Foreigners in China's Administrative Litigation

Abstract

Since the relaxation of restrictions on foreign residence that came in the 1980s and 1990s, prior to China’s ascension to the World Trade Organization in 2001, foreigners and foreign companies have taken up residence throughout all parts of China to engage in trade and community life with a broader spectrum of Chinese society than at any time in China’s history. While the majority of foreign residents who came to China have spent only a number of days or weeks in the country before leaving, there are hundreds of thousands of foreigners who reside in China on an ongoing basis for periods of years. While few of these foreigners are formally recognized as permanent residents, these long term residents must be managed in a similar way, as the extended duration of their residence naturally leads to repeated interactions with administrative agencies of the State, much in the same manner and for many of the same reasons as citizens. As such, there is a wealth of legislation dedicated to the status and management of foreign residents in China, from an Article 18 of the Constitution down to laws, national and local regulations, as well as normative documents. However, many of the regulations and normative documents relied upon are old and incompatible upper level legislation, leading to invalid provisions that are still frequently relied upon, increasing both the frequency and complexity of foreign-related administrative disputes. Furthermore, perhaps due to lingering concerns and disputes over the need for and value of certain categories of foreign residents and a lack of prioritization, there exists a lack of effective constraints on many foreign-related discretionary powers, sometimes leading to abuse of the provisions, especially with regards to the authority to conduct detention, investigation, and repatriation. There has been some work to centralize the management of foreigners at provincial and national levels, however this work has yet to lead to uniformity of the application of law at the grassroots level. In addition, while the principle remains to treat the nationals of all foreign countries equally, the extensive availability of discretionary power may be leading to disproportionate treatment, considering that the nationals of some countries lack effective diplomatic support which is often critical in obtaining preferential discretionary treatment. Finally, the author identifies a contradiction in the manner in which scholars and administrative entities handle disputes with foreign parties. For scholars, the source of constitutional rights of resident and non-resident foreigners is unclear and subject to debate. For administrative entities and courts, the principle of equity applies in absence of provisions to the contrary. With the intention of identifying trends and common problems, the author offers suggestions for improvement for scholars, lawmakers, administrative entities, and those overseeing foreign-related dispute resolution mechanisms.

Note: Downloadable document is in Chinese and English.

Keywords: People’s Republic of China, administrative law, foreigners, foreign-related litigation, constitutional practice