Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Sunday, October 26, 2008

Administrative lawsuit against MOE's degree-certifying body

China's Ministry of Education has long had the reputation of being one of China's most conservative and obstructionist bureaucracies. For the last 17 years, the Ministry of Education Foreign Study Service Center (教育部留学服务中心) has certified foreign degrees (it was officially licensed to do so by the State Council and the MOE in 2000). Government departments will not recognize a foreign degree not certified by this body. (I'm not sure what the practice of private-sector employers is.) But the Center doesn't seem to operate very efficiently, and eventually one frustrated applicant trying to get his German law degree certified got fed up and brought an administrative lawsuit on the grounds of administrative inaction (行政不作为). The lawsuit was brought in the Haidian Basic-Level People's Court in Beijing on Sept. 19, 2008; the first hearing is scheduled for Oct. 29. (Caijing report here.)

What's interesting is the Center's defense. Although it enjoys a monopoly in the degree-certification business that is backed up by the refusal of government agencies to recognize foreign degrees it hasn't certified, and was set up by the MOE, it has argued that it is not the proper subject of an administrative lawsuit because it has no legally authorized power and does not exercise powers delegated by the MOE.

Given the Center's monopoly status, this defense sounds a little ridiculous at first. But unfortunately it may not be quite as absurd as it initially seems. Government agencies might in many circumstances rely on the judgments of unambiguously private-sector organizations (which of course the Center is not) in their operations, but that doesn't necessarily mean that private-sector organizations should be subject to the same laws and standards as government agencies. If the Center is an incompetent evaluator of foreign law degrees, shouldn't we blame the people who credit its evaluations as least as much as the Center itself?

But if we can sue government agencies for crediting unreliable evaluations from a private-sector organization, this seems to open the door to suing government agencies for just about anything in their operating procedures to which we object. In very few (if any) countries would courts be willing and able to take on the task of passing judgment on the reasonableness of every aspect of governmental operations, and certainly we can't expect it to happen in China. Thus it may be that in this context, it makes sense to allow government use of a private-sector process to confer a governmental nature to that process, such that it becomes subject to administrative litigation. It's a complicated and interesting question.

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