Laws of the People's Republic of China

the Ministry of Commerce

Order of the Ministry of Commerce of the People's Republic of China

No. 7

The Implementation Measures for Administrative Reconsideration of the Ministry of Commerce, which were adopted at the 6th executive meeting of the Ministry of Commerce of the People's Republic of China on April 9, 2004, are hereby promulgated and shall come into force as of July 1, 2004.

the Minister of the Ministry of Commerce Bo Xilai

May 20, 2004

Implementation Measures for Administrative Reconsideration of the Ministry of Commerce

Article 1

With a view to preventing and rectifying illegal or improper specific administrative acts, protecting the legitimate rights and interests of the citizens, legal persons and other organizations and guaranteeing and supervising the administrative organs for domestic and foreign trade and international economic cooperation to perform their functions according to law, the Present Measures are formulated according to the Administrative Law of the People's Republic of China (hereinafter referred to as the AL).

Article 2

The Ministry of Commerce shall fulfill the functions and responsibilities of administrative reconsideration as prescribed in the AL and the present Measures. The institution of legal affairs of the Ministry of Commerce (Department of Treaty and Legal Affairs) shall responsible for the specific affairs relating to administrative reconsideration in the Ministry of Commerce, and shall perform the functions and responsibilities as described in Article 3 of the AL.

Article 3

Anyone who has objection to any of the following specific administrative acts may file an application with the Ministry of Commerce for administrative reconsideration:

(1)

specific administrative acts of the Ministry of Commerce;

(2)

the administrative acts made by an institution dispatched by the Ministry of Commerce in its own name according to laws, regulations or administrative rules;

(3)

specific administrative acts of an organization directly administered by the Ministry of Commerce under any law or regulation;

(4)

Anyone, who has any objection to any specific administrative act made by the administrative organ for domestic and foreign trade and international economic cooperation of a province, autonomous region, or municipality directly under the Central Government, may file an application to the Ministry of Commerce for administrative reconsideration as well as to the people's government of the province, autonomous region, or municipality directly under the Central Government involved.

Article 4

Where a party concerned files a written application for administrative reconsideration, it shall submit one original application, and duplicates as many as the number of the respondents. The reconsideration application shall contain:

(1)

the names, occupations and addresses of the applicant and its agent (the name and address of the legal person or any other organization, the name of the legal representative);

(2)

the name and address of the respondent (s);

(3)

the specific claims for the administrative reconsideration application;

(4)

the main facts and reasons (including the time when he or it becomes aware of the specific administrative act); and

(5)

the date on which the administrative reconsideration application is filed.

The reconsideration application shall bear the signature and seal of the applicant or those of its/his legal representative, and shall be accompanied by necessary proofs. If the applicant is a natural person, he shall submit the photocopy of his ID card or any other valid certificate; if the applicant is a legal person or any other organization, it shall submit the photocopy of its business license or any other valid certificate as well as the identification certification of its legal representative.

Article 5

Where a citizen, legal person or any other organization that is an interested party of the administrative act requests, as a third party, to take part in the administrative reconsideration, he (it) shall file a written application. Upon the examination and approval of the Ministry of Commerce, he (it) may participate in the administrative reconsideration as a third party.

Where the Ministry of Commerce deems it necessary, it may also inform the other interested citizens, legal persons or other organizations to participate in the administrative reconsideration as a third party.

Article 6

Anyone who applies for reconsideration to the Ministry of Commerce shall go through the relevant application formalities in the institution of legal affairs of the Ministry of Commerce. The institution of legal affairs shall give clear indication of the date of receipt on the application, and shall request the deliverer to affix his signature to the said application for confirmation.

Article 7

After the institution of legal affairs of the Ministry of Commerce receives an administrative reconsideration application, it shall examine it pursuant to the AL within 5 working days, and shall decide whether to accept it or not according to law.

Except that the Ministry of Commerce decides not to accept the application or informs the applicant that he (it) shall apply for administrative reconsideration to another reconsideration organ, the administrative reconsideration application shall be deemed as being accepted as of the day when it is received by the institution of legal affairs of the Ministry of Commerce.

Article 8

Where an administrative reconsideration application is under any of the following circumstances, it shall be rejected, and the applicant shall be given a written notice:

(1)

The items for administrative reconsideration are not within the scope as provided for in Article 6 of the AL;

(2)

The applicant is not a qualified subject for administrative reconsideration;

(3)

The applicant charges against a wrong respondent, but refuses to make change;

(4)

The legal time limit for the application of administrative reconsideration has expired, and there is no justifiable reason;

(5)

The applicant has lodged an administrative lawsuit, but applies for administrative reconsideration, although the court has accepted or hasn't decided whether or not to accept the case;

(6)

The applicant has filed an application for administrative reconsideration to another administrative organ with jurisdiction, and the application has been accepted by the said organ according to law;

(7)

The applicant has withdrawn the application for reconsideration, and has no justifiable reason to file a new application for reconsideration again;

(8)

The applicant applies for reconsideration by going beyond the reconsideration jurisdiction or the immediate leadership (apart from the circumstances as prescribed in Article 20 of the AL);

(9)

The administrative reconsideration application does not meet other statutory requirements.

Article 9

The institution of legal affairs of the Ministry of Commerce shall, within 7 days as of the acceptance of an application for administrative reconsideration by an administrative reconsideration organ, the copy of the administrative reconsideration application or the copy of the written note of application shall be sent to the respondent. The respondent shall make a written response within 10 days as of the receipt of the copy of the application or the photocopy of the written note of application, and shall submit a complete set of the proofs, basis and other relevant materials that led to the original specific administrative act.

The written response submitted by the applicant shall contain the following:

(1)

the basic information of the respondent (except that the respondent is the Ministry of Commerce);

(2)

the reasons for arguments, the basic process and information of the case;

(3)

the factual basis and relevant evidential materials for the specific administrative act;

(4)

the specific articles and content of the laws, regulations and the regulating documents, which were accorded to by the respondent when the original specific administrative act was made;

(5)

the time when the response is made.

The written response shall bear the seal of the entity of the respondent. If the respondent is the Ministry of Commerce, it shall bear the seal of the department that has made the specific administrative act.

Article 10

Where the respondent fails to make any written response or submit the proofs, basis and other relevant materials that has led to the original specific administrative act as required in Article 23 of the AL and Article 10 of the present Measures, it shall be deemed to be of no evidence or basis for the specific administrative act, and thus it shall be decided to revoke the specific administrative act.

Article 11

In principle, the method of written examination shall be adopted in administrative reconsideration. However, if the case is very complicate or it is unable to find the truth through written examination, methods may also adopted such as hearing the opinions of the parties concerned, conducting onsite investigations, inviting special institutions to test and authenticate the relevant items and etc..

Article 12

In the course of administrative reconsideration, the respondent and its agent shall not gather proofs from the applicant and other relevant organizations or individuals on its (their) own initiative, nor may they take any fact or information found after having made the specific administrative act as the factual basis for the specific administrative act.

Article 13

The institution of legal affairs shall examine the specific administrative act made by the respondent and give opinions. After having been approved by the person-in-charge of the Ministry of Commerce, or having been adopted upon collective deliberation, the administrative reconsideration decision shall be made according to Article 28 of the AL.

Article 14

With regard to an applicant who requests for administrative compensation when it applies for administrative reconsideration, it shall clearly state the specific claims for compensation, factual basis and reasons according to Article 12 of the Law of the People's Republic of China on State Compensation. Where the applicant satisfies the requirements for state compensation, when the reconsideration organ decides to revoke or change the specific administrative act or to determine the specific administrative act as unlawful, it shall simultaneously decide that the respondent shall be given compensation according to law.

Article 15

The power to interpret the present Measures shall remain with the Ministry of Commerce. The Present Measures shall go into effect as of July 1, 2004.