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| Category | MISCELLANEOUS ADMINISTRATION AFFAIRS | Organ of Promulgation | The State Council | Status of Effect | Invalidation |
| Date of Promulgation | 1994-10-09 | Effective Date | 1994-10-09 | Date of Invalidation | 1999-10-01 |
|
Decision of the State Council Revising the "Regulations on Administrative Reconsideration" (Attached With the First Revision of the Regulations on Administrative Reconsideration) |
|---|
The State Council has decided to make the following revisions of the
"Regulations on Administrative Reconsideration":
1. Item (3) of Article 10 is revised to "arbitration or conciliation or
disposition of civil disputes, except decisions made by administrative
organs concerning the disposition of entitlement to the ownership or the
right to use of the resources such as land, mineral and forests;"
2. Article 11 is revised to "In case that 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. In case any law or
regulations provide that the case shall be under the jurisdiction of the
people's government at the same level, the provisions of that law or
regulations shall be applied; in case any law provides that the case shall be
under the jurisdiction of the competent department at a higher level, the
provisions of that law shall be applied.
In case that an application for reconsideration is filed against 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."
This Decision shall go into effect as of the date of promulgation.
"Regulations on Administrative Reconsideration" shall be revised Article 1 These Regulations are enacted pursuant to the Constitution and Article 2 Where citizens, legal persons, or other organizations hold that Article 3 The administrative organ for reconsideration shall exercise its Article 4 The "administrative organs for reconsideration", as mentioned The "reconsideration office", as mentioned in these Regulations, refers to Article 5 Except as otherwise stipulated by the laws and administrative Article 6 The administrative reconsideration shall follow the principle of Article 7 The administrative organ for reconsideration shall, according Article 8 The administrative organ for reconsideration shall not apply Article 9 Citizens, legal persons, and other organizations may file an (1) an administrative sanction, such as detention, fine, rescission of a (2) a compulsory administrative measure, such as restriction of personal (3) infringement upon one's managerial decision-making power as stipulated (4) refusal by an administrative organ to issue a permit or licence, which (5) refusal by an administrative organ to perform its statutory functions (6) cases where an administrative organ is held to have failed to pay the (7) cases where an administrative organ is held to have illegally demanded (8) cases where an administrative organ is held to have infringed upon (9) other specific administrative acts against which, according to the Article 10 Citizens, legal persons, or other organizations shall not file (1) administrative regulations, rules, or decisions and orders with a (2) decisions on awards or punishments or on the appointment of or removal (3) arbitration or conciliation or disposition of civil disputes, except (4) acts of the State in areas such as national defence and foreign Article 11 In case that a specific administrative act has been undertaken In case that an application for reconsideration is filed against a Article 12 In case that an application for reconsideration is filed by a In case that an application for reconsideration is filed by a person who Article 13 In case that an application for reconsideration is filed by a Article 14 In case that an application for reconsideration is filed by a In case that an application for reconsideration is filed by a person who Article 15 In case that an application for reconsideration is filed by a In cases that an application for reconsideration is filed by a person who Article 16 In case that an application for reconsideration is filed by a Article 17 In case that an application for reconsideration is filed by a Article 18 Where an administrative organ for reconsideration finds that a Article 19 Where a dispute arises between administrative organs over Article 20 Where a person applies for reconsideration to two or more Article 21 Where citizens, legal persons, and other organizations make a Article 22 Other cases involving jurisdiction for reconsideration shall Article 23 The administrative organ for reconsideration shall, in light Article 24 Reconsideration offices of various local people's governments Article 25 The reconsideration office, or the full-time personnel that (1) to review whether reconsideration applicatins are in conformity with (2) to conduct investigations among, and collect evidence from both (3) to organize the handling of reconsideration cases; (4) to draft reconsideration decisions; (5) to respond to prosecution in court, as entrusted by the legal (6) to carry out other functions and duties stipulated by the laws and Article 26 Citizens, legal persons, or other organizations that file an Where a citizen who has the right to apply for reconsideration is Where a legal person, or any other organization, that has the right to Article 27 Where any other citizen, legal person, or organization has an Article 28 Where a citizen, legal person, or organization applies for Where two or more administrative organs have undertaken a Where a specific administrative act is undertaken by an organization Where a specific administrative act has been undertaken by an organ which Article 29 Where a citizen, a legal persons or any other organization Where a citizen, a legal person or any other organization fails to observe Article 30 Where a citizen, a legal person or any other organization Where a citizen, a legal person or any other organization applies for Article 31 The following requirements shall be met when an application is (1) The applicant shall be a citizen, a legal person, or any other (2) There must be a specific defending party or parties of an application; (3) There must be a specific claim for reconsideration and a corresponding (4) The case must fall within the scope for application for (5) The case must fall under the jurisdiction of the administrative organ (6) Other requirements stipulated by the laws and regulations. Article 32 An applicant, while applying to an administrative organ for Article 33 The written application shall contain the following contents: (1) The name, sex, age, occupation, and address of the applicant (the name (2) The name and address of the defending party of the application for (3) The claim and reasons for applying for reconsideration; (4) The date of filing the application for reconsideration. Article 34 The administrative organ for reconsideration shall, within 10 (1) Reconsideration applications that are in conformity with the (2) Reconsideration applications that are not in conformity with one of (3) Where a written reconsideration application fails to include one item Article 35 Where a citizen, a legal person, or any other organization has Article 36 Except as otherwise provided by the laws and regulations, in Article 37 Administrative reconsideration shall be conducted by applying Article 38 The administrative organ for reconsideration shall, within 7 Article 39 In the course of hearing a reconsideration case, execution of (1) Where suspension is deemed necessary by the defending party; (2) Where suspension is deemed necessary by the administrative organ for (3) Where suspension of execution is requested by the applicant and the (4) Where suspension is required by the provisions of the laws, Article 40 Prior to the making of a reconsideration decision, if the Where an applicant has withdrawn his application for reconsideration, he Article 41 In handling reconsideration cases, the administrative organ In handling reconsideration cases of the nationality autonomous regions, Article 42 The administrative organ for reconsideration shall, after the (1) if the application of the laws, regulations and rules as well as the (2) if there are some inadequacies in the specific administrative act in (3) if the defending party of an application for reconsideration fails to (4) if a specific administrative act has been undertaken in one of the (a) ambiguity of the main facts; (b) erroneous application of the laws, regulations and rules and of (c) violation of legal procedures, that affects unfavorably the lawful (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 Where the administrative organ for reconsideration deems that the rules or Article 44 Where a specific administrative act, undertaken by the After making the compensation, the defending party shall instruct those Article 45 While making its reconsideration decision, the administrative (1) The name, sex, age, occupation, and address of the applicant (the name (2) The name and address of the defending party of an application, the (3) The main claims and reasons for the application for reconsideration; (4) The facts and reasons, as established by the administrative organ for and the laws, regulations and rules as well as the decisions and orders (5) The conclusion of the reconsideration; (6) The time limit for bringing a suit before the people's court if the (7) The date (year, month, day) on which the reconsideration decision is The written decision on the reconsideration case shall be signed by the Article 46 The administrative organ for reconsideration shall, within two Once the written reconsideration decision is served on the parties Article 47 With the exception that the reconsideration is final as Where an applicant neither initiates a suit before the people's court, nor (1) With respect to a reconsideration decision sustaining the original (2) With respect to a reconsideration decision changing the original Article 48 Time periods shall be counted by the hour, the day, and the If the expiration date of a time period falls on a holiday, then the day A time period shall not include travelling time. Article 49 The service of a written reconsideration decision must be The date of receipt indicated on the certificafe of service by the With respect to service by mail, the date indicated in the receipt of Article 50 When a written reconsideration decision is served by the In case that the recipient of service refuses to receive the written Article 51 The administrative organ for reconsideration may entrust other Article 52 In case that the defending party of an application for Article 53 In case that the personnel handling reconsideration cases have Article 54 In case that participants in a reconsideration case, or other Article 55 These Regulations shall apply to the resorting to Article 56 The Bureau of Legislative Affairs of the State Council shall Article 57 These Regulations shall become effective as of January 1,
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accordingly in accordance with this Decision, and re-promulgated.
REGULATIONS ON ADMINISTRATIVE RECONSIDERATION
(Promulgated by the State Council on December 24, 1990, amended and
promulgated according to the Decision of the State Council Revising the
Regulations on Administrative Reconsideration on October 9, 1994) (Editor's
Note: This Decision has been annulled by Administrative Reconsideration Law
of the People's Republic of China promulgated on April 29, 1999, and
effective on October 1, 1999)
Chapter I General Provisions
the pertinent laws, with a view to safeguarding and supervising administrative
organs in exercising their functions and powers, preventing and correcting any
malfeasant or improper specific administrative acts, and protecting the lawful
rights and interests of citizens, legal persons and other organizations.
a specific administrative act of an administrative organ has infringed upon
their lawful rights and interests, they may, in accordance with these
Regulations, file an application to the competent administrative organ for
reconsideration.
functions and powers according to law and shall not be subject to any illegal
interference from other organs, public organizations and individuals.
in these Regulations, refers to those administrative organs which accept
applications for reconsideration, and shall, according to law, conduct reviews
over the specific administrative acts, and make a decision.
the offices which are set up within the administrative organs for
reconsideration and are responsible for the affairs relating to the
reconsideration.
rules and regulations, the administrative reconsideration shall apply a
single-level system of reconsideration.
being "lawful, timely, accurate, and convenient for the people".
to law, conduct review over the legality and appropriateness of a specific
administrative act.
conciliation in handling reconsideration cases.
Chapter II The Scope of Application for Reconsideration
application to the administrative organs for reconsideration if they refuse to
accept any of the following specific administrative acts:
permit or a licence, order to suspend production or business operations or
confiscation of property and article, which one refuses to accept;
freedom or the sealing up, distraint, or freezing of property,which one
refuses to accept;
by the laws and regulations, which is held to have been perpetrated by an
administrative organ;
one holds oneself legally qualified to apply for, or its failure to respond to
the application;
and duties of protecting one's personal rights and property rights, as one has
applied for, or its failure to respond to the application;
pensions for the disabled or for the family of the deceased according to law;
the performance of duties;
other personal rights and property rights;
laws and regulations, an administrative lawsuit or an application for
reconsideration may be instituted.
an application for reconsideration in accordance with these Regulations if
they are not satified with any one of the following matters:
general binding force;
from a position with respect to personnel working in administrative organs;
decisions made by administrative organs concerning the disposition of
entitlement to the ownership or the right to use of the resources such as
land, mineral and forests;
affairs.
Chapter III Jurisdiction for Reconsideration
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
competent department at a higher level. In case any law or regulations provide
that the case shall be under the jurisdiction of the people's government at
the same level, the provisions of that law or regulations shall be applied; in
case any law proveds that the case shall be under the jurisdiction of the
competent department at a higher level, the provisions of that law shall be
applied.
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.
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.
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.
person who does not accept a specific administrative act undertaken jointly by
two or more administrative organs, the case shall be under the jurisdiction of
an administrative organ at the next higher level over the aforesaid two or
more administrative organs.
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.
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 which has established the said
agency.
person who does not accept a specific administrative act undertaken by an
organization authorized by laws, regulations and rules, the case shall be
under the jurisdiction of the competent administrative organ immediately over
the said organization.
does not accept a specific administrative act undertaken by an entrusted
organization, the case shall be under the jurisdiction of an administrative
organ at the next higher level over the commissioning administrative organ.
person who does not accept a specific administrative act which, according to
the provisions of the laws and regulations, is subject to the approval of an
administrative organ at a higher level, the case shall be under the
jurisdiction of the administrative organ which makes the final decision unless
otherwise provided for by the laws and regulations.
person who does not accept a specific administrative act undertaken by an
administrative organ prior to its abolition, the case shall be under the
jurisdiction of the administrative organ at the next higher level over the
administrative organ which has succeeded to the functions and powers of the
administrative organ abolished.
case it has accepted is not under its jurisdiction, it shall transfer the case
to an administrative organ which has jurisdiction over the case. The
administrative organ, to which the aforesaid case has been transferred, shall
not transfer the case again on its own initiative.
jurisdiction for reconsideration, the dispute shall be resolved by the parties
to the dispute through consultation. If consultation fails, the administrative
organ immediately over the two parties shall designate jurisdiction.
administrative organs that have jurisdiction, the case shall be under the
jurisdiction of the administrative organ that has first received the
application for reconsideration.
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 timely notify the complainant to
file an application for reconsideration to the administrative organ that has
jurisdiction for reconsideration.
be handled according to the provisions of the laws, regulations and rules.
Chapter IV The Reconsideration Office
of the needs of its work, establish the reconsideration office, or appoint
full-time personnel that handle reconsideration cases, for the organ itself.
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 work in the name of the name of the name of the reconsideration
office.
handle reconsideration cases, shall work under the leadership of the
administrative organ for reconsideration and carry out the following
functions and duties:
the statutory requirements;
parties to a dispute and relevant units and relevant units and personnel, and
to consult relevant documents and materials;
representative of the administrative organ for reconsideration;
regulations.
Chapter V Participants in Reconsideration
application for reconsideration are applicants.
deceased, his/her near relatives may apply for reconsideration; where a
citizen who has the right to apply for reconsideration is incompetent or with
limited capacity for conduct, his/her legal representative may apply for
reconsideration on behalf of him/her.
apply for reconsideration terminates, the legal person or any other
organization that succeeds to its rights may apply for reconsideration.
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 organ for reconsideration, file a request for participation in
the reconsideration as a third party.
reconsideration against a specific administrative act undertaken by an
administrative organ, the said administrative organ is the defending party of
the application.
specific administrative act in their combined name, the administrative organs
which have jointly undertaken the specific administrative act are the joint
defending parties of an application.
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 authorized by the laws, regulations and rules,
the said organization is the defending party of an application.
has already been abolished, the administrative organ that continues to
exercise the abolished organ's functions and powers is the defending party of
an application.
Chapter VI Application and Acceptance
files an application for reconsideration with the administrative organ 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.
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 organ that has
jurisdiction shall decide whether to approve the aforesaid application or not.
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.
reconsideration to an administrative organ, and the administrative organ for
reconsideration has accepted the application, then the applicant mentioned
above may not bring a suit before the people's court within the statutory time
limit for conducing reconsideration.
made for reconsideration:
organization that holds that a specific administrative act has directly
infringed upon his/her or its lawful rights and interests;
factual basis;
reconsideration;
that accepts the said case;
reconsideration, shall submit a written application for reconsideration.
and address of the legal person or any other organization, and the name of its
legal representative);
reconsideration;
days from the date of receiving the written application for reconsideration,
handle the reconsideration applications respectively as follows:
provisions of these Regulations shall be accepted;
the provisions in Article 31 of these Regulations shall not be accepted, and
the applicant shall be notified of the reasons for this decision;
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 the making-up, the above mentioned application shall be
considered to have not been made.
filed an application for reconsideration according to law, but the
administrative organ for reconsideration refuses, without any justification,
to accept the application or fails to respond to the application, the
administrative organ at the next higher level, or the administrative organ
prescribed by the laws and regulations, shall instruct the said administrative
organ for reconsideration to accept the said application or to respond to the
application.
circumstances where, in accordance with the provisions of pertinent laws and
regulations, a person concerned shall first apply to an administrative organ
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 organ for
reconsideration to reject the application, the applicant may, within 15 days
from the date of receiving the written decision on the rejection of the
application, bring a suit before the people's court.
Chapter VII Hearing and Decision
the system of reconsideration by written documents; however, when
administrative organ for reconsideration deems it necessary, other forms for
hearing of reconsideration cases may be adopted.
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 organ for reconsideration with the relevant
materials or evidence for undertaking the specific administrative act and
submit a written defence. Failure by the defending party to submit a written
defence within the time limit shall not stop the procedures of
reconsideration.
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:
reconsideration;
administrative organ for reconsideration deems it reasonable and makes the
decision on the suspension of the execution;
regulations and rules.
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 for reconsideration may be
withdrawn with the approval of the administrative organ for reconsideration
and after the reconsideration case is recorded on file.
may not apply for reconsideration again for the same facts and reasons.
for reconsideration shall base itself on the laws administrative rules and
regulations, local regulations, rules as well as the decisions and orders with
a general binding force formulated and promulgated by administrative organs at
higher levels according to law.
the administative organ for reconsideration shall also base itself on the
regulations on autonomy and separate regulations of the nationality autonomous
regions.
hearing, respectively make the following reconsideration decisions:
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;
terms of procedures, a decision shall be made for the defending party of an
application for reconsideration to make them up and improve them;
perform its duty as prescribed by laws, regulations and rules, a fixed time
shall be set for the defending party to perform the duty;
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:
decisions and orders with a general binding force;
rights and interests of the applicant;
act, an administrative organ 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, regulations
and rules or, other rules, decisions and orders with a general binding force,
the competent administrative organ for reconsideration shall, within its scope
of functions and powers, decide on their nullification or change according to
law.
decisions and orders with a general binding force, which serve as the basis
for a specific administrative act, are in conflict with the laws, regulations
and rules, or other rules, decisions and orders with a general binding force,
but the administrative organ for reconsideration has no power to handle the
case, then this case shall be reported to the administrative organ at a higher
level. The administrative organ at a higher level which has the power to
handle the case, shall handle it according to law; if the administrative organ
at a higher level does not have the power to handle the case, the case shall
be submitted to an organ which has the power to handle it. In the course of
the handling of the case, the administrative organ for reconsideration shall
cease its hearing of the said case.
defending party of an application for reconsideration, infringes upon the
lawful rights and interests of the applicant and causes damage, and the
applicant claims a compensation, the administrative organ for reconsideration
may instruct the defending party of an application for reconsideration to make
the compensation in accordance with the provisions of the pertinent laws and
regulations.
working personnel of the administrative organ, who have committed intentional
or gross mistakes in the case, to bear part or all of the damages.
organ for reconsideration shall prepare a written reconsideration decision.
The written reconsideration decision shall indicate the following items:
and address of the legal person or of any other organization, and the name of
its legal representative);
name and positin of its legal representative;
reconsideration;
with a general bindingforce applied;
applicant does not accept the reconsideration decision; or the time limit for
the parties to execute the final decision on the reconsideration case;
made.
legal representative of the administrative organ for reconsideration, with the
official seal of the administrative organ for reconsideration affixed to it.
months after the day of receiving the reconsideration application, make its
reconsideration decision, except as otherwise provided for in the laws and
regulations.
concerned, it shall become legally effective.
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 the laws and regulations, bring
a suit before the people's court.
implement the reconsideration decision within the time limit, the case shall
be dealt with according to different conditions:
specific administrative act, the administrative organ, 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
law;
specific administrative act, the administrative organ for reconsideration
shall apply to the people's court for compulsory execution, or proceed with
compulsory execution according to law.
Chapter VIII Time Periods and Service
month. The hour and the day from which a time period begins shall not be
counted as within the time period.
immediately following the holiday shall be regarded as the expiration date.
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.
recipient of the service, shall be the date of service.
registered mail shall be the date of service.
administrative organ for reconsideration, it shall be delivered directly to
the recipient of service; if the recipient of service is absent, it shall be
delivered to an adult family member living together 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.
reconsideration decision, the person serving the decision shall invite persons
concerned to be persent on 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 services 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, the service shall be deemed as
completed.
administrative organs with the service of a reconsideration decision or making
the service by mail.
Chapter IX Legal Responsibility
reconsideration refuses to implement a reconsideration decision, the
administrative organ for reconsideration may directly impose administrative
sanctions on the legal representative of the defending party, or suggest that
the department concerned should do so.
neglected their duties or bent the law for the benefit of themselves, the
administrative organ 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 law.
persons concerned, refuse or hamper, without resorting to violence or threats,
the personnel handling reconsideration cases from executing their duties
according to law, which the organs of public security shall, in accordance
with the provisions of Article 19 in the Regulations of the People's Republic
of China on the Administration Penalties for Public Security, impose on the
aforesaid persons detention for not more than 15 days, or a fine of 200 yuan
(RMB) or less, or a warning. With respect to those who have resorted to
violence or threat to hamper the personnel handling reconsideration cases from
executing their duties, their criminal responsibilities shall be investigated
according to law.
Chapter X Supplementary Provisions
administrative reconsideration by foreigners, stateless persons, or foreign
organization engaged in administrative reconsideration in the People's
Republic of China, except as otherwise provided for by the laws and
regulations.
be responsible for the interpretation of these Regulations.
1991.
URL: http://www.asianlii.org/cn/legis/cen/laws/dotscrtroarwtfrotroar1655