(Promulgated on December 28, 2003 by Decree No.18 of the
Shanghai
Municipal People' s Government)
Chapter I General Provisions
Article 1 (Purpose and Basis)
For the purposes of normalizing the
formulation and reporting for the record of this Municipality' s administrative
normative documents,
strengthening the supervision over administrative normative
documents, upholding the unity of the socialist legal system and promoting
the
administration according to law, these Provisions are formulated in accordance
with the "Organic Law of the People' s Republic
of China on Local People' s
Congresses and Local People' s Governments at Various Levels" , "Regulations on the
Formulation Procedures
of Rules and Regulations" , "Regulations on the Reporting
for the Record of Rules and Regulations" and other laws and regulations.
Article 2 (Definition)
The administrative normative documents mentioned
in these Provisions (hereinafter referred to as normative documents) refer to
documents,
other than government rules and regulations, formulated by this
Municipality' s administrative organs at all levels in accordance
with their
official functions and powers, and such documents are generally binding on and
repeatedly applicable to citizens, legal
entities or other
organizations.
Article 3 (Scope of Application)
These Provisions apply to
the formulation and reporting for the record, and the supervisory administration
of this Municipality'
s normative documents.
Article 4 (Preclusion of
Application)
These Provisions are not applicable to the administrative
organs' internal working systems, decisions on appointment and removal
of
personnel, and decisions on administrative handling of specific matters.
The
reporting for the record of normative documents formulated by the Municipal
People' s Government shall follow the relevant provisions
of the
State.
Article 5 (Principles)
The formulation and reporting for the record
of the normative documents shall follow the principles listed below:
(1) To
uphold the unity of the socialist legal system;
(2) To proceed in accordance
with official functions and powers, and procedures;
(3) To safeguard the
legitimate rights and interests of citizens, legal entities and other
organizations;
(4) To reflect the consistency of function and power, and of
duty and responsibility; and
(5) To adhere to the practice that documents
must be reported for the record once formulated, the documents must be examined
once
being reported for the record, and mistakes must be corrected once
discovered.
Chapter II Formulation of Normative documents
Article 6 (Subject of Formulation)
The following administrative organs may
formulate normative documents:
(1) The municipal and district (county)
people' s governments;
(2) The work departments of the municipal and district
(county) people' s governments;
(3) Agencies of the Municipal People' s
Government undertaking administrative management by virtue of authorization of
laws, rules
and regulations; and
(4) Town and township people' s
governments.
Article 7 (Restriction on Subject of Formulation)
The
following organs shall not formulate normative documents:
(1) Provisional
administrative organizations;
(2) Internal organizations of administrative
organs;
(3) Subordinate organizations under vertical leadership of working
departments of the Municipal People' s Government;
(4) Agencies of the
district (county) people' s governments; and
(5)Organizations undertaking
administrative management by virtue of authorization of laws, rules and
regulations, except those otherwise
provided by laws, rules or
regulations.
Article 8 (Titles and Styles)
Normative documents are
generally entitled "provisions" , "procedures" , "detailed
rules" , "decision" and "announcement" . Where
their contents are the implementation
of laws, rules, regulations and normative documents of superior administrative
organs, the
title is generally preceded with the word
of "implementation" .
Normative documents are generally stated in the form of
articles. They are generally not divided into chapters or sections, except
those
with complex contents.
Article 9 (Contents Not to be Stated)
Normative
documents shall not state the following contents:
(1) Matters of
administrative permit;
(2) Matters of administrative punishment;
(3)
Measures of administrative coercion;
(4) Matters of administrative charges;
and
(5) Other matters provided by laws, rules, regulations or superior
administrative bodies.
No additional obligations of, or restrictions on the
rights of, citizens, legal entities or other organizations shall be stated in
specific provisions of normative documents for implementation of laws, rules and
regulations.
Article 10 (Organization of Drafting)
The administrative
organ shall organize the drafting of a normative document.
The municipal and
district (county) people' s governments, when organizing the a drafting of a
normative document, may designate
one or several departments to take specific
charge of the drafting and may also designate their legal affairs body to draft
or
organize the drafting.
Where the contents of a normative document involve
the functions and powers of two or more departments, the two or more departments
shall do the drafting jointly. In a joint drafting, one of the departments shall
be the chief drafter and the other departments
shall work in
cooperation.
Where other administrative organs organize the drafting of
normative documents, reference shall be made to the provisions under Clauses
2
and 3 of this Article.
Article 11 (Investigation and Study for
Drafting)
In drafting a normative document, a study of the necessity and
feasibility of drawing up the normative document shall be conducted,
and the
contents, including the problems to be solved, the main systems to be
established, or the main measures to be provided
shall be investigated, studied,
expounded, and proved.
Article 12 (Soliciting Opinions)
In drafting a
normative document, the drafting department shall solicit the opinions of
relevant organs, organizations and administrative
counterparts or experts.
To
conduct the solicitation of opinions, the drafting department may adopt such
forms as soliciting opinions in writing or holding
symposiums, demonstration
meetings and public hearings, and explain the situation of the solicitation and
adoption of opinions
to the organ which draws up the normative document
(hereinafter referred to as the drawing-up organ).
Article 13 (Treatment and
Coordination of Opinions)
Where a citizen, legal person or some other
organization put forward suggestions and proposals with respect to the contents
of a
draft normative document, the drafting department shall study and treat
these suggestions and proposals, and shall have them clearly
stated in the
exposition of the draft.
Where relevant organs put forward major divergent
views, the drafting department shall make coordination, and, in case the
coordination
fails, it shall request the superior administrative organ to make
coordination or make a ruling.
The coordination and handling of major
divergent views shall be clearly stated in the exposition of the
draft.
Article 14 (Materials to be Submitted for Examination and
Verification)
Where a request is submitted for the municipal or district
(county) people' s government to promulgate a normative document, the
following
materials shall be furnished:
(1) Request for examination and
verification;
(2) Draft of the normative document;
(3) Exposition for the
drafting of the normative document;
(4) Laws, rules, regulations and State
policies as well as decrees or decisions of the superior administrative organ
(hereinafter
referred to as the formulation basis) on which the drafting of the
normative document is based;
(5) Materials relating to the solicitation of
opinions; and
(6) Other relevant materials.
Where other administrative
organs, when promulgating a normative document, requires the drafting department
to furnish relevant
materials, reference shall be made to the provisions in the
preceding clause.
Article 15 (Legal Examination)
The legal affairs body of
the drawing-up organ(s) is responsible for putting forward the opinions on legal
examination and verification
with regard to the materials submitted for
examination and verification.
The legal examination and verification opinions
shall include the following contents:
(1) Whether there is the necessity and
feasibility for the formulation;
(2) Whether its official function and power
has gone beyond the drawing-up organ;
(3) Whether the contents of the
normative document are in conflict with laws, rules, regulations and State
policies;
(4) Whether the specific provisions of the normative document are
appropriate;
(5) Whether the contents of the normative document are
coordinated and dovetailed with relevant normative documents;
(6) Whether
opinions of relevant organs, organizations and administrative counterparts have
been solicited;
(7) Whether major divergent views have been coordinated;
and
(8) Other contents subject to examination and verification.
Article 16
(Handling of Examination and Verification)
The legal affairs body of the
drawing-up organ may conduct modification and coordination of the draft
normative document submitted
for examination and verification; and, in case of
failure to make coordination of major divergent views, it shall be reported to
the drawing-up organ for decision.
Where a draft normative document has one
of the following situation, the drawing-up organ may return it to the drafting
department,
or request the drafting department to make revisions or to
supplement materials before submitting it again for examination and
verification:
(1) Non-compliance with the provisions under Articles 14 and 15
of these Provisions;
(2) The basic conditions for the formulation are not
mature; and
(3) The relevant organs have major disputes over the contents of
the draft, and each of them has its reasonable grounds therefor.
Article 17
(Approval)
Where a draft normative document, after the examination and
verification by the legal affairs body of the drawing-up organ, conforms
to the
provisions under Articles 14 and 15 of these Provisions, the legal affairs body
shall recommend that the drawing-up organ
deliberate the draft normative
document at the relevant meeting.
The normative document drawn up by the
district (county) people' s government shall be deliberated and decided at the
routing meeting
of the district (county) people' s government. The normative
document drawn up by the work department of the district (county) people'
s
government, the municipal people' s government agency and the town and township
people' s governments shall be deliberated and
decided at the office meeting of
the corresponding drawing-up organ.
Article 18 (Issuance)
In issuing a
normative document, the chief person-in-charge of the drawing-up organ shall
affix his or her signature to the document,
and official document classification
terms shall be used in the official document subject terms of the normative
document.
Article 19 (Promulgation)
A normative document shall be
promulgated to the society by the drawing-up organ. A normative document that
has not been promulgated
to the society shall not be deemed as a basis in
carrying out administrative management.
A normative document shall be made
public on the government website designated by the drawing-up
organ.
Normative documents of the Municipal People' s Government and the
district (county) people' s governments shall be published on the
government
bulletin at the corresponding level.
Aside from promulgation on the
government website and government bulletin, the drawing-up organ may make public
normative documents
through newspaper, magazine, radio, television and other
forms.
Article 20 (Places for Public Access to Normal Documents)
The
public has the right of access to the normative documents that have been
promulgated.
The municipal and district (county) archives are the places that
the people' s government at the same level designates for the public
to get
access to the normative documents. The municipal archive shall furnish the
normative documents issued by the Municipal People'
s Government and the work
departments of the Municipal People' s Government for the public to get access
to. The district (county)
archives shall furnish the normative documents issued
by the district (county) people' s government, the work departments of the
district (county) people' s government and the town and township people' s
governments for the public to get access to.
Apart from the municipal and
district (county) people' s governments, the drawing-up organ shall, in its place
of office, furnish
normative documents it has issued for the public to get
access to.
Article 21 (Effective Date)
A normative document shall become
effective thirty days after the date of promulgation, except for the need of
safeguarding the
State security or major public interests, or where no immediate
implementation after promulgation will hinder or obstruct the execution
of laws,
rules, regulations and State policies.
Article 22 ( Termination
Date)
Where the contents provided by a normative document involve phased
work, the drawing-up organ shall provide in the normative document
the
termination date for the normative document.
Article 23 (Simplification of
Formulation Procedures)
Where a normative document needs to be formulated
forthwith or due to an outbreak of major disaster accidents for safeguarding the
State security, public security and major public interests, or for carrying out
emergency orders and decisions of superior administrative
organs, with the
approval by the chief person-in-charge of the drawing-up organ, the formulation
procedures may be simplified.
Article 24 (Interpretation of Normative
Document)
The right to interpret a normative document rests with the
drawing-up organ.
Article 25 (Sorting and Compiling)
The drawing-up organ
shall sort the normative documents at regular intervals. The drawing-up organ
shall, in accordance with the
adjustments of laws, rules, regulations and State
policies, and the changes of actual circumstances, amend or repeal the
promulgated
normative documents.
The drawing-up organ shall, at regular
intervals, compile the normative documents it has promulgated and sorted.
Chapter III Reporting of Normative Documents for the Record
Article 26 (Examination Body for Reporting for the Record)
The legal
affairs bodies of the municipal and district (county) people' s governments are
specifically responsible for the examination
work of reporting the normative
documents for the record within their respective administrative
areas.
Article 27 (Channel of Reporting for the Record)
The drawing-up
organ shall, within thirty days of the date of promulgating a normative
document, report to its superior administrative
organ (hereinafter referred to
the supervision organ of reporting for the record) for the reporting of the
normative document for
the record in accordance with the following
provisions:
(1) Normative documents drawn up by the district (county)
people' s governments, work departments and agencies of the Municipal People'
s
Government shall be reported to the Municipal People' s Government for the
record; and
(2) Normative documents drawn up by the town and township
people' s governments and work departments of the district (county) people'
s
governments shall be reported to the district (county) people' s government for
the record.
Normative documents jointly issued by two or more administrative
organs shall be reported by the administrative organ in charge to
their common
superior administrative organ for the record as required in the preceding
clause; where the drawing-up organs are
not under the same administrative organ,
the drawing-up organs shall report for the record separately as required in the
preceding
clause.
Article 28 (Copy to be submitted)
The work departments
and agencies of the Municipal People' s Government shall submit the copies of
normative documents to the municipal
archive while submitting the normative
documents to the Municipal People' s Government for the record.
The work
departments of the district (county) people' s government shall submit the copies
of normative documents to the relevant
professional competent administrative
departments of the Municipal People' s Government and the district (county)
archives while
submitting the normative documents to the district (county)
people' s government for the record.
The town and township governments shall
submit the copies of normative documents to the district (county) archive in the
locality
where they are situated while submitting the normative documents to the
district (county) people' s government for the record.
Article 29 (Materials
to be Reported for the Record)
Normative documents that are reported to the
municipal or district (county) people' s government for the record shall be
directly
delivered to the legal affairs body of the municipal or district
(county) people' s government.
In reporting a normative document for the
record, the following materials shall be submitted:
(1) One copy of the
report on the normative document reported for the record;
(2) Five copies of
official text of the normative document (accompanied by one copy of electronic
text); and
(3) One copy of draft explanation and one copy of the formulation
basis of the normative document.
Article 30 (Registration of Acceptance and
Handling of the Reporting for the Record)
Where the submitted normative
document conforms to the provisions of Articles 2, 27 and 29 of these
Provisions, the legal affairs
body of the supervision organ of the reporting for
the record shall conduct the registration of reporting for the record; in case
of non-compliance with the provisions, the legal affairs body of the supervision
organ of reporting for the record shall return
the submitted document, or give
notice of request for additional materials.
Article 31 (Contents to be
Examined)
The supervision organ of reporting for the record shall examine the
following issues relating to the normative document reported
for the
record:
(1) Whether the drawing-up organ has corresponding official function
and power;
(2) Whether the normative document is in conflict with laws,
rules, regulations and State policies; and
(3) Whether the specific
provisions are appropriate.
Article 32 (Handling of Wrongful or Inappropriate
Normative Document)
When the supervision organ of reporting for the record
discovers that the normative document reported for the record is beyond the
function and power of the administrative organ, in conflict with laws, rules,
regulations and State policies, or apparently fails
to be impartial, shall
handle respectively in accordance with the following provisions:
(1) The
legal affairs body of the supervision organ of reporting for the record shall
make a written proposal requiring the drawing-up
organ to make revocation or
correction by itself; where the drawing-up organ refuses to make correction, the
legal affairs body
of the supervision organ for reporting for the record shall
refer to the supervision organ for reporting for the record for decision
on
revocation or alteration, and where necessary, the supervision organ for
reporting for the record shall directly make revocation
or alteration;
and
(2) Where the continuous execution of the normative document would cause
serious consequences, the supervision organ for reporting
for the record, prior
to the correction by the drawing-up organ, shall forthwith make a decision on
suspension of the execution
of part or all of the contents of the normative
document.
Article 33 (Time Limitation of Examination of the Reporting for the
Record)
The legal affairs body of the supervision organ for reporting for the
record shall, within thirty days from receiving the submissions
for reporting
for the record, notify the drawing-up organ in writing of the examination
comments of the normative document; with
regard to strong professionalism and
special cases, subject to approval by the person-in-charge of the legal affairs
body of the
supervision organ for the reporting for the record, the examination
period may be extended, with the maximum of not more than thirty
days. In the
event of examination period extension, notice shall be given to the drawing-up
organ.
If the supervision organ of reporting for the record considers a
normative document to have any problem, and gives examination comments
in
writing to the drawing¨Cup organ, it shall deliver copies of written examination
comments at the same time to the superior professional
administrative competent
department of the drawing-up organ or the people' s government in the
administrative area of the drawing-up
organ.
Article 34 (Handling of Relevant
Proposals)
Upon receipt of written proposals on the normative document from
citizens, legal entities or other organizations, the supervision
organ of the
reporting for the record shall verify these proposals. The supervision organ of
the reporting for the record shall
handle the possible problems in those
normative documents in accordance with Articles 31 and 32 of these
Provisions.
Upon receipt of written proposals on the normative document from
citizens, legal entities or other organizations, the drawing-up
organ shall
verify these proposals. Where among the proposals that show actual problems are
existing in a normative document, the
drawing-up organ shall make correction or
revocation by itself.
Article 35 (Execution of Decision or Examination
Comments)
The drawing-up organ shall, within thirty days of receiving the
decision or the comments of the supervision organ of the reporting
for the
record and its legal affairs body, or within the prescribed time limit, make
correction by itself, and report the handling
outcome in writing.
Article 36
(Publication and Collection of Catalogue)
The supervision organ of the
reporting for the record shall, at regular intervals, publish the catalogue of
normative documents
that have undergone examination of reporting for the
record.
The drawing-up organ shall, prior to the end of January every year,
submit to the supervision organ of the reporting for the record
the catalogue of
the normative documents it drew up in the preceding year.
Chapter IV Supervision over Drawing-up Organ and Supervision Organ of the
Reporting for the Record
Article 37 (Supervision over Drawing-up Organ)
Where the drawing-up organ
fails to report a normative document for the record or deliver the copy pursuant
to these Provisions,
the legal affairs body of the supervision organ of the
reporting for the record shall notify the drawing-up organ to make correction
within a time limit; in respect to a serious case, the supervision organ of the
reporting for the record shall circulate a notice
of criticism.
In respect to
refusal or deferral to correct problematic matters in a normative document, the
supervision organ of the reporting
for the record shall circulate a notice of
criticism; in respect to a serious case with harmful results, the relevant
department
shall give disciplinary sanctions to the chief official directly in
charge of the drawing-up organ and other persons held directly
liable according
to law.
Article 38 (Supervision over Supervision Organ of the Reporting for
the Record)
Where the supervision organ of the reporting for the record,
upon receipt of a normative document, fails to conduct examination or
fails to
correct problematic matters discovered in examination, its superior
administrative organ shall order correction within
a time limit or circulate a
notice of criticism; in respect to a serious case with harmful results, the
relevant department shall
give disciplinary sanctions to the chief official
directly in charge, or other persons held directly liable according to law.
Chapter V Supplementary Provisions
Article 39 (Handling of Existing Normative Documents)
The drawing¨Cup organ
shall sort out the normative documents that were drawn up before the
implementation of these Provisions and
are still valid. The drawing-up organ
shall, within six months from the day on which these Provisions become
effective, report
the catalogue of normative documents after sorting to the
supervision organ of the reporting for the record for the record and publish
to
the society the normative documents after sorting.
Article 40 (Execution by
Reference)
Reference shall be made to these Provisions for the formulation
and the reporting of normative documents for the record by the authorized
organization otherwise prescribed in laws, rules or regulations referred to
under Item(5), Article 7 of these Provisions.
Reference shall be made to
these Provisions for administrative organs to amend or repeal normative
documents.
Article 41 (Interpretation in Application)
The Legislative
Affairs Office of the Municipal People' s Government is responsible for the
interpretation in specific application
of these Provisions.
Article 42
(Effective Date)
These Provisions shall become effective on May 1, 2004.
The "Provisions of Shanghai Municipality on the Formulation Procedures of
Normative Documents of Administrative Organs" promulgated by the Municipal
People' s Government on October 9, 2002 shall be repealed
on the same date.
