Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Tuesday, December 16, 2008

Administrative lawsuit against MOE's degree-certifying body fails

In October I posted here about an administrative lawsuit brought against the Ministry of Education Foreign Study Service Center (教育部留学服务中心), a body that for the last 17 years has been certifying foreign degrees and has been the only body recognized by government agencies to have the power to do so.

The Haidian (Beijing) Basic-Level People's Court has now (Nov. 28, 2008) ruled against the plaintiff on the grounds that the Center is not a government-authorized body and that its acts therefore do not constitute administrative acts. The plaintiff plans to appeal.

I wonder if it might have been, or might still be, possible for the plaintiff to bring an action at the same time against a government body that was giving preclusive effect to the Center's certification (or lack of it). If the Center is indeed an unofficial organization, perhaps an argument can be made that government authorities cannot delegate their decision-making power to it in this way. And if both the Center and another government body are in the suit together, the court's decision in favor of one will necessarily be a decision against the other. Or perhaps the plaintiff should simply have brought a suit against the government agency that was giving preclusive effect to the Center's findings (in this case, the agency that refused to let him take the public service examination). This is the agency that is really making the decision that counts. That they are relying on the Center need be no more legally relevant than if they were relying on an astrologer; in either case, they have to defend the integrity of the decision-making process upon which they rely, wherever it is located, and can't defend simply by saying that somebody else made the decision.

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