By Hu Jianmiao & Du Yifang

   As a basic right of citizens, equality is explicitly written into China's Constitution. In its administrative laws, the violation of citizens?right to equality is labeled as misuse of authority in regard to the procedure of judicial assistance. On the basis of making clear the definition of civil equality and current administrative protection, this thesis tries to suggest that an all-dimensional system for protecting citizens' equality right be established within the scope of administrative laws.

I. From the theory of equality to the establishment of laws--- an explanation of citizens's equality right and relevant issues

   According to The Contemporary Chinese Dictionary, equality is defined as: (1) people are entitled to the same treatment in terms of society, economy, laws, etc; (2) the same status. That is to say, people possess the same social status and enjoy the same treatment.

   In the political concept, equality refers to: first, equality-in-nature, that is, all human beings are equal; second is equality in distribution, namely equal distribution of wealth, social opportunities and political power. The former is always regarded as the theoretical basis for the latter. The former stresses equality designed for all. It rejects discrimination and demands absolute equality; the latter emphasizes equality for "individuals" and demands reasonably balanced treatment.

   1. The legal basis for right to equality and its connotation

   Aristotle divided equality as "distributive justice" and "corrective justice"[1] The former requires that wealth, official titles and honors should be divided in accordance with people's achievements and value, namely "distribution according to work"; the latter demands that everyone should be treated in an equal way. By calculating the interests people gain and damage they suffer from, equality is to be granted in a balanced way. In other words, the result must turn out to be absolutely equal. In this regard, Professor Lin Laifan, an expert on China's Constitution, believes that equality-in-nature is a revision and supplemental to equality-in-form. "Generally speaking, the principle of equality-in-nature can help to protect the freedom of spiritual and cultural activities, the freedom of body, the dignity of personality and even such constitutional rights as political rights. But this principle is mainly applicable in the following two conditions: first, on the basis of equality, the realization of gender equality, race equality and national equality is the objective result expected by the principle of equality-in-nature; second, in terms of the content of rights, equality-in-nature will mainly help to guarantee social and economic rights, aiming to ensure the equal relationship between economically strong and economically weak bodies, as expected by law internally."[2]

American scholar John Rawls believes that equality is a set of primitive contracts that people sign under the veil of ignorance when knowing little about the environment they live in or their identity, wealth, status and so on in the society. Under the veil of ignorance, for fear of becoming the weakest, every individual seeks and is willing to accept "the first justice principle: everyone should enjoy the equal right to the kind of freedom that conforms to the most extensive basic freedom system that is shared by all (the principle of equality and freedom); the second justice principle: inequality in society and economy should be arranged in this way, so that it: (1) meets the maximum interests of the most beneficiaries; (2) complies with the principle of opening positions to all people under the condition of opportunity equality and fairness (principle of equal opportunities )". [3]In accordance with the above principles, the just nature of equality demands that our system structure should ensure: "(1) every individual enjoys the same freedom, including citizens?political and property rights; (2) the following arrangements should be carried out in response to social and economic equality: to make people reasonably expect this equality to be beneficial to everyone and to help those who benefited little to enjoy greater benefits (the principle of difference) and status and official positions should be accessible to everyone".[4]

   It is generally believed that the equality right defined in laws should at least include the following: (1) the state ensures citizens enjoy the rights and carry out obligations stipulated in the Constitution and laws. It should not treat any individual in a different way due to differences in nationality, race, gender, profession, family background, religious belief, education level, property status and duration of stay; (2) judicial equality. State organs should treat all citizens in an equal way when implementing all applicable laws. Once laws have been worked out, they must be equally applied to all citizens. Protection and punishment should both be carried out when laws are strictly abided by. Neither protection nor punishment that is not covered in laws is allowed. (3) No citizen or organization has the privilege of transcending the Constitution or laws and no discrimination should be practiced against them. No matter whom they are, everyone is obliged to act strictly in line with the Constitution and laws.[5]

   2. The history of changes in civil equality and legal system

   Equality is a historical concept. As early as the 5th century B.C., Pericles mentioned in a famous political speech, that, "The reason why our system is called democratic politics is that the regime is in the hands of all citizens, rather than a small group of people. When dealing with private disputes, everyone is equal under the law." [6]This classical address is a reflection of the concept of equality at its early stage in the political and legal areas. With the recession of feudal dynasties and the rise of capitalism around the world, bourgeois ideologists represented by Rock and Rousseau put forward such a concept as everyone is equal in the eyes of the law for the first time. Solon stated in the 6th century B.C. "Law is formulated to treat everyone in an equal way". [7]In its 1789 Declaration of the Rights of Man and Citizen, France affirmed the right of equality in the form of legislation. The first article of the Declaration reads: "Men are born and remain free and equal in rights". The 6th article reads: "All citizens, being equal in [the eyes of the law], are equally admissible to all public dignities, places, and employments, according to their capacity and without distinction other than that of their virtues and of their talents".

   The principle of "equal protection" is stipulated in the 14th amendment of the US Constitution: No state is allowed to "refuse anyone's demand for an equal legal protection in areas under the state government's jurisdiction". Article 3 in Germany's basic law states: "Everyone is supposed to be equal in the eyes of the law. Men and women enjoy equal rights. No one can be discriminated against or given special treatment due to their gender, origin, race, language, beliefs, religion or political opinion". Later, with the victory of the bourgeois revolution all over the world, equality was defined as an important item in the constitutions of capitalist countries.

   In ancient China, there existed an open hierarchy system. In the Western Zhou Dynasty, the concept of "criminal law not applying to senior officials and etiquette not applying to common people" appeared as a legal principle. Over the long period of feudal dynasties, a strict feudal hierarchy system made equality impossible. However, people never gave up their efforts to pursue equality. Some ideologists also put forward such equality concepts as "Nobody is above the law". Peasant rebels in China's feudal age. Wang Xiaobo and Li Shun put forward that "I hate the large gap between the rich and poor so today I try to make it equitable for you". Of course, owing to the historical environment at that time, these concepts could only be theories.

   3. Current legislation on civil equality in China

   The first Constitution issued in 1954 after the founding of People's Republic of China, stipulated explicitly that, "citizens are equal in the eyes of the law". In the following years, however, due to various political reasons, this principle was criticized as bourgeois ideology. As a result, this stipulation was canceled in the 1975 and the 1978 constitutions.

   In 1982, China's fourth constitution restored this principle, which is article 33 in current constitution: "All citizens of the People's Republic of China are equal before the law. Every citizen enjoys the rights and at the same time must perform the duties prescribed by the Constitution and the law". At the same time, voting equality was stipulated in article 34, while article 36 forbids discrimination against citizens who either believe or do not believe in religion. The principle of equality is not only reflected by the Constitution, but is also confirmed by other laws and regulations. 

   For example, article 3 of General Principles of the Civil Law provides that "Parties to a civil action shall have equal status"; it is stipulated in article 3 of the Contract Law of the People's Republic of China: "The parties to contract shall have equal legal status. No party may impose its will on the other party";  article 4 in the Criminal Law provides that "Anyone who has committed of a crime will be punished by the law in an equal way. No one has the privilege to overstep the law; it is stipulated in article 6 of the Criminal Procedure Law: "In conducting criminal proceedings, the people's courts, the people's procuratorates and the public security organs must rely on the masses, base themselves on facts and take law as the criterion. The law applies equally to all citizens and no privilege whatsoever is permissible before law; it is stipulated in article 8 of Civil Procedure Law that, "The parties in civil litigation shall have equal rights. The people's courts shall, in conducting trials, safeguard their rights, facilitate them in exercising these rights, and apply the law equally to them".

   4. Provisions in International Covenant on Civil and Political Rights on civil equality

   Article 26 in UN International Covenant on Civil and Political Rights provides that "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". Relevant regulations in item 1 of article 14 in the UN International Convenant on Civil and Political Rights state that "everyone is equal before the court and tribunal".

   II. The establishment of the relief system---on the current situation of how China's administrative laws protect civil equality

   Administrative laws are traditionally public laws. As a result, too much attention is paid to the unequal positions between administrative subjects and administrative opposite party, neglecting administrative laws' role in protecting the equal relationship between citizens. [8]As a matter of fact, administrative laws exert common and unique protection to civil equality. In administrative laws, the concept of equality can be concluded as follows: administrative opposite parties should be granted equal treatment. On the basis of rationality and justice, people should enjoy equal rights in their relationship and the government should treat all administrative opposite parities in an equal way.

   1. Civil equality in general provisions  

   In the litigation process, all involved parties are entitled to equal status and rights, a concept recognized and accepted by all those who are engaged in legal theoretical and practical work. Similar to provisions in the Civil Procedure Law and Criminal Procedure Law, article 7 of Administrative Procedure Law provides: "Involved parties enjoy equal legal positions in administrative litigation" In this way, civil equality is safeguarded and ensured in the form of general provisions.

   2. Civil equality in the misuse of administrative authority

   Over the years, in China's administrative legislation system, apart from relevant expressions in the aforementioned general provisions, only the Administrative Reconsideration Law and Administrative Procedure Law classify the protection of civil equality into the category of misuse of administrative authority and provide legal aid in cases where civil equality is violated.

  (1) Misuse of administrative authority and the protection of civil equality

   Misuse of administrative authority is an old topic. William Wade, a British expert on public administration used to point out that the nature of law is a set of rules to prevent judicial discretion. [9]Along with the expansion of the administrative authority in the whole authoritative system and increasing interference with civil rights by administrative authority, the misuse of administrative authority is gradually admitted by those who study the theory of administrative laws and the legal community. Despite the different descriptions in Britain, the United States, France, Germany, Japan, etc, it is listed as the target of administrative assistance and judicial control.

   In German administrative laws, any of the following cases is regarded as administrative misuse of free arbitration: 1) the violation of the principle of rationality; 2) wrong objectives; 3) irrelevant factors; 4) the violation of objectivity; 5) the violation of equal treatment. [10]Obviously, German administrative laws stipulate explicitly that the violations of equal treatment, namely, actions that violate civil equality, belong to misuse of administrative authority.

   The "Chinese laundry case"[11] in 1886 in the United States first defined the violation of civil equality as misuse of administrative authority.

   An ordinance worked out in 1880 in San Francisco read that: "It is unlawful to maintain a laundry without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone." At that time, 200 Chinese laundries' applications to extend their licenses were rejected, including that of Yick Wo, the accuser. However, apart from one, more than 80 non-Chinese applicants all got approval from the board of supervisors. At the same time, over 150 people of Chinese origin were detained for refusing to submit forfeits. Yick Wo appealed to the California Supreme Court, demanding the repeal of the decision. However, the California court turned down Yick Wo's appeal. Finally, the US Supreme Court overthrew the decision made by the California court. The federal court struck down the ordinance as a violation of the 14th Amendment's Equal Protection Clause, that is, the California court should not have interpreted the state constitution and laws as providing infinite arbitrary rights for local governments and the authority of local ordinances were restricted by the federal constitution. This case can be regarded as a typical example of the misuse of administrative authority leading to the violation of civil equality.

   (2) Abuse of administrative power and protection of equal rights of all citizens under Chinese law

   Although there is such term as administrative power in Chinese legislation, the laws do not have clear definition of what is the abuse of administrative power. It is widely recognized that the abuse of administrative power refers to abuse of free administrative judgment, which means misusing administrative power to an excessive extent.

   The abuse of administrative power differs in terms of content and form from one country to another. Currently, it is generally recognized that there are six kinds of forms in China. Arbitrarily disobeying identity and equality is one of the forms. Internationally, it is known as behaviors which disobey the precedent or convention. It is actually the most direct prescription about civil equality in administrative law. Abuse of authority belongs to the category of violating the principle of administrative rationality. It means when the administrative subject is conducting administrative behavior, he/she should only consider the elements relevant to people concerned within the realm of Constitution and law and that the administrative subject shouldn't make wrongful consideration. Otherwise, they will violate the civil equality and constitute the abuse of administrative power. The people concerned have the right to launch relevant remedy procedures.

   (3) China's remedy of the violation of civil equality resulted from abuse of administrative power

   The Administrative Reconsideration Law of China stipulates in Article 28 that, if a specific administrative act has been undertaken in one of the following circumstances, the act shall be annulled, altered, or confirmed as illegal by decision; if the specific administrative act is altered, or confirmed as illegal by decision, the perpetrator may be ordered to undertake a specific administrative act anew within a fixed time, 1) ambiguity of essential facts, and inadequacy of evidence; 2) erroneous application of grounds; 3) violation of legal procedures; 4) excess of authority or abuse of powers; 5) obvious inappropriateness of specific administrative act.

   It shows that the abuse of authority is one of the legal reasons for people concerned to raise administrative reconsideration and administrative litigation. During administrative reconsideration, the reconsideration organs have the right to decide to abolish, alter, or determine the illegal nature of the administrative act, and can order a re-action. In terms of administrative litigation, the court only has the right to abolish the administrative act and require for a re-action.

   From the aforementioned law, we can find out that regarding administrative consideration, the current administrative litigation law only provides one ruling of abuse of authority, that is, to abolish the act. However, in the actual administrative litigation, as a supplement of abolition, under special circumstances, the court also has other rulings against abuse of administrative power, such as confirming the violation of law, alteration, and correction.

   Since the abuse of authority belongs to administrative illegality, though there are no prescriptions in the current legislation, I believe the court can adopt the aforementioned rulings against abuse of authority, in an effort to protect more appropriately and comprehensively the civil equality of people concerned.

   3. Conclusion

   In conclusion, in terms of the practice of effectively protecting civil equality, China has made relevant laws and regulations in its administrative reconsideration and litigation and has scored certain achievements. However, either administrative reconsideration or litigation falls into the category of administrative remedy. The significance of administrative reconsideration and litigation is established in the remedy, preservation and make up after the event. Although it is said there is no right if there is no remedy, the remedy is after all the final line of defense for rights protection. To fully protect our citizens' rights, we should first of all enact relevant laws and regulations and combine the laws and regulations with the aftermath remedy.

   We can see that our current administrative laws place the protection system of citizens' rights at the end of legal procedures, which shows that our country does not pay full attention to its citizens' rights in formality and procedure, nor does it optimize its actual protection.

   III. From single remedy to full protection

   Some suggestions for protecting civil equality right in terms of administrative law:

   According to the aforementioned analysis, I believe that under the condition of perfecting the current remedy and compensation system, China should properly bring forward the protection of civil equality in the whole rights protection system. As a result, on the one hand, we would fully protect civil equality and on the other hand, we would lessen our heavy reliance on the remedy and compensation system. If the protection of equality in administrative procedure focuses more on litigation status and rights of the people concerned, then the introduction of civil equality into administrative legislation, execution, and compensation system will transform protection of civil equality from a mere concept into actual practice.

   1. Distinguish the concept of equality protection and differentiated treatment in the administrative legislation. As the administrative legal relationship is the legal relationship which takes place between administrative subject and administrative relative party, it is paramount to guarantee that the administrative subject treats the administrative relative party equally, if we are going to establish the concept of equality and optimize the protection system of civil equality in the administrative law. However, the civil equality rights are also restricted. When all parties are equal metaphysically, the legislation should differentiate treatment in an effort to protect true and actual civil equality. The purpose of setting up this reasonable differentiation in legislation is to promote the equality to a large extent if inequality occurs which is caused inevitably by external or social phenomena. Therefore, it is a key to maintaining the rationality of the differentiation of administrative legislation.

   The elevation of rational differentiation results from the evolution from traditional metaphysical equality to modern actual equality. The traditional equality concept emphasizes that the law should treat every party concerned equally, and that aside from the differences regarding inborn variety, everyone is equal in the eyes of the law. However, under the metaphysical equality, there is a solid fact that people are different and inequality occurs from time to time, due to historical, cultural, social and natural reasons. And some people are specially protected by law and the state legislative department should, when enacting laws, take the special protection principle stipulated in the Constitution into full consideration so as to achieve actual equality. This kind of actual equality, in its content, "mainly applies to the protection of social and economic rights, the purpose of which is to strike and resume an equal relationship between the economically strong parties and the weak parties as law expects." Therefore, the government can differentiate treatment for different citizens based on legitimate reasons. As a matter of fact, nearly all laws will categorize the citizens and treat them differently. For instance, it is universally acknowledged that the citizens above 18 years old have the right to vote and be elected and that women enjoy special care and protection at work.

   Take the case of "University of California Regents v. Bakke" for example[12]: in 1978, Bakke applied for entry to the medical school of the University of California, which maintained a 16% minority quota. Bakke applied in two straight years but was twice rejected. When he found that he had a higher grade point average than a number of minority candidates who were admitted, he accused the medical school of violating the 14th amendment of the federal constitution by maintaining quotas for minority students, which is discrimination against white students. The federal court made a verdict favorable to the medical school by 5:4. In this case, although opponents to this verdict argued that race division was unfair by itself, as it violated the rights of those who have not received favorable treatment, supporters argued that the quota for minority students served to make up for the serious inequality in US society, so it's a kind of equality at a higher level.

   The concept of reasonable difference has been recognized by researchers on Constitutional law and appears in the protection of civil equality by the Constitution as a more in-depth theory. However, as far as China's administrative legislation is concerned, there is no relevant theoretical or system construction or guarantee. The guarantee for civil equality in the administrative law makes the practice of reasonable difference inevitable. If reasonable difference in the Constitution depends on such legal principles as natural justice, then since the Constitution has already turned some "reasonable differences" into "constitutional differences" whether laws, which are all under the Constitution, are reasonable or not, depends on whether they conform to the Constitution. Correspondingly, when formulating administrative laws and carrying out abstract administrative acts, the Constitution and relevant upper laws should be used as the basis for different treatments[13]. Therefore, rules on civil equality that conform to the Constitution and upper laws should be set up to serve as general principles to guide the formulation of administrative laws and other abstract administrative acts and to work together with aid systems in administrative review and the administrative procedural system.

   2. To set up a communications platform for the enforcement of administrative laws

   It is procedures that determine the basic difference between rule of law and arbitrary rule of man[14]. With the end of the liberal economy era and increasing influence of administrative power on social affairs and civil rights, human society is entering the period of "administrative national rule" characterized by emphasis of control of administrative power over efficiency and order in a country and also the stress on the public enforcing force[15] and the enforcement power of the administrative power. Therefore, the protection of civil rights may be affected. In such a legal environment that centers on public power, it's not easy for us to ensure civil equality by the means of such tangible laws as civil laws and commercial laws. Hence, the design of the procedure appears to be extremely important. Given the long administrative patriarchal system, China is supposed to make greater efforts to move in line with the global trend of democratization, so as to ensure procedural justice while seeking efficiency. To be specific, there should be a civil rights protection procedure under transparent government, which helps to safeguard citizens?rights of inform and participation rights, so as to build up a communication platform between the administrative subject and the administrative opposite party, so that the latter is able to put forward their viewpoints on administrative acts that may violate their rights and interests, and put forward doubts on administrative acts that violate civil equality, so as to achieve the guarantee for civil equality.

   Take the hearing procedure for example. This originated from the rule of "natural justice" in British common law. This rule has put forward two basic requirements: one is not allowed to be the judge of his own case; when one's rights have been affected, he should be provided with the fair opportunity to be heard[16]. This rule was originally used in the judicial domain. With the increase of citizens' democratic awareness, it gradually expanded to the administrative domain, with its content greatly enriched and supplemented. As a means of beforehand control, administrative hearing procedure is able to skillfully solve the conflict between efficiency and justice of administrative acts. The administrative hearing procedure has been explicitly set in China's administrative laws. Article 47 of the Administrative License Law provides: "Where an administrative license is of direct significance to the interests of the applicant or others, before the administrative organ makes a decision about the administrative license, it shall inform the applicant or the interested party of the right to request a hearing. Where the applicant or interested party applies for a hearing within five days from the date of being informed of such right, the administrative organ shall organize a hearing within 20 days."

 Although the hearing procedure has been introduced into administrative rules, the expression "of direct significance to the interests of the applicant or others" is not clear enough, and there is no clear explanation of whether violation of civil equality is a violation of significant interests. In my opinion, there should be clear definition of "direct significance" and examples or summaries of violations of civil equality; the hearing procedure should be expanded to other similar administrative areas, so as to realize the tangible protection of civil equality in the administrative procedure.

   Besides, the information transparency system, participation system, the statement of reasons, the separation of functions, all these can directly or indirectly protect civil equality to some extent. So these systems need to be brought into play and improved in relevant legislation[17].

   3. To improve the indemnity system for losses the administrative opposite party has suffered

   Administrative indemnity, which is also called administrative loss indemnity, means that when legal actions taken by administrative subjects (through administrative opposite party) lead to losses of administrative opposite party, the former should make compensation for the losses the opposite party has suffered.[18] The precondition for administrative indemnity is the losses in legitimate rights and interests of the opposite party, which result from legitimate actions. As administrative indemnity results from the violations of administrative acts, there is obviously a theoretical basis for the indemnity and even relatively well-developed theory on rights violation in the civil laws can be used for explanation.

   What is the theoretical foundation for administrative indemnity that results from legitimate acts? Rules on administrative indemnity in German law originate from the levy system. The levy indemnity theory can be boiled down to the following four doctrines: (1) the theory of individual behavior, that is, when the public/state power harms the rights of a certain individual, leading to his/her loss that others do not suffer from, he/she should be compensated; (2) The theory of special sacrifice. As the extension of the theory of individual behavior, it regards levy as the violation of property. Whether the levy is carried out in the form of deprivation or restriction, and whether the practice targets an individual or a group, if compared with others, the practice is unfair, it can be said that people have suffered from sacrifices beyond their sustainability; (3) The theory of preponderance, that is, the severity of violation is more than the legal party can stand; (4) To judge whether the harm has surpassed the scope of his social responsibility.[19] It's easy to find out that except the theory of preponderance, the other three theories are all concluded from the perspective of the violation of civil equality. Apart from Germany, in Japan and Taiwan, the foundation for "the theory of improper gain" and "the theory of average loss" targeting administrative indemnity has also been developed from the perspective of the protection of civil equality and the guarantee for equal burden.

   Thousands of years of feudal rule resulted in the rooted concept of "the paramountcy of monarchy" and "state-centered approaches" which over-emphasize national and public interests while overlooking individual interests. As a result, for quite a long time, little attention has been paid to the administrative compensation system. The imported concept of rule of law and the explicit definition of civil equality in the constitution help to make the administrative compensation system gradually become accepted by those who study the theories of administrative law in China.

   Scholars begin to realize that since losses result from public interests, according to the principle of fairness and justice, the losses should be shared by the public. Regulations for the Management of Land Used for House Building in Rural Areas and Regulations on Land Acquisition for Construction issued in 1982 refer to administrative compensation for the first time. The Land Administration Law formulated in 1986 provides for an administrative compensation system in terms of land acquisition for the first time.

   Despite the legislation in administrative compensation system, China is still at the initial stage of the development of this system compared with other countries and so it demands further improvement. To formulate unified administrative laws or single laws and at the same time improve relevant theories remain a priority for China's administrative law experts. Only in this way will civil equality be ensured in the administrative compensation system.

   In general, civil equality should be guaranteed by the Constitution. However, at the same time, the protection of civil equality should also be ensured in administrative laws. Therefore, to build up the concept of civil equality in administrative laws and relevant systems is inseparable for the protection of civil equality in China.  

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