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II. Suing the Government: An Overview
Since the founding of the People’s Republic of China in 1949, China has witnessed four constitutions made in 1954, 1975, 1978, and 1982 respectively. All of these constitutions embraced the political doctrine of “people’s sovereignty,” declaring that all state powers belong to the people. Under this doctrine, it is logically reasonable that people shall have the right to challenge the government. As a matter of law, the current Constitution of 1982 does provide that individuals shall have a right to charge any state organs or government officials thereof if they infringe upon the person’s rights or lawful interests. In particular, the Constitution articulates that if governmental and official infringements have caused loss of individuals’ lawful interests, the government must compensate them.
Since the Chinese Constitution is more inspirational rather than institutional, constitutional rights are not automatically enforceable by the courts, unless there are statutes that clearly mandate the courts to do so under the given circumstances.
In fact, citizen’s constitutional rights to state compensation were not enforced until 1986 when the National People’s Congress enacted the General Principles of Civil Law. The General Principles of Civil Law, deemed a framework of Chinese civil code, deals with private rights, such as property and contract rights, and duties among private parties. Article 121, however, expressly provides that if state organs or government officials thereof infringe individual’s rights and interests, individuals may claim compensation by bringing a tort action in the courts.
This law recognizes government organs as ordinary legal persons and processes compensation claims against them through civil procedures. While the law made great progress in providing citizens with a legal forum to challenge government agencies, individuals’ experiences of suing the government under this law have been exhausting and painful because the law does not address the criteria for identifying state liability.
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