Study On International Trade Administrative Litigation Of Our Country Under WTO System

On December 11, 2001, China formally joined the WTO. Although before joining the WTO, administrative litigation of the international trading has objectively existed and actually operated as a special type of foreign administrative litigation since the establishment of the administrative litigation system. However, due to the small number of cases and the narrow involving fields, the academics and practitioners have paid less attention to the administrative litigation of the international trading for a long time, as well as failing to make it legalization and institutionalization. Until 2012, the Supreme People's Court has issued three judicial explanations concerning the administrative cases of international trading, in order to fulfill the commitment of establishing judicial review system on international trading that is consistent with WTO. The above three judicial explanations have initially established the administrative litigation system of the international trade under the WTO regime together with the Administrative Procedure Law and its judicial explanation. However, as a developing country, there is a certain gap between China's comprehensive performance of WTO and other series of international agreements from the legislative, administrative and judicial aspects and the requirement of WTO, other developed countries and the commitments to the WTO. As a judge engaging in the administration of justice for a long time, I have collected, studied and tried abundant administrative cases on the international trading. Meanwhile, I witnessed the emergence and development course of the administrative litigation system of the international trading in China before and after entering the WTO. In this paper, the research methods such as historical analysis and empirical analysis will be used. Through analyzing various aspects of the administrative litigation on international trading including background, connotation, characteristics, main principles and the legal sources, this paper has made a comparative analysis on the judicial review system of the international trading in WTO and its members from the perspective of body, scope, standards and procedures. And then this paper will make a comprehensive and systematic interpretation on the principles and regimes of China's administrative litigation of the international trading. The paper will focus on explaining the general provisions of the existing laws and judicial explanations concerning the administrative litigation system of the international trading and selecting typical cases in the domestic and overseas to make an empirical analysis on the substantive and procedural issues in the judicial operation of several administrative cases on the international trading. What's more, this paper dedicates to analyzing the status of China's administrative litigation system of the international trading and pointing out the gap between the system and WTO's requirements on the judicial review. Thereafter this paper will propose certain recommendations on solving issues and perfecting the administrative litigation system of the international trading from the aspects of judicial theory, judicial practice and judicial reform.In addition to the introduction, this paper can be divided into five chapters. The first chapter introduces the background and process of establishing China's administrative litigation of the international trading. Firstly, the international trade remedy occurred under the background of the internationalization of the administrative law. The impact of economic globalization is comprehensive. In China's public law area, economic globalization leads the trend of internationalization of the administrative law. For example, the legal resources of the administrative law have been expanded. The scope of administrative body has been extended. And the relief on the administrative behavior has been strengthened. Judicial review system is of great importance in WTO regime. It is also an important part of WTO's transparency principle. Judicial review system plays an important role in ensuring the operability of WTO rules and regulating governmental power operation of the members. International trade remedy system can be divided into two aspects: in the WTO and in the members. On the one hand, both judicial review proceedings are independent and non-subordinate. On the other hand, they are mutually influenced and constrained. The parties can freely choose either judicial review proceedings without the order requirement. Members need to improve their judicial review system to keep in line with WTO requirements, which requires the members to transfer sovereignty to be subject to review when the case submitting to the DSB. WTO's judicial review has a greater dependence on members' domestic judicial system and is limited by the substantive standards of members' judicial review. Moreover, the effectiveness of WTO's decisions shall be supplemented and corrected by the members' domestic judicial review.Secondly, the relevant provisions of the WTO Agreement on judicial review have the characteristics of diversified and independent review body, extensive review scope and principled review standards. According to the requirements of the WTO Agreement, China has made commitments on maintaining or establishing relevant system and the scope and content of the judicial review in the Accession Protocol to WTO and Report of the Working Party on the Accession of China. China's international trade remedy was established under the circumstance of performing the WTO's requirements and commitments to enter the WTO. However, China has named the administrative litigation instead of judicial review. This terminology and system is introduced by learning the civil law system and relevant system in Japanese law. China's judicial review is realized through the administrative litigation activities. It is an administrative litigation system established according to the Administrative Procedure Law, which has essentially differences from the judicial review system in the western countries in historical tradition, basic content, review scope and review basis.The second chapter is an overview on the administrative litigation of the international trading, including the definition and characteristics of the administrative litigation of the international trading, the legal sources, the main principles and the existing provisions. The administrative litigation of the international trading refers to the activity and regime that the People's Court makes a legality review on the administrative actions of the international trading so as to address a specific range of administrative disputes concerning the international trading. It mainly relates to the international trading and the review object is the administrative activities of the international trading. Besides, the administrative litigation of the international trading is subject to the foreign administrative laws and is a special type of foreign administrative litigation.The basic characteristics of the administrative litigation of the international trading include the specific jurisdiction, the foreign characteristic of the plaintiff or the third party, the close relationship with WTO law and the unique litigation principle. The function and purpose of the administrative litigation of the international trading is to perform the WTO's requirements and China's commitments to enter the WTO. It also aims at protecting the interests of participants in the international trading and supervising the legal administration of the administrative organs of the international trading. The international legal sources of the administrative litigation of the international trading include WTO Agreement and legal documents of China's WTO accession; while the domestic legal sources can be divided into the substantive law sources and procedural law sources.The main principles of the administrative litigation of the international trading can be summarized as the principle of judicial final settlement, the principle of limited judicial review, the principle of limited authority and the principle of equal protection and due process. The provisions of China's existing laws on the administrative litigation of the international trading consist of two parts. The first part is the general provisions of the foreign parts in the Administrative Procedural Law. The second part is the special provisions in the judicial explanations on the administrative cases of the international trading issued by the Supreme People's Court. The above three judicial explanations have made provisions on the judicial organs, jurisdiction, review scope, review standards, applicable laws and the judgments in hearing the administrative cases of the international trading in China.The chapter three conducts analysis and research about the major WTO members' judicial review of the international trade system and the administrative litigation system of that in China, with the research methods of comparative analysis, historical analysis and so on. At last the article, combining with the present regulation, casts a clear definition on the four aspects: the review organization in the international trade administrative litigation, the review scope, the review standards, the application of the the law.Firstly(the the review organization), all the international trade administrative cases fall into the administrative tribunals in the middle courts or above of the common court system, not the specialized court system. Secondly(the review scope), only specific international trade administrative deeds can be received by the courts.Fortunately, the plaintiff can appeal the court to review the regulations formulated by the State Council or the local governments accessorily.Thirdly(the review standards), the courts not only adopt the legality doctrine which must be applied in all the common administrative cases but also pay attention to distinguish factual and legal issues, meanwhile establish the document records review and the best evidence principle. The review standards are less strict compared with the common administrative cases. And sometimes administrative organizations have more professional advantages in certain areas of the administrative law enforcement, so they can decide by themselves without the intervene from the judicial system about the fact definition and the application of some uncertain law notion.The last aspect(the law application), the courts should operate the administrative cases according to the present law and administrative regulations; the WTO principles can not be applied directly. Now that we joined the international treaty, subsequently we should not violate it. Therefore when we apply the national law we must make interpretations which follows the international treaty spirit at the same time in order to make the international law respected.The chapter four conducts empirical analysis of several typical international trade administrative cases in practice. Firstly,we select some typical administrative cases from relevant materials, like anti-dumping and countervailing cases, customs valuation cases, combining with the present regulations, to analyze and summary the following issues: the scope of the case, the plaintiff qualification, the fact review and the burden of proof rules.Through the above theoretical and empirical analysis, on the one hand we can have a more clear conception of the review rules and standards when operating similar cases; another hand, we can find the gap between the WTO rules and the present regulations in China,finding the direction to improve.Nextly, in the administrative cases on international service trades, combined with the concrete practice of international trade and free trade test area, the article highlights the negative list management in the international service investment field.Then we draw the conclusion that not all the cases which were recorded by administrative agencies should be excluded by courts. We should distinguish them combining with the present provisions, and the permitting-recorded cases should be contained in the jurisdiction scope.Nextly, the article, combining with China's intellectual property protection system, discusses both procedural and substantive issues, which may emerge in the trail in administrative proceedings of Intellectual property rights about international trade. We take the two-track parallel system —administrative and judicial relief when meeting with the IPR infringement. In this context, the article discusses the conflict between the the civil and administrative in IPR proceedings; discusses the evolution of judicial policies of People's Court. And then the author proposes that setting up intellectual property court is the inevitable way to solve this problem.Lastly, in other administrative suits relating international trading, the passage, taking the antitrust administrative lawsuit for example, clarifies the administrative lawsuit defendant and the different subject of law enforcement in the anti-monopoly law enforcement filed by analyzing the anti-monopoly administrative enforcement behavior and administrative procedures. The anti-monopoly administrative enforcement procedures and civil litigation procedures usually conflict each other in the judicial practice. Moreover the answer to the cross-conflict of anti-monopoly civil lawsuit and administrative lawsuit still remains puzzling. The author puts forward his own unique solutions to the above issues referring to the relevant theory and the legal ground.Chapter five draws the conceive outline of how to improve the administrative litigation system relating to international trading in our country. Compared with the legal system requirements of WTO members' international trading remedy, the scope of international trading administrative lawsuit in our country which can be accepted, limited by the law development, is relatively narrow. And there is still a gap in judicial final settlement principle which prevails throughout the world. The author, by comparing the regulations in our country with the requirements of the WTO agreement on members in the scope of administrative cases which can be accepted, argues that the administrative final behavior of international trading and administrative guidance should be absorbed into the scope of judicial review, further expanding the scope of the review of abstract administrative action.Then the passage,combining with the specific theory and the foreign practice, puts forward the planning and design of corresponding judicial review mechanism by analyzing two aspects of the necessity and feasibility.The profession of International trade administrative cases institutions in our country's needs to be improved and the administrative litigation mechanism has vital influence on judicial efficiency. With the number of international trade administrative cases increasing gradually and the expansion of the scope of administrative cases which can be accepted by courts, the pressure of the courts will increase greatly as consequent, which will be harmful to the quality and the effect of the administrative trial. From the perspective of long-term development, it is necessary and feasible to set up a special court system of international trade in China, and only in this way can we meet the needs of the development of international trade administrative litigation.As to the specific design and construction, we can still take the way of a small scale pilot, setting up the international trade court in the provinces and cities which has more international trade administrative cases.At the same time we should improve the international trade rules of both entity and procedure. If the time and experience become mature in the future, we can set up more international trade courts in other qualified provinces and cities according to the needs of practice development.