In the context of modern administrative rule of law,the time limit system for filing a lawsuit is like a double-edged sword:it not only embodies the value pursuit of stabilizing administrative legal relations but may also become a barrier to rights relief due to the rigidity of the system.The six-month general time limit for filing a lawsuit stipulated in Article 46 of the Administrative Litigation Law of China presents a dual aspect in judicial practice.Behind the dismissal of more than 60,000 administrative cases due to expiration(according to the 2022 judicial statistics bulletin of the Supreme People's Court),it reflects both the awakening of citizens'rights awareness and the gap in procedural cognition,as well as the practical difficulties of administrative counterparts in identifying complex administrative acts and applying the time limit rules.This article discusses some remedial measures that administrative counterparts can take when the time limit for filing a lawsuit has expired.

I.Collect evidence to further clarify the date of"knowing or should have known"

According to Article 46 of the Administrative Litigation Law,it can be seen that the time limit for filing a lawsuit starts from the date of knowing or should have known the administrative act.Moreover,according to the rule of inversion of the burden of proof in administrative litigation,the defendant shall bear the burden of proof on the fact that the plaintiff knew the time limit for filing a lawsuit.If the defendant claims that the plaintiff has exceeded the one-year time limit for filing a lawsuit since the date of knowing or should have known the content of the administrative act and the implementing subject,the defendant shall bear the burden of proof(reference:Reply of the Supreme Court:How to understand"knowing or should have known the content of the administrative act"in Article 64 of the Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's Republic of China).Therefore,in some cases,the plaintiff can collect relevant evidence to prove the determination of"knowing or should have known":

(A)If the administrative organ has not made a clear administrative act,the plaintiff can apply for government information disclosure or communicate with or send a letter to the administrative organ to determine the date of"knowing"the administrative act.

In practice,many administrative organs do not issue written administrative documents when making specific administrative acts,or the corresponding documents are not delivered in accordance with the law,resulting in the parties not knowing the existence of the corresponding administrative act at all.In this case,even if the right to sue has not been exercised for a long time,the parties can send a letter to the administrative organ,confirm by phone,or apply for government information disclosure to confirm the specific content of the administrative act.Then,the date of receiving the reply from the administrative organ or the government information disclosure reply is the date of"knowing"the administrative act.For example,in cases such as attempting to revoke the land acquisition approval or expropriation decision of a certain plot,or when an administrative organ with administrative compulsory law enforcement power imposes administrative penalties or takes administrative compulsory actions but does not prepare written documents,one can try to obtain a clear written reply document as the date of"knowing"the administrative act.However,it should be noted that it is still necessary to pay attention to whether the presumption of"should have known"applies.If there is evidence to prove that the administrative act has a situation of"should have known"for the right holder,this measure does not apply to avoid being dismissed after entering the litigation process.

(B)If only part of the content of the administrative act is known,it can be claimed that it should not be recognized as"knowing"the administrative act in Article 46 of the Administrative Litigation Law.

If the administrative act is mentioned in other administrative documents but the full content cannot be known,it should not be recognized as"knowing"the administrative act.That is,when the degree of knowledge is limited and it cannot be judged what impact or to what extent it has on one's own rights and obligations,it cannot be recognized as not actively exercising the right to sue.In the case of(2018)Supreme Law Administrative Petition No.6291,the Supreme People's Court held that considering the spirit of the time limit system for filing a lawsuit set by the law,it is to fully guarantee and urge the parties to timely exercise their litigation rights,respect the long-existing factual state,and maintain the stability of social order and public law order.The so-called"degree"here does not require knowing all the contents of the administrative act,but only requires knowing the necessary contents.Through this case,the author believes that if the degree of knowledge of the administrative act is limited,especially when the content affecting one's own rights and interests is unknown and has not reached the"necessary"degree for exercising the right to sue,the time limit for filing a lawsuit should not start.The case of(2018)Hunan 02 Administrative Final No.80 holds this view.

II.Claim the application of a longer time limit for filing a lawsuit

According to the above classification of time limits for filing a lawsuit,if the administrative organ has not informed the right to sue(time limit for filing a lawsuit),the one-year time limit for filing a lawsuit can be directly applied instead of the six-month time limit;if there is a situation where one has always been unaware of the administrative act and also unaware of the right to sue(time limit for filing a lawsuit),the maximum protection period can be claimed,which is within five years from the date of making the administrative act(twenty years for those involving real estate).

III.Claim the deduction of the delayed time or apply for an extension

Article 48 of the Administrative Litigation Law stipulates the system of delay and extension of the time limit for administrative litigation:If a citizen,legal person or other organization is delayed in filing a lawsuit due to force majeure or other reasons not attributable to itself,the delayed time shall not be calculated within the time limit for filing a lawsuit.If a citizen,legal person or other organization is delayed in filing a lawsuit due to other special circumstances other than those stipulated in the preceding paragraph,an application for an extension of the time limit may be made within ten days after the obstacle is removed,and whether the extension is granted shall be decided by the people's court.

If there are special circumstances that delay the time limit for filing a lawsuit,one can claim the deduction of the delayed time or apply for an extension.

1.Comparison of the delay and extension of the time limit for filing a lawsuit

2.Claim the existence of force majeure or reasons not attributable to oneself and deduct the delayed time limit

(1)Force majeure,such as natural disasters such as fires and earthquakes,or epidemic reasons;

(2)Reasons not attributable to oneself,such as being detained administratively,criminally,or wrongly choosing the jurisdiction court.

If the above situations exist,corresponding evidence can be submitted at the time of filing a case to claim the deduction of the delayed time limit.

3.Apply to the people's court for an extension of the time limit for filing a lawsuit

Article 48,paragraph 2 of the Administrative Litigation Law gives the parties the right to apply for an extension of the time limit if there are indeed justifiable reasons for delaying the time limit for filing a lawsuit.Whether the extension is granted is subject to review and decision by the people's court,which can further guarantee the parties'right to sue.That is,if the parties have special circumstances other than those mentioned above and the reasons are justifiable,they can be allowed to enter the substantive trial.

For example,if the administrative organ wrongly informs the time limit for filing a lawsuit or the relief channels,is seriously ill or severely disabled,is deceived or threatened by others,the administrative organ delays the handling of the reconsideration application resulting in the delay of the time limit for filing a lawsuit,or the key evidence is lost or has been unable to be obtained resulting in failure to file a lawsuit in a timely manner,one can try to apply for an extension of the time limit for filing a lawsuit.However,whether these reasons constitute justifiable reasons for extending the time limit for filing a lawsuit,on the one hand,corresponding evidence should be retained,and on the other hand,it is necessary to actively apply to the people's court for an extension of the time limit within 10 days after the obstacle is removed,and the people's court shall review and decide.

4.Situations that may be dismissed in practice

The following situations usually cannot be used as reasons for extension:

(1)Self-neglect:such as forgetting the time limit for filing a lawsuit and not consulting a lawyer in a timely manner;

(2)Misunderstanding of the law:such as mistakenly believing that it is necessary to petition first and then file a lawsuit;

(3)Minor illness or being busy with affairs:general affairs that do not affect the ability to file a lawsuit;

(4)Delay in the internal process of the administrative organ:such as the internal approval not being completed,but not directly restricting the filing of a lawsuit.

In judicial practice,there is no unified discretionary standard and determination for"other special circumstances"stipulated in Article 48,paragraph 2 of the Administrative Litigation Law.However,the author believes that the extension of the time limit for filing a lawsuit is a further supplement and catch-all for the deduction of the delayed time limit for filing a lawsuit.Essentially,it still considers whether the parties are actively exercising their right to sue,and the standard for whether the reasons for delay and extension are justifiable lies in whether the parties are responsible,at fault,and whether external factors have led to their inability to normally seek legal services and exercise their litigation rights.


IV.Special relief in administrative agreement cases

If the administrative act involves an administrative agreement,Article 25 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases can be referred to,and the provisions on the interruption of the limitation period in civil legal norms can be claimed to apply.

V.Apply for self-correction by the administrative organ

Although the administrative organ is bound by the administrative act,it can change(including revoke and abolish)the administrative act under specific conditions,which is determined by the characteristics of administrative power itself.If the sued administrative act has indeed expired and cannot be remedied,and if the administrative act is indeed improper or illegal,one can try to apply for internal correction by the administrative organ.Article 62 of the Administrative Litigation Law of the People's Republic of China stipulates that before the people's court pronounces a judgment or ruling on an administrative case,if the defendant changes the administrative act made by it and the plaintiff agrees and applies for withdrawal of the lawsuit,whether the withdrawal is permitted shall be ruled by the people's court.This shows that the administrative organ can change the administrative act made by it not only outside the administrative litigation procedure but also during the administrative litigation procedure.

If the time limit for filing a lawsuit has indeed expired and cannot be remedied,one can try to apply for self-correction by the administrative organ.

VI.Apply for confirmation of the invalidity of the administrative act(for administrative acts made after May 1,2015)

Whether the lawsuit for confirming the invalidity of an administrative act is subject to the time limit for filing a lawsuit has always been controversial.In the Reply of the Supreme People's Court to Proposal No.2452 of the First Session of the Thirteenth National People's Congress on September 10,2018,it was clearly stated:"There is no clear provision in the legal provisions and judicial interpretations after the revision of the Administrative Litigation Law on whether the lawsuit for confirming the invalidity of an administrative act is subject to the time limit for filing a lawsuit.We tend to believe that the lawsuit for confirming the invalidity of an administrative act is not subject to the time limit for filing a lawsuit,and the administrative counterpart can request the competent state organ to confirm the invalidity of the act at any time."The administrative judgment of(2021)Henan 0526 Administrative First Instance No.30 made by the Huaxian People's Court of Henan Province(selected into the People's Court Case Database,with the entry number 2023-12-3-006-007)holds the view that regarding the question of whether the confirmation of the invalidity of an administrative act should be subject to the time limit for filing a lawsuit,for an invalid administrative act that is"serious and obviously illegal"and may indeed seriously violate the rights of citizens,the people's court should provide the parties with necessary relief opportunities,that is,the confirmation of the invalidity of the marriage registration act in this case should not be subject to the time limit for filing a lawsuit.

Therefore,the confirmation of the invalidity of an administrative act is not subject to the time limit for filing a lawsuit.If the time limit for filing a lawsuit for the proposed administrative litigation case has expired,one can consider changing the litigation strategy and try to apply for confirmation of the invalidity of the administrative act to make up for the loss of the right to substantive review due to the expiration of the time limit.

Conclusion

The time limit system for filing an administrative lawsuit is not an absolutely insurmountable legal obstacle.However,the solutions mentioned in this article are all remedial measures after missing the time limit and do not necessarily achieve successful relief.Specific cases of course need specific analysis.By accurately understanding legal norms,making good use of procedural relief mechanisms,and constructing a complete evidence system,lawyers can strive for substantial relief opportunities for the parties.In judicial practice,the courts'determination of"justifiable reasons"shows a trend of expansive interpretation,which provides lawyers with more room for play.Ultimately,to realize the ideal picture of"no loopholes in rights relief"in the field of administrative law requires the lawyer community to continuously promote the improvement and development of the system in individual cases.