Abstract The determination of the starting point of the time limit for administrative litigation is of great significance for protecting the litigant’s right to sue and maintaining social order. However, this issue has often been overlooked as a technical problem and has not received sufficient attention from theoretical circles. There are several possible starting points for the time limit for administrative litigation, such as the date of receipt of the reconsideration decision, the expiration date of the reconsideration period, the implementation date of knowing or should have known about the administrative act, the implementation date of administrative act, the date of knowing or should have known about the time limit for litigation, the date of knowing or should have known about the content of the administrative act. Through empirical research, it has been found that the starting point of “the date of knowing or should have known about the content of the administrative act” is widely used in judicial practice, appearing in 260 out of 535 collected judgment documents. However, judicial trial adopting “the date of knowing or should have known about the content of the administrative act” has resulted in many disputes between courts, between courts and litigants, and among litigants, with the most prominent dispute being the scope of the administrative act content that the litigant knows or should have known.In this paper, we propose to consider the functional positioning of the system of the time limit for litigation, which is to balance the stability of social order and the protection of citizens’ rights and interests. So taking the date of knowing or should have known about the content of the administrative act as the starting point aims at making the litigant aware that they can initiate administrative litigation. Therefore, the view of knowing the necessary content has more explanatory power. According to the general theory of litigation law and the relevant principles of administrative law, the elements of the necessary content should include the “subject of the administrative act” and the “possible damage to rights and interests”. Only when these two elements are satisfied, the litigant has the possibility to initiate administrative litigation.There are three major views on this issue knowing all the content, knowing the necessary content, and knowing the specific content. The view of knowing all the content holds that the time limit for administrative litigation can only start when the litigant knows all the content of the administrative act. The view of knowing the necessary content argues that the litigant only needs to know a necessary part of the administrative act to initiate administrative litigation. The view of knowing the specific content suggests that the litigant should refer to the specific and substantive content of the administrative act obtained through normal channels. However, these theories are less explanatory and persuasive, because they all fail to expound on the scope of “all content”, “necessary content” and “specific content”.
Zhai Yi,Liu Jie. Determination of Starting Point of Time Limit for Litigation: An Empirical Study of “Knowing or Should Have Known the Content of Administrative Act”[J]. JOURNAL OF ZHEJIANG UNIVERSITY, 2023, 53(9): 60-72.
2023, Vol. 53 
