Regulations Governing Reconsideration of Administrative Measures Ⅰ

Chapter I General Provisions

Article 1. These Regulations are enacted pursuant to the constitution and pertinent laws, with a view to safeguarding and supervising administrative bodies in exercising their functions and powers according to the law; preventing and correcting any malfeasant or improper specific administrative acts; and protecting the lawful rights and interests of citizens, legal persons and other organizations.

Article 2. Where citizens, legal persons or other organizations hold that a specific administrative act of an administrative body has infringed upon their lawful rights and interests, they may, in accordance with these Regulations, file an application to the competent administrative body for reconsideration.

Article 3. The administrative body for reconsideration shall exercise its functions and powers according to law and shall not be subject to any illegal interference from other bodies, public organizations and individuals.

Article 4. The "administrative bodies for reconsideration" , as mentioned in these Regulations, refers to those administrative bodies which accept applications for reconsiderations and shall, according to law, conduct reviews over the specific administrative acts and make a decision.

The "reconsideration office" , as mentioned in these Regulations, refers to the offices which are set up within the administrative bodies for reconsideration and are responsible for affairs relating to the reconsideration.

Article 5. Except as otherwise stipulated by laws and administrative rules and regulations, the administrative reconsideration shall apply a single-level system of reconsideration.

Article 6. The administrative reconsideration shall follow the principle of being lawful, timely, accurate and convenient for the people.

Article 7. The administrative body for reconsideration shall, according to the law, conduct a review over the legality and appropriateness of a specific administrative act.

Article 8. The administrative body for reconsideration shall not apply conciliation in handling reconsideration cases.

Chapter II. The Scope of Application for Reconsideration

Article 9. Citizens, legal persons and other organizations may file an application to the administrative bodies for reconsideration if they refuse to accept any of the following specific administrative acts:

（1） an administrative sanction, such as detention, fine, rescission of a permit or a licence, order to suspend production or business operations or confiscation of property and article, which one refuses to accept;

（2） a compulsory administrative measure, such as restriction of personal freedom or the sealing up, distraint or freezing of property, which one refuses to accept;

（3） infringement upon one's managerial decision making power as stipulated by laws and regulations, which is held to have been perpetrated by an administrative body;

（4） refusal by an administrative body to issue a permit or licence, which one holds oneself legally qualified to apply for, or its failure to respond to the application;

（5） refusal by an administrative body to perform its statutory functions and duties of protecting one's personal rights and property rights, as one has applied for, or its failure to respond to the application;

（6） cases where an administrative body is held to have failed to pay the pensions for the disabled or for the family of the deceased according to law;

（7） cases where an administrative body is held to have illegally demanded the performance of duties;

（8） cases where an administrative body is held to have infringed upon other personal rights and property rights;

（9） other specific administrative acts against which, according to laws and regulations, an administrative lawsuit or an application for reconsideration may be instituted.

Article 10. Citizens, legal persons or other organizations shall not file an application for reconsideration in accordance with these Regulations if they are not satisfied with any one of the following matters:

（1） administrative regulations, rules, or decisions and orders with a general binding force;

（2） decisions on awards or punishments or on the appointment of or removal from a position with respect to personnel working in administrative bodies;

（3） arbitration or conciliation or disposition of civil disputes, with the exception however, of the decision of an administrative bodies dealing with ownership over or the right to use land, mineral, forest and other resources;

（4） acts of the state in areas such as national defense and foreign affairs.

Chapter III. Jurisdiction for Reconsideration

Article 11. If a specific administrative act has been undertaken by the working department of a local people's government at or above the county level and an application is filed for reconsideration, the case shall be under the jurisdiction of the people's government at the same level or the competent department at a higher level.

Where laws or regulations require that it be placed under the jurisdiction of the people's government at the same level, those laws or regulations shall be followed;

where laws require that it be placed under the jurisdiction of the competent department at a higher level, those laws shall be followed.

If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by any of the departments under the State Council, the case shall be under the jurisdiction of the department which has undertaken the said specific administrative act.

Article 12. If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by any of the local people's governments at various levels, the case shall be under the jurisdiction of the people's government at a higher level.

If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by the people's government of a province, an autonomous region or a municipality directly under the central government, the case shall be under the jurisdiction of the people's government which has undertaken the aforesaid specific administrative act.

Article 13. If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken jointly by two or more administrative bodies, the case shall be under the jurisdiction of an administrative body at the next higher level over the aforesaid two or more administrative bodies.

Article 14. If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an agency of a local people's government at or above the county level, the case shall be under the jurisdiction of the local people's government which has established the agency.

If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an agency which is established by a working department of the people's government in its own name according to the provisions of the laws, regulations and rules, the case shall be under the jurisdiction of the department that established the said agency.

Article 15. If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an organization authorized by the laws, regulations and rules, the case shall be under the jurisdiction of the competent administrative body immediately over the said organization.

In cases that an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an entrusted organization, the case shall be under the jurisdiction of an administrative body at the next higher level over the commissioning administrative body.

Article 16. If an application for reconsideration is filed by a person who does not accept a specific administrative act which, according to the provisions of the laws, is subject to the approval of an administrative body at a higher level, the case shall be under the jurisdiction of the administrative body that makes the final decision unless otherwise provided for by the laws and regulations.

Article 17. If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an administrative body prior to its abolition, the case shall be under the jurisdiction of the administrative body at the next higher level over the administrative body which has succeeded to the functions and powers of the abolished administrative body.

Article 18. Where an administrative body for reconsideration finds that a case it has accepted is not under its jurisdiction, it shall transfer the case to an administrative body that has jurisdiction over the case. The administrative body, to which the aforesaid case has been transferred, shall not transfer the case again on its own initiative.

Article 19. Where a dispute arises between administrative bodies over jurisdiction for reconsideration, the dispute shall be resolved by the parties to the dispute through consultation. If consultation fails, the administrative body immediately over the two parties shall designate jurisdiction.

Article 20. Where a person applies for reconsideration to two or more administrative bodies that have jurisdiction, the case shall be under the jurisdiction of the administrative body that has first received the application for reconsideration.

Article 21. Where citizens, legal persons and other organizations make a complaint to the correspondence and reception department within the time limit stipulated by law for filing an application for reconsideration, the correspondence and reception department shall notify the complainant in a timely manner to file an application for reconsideration to the administrative body that has jurisdiction for reconsideration.

Article 22. Other cases involving jurisdiction for reconsideration shall be handled according to the provisions of the laws, regulations and rules.

Chapter IV. The Reconsideration Office

Article 23. The administrative body for reconsideration shall, in light of its work needs, establish the reconsideration office, or appoint full-time personnel that handle reconsideration cases, for the body itself.

Article 24. Reconsideration offices of various local people's governments at or above the county level shall be established within the government's office of legislative affairs, or the government's office of legislative affairs will work in the name of the reconsideration office.

Article 25. The reconsideration office, or the full-time personnel that handle reconsideration cases, shall work under the leadership of the administrative body for reconsideration and carry out the following functions and duties:

（1） to review whether reconsideration applications are in conformity with the statutory requirements;

（2） to conduct investigations among, and collect evidence from, both parties to a dispute and relevant units and personnel and to consult relevant documents and materials:

（3） to organize the handling of reconsideration cases;

（4） to draft reconsideration decisions;

（5） to respond to litigation in court, as entrusted by the legal representative of the administrative body for reconsideration;

（6） to carry out other functions and duties stipulated by the laws and regulations.

Chapter V. Participants in Reconsideration

Article 26. Citizens, legal persons or other organizations that file an application for reconsideration pursuant to these regulations are applicants.

Where a citizen who has the right to apply for reconsideration is deceased, his/her nearest relatives may apply for reconsideration; where a citizen who has the right to apply for reconsideration is incompetent or has limited capacities, his/her legal representative may apply for reconsideration on his/her behalf.

Where a legal person or any other organization that has the right to apply for reconsideration becomes terminated, the legal person or any other organization that succeeds to its rights may apply for reconsideration.

Article 27. Where any other citizen, legal person or organization has an interest in a specific administrative act, for the reconsideration of which an application has already been filed, he/she or it may, with the approval of the administrative body for reconsideration, file a request for participation in the reconsideration as a third party.

Article 28. Where a citizen, legal person or organization applies for reconsideration against a specific administrative act undertaken by an administrative body, the said administrative body is the defending party of the application.

Where two or more administrative bodies have undertaken a specific administrative act in their combined name, the administrative bodies which have jointly undertaken the specific administrative act are the joint defending parties of an application.

Where a specific administrative act is undertaken by an organization authorized by the laws, regulations and rules, the said organization is the defending party of an application.

Where a specific administrative act is undertaken by an organization entrusted by an administrative body, the said commissioning administrative body is the defending party of an application.

Where a specific administrative act has been undertaken by an body which has already been abolished, the administrative body that continues to exercise the abolished body 's functions and powers is the defending party of an application.

Chapter VI. Application and Acceptance

Article 29. Where a citizen, a legal person or any other organization files an application for reconsideration with the administrative body that has jurisdiction over the case, he/she or it shall do so within 15 days from the day when he/she or it becomes aware of the specific administrative act, except as otherwise stipulated by the laws and regulations.

Where a citizen, a legal person or any other organization fails to observe the time limit prescribed by law due to force majeure or other special circumstances, he/she or it may, within 10 days after the obstacle is removed, apply for an extension of the time limit: the administrative body that has jurisdiction shall decide whether to approve the aforesaid application or not.

Article 30. Where a citizen, a legal person or any other organization brings a suit before the people's court and the people's court has accepted the case, then he/she or it may not apply for reconsideration.

Where a citizen, a legal person or any other organization applies for reconsideration to an administrative body and the administrative body for reconsideration has accepted the application, then the applicant may not bring a suit before the people's court within the statutory time limit for conducting reconsideration.

Article 31. The following requirements shall be met when an application is made for reconsideration:

（1） the applicant shall be a citizen, a legal person, or any other organization that holds that a specific administrative act has directly infringed upon his/her or its lawful rights and interests;

（2） there must be a specific defending party or parties of an applications;

（3） there must be a specific claim for reconsideration and a corresponding factual basis;

（4） the case must fall within the scope for application for reconsideration;

（5） the case must fall under the jurisdiction of the administrative body that accepts the said case; and

（6） other requirements stipulated by the laws and regulations.

Article 32. An applicant, while applying to an administrative body for reconsideration, shall submit a written application for reconsideration.

Article 33. The written application shall contain the following contents:

（1） the name, sex, age, occupation and address of the applicant （the name and address of the legal person or any other organization and the name of its legal representative）;

（2） the name and address of the defending party of the application for reconsideration;

（3） the claim and reasons for applying for reconsideration;

（4） the date of filing the application for reconsideration.

Article 34. The administrative body for reconsideration shall, within 10 days from the date of receiving the written application for reconsideration, handle the reconsideration applications respectively as follows:

（1） reconsideration applications that are in conformity with the provisions of these Regulations shall be accepted;

（2） applications for reconsideration that are not in conformity with one of the provisions in Article 31 of these Regulations shall not be accepted and the applicant shall be notified of the reasons for this decision;

（3） where a written reconsideration application fails to include one item of the contents as prescribed in the provisions of Article 33 of these Regulations, the written application shall be returned to the applicant and a time limit for making up the said contents shall be set. If the applicant fails to fulfil this, the above-mentioned application shall be considered to have not been made.

Article 35. Where a citizen, a legal person, or any other organization has filed an application for reconsideration according to the law, but the administrative body for reconsideration refuses, without any justification, to accept the application or fails to respond, the administrative body at the next higher level, or the administrative body prescribed by the laws and regulations, shall instruct the said administrative body for reconsideration to accept the said application or to respond.

Article 36. Except as otherwise provided by the laws and regulations, in circumstances where, in accordance with the provisions of pertinent laws and regulations, a person concerned shall first apply to an administrative body for reconsideration and then bring a suit before a people's court if the person concerned does not accept the reconsideration decision, if the applicant does not accept the decision made by the administrative body for reconsideration to reject the application, the applicant may, within 15 days from the date of receiving the written decision on rejection of the application, bring a suit before the people's court.

Chapter VII. Hearing and Decision

Article 37. Administrative reconsideration shall be conducted by applying the system of reconsideration by written documents; however, when the administrative body for reconsideration deems it necessary, other forms for hearing of reconsideration cases may be adopted.

Article 38. The administrative body for reconsideration shall, within 7 days from the day of filing the case, deliver a copy of the written application for reconsideration to the defending party of the said application. The defending party of the application shall, within 10 days from the day of receiving the copy of the written application for reconsideration, provide the administrative body for reconsideration with the relevant materials or evidence for undertaking the specific administrative act and submit a written defense. Failure by the defending party to submit a written defense within the time limit shall not stop the procedures of reconsideration.

Article 39. In the course of hearing a reconsideration case, execution of the specific administrative act shall not be suspended. However, under one of the following circumstances, the execution of the specific administrative act may be suspended:

（1） where suspension is deemed necessary by the defending party;

（2） where suspension is deemed necessary by the administrative body for reconsideration;

（3） where suspension of execution is requested by the applicant and the administrative body for reconsideration deems it reasonable and makes the decision on the suspension of the execution;

（4） where suspension is required by the provisions of the laws, regulations and rules.