8 These cases were decided by using the Civil Procedure Act which provided for its applicability in Art. 3 Section 2. In 1984, the Supreme People's Court directed that administrative cases were to be heard in the economic divisions, because so many of them concerned econornic matters, ?9 From January 1983 (when the administra tive litigation scheme was first established) to October 1990, the courts accepted a total of 35,973 first hearings of administrative cases, sO In 1989 people's courts at all levels in the whole country conducted the first trials of 9,934 administrative cases, and conc1uded the first trial of 9,742 cases, sl The range of administrative acts that could be reviewed was quite broad, examples being taxation, patents, trademarks, public security, environmental protection, urban planning, 77 Liu, Nanping supra, note 72 at 250; more demerits (theoretical and practical) of the CUTTent Chinese system of judicial review can be found by Dong, Chenmei, "Viewing the Chinese Review Organ for Unconstitutionality in Comparison with the Review System for Unconstitutionality Worldwide" in Institute of Comparative Law Waseda University (ed.), Law in East and West (Tokyo: Waseda University, 1988) at 466. 78 Ep stein, supra, note 41 at 2; Kong, supra, note at 97 speaks of 180 administrative statutes; exam pies for those laws are given in Finder, supra, note 9 at 617, note 27 and in Oda, supra, note 39 at 1350.79 Ep stein, supra, note 41 at 5.Although China moved from a planned economy to a more liberal so called commodity economy, most economic malters are perceived to belong to the realm of administrative law.See also overview in casebooks, in Gan, Musheng / Qiu, Shi / Yang, Kainian (eds.),Xingzheng susong anli xuanbian (Compilation of administrative litigation cases) (Beijing: Economy Press, 1990).80 FBIS China 91-019, 29 January 1 99 1, 39.This numbers become somewhat trivial when seen in relation to the numbers of cases in civil (2 million) and criminal (300,000) malters just in 1988, Ep stein, supra, note 41 at 5. In Germany, 130,000 cases per year are decided in the administrative courts alone, Heuser, supra, note 9 at 440, note 13. land resumption, customs, fi sheries, and postal services.82 Regulations could not be reviewed, and if contradictions among regulations and laws or the Constitution were discovered, the courts had no power to decide but had to report to the appropriate state body, s3

c) Administrative Litigation Law
The Administrative Litigation Law came into force on October 1, 1990.The ALL provides for judicial review of administrative decisions and is a mixture of substantive and proce dural norms, intended to make review of administrative actions available on a broader scale and regulate the proceedings.Chapter 10, Art.70 to 73 ALL addresses foreign related administrative litigation; the mies follow international standards and grant foreigners the right to sue if the foreign state grants this right to Chinese nationals.84 Article 11 ALL enumerates which concrete administrative acts can be challenged, includ ing those whose challengeability is provided for in other laws.The reason an enumerative system is chosen instead of making all administrative acts and decisions subject to judicial review is the fact that the courts are seen as of equal rank with administrative organs.85 The object of review under the ALL is to ascertain the legality of the concrete administra tive act; its reasonableness or expediency is not reviewable in the courts.The reason given for this is the "division of labour" : administrative supervision and reconsideration are meant to address these questions.88 As a result, courts are not overloaded with cases and do not handle matters for which they are not qualified.Instead they leave the exercise of discretion to the administration.The only exception from this rule are administrative fines that are obviously unfair: they can be reviewed for reasonableness.89 Although ArticJe 12 ALL does not allow review of abstract administrative actions (regulations), 90 it is recognized and can be expected that the courts will have reviewing power in some degree over abstract administrative actions.This supplementary power to review is seen to arise from Art. 53.91 ArticJe 53 was added to the ALL as a compromise between administration authorities and political factions in favour of more review.92 It provides that the courts shaJl "make reference to" (canzhao) guizhang in reaching their decisions.Epstein 93 doubts whether this will lead to judicial review, because in other laws the meaning of "make reference to" has been understood as following them.To discover what the excat scope of judicial review under ArticJe 53 ALL is or could be, see below III.
All in all, the review of abstract administrative actions is still limited, because ja gui of the State Council itself cannot be reviewed and have to be applied.As weil, a review of regulations is possible only as incidenter review, that is when they form the basis of a specific case.94 88 Luo, Haocai, supra, note 85 at 6. 89 Interestingly most cases reported in casebooks pertain to administrative fines.On administrative discretion see Jiang, Mingan, "Lun xingzheng ziyou cailiang quan ji qi faIü kongzhi" (Research on administrative discretion and its control), (111993) Faxue Yanjiu 44.90 Luo, Haocai / Ying, Songnian, Susong Faxue, supra, note 1 5, at 115 and Fang, Xin, supra, note 16 at 42/43 give as reason that the same prohibition would be in place in Japan, West Germany, the Soviet Union etc.; for Germany this is cIearly wrong.See § 47 VwGO and Bundesverfas sungs gerichtsgesetz.
92 Ep stein, supra, note 41 at 8; dispute described by Finder, supra, note 9 at 23; and Heuser, supra note 9 at 437.Some of the articles by Chinese authors taking part in the debate are translated into English in (1991) 24 Chinese Law and Govemment 43 to 53. 93 Supra, note 41 at 8. 94 Luo, Haocai, supra, note 85 at 6.

Special Review Organ fo r Unconstitutionality
In the Chinese political system the People's Congresses and their Standing Committees can examine the legitimacy of abstract administrative activities and legislation.95 China's People's Courts are of equal rank with the administrative organs and they are accountable to the organs of state power. 96In 1985, the Supreme People's Court issued a notice to lower courts that in the case of conflicts between local and national legislation, the courts should report the conflict to the local People's Congress and their Standing Committee.97 Although Liu Nanping considers this to be evidence for judicial review, it seems more likely that the motive for the required report is linked to gathering information and the outcome of the People's Congresses and their Standing Committee's evaluation is unclear.
It has been suggested therefore that an organ to review unconstitutionality be created.98 This organ would take the form of a Constitution Committee of the NPC.It should be an auxiliary body, its membership consisting half of NPC deputies, half of legal experts.The powers suggested to be given to this committee are quite substantial and resemble the powers of a constitutional court combined with those of a parliamentary committee.99 But there seems to be no hope that these suggestions are going to be implemented in the near future.The analogy to a parliamentary committee for regulatory scrutiny is also striking.Unfortunately, the article makes no references in footnotes whether the existence of these committees was known to the author.According to O' Brien, supra, note 97, at 154 with further references, the same idea has been suggested already in 1982 by other Chinese scholars. 99Dang, Chenmei, supra, note 95 at 476.

III. Scope of Judicial Review
Chinese administrative litigation textbooks 1 00 devote considerable space and effort into giving principles how to select the applicable law in cases with conflicting legal stan dards, bringing them into a hierarchy.101Concepts like lex superior derogat legi injeriori (higher level law takes precedent over lower level law); lex posterior derogat legi priori 1 02 (new law over old law) 103 are the most obvious.Special law takes precedent over general law, if both are of equal rank, 1 04 and another rule apparently being followed by the courts is that specific local law takes precedent over departmental law. 1 05 If these principles cannot produce a solution to the question which law is applicable, the courts have then the power to examine laws and regulations for their legality, 106 because courts can only rely on valid regulations.107 Courts have no power to decide on the nature of the abstract administrative actions but they can decide which they will apply and which they won't.If they would not do this, they would be relying on them and the standards of a lower level and these would become law.108   This view is shared by Luo Haocai, 109 who states that the power of the courts to review administrative regulations includes (emphasis added) : 1) the power to ascertain the legality of the regulation according to which the specific action was carried out.
That means that the courts will have to address the question of illegality or unconstitu tionality of regulations, and cannot just state their legality. 100For example Susong faxue, supra, note 15 at 239ff or law review articles like Dong, Hao, "Woguo xingzheng falü guifan shiyong chongtu de tiaozheng yuance" (Regulating principles for conflicts in the application of administrative law standards in our country) (2/1991) Faxue zazhi 9.
2) The power to take as reference regulations if they think that this regulation is consis tent with the law and administrative rules and regulations, decisions or orders of the State Council and other concemed regulations; 3) the power not to take as reference the regulations wh ich the court considers are inconsistent with the law and administrative rules and regulations, decisions or orders of the State Council and make judgement directly according to relevant laws and regulations; 4) the power not to take as reference regulations formulated and announced by a local people's govemment which the courts find to be inconsistent with regulations formu lated and announced by a Ministry or commission under the State Council.110

5)
The power not to take as reference regulations formulated and announced by minis tries or commissions under the State Council which the court finds to be contradictory with each other.
The general idea is that courts have to rely (yiju) on law and fagui, but only have to refer to (canzhao) to guizhang . 111Guizhang are only to be referred to because they are rather complex and conflicts among them may occur.112 One author suggests to give the courts the right to accept challenges conceming standards below the rank of guizhang . 113 Due to the vagueness in the formulation of Chinese regulations, the doctrine that a govemment organ can only act when it is expressively empowered to do so by statute 114 is consequently not adhered to.This is not yet a Chinese concept; on the contrary, the China seems weil aware that judicial review has a role to play concerning the drawing of borders for agency jurisdiction and to achieve consistency of regulations.This is seen in the debate about Art.53 ALL.
The question is then whether institutionalization of judicial review of regulations would help to solve China's regulations problem.I think that only when the courts are empow ered to review the validity of administrative mies will the foundations be laid for the legal system, as opposed to the bureaucracy, to legitimate administrative action. 1 23 The system of separation of powers has worked weil in North America and most parts of Europe to ensure that administrative government follows standards set in a Constitution, thereby protecting the rights and interests of the citizens of this state.
Also, with regard to regulations, a state has to watch the so-called opportunity costs: wh at happens if regulations are not reviewed?In the case of China, the regulations jungle could jeopardize this country's effort to open itself up to the outside world in order to induce foreign investment and modernize the economy.Up to now, in Asian Socialist countries, judicial control over administration is even less developed than in European socialist countries or the former Soviet Union. 1 24 China's system of judicial review can still be called embryonic. 1 25 1 22 On this aspect see Gao, Fan, supra, note 47 at 34. 1 23 Ep stein, supra, note 41 at 16. 1 24 That was true even before the changes in Eastem Europe and the break-up of the Soviet Union; Yugoslavia had a functioning Constitutional Court and Poland a weil working administrative court system. 1 25 Oda, supra, note 39 at 1355.What is the prospect of judicial review in China growing to a greater size, becoming a possible method to balance administrative power?A primary obstacle to this goal is socialist ideology.One of the basic principles of the constitutional systems of socialist countries is the principle of the unity of state power based on the assignment of all legislative and executive powers of the state to one repre sentative democratic body.This representative political organ is the supreme organ of state power and the only one able to create law and control the activities of other state organs. 1 26 Such a concept necessarily implies the rejection of any form of separation of state powers and the incompatibility of any sort of judicial review of constitutionality of statutes.
l 27 Moreover, in the former Soviet Union and other socialist countries, judicial review was repudiated as one aspect of the "bourgeois doctrine" of the separation of powers.Thus the laws which emanate from the supreme organ whose members are popu larly elected represent "the will of the whole sovereign people" and accordingly, because of the principle of the unity of powers and the supremacy of the people flows the corollary that, under socialist systems, constitutional control may not be exercised by extra-parlia mentary bodies nor modelIed on the experience of Western European countries and the

US. 1 28
Apart from the purely ideological issues, in China there is the reality of interference of the Communist Party with court decisions or simply by recruitment policies.Courts are working under the "guidance" of the Communist Party.It is hard to tell wh ether the legal system of socialist countries will ever be able to assume true independence, or whether it will remain subservient to dictates of party policy.Although questions are frequently raised about the independence of non-socialist, Western legal systems from political considerations and outright interference, 1 29 by and large, the West has an independent judiciary able to fulfil its function in the system.This cannot be said about China.I 30 In the early years of communist rule in China, political leaders distrusted the courts, 1 31 and even now, despite the modernization process, lawyers and courts are under tight supervision by party authorities.1 32 A system of judicial review can only be effective with judges who are genuinely independent, not only in the sense that their individual deci sions are not directly influenced or controlled by the political branches of government, but also in the sense that their education and professional experience shall have equipped them with true intellectual independence. 1 33In return, it is necessary to inspire the people with respect for judges who exercise legal power and traditional authority, so that the people will accept court decisions and policy-making. 1 34 Courts are not yet perceived as authorities in resolving emerging problems, and therefore the general status of Chinese judges cannot at all be compared with that of for example their North American counterparts.This might partly be a cultural problem, as also in Taiwan it can be observed that traditional concepts still more or less influence the people, and their attitude towards the government is passive; to sue the government is a totally alien and unthinkable idea. 1 35 Citizens tend to be sceptical of the worth of formal peti tions or official organization and are fearful of the sanctions that often accompany open and direct interest advocacy.1 36 Generally though, for Taiwan a favourable outlook for judicial review is given. 1 37 But even presuming that all institutions and legal possibilities for judicial review were present in China, a system of review cannot be taken as a panacea: It is the attitude of the society and its organised political forces, rather than of its purely legal machinery alone, that is the controlling force in the character of free insti tutions.Democracy without the rule of law is a contradiction in terms at the same time, judicial control can be discharged only in a democratic society. 1 38 Institutions alone are never sufficient to change the working process of a state, but they have to be created first to eventually obtain the desired results.The process of changing legal culture inevitably begins by establishing legal bureaucracies and educating legal 1 32 On judicial independence see Epstein, supra, note 25 at 16ff with further references.restored, it is suggested that the people of Australia will suffer.They will lose the precious value of decision-makers who are independent of government.That independ ence has, until now, been a mainstay of liberty in Australia.

By Christoph Müller
After the internal collapse of the former USSR, it seemed to many that capitalism would then triumph worldwide.However, in no country in the world does there exist a pure market economy.Rather, a "mixed economy" is in existence almost everywhere.In the economy, a private sector and a public sec tor are to be found, with the latter regulating the structural conditions of the system through infrastructure policy, intervening in various ways in the economy, and participating directly in economic life in the form of public utilities.The systems of today can only be differentiated by considering the respective size of the two sectors (private and public) and wh at goals the public sector hopes to achieve.
In a system of "socialistic" market economy, the public sector must assert those aims of development conducive to public wellbeing, and create clear and consistent perspectives and conditions for the private sector.In this paper, some practical and realizable examples will try to demonstrate how a "socialistic" market economy could be advantageously different from a "neoliberal" or only "social" market economy if it makes correct use of the "productive force of science", intelligent use of the instruments of constitutional and administrative law, and creative use of the possibilities of a socialistic democracy.

By Anke Frankenberger
Administrative regulations are a feature of modem societies that is growing in number and complexity .In China the most obvious distinction in administrative regulations is between ja gui and guizhang.Regulations in the PRC are characterized by multiple conflicts among them, and between them and laws and the constitution.
Since 1982 China has built up its legal system and in the last five years has enacted several laws and regulations concerning the review of administrative actions.There are three levels of inner-administrative review: the ombudsperson's office (xinfangchu), the Administrative Supervision and the Administrative Reconsideration organisations.
The Administration Litigation Law, enacted in 1989, expressly states that abstract administrative actions cannot be accepted by the courts for review.But Chinese legal scholars are intensively debating the way the courts will still be considering administra tive regulations and to what extent they are bound by them.
The prospect that judicial review will soon be used in China as a checking device is rather low.Separation of powers is not part of the Chinese govemmental structure and one-party rule makes an independent judiciary, a precondition for judicial review as weIl as publidy available law, a myth.Several suggestions are put forward how to implement changes in the review system which could lead to judicial review in the long run.
Recent Case Law on Custody and Second Marriage in Bangladesh: A Trend Towards Secularisation ofthe Legal System?By Shahdeen Malik Bangladesh, in its recent history, has gone through several periods of changing influence of Islamic principles and norms on the one hand and secularism on the other hand with respect to its constitution, legal system and society.The artide discusses the nature of these influences with a comparative view to other Islamic and Christi an countries.It argues that despite the constitutional Islamic character of the state, according to a respec tive constitutional amendment in 1988, recent case law in matters of Muslim family law is applying liberal-egalitarian paradigm instead of Islamic norms.This trend towards a secularization of the legal system seems to point to an emerging societal consensus conceming the role of religion in state and polity.
(ed.) (Taiyuan: Shanxi University Press, 1989) where under the heading of administrative actions (xingzheng xingwei) different forms are listed, defined and explained.
Heuser, "Vorschriften über den Widerspruch gegen Verwaltungsakte"(1991) Jahrbuch für Ost recht 493 at 494 note 5. 41 E.i.Ep stein, "Administrative Litigation Law " (1989) China News Analysis No. 1386, 3 withfurther references ; complaints are still invited by Peng Chong, vice-chairman of the Standing Committee of the NPC, FBIS China 91-063, 2 April 1991, 39; according to statistics more than 180.000 cases have been accepted by supervisory organs and 40.000 cases of lawlessness and indiscipline been handled, FBIS China 90-248, 26 December 1990, 23. 42 Wang, Deyi et al ., supra, note 1 5 at 29, but only suggestions are possible as outcome.It is further argued that the petition organs have the duty to inform the complainant and the reconsideration agency when the case is suitable for reconsideration under the ARR.
No clear theory or definition exists in China as to what constitutes a concrete administra tive act, s6 A January 1989 draft included a definition whereby a concrete administrative act was a "unilateral act, committed by an administrative authority in regard to a specific citizen or organisation and involving rights and obligations of the citizen or organisa tion", s7 82 Ep stein, supra, note 41 at 2. 83 fing, Songnian (ed.), Xingzheng susong zhishi shouce (Handbook of knowledge on administra tive litigation) (Beijing: China University of Politics and Law Press, 1988) at 45. 84 In detail fang, Jiayun / Zhang, Un, "Lun xingzheng susong zhong de waifang susong canjia ren" (On foreign nationals as participants in administrative trials) (411991) Faxue pinglun (Law 85 Review) 51.Luo, Haocai, "The Establishment of Chinese Judicial Review System and its Main Characteristics" paper supplied to Pacific Rim International Law Conference in Seoul, Korea Nov. 1-3, 1991[unpublished] at 4. On the rationale of administrative reconsideration see also Wa ng, Deyi et al., supra, note 15 at 26. 86 But Chinese scholars are weil aware of the criteria and devote considerable space in textbooks to elaborate, see Zhang, Shangzhuo, supra, note 37 at 165-175.87 Finder, supra, note 9 at 17 note 93.Tbe German system provides a definition in § 21 VwVfG (Administration Procedure Law).Five criteria must be fulfilled in order for an administrative decision to become a concrete administrative act (Verwaltungsakt): it has to be (I) an order (2) by a govemment agency(3) in the area of public law (4) which decides a concrete case (5) has effects outside the agency.

95
Xiaa, Xun, "Several Questions Concerning the Administrative Procedural Law" Renmin Ribao (10 March 1991) 5, translated in FBIS China 91-056, 22 March 1991, 22; Dang, Chenmei, "Viewing the Chinese Organ for Unconstitutionality in Comparison with the Review System for Unconstitu tionality Worldwide", in Institute of Comparative Law Waseda University (ed.) Law in East and West (Tokyo: Waseda University, 1988) 463 ; Lua, Haacai, supra, note 85 at 6. 96 For these reasons scholars have been stating the impossibility for China to set up a judicial review system resembling that of the USA, Shen, Zangling, "Comparative Law Studies in China" in Insti tute of Comparative Law Waseda University (ed.), Law in East and West (Tokyo: Waseda University, 1988) 333; Dang, Chenmei, supra, note 95 at 470. 97 Finder, supra, note 9 at 25. Again in the 1988 to 1992 work outline for the NPC' s Standing Committee it was called on the legislative committee to redouble efforts to exercise and revoke unconstitutional statutes, K.l.0 'Brien, Reform without Liberalization -China' s National People' s Congress and the Politics of Institutional Change (New York : Cambridge University Press, 1990) at 167. 98 This organ would resemble what in North America would be called a Human Rights Commission, this impression is at least created by the examples given at 468, Dang, Chenmei, supra, note 95.

. supra. note 13, Art. 2, Section 2, guiding and banfa are quoted as examples for guizhang ! 24 According to Huang, Shuhai (ed.), Xingzheng fuyi tiaoli jiangzhuo (Lectures on the Administra tive Reconsideration Regulations) (Beijing: Public Security University Press, 1991) at 120 70 % of all concrete administrative acts are based on guizhang.
2,000 are fa gui and the rest are guizhang.The Ministry of Industry and Commerce uses more than 180 regulations and of those 130 (70 %) are guizhang. 30The New Chinese State Secrets Law" (1989) 22 Cornell International Law Journal 255.32 See Art.16 of the Procedures, supra, note 13; legal practioners ascertain though that the practice falls far short of this ideal.33Art. 17 of the Procedures, supra, note 13, only speaks of promulgation, not of publishing.Also Order No. 48, supra, note 1 3, in Art. 4 demands filing only for the record and the annual report (Art. 1 0) does not seem to be a document for a publication of guizhang.34 English translation by Gelatt, supra, note 31 at 262; German translation by R. Heuser, "Das Neue Chinesische Recht zum Staatsgeheimnisschutz" (1989) WGO-MfOR 47 .35 In the context of Art. 1 0 Section 2 of the Administrative Reconsideration Regulations (decisions concerning personnel) Fang, Xin, supra, note 16, at 75 speaks of the possibilities to make sugges tions concerning neibu regulations to the supervision offices. about Zhong, Genda, supra, note 14 at 28. 37 Zhang, Shangzhuo (ed.) Xingzheng faxue (The Study of Administrative Law) (Beijing: Beijing University Press, 1990) at 195. 38 Which might be exactly why indices are not used.39 H. Oda, "The Procuracy and the Regular Courts as Enforcers of the Constitutional Rule of Law: The Experience of East Asian States" (1987) 61 Tulane Law Review 1339 at 1348.40 For more details on the petition system see Finder, supra, note 9 at 4 with further references ; or R.
practice and numerous incidents of its use are reported.41 There are no legal limits on what can be accepted as a complaint, so complaints about regulations are possible.42 These ombudsperson's offices (xinjangchu) are commonly attached to govemment depart ments and levels of the Party hierarchy and individuals with work-related or other com-36 Wang, Deyi et al., supra, note 15 at 292/293; Liu, Han, supra, note 14, at 27 and 29; critical of publication practices concerning guizhang are also Zhang, Chunfa , supra, note 19 at 18/19; It remains uncIear what exactly the difference between 3) and 4) is; both possibilities seem to concern local regulations.This is just one example about the confusion in translation of ja gui and China possesses three layers of inner-administrative review mechanisms that go from very informal (ombudspersons) to quite formal (administrative reconsideration).Administra tive actions are reviewed mainly in order to arrest inefficiency and corruption in the bureaucracy -the state apparatus is meant to operate smoothly.Control is thus objective, initiated by the state itself with citizens required to help to achieve this goal. 1 22 According to Western state theory the state has to respect and safeguard citizens' inalien able rights.Review initiated by the citizens is the tool to achieve this result.Even if the protection of rights and interests is attempted in the PRC, one is soon confronted with the fact that constitutional rights in China all are under the qualifier of state interest.