DAI Shihua

v. The Public Security Fire Protection Brigade of Jinan Municipality,

A Dispute over an Inspection for Acceptance of Fire Protection

Guiding Case No. 59

(Discussed and Passed by the Adjudication Committee of the Supreme People’s Court Released on May 20, 2016)

CHINA GUIDING CASES PROJECT

English Guiding Case (EGC59) September 14, 2018 Edition∗

∗ The citation of this translation of this Guiding Case is: 《戴世华诉济南市公安消防支队消防验收纠纷案》 (DAI Shihua v. The Public Security Fire Protection Brigade of Jinan Municipality, A Dispute over an Inspection for Acceptance of Fire Protection), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC59), Sept. 14, 2018 Edition, http://cgc.law.stanford.edu/guiding-cases/guiding-case-59. The original, Chinese version of this case is available at 《 中 国 法 院 网 》 (WWW.CHINACOURT.ORG), http://www.chinacourt.org/article/detail/2016/06/id/1893356.shtml. See also 《最高人民法院关于发布第 12 批指导

性案例的通知》 (Notice of the Supreme People’s Court on the Release of the 12th Batch of Guiding Cases), issued on and effective as of May 30, 2016, http://www.court.gov.cn/fabu-xiangqing-21731.html.

This document was primarily prepared by Sean Webb and Dr. Mei Gechlik; it was finalized by Dimitri Phillips and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers; all footnotes, unless otherwise noted, have been added by the China Guiding Cases Project. The following text is otherwise a direct translation of the original text released by the Supreme People’s Court.

Keywords

Administrative Litigation Scope of Case Acceptance

Administrative Confirmation Inspection for Acceptance of Fire Protection

Notice on the Results of Recordation

Main Points of the Adjudication

A notice on the results of recordation of an inspection of a construction project for acceptance of fire protection contains an assessment of whether the inspection for acceptance of fire protection is passed upon the completion of the project, and [thus] has the nature of an administrative confirmation. Where a party initiates administrative litigation against a fire protection institution of a public security organ [regarding its] act of [issuing] the notice on the results of recordation of an inspection for acceptance of fire protection, a people’s court should accept [the case] in accordance with law.

Related Legal Rule(s)

Article 4 and Article 13 of the Fire Protection Law of the People’s Republic of China1

Basic Facts of the Case

Plaintiff DAI Shihua claimed: the unit in which the plaintiff lived [applied the design of] “one stairwell, four households” and Unit 801, where the plaintiff lived, was located in the east, facing west with the entry door opening outward. There was a fire hydrant measuring 1.6 meters tall, 0.7 meters wide, and 0.25 meters thick hung on the wall to the south of the plaintiff’s entrance door, at a distance of 0.35 meters from the door. To enter [Unit 801], a person had to [first] step back and wait for the door to open [to a certain angle], and only then moved forward and walked into the unit. It was only possible to exit the unit when the door was opened to an angle of 60 to 70 degrees. The installation and construction of the fire hydrant had affected the plaintiff’s life. [The plaintiff] requested [that the court] revoke, in accordance with law, the decision made by the defendant, the Public Security Fire Protection Brigade of Jinan Municipality, approving that the fire hydrant installed in front of his door had passed the inspection for acceptance [of fire protection]. [The plaintiff also requested that the court] order, in accordance with law, the defendant to instruct the approved entity to rectify, within a time limit, [the mistake] according to national standards.

1 《中华人民共和国消防法》 (Fire Protection Law of the People’s Republic of China), passed and issued on Apr. 29, 1998, effective as of Sept. 1, 1998, revised on Oct. 28, 2008, effective as of May 1, 2009, http://www.gov.cn/flfg/2008-10/29/content_1134208.htm.

The Public Security Fire Protection Brigade of Jinan Municipality, the defendant, defended

its decision, claiming: a notice on the result of recordation on an inspection of a construction project for acceptance of fire protection is [made] upon the completion of the project, in accordance with assessment standards [used] for inspecting construction projects for acceptance of fire protection. [The notice] is a manifestation of the inspection records.

If the recordation result [shows that the inspection] is passed, this indicates that the construction project is in compliance with the relevant fire protection technical specifications. If [the inspection] is not passed, the fire protection institution of a public security organ will adopt measures in accordance with law to require the construction unit to rectify the relevant problems. [The notice itself] has the nature of a technical inspection for acceptance [of fire protection], rather than being a specific administrative act that is independent and complete. [Thus,] it cannot be litigated and does not fall within the scope of cases accepted by a people’s court for administrative litigation. [The defendant] requested that [the court] reject the lawsuit brought by the plaintiff.

The court handled the case and ascertained: 2 after spot checking the fire protection facilities of building Nos. 1–8, in which DAI Shihua lived, and of the underground garage project of the shanty town reconstruction project to the south of Guan Yi Street, the Public Security Fire Protection Brigade of Jinan Municipality issued, on November 21, 2011, the Ji Gong Xiao Yan Bei [2011] No. 0172 Notice on the Result of Recordation on the Inspection of a Construction Project for Acceptance of Fire Protection.

Results of the Adjudication

On November 13, 2012, the People’s Court of the Jinan High and New Technology Industrial Development Zone rendered the (2012) Gao Xing Chu Zi No. 2 Administrative Ruling, rejecting plaintiff DAI Shihua’s suit. Unconvinced by the first-instance ruling, DAI Shihua appealed. After handling [the case], on January 17, 2013, the Intermediate People’s Court of Jinan Municipality rendered the (2012) Ji Xing Zhong Zi No. 223 Administrative Ruling:

(1) [the court] revokes the (2012) Gao Xing Chu Zi No. 2 Administrative Ruling rendered by the People’s Court of the Jinan High and New Technology Industrial Development Zone;

(2) [the court orders that] the People’s Court of the Jinan High and New Technology Industrial Development Zone shall continue to adjudicate this case.

2 The original text does not specify which court is referred to here. It is likely meant to be the first-instance court of this case, namely, the People’s Court of the Jinan High and New Technology Industrial Development Zone.

Reasons for the Adjudication

In the effective judgment, the court opined:3 on [the issue of] the nature of the act.

Article 4 of the Fire Protection Law of the People’s Republic of China (hereinafter referred to as the “Fire Protection Law”) provides:

The public security organ of a local people’s government at or above the county level shall implement the supervision and administration of the fire protection work within its administrative area. [Detailed measures] shall be taken by the fire protection institution of the public security organ of the people’s government at the same level.

Article 3 Paragraph 2 of the Provisions of the Ministry of Public Security on the Supervision and Administration of Construction Projects for Fire Protection4 provides:

The fire protection institution of a public security organ shall, in accordance with law, conduct the fire protection design review, inspection for acceptance of fire protection, and [related] recordation and spot checking of construction projects to oversee the fire protection of construction projects.

Article 24 provides:

For construction projects other than those provided for in Articles 13 and 14 of these Provisions, the construction unit should, within seven days of obtaining the construction permit or passing the inspection for acceptance [of fire protection] upon completion of the project, carry out the recordation [formalities] for fire protection design or inspection for acceptance [of fire protection] upon completion of the project, either through the website of the fire protection institution of a public security organ at the provincial level or at a business acceptance site of the fire protection institution of a public security organ.

The above-mentioned provisions show that the recordation of the inspection of a construction project for acceptance of fire protection refers to a specific construction project administrator’s reporting to the fire protection institution of a public security organ on the status of the inspection for acceptance [of fire protection] upon the completion of the construction project, and [then] the fire protection institution registers the recordation to allow itself to make [future] investigation and supervision. The act of recordation is an act of the fire protection institution of a public security organ to exercise fire protection supervision and administration over construction projects. [Thus,]

3 The original text does not specify which court opined. Given the context, this should be the Intermediate People’s Court of Jinan Municipality. 4 《公安部建设工程消防监督管理规定》 (Provisions of the Ministry of Public Security on the Supervision and Administration of Construction Projects for Fire Protection), passed and issued by the Ministry of Public Security on Apr. 30, 2009, effective as of May. 1, 2009, amended on Jul. 6, 2012, effective as of Nov. 1, 2012, http://www.gov.cn/gongbao/content/2012/content_2256573.htm.

the act of recordation regarding the fire protection of a construction project and [the act of] spot checking carried out by the fire protection institution have the nature of exercising administrative authority, reflecting the national will, legality, public welfare, and the fact that they are specific and compulsory. The notice on the results of recordation is a component of the act of recordation, and is the concrete form in which the results of the act of recordation are expressed, and [as such] it carries the specific nature of administrative authority described above, and should be brought within the scope of judicial review.

On [the issue of] the consequence of the act.

Article 13 of the Fire Protection Law provides:

Upon the completion of a construction project that, according to national fire protection technical standards for project construction, needs a fire protection design, an inspection for acceptance of fire protection and recordation shall be carried out in accordance with the following provisions:

[…]

(2) For [any] other construction project, the construction unit should, after an inspection for acceptance [of fire protection], report it to the fire protection institution of a public security organ for recordation, and the fire protection institution of the public security organ should conduct a spot check. A construction project that should, in accordance with law, carry out an inspection for acceptance of fire protection but does not have an inspection for acceptance of fire protection or does not pass such an inspection is not allowed to be used. [Any] other construction project that undergoes spot checking in accordance with law but does not pass [the inspection] should stop being used.

Article 25 of the Regulation of the Ministry of Public Security on the Supervision and Administration of Construction Projects for Fire Protection provides:

The fire protection institution of a public security organ should randomly select targets for inspection from those construction projects for which a fire protection design has been recorded or which has undergone an inspection for acceptance [of fire protection] upon completion of the project. [The institution] should announce its selections to the public.

For [a project] that has been confirmed to be an inspection target, the fire protection institution of a public security organ should, within 20 days [of the project’s being selected for inspection], either complete a blueprint inspection in accordance with the regulations on fire protection and the national fire protection technical standards for project construction, or complete a project inspection in accordance with assessment standards [used] for inspecting construction projects for acceptance of fire protection and produce inspection records.

The inspection results should be announced to the public and, in the event of a failure to pass the inspection, [the fire protection institution of a public security organ] should notify the construction unit in writing. After receipt of the notice, the construction unit should halt construction or cease the use [of the site], and should organize rectification and then apply to the fire protection institution of a public security organ for reevaluation. The fire protection institution of a public security organ should, within 20 days of the receipt of the written application, conduct a reevaluation and issue a written reevaluation opinion.

The aforementioned provisions illustrate that during the act of recordation of the inspection for acceptance [of fire protection] upon completion of a construction project, the fire protection institution of a public security organ does not simply accept the relevant information provided to it by the construction unit, but rather it has to inspect the recordation information and complete the project inspection. The acts of recordation on the fire protection of a construction project and spot checking carried out by the fire protection institution carry binding force in administrative law.

From the perspective of a construction unit, it should, after the inspection for acceptance [of fire protection] upon completion of [its] construction project, report to the fire protection institution of a public security organ for recordation of the inspection, or it should bear the corresponding administrative liability. If [the construction unit’s] fire protection facilities do not pass a spot check implemented according to law, it must cease the use [of the site] and organize rectifications.

From the perspective of the fire protection institution of a public security organ, the result of the recordation contains an assessment of whether or not the spot check was passed. [The spot check] is in fact an act of administrative confirmation, i.e., an administrative act of the fire protection institution of a public security organ to determine and confirm the administrative counterparty’s5 legal facts and legal relationships. Once the fire protection facilities are assessed by the fire protection institution as passing [the spot check], the fire protection institution is seen as actually confirming that the quality of fire protection facilities meets the standards, and the administrative counterparty will then be bound by this act.

Accordingly, the court opined that the issuance of the notice on the results of recordation of the inspection of a construction project for acceptance of fire protection is the final link in the process of the supervision and administration of the quality of construction project’s fire protection facilities. The result of the recordation contains an assessment of whether the inspection of a [construction] project upon its completion for acceptance of fire protection was passed. [Thus, the notice] has the nature of an administrative confirmation. It is a specific administrative act carried out by the fire protection institution of a public security organ. The completion of the recordation procedures produces the binding force in administrative law. Thus, the act of recordation is an administrative act that can be litigated and on which a people’s court 5 In China’s administrative law, the term “administrative counterparty” (“行政相对人 ”) refers to any individual or organization whose rights and interests are affected by an administrative act. See, e.g., 方世荣 (FANG Shirong), 《论行政相对人》 (ON ADMINISTRATIVE COUNTERPARTIES), (中国政法大学出版社 2000 年版) (China University of Law and Political Science Press, 2000).

can carry out judicial review. In its ruling, the first-instance [court] opined that the notice on the results of recordation of the inspection of a construction project for acceptance of fire protection is a type of notice of technical acceptance, but not a specific administrative act; and on this basis, appellant DAI Shihua’s suit was rejected. This was improper.

(Adjudication personnel of the effective judgment: ZHANG Jifeng, SUN Jifa, and SHAN Lei)