Regulations Governing Reconsideration of Administrative Measures Ⅱ

Article 40. Prior to the making of a reconsideration decision, if the applicant withdraws the application for reconsideration, or the defending party of the application has changed the specific administrative act it has undertaken, and the applicant agrees and applies for the withdrawal of the application for reconsideration, the application may be withdrawn with the approval of the administrative body for reconsideration and after the reconsideration case is recorded on file.

Where an applicant has withdrawn his application for reconsideration, he may not apply for reconsideration again for the same facts and reasons.

Article 41. In handling reconsideration cases, the administrative body for reconsideration shall base itself on the laws, administrative rules and regulations, local regulations and rules as well as the decisions and orders with a general binding force formulated and promulgated by administrative bodies at higher levels according to the law.

In handling reconsideration cases of the nationality autonomous regions, the administrative body for reconsideration shall also base itself on the regulations on autonomy and separate regulations of the nationality autonomous regions.

Article 42. The administrative body for reconsideration shall, after the hearing, respectively make the following reconsideration decisions:

（1） if the application of the laws, regulations and rules as well as the decisions and orders with a general binding force to the specific administrative act is correct, the facts are clearly ascertained and the statutory limits of authority and procedures are complied with, the specific administrative act shall be sustained by decision;

（2） if there are some inadequacies in the specific administrative act in terms of procedure, a decision shall be made for the defending party of an application for reconsideration to make them up and improve them;

（3） if the defending party of an application for reconsideration fails to perform its duty as prescribed by laws, regulations and rules, a fixed time shall be set for the defending party to perform the duty;

（4） if a specific administrative act has been undertaken in one of the following circumstances, the act shall be annulled or changed, or the defending party may be required by decision to undertake a specific administrative act anew:

（a） ambiguity of the main facts;

（b） erroneous application of the laws, regulations and rules and of decisions and orders with a general binding force;

（c） violation of legal procedures that affects unfavorably the lawful rights and interests of the applicant;

（d） excess of authority or abuse of powers;

（e） obvious inappropriateness of the specific administrative act.

Article 43. Where, in the course of reviewing a specific administrative act, an administrative body for reconsideration finds that the rules, or decisions and orders with a general binding force, which serve as the basis for a specific administrative act, are in conflict with the laws and regulations or other rules, decisions or orders with a general binding force, the competent administrative body for reconsideration shall, within its scope of functions and powers, decide on their nullification or change according to law.

Where the administrative body for reconsideration deems that the rules or decisions and orders with a general binding force, which serve as the basis for a specific administrative act, are in conflict with the laws and regulations, or other rules, decisions and orders with a general binding force, but the administrative body for reconsideration has no power to handle the case, then it shall be reported to the administrative body at a higher level.

The administrative body at a higher level that has the power to handle the case, shall handle it according to the law; if the administrative body at a higher level does not have the power to handle the case, it shall be submitted to an body that has the power to handle it. In the course of handling the case, the administrative body for reconsideration shall cease its hearing of the said case.

Article 44. Where a specific administrative act, undertaken by the defending party of an application for reconsideration, infringes upon the lawful rights and interests of the applicant and causes damage and the applicant claims compensation, the administrative body for reconsideration may instruct the defending party of an application for reconsideration to make compensation in accordance with the provisions of the pertinent laws and regulations.

After making the compensation, the defending party shall instruct working personnel of the administrative body, who have committed intentional or gross mistakes in the case, to bear part or all of the damages.

Article 45. While making its reconsideration decision, the administrative body for reconsideration shall prepare a written reconsideration decision.

The written reconsideration decision shall indicate the following items:

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

（2） the name and address of the defending party of an application, the name and position of its legal representative;

（3） the main claims and reasons for the application for reconsideration:

（4） the facts and reasons, as established by the administrative body for reconsideration; and the laws, regulations and rules as well as the decisions and orders with general binding force applied;

（5） the conclusion of the reconsideration;

（6） the time limit for bringing a suit before the people's court if the applicant does not accept the reconsideration decision; or the time limit for the parties to execute the final decision on the reconsideration case;

（7） the date （year, month, day） on which the reconsideration decision is made.
The written decision on the reconsideration case shall be signed by the legal representative of the administrative body for reconsideration, with the official seal of the administrative body for reconsideration affixed to it.

Article 46. The administrative body for reconsideration shall, within two months after the day of receiving the reconsideration application, make its reconsideration decision, except as otherwise provided for in the laws and regulations.

Once the written reconsideration decision is served on the parties concerned, it shall become legally effective.

Article 47. With the exception that the reconsideration is final as provided for by law, an applicant who does not accept a reconsideration decision may, within 15 days from the day of receiving the written decision, or within other time limits as prescribed by laws and regulations, bring a suit before the people's court.

Where an applicant neither initiates a suit nor implements the reconsideration decision within the time limit, the case shall be dealt with according to different conditions:

（1） With respect to a reconsideration decision sustaining the original specific administrative act, the administrative body, which has originally undertaken the specific administrative act, shall apply to the people's court for compulsory execution, or proceed with compulsory execution according to the law;

（2） with respect to a reconsideration decision changing the original specific administrative act, the administrative body for reconsideration shall apply to the people's court for compulsory execution, or proceed with compulsory execution according to the law.

Chapter VIII. Time Periods and Service

Article 48. Time periods shall be counted by the hour, day and month. The hour and the day from which a time period begins shall not be counted as within the time period.

If the expiration date of a time period falls on a holiday, then the day immediately following the holiday shall be regarded as the expiration date.

A time period shall not include traveling time.

Article 49. The service of a written reconsideration decision must be certified by a certificate of service, on which the date of receipt shall be indicated by the recipient of the service and his signature or seal shall be affixed.

The date of receipt indicated on the certificate of service by the recipient, shall be the date of service .

With respect to service by mail, the date indicated on the receipt of registered mail shall be the date of service.

Article 50. When a written reconsideration decision is served by the administrative body for reconsideration, it shall be delivered directly to the recipient of the service;

if the recipient is absent, it shall be delivered to an adult family member living with him/her, or to the unit to which he/she belongs, for a signed receipt;

if the person has designated an agent to receive it for him, then the written decision shall be delivered to the agent for a signed receipt ;

if the person is a legal person or other organization, the written decision shall be delivered to its reception office for a signed receipt.

If the recipient of the service refuses to receive the written reconsideration decision, the person serving the decision shall invite persons concerned to be present at the scene, explain the situation to them, record in the certificate of service the reasons for and the date of the refusal and the certificate of service shall be signed or sealed by the person serving the decision and the witnesses; then the written decision shall be left at the residence or at the reception office and the service shall be deemed as completed.

Article 51. The administrative body for reconsideration may entrust other administrative bodies with the service of a reconsideration decision or serving the service by mail.

Chapter IX. Legal Responsibility

Article 52. If the defending party of an application for reconsideration refuses to implement a reconsideration decision, the administrative body for reconsideration may directly impose administrative sanctions on the legal representative of the defending party, or suggest the department concerned do so.

Article 53. If the personnel handling reconsideration cases have neglected their duties or bent the law for their own benefit, the administrative body for reconsideration, or other competent departments concerned, shall criticize and admonish them, or impose administrative sanctions on them; if the case is serious enough to constitute a crime, criminal responsibilities shall be investigated according to the law.