Laws of the Shanghai Province

(Promulgated on December 13, 2004 by Decree No.38 of the Shanghai Municipal People' s Government)

Article 1 (Purpose and Basis)

With a view to normalizing the procedure of creating temporary administrative license, to ensure that the creation of administrative license is legal and proper, these Provisions are formulated on the basis of the "Law of the People' s Republic of China on Administrative Licenses" (hereinafter referred to as the "Administrative Licenses Law" ) and the provisions of other laws and administrative regulations, and in the light of this Municipality' s actual circumstances.

Article 2 (Definitions)

The temporary administrative license mentioned in these Provisions refers to the administrative license with the implementation term of one year created by the regulations of the Municipal People' s Government in accordance with Article 15 of the "Administrative Licenses Law" that there is no law or regulation but it is really necessary to carry out administrative management by adopting the form of administrative license.

The drafting unit mentioned in these Provisions refers to the working departments under the Municipal People' s Government, the district or county government or other organizations which are responsible for preparing draft regulations of the Municipal People' s Government in accordance with the provisions of the "Regulations on the Procedure of Formulating Regulations" and the "Provisions on the Procedure of Formulating Regulations of Shanghai Municipal People' s Government" .

Article 3 (Demonstration of Creating an Administrative License)

Where a regulation of the Municipal People' s Government plans to create a temporary administrative license, the drafting unit shall make a full demonstration of the legality, necessity and feasibility of the administrative license planned to be.

In terms of legality, the following conditions shall be satisfied:

(1) Falling into the items that may create administrative license Article 12 of the "Administrative Licenses Law" ;

(2) In the absence of corresponding laws, administrative regulations and local laws and regulations;

(3) Not falling into the conditions set out in Article 15 Clause 2 of the "Administrative Licenses Law" ; and

(4) There have been provisions respecting the implementing organ, condition, procedure and term of the administrative license planned to be created.

In terms of necessity, the following contents shall be demonstrated:

(1) The present situation and the inadequacy of the existing means of administrative management in the field of the administrative license planned to be created;

(2) Reasons for the real need of promptly carrying out the administrative license; and

(3) Reasons for not being able yet to carry out Article 13 of the "Administrative Licenses Law" .

In terms of feasibility, the following contents shall be demonstrated:

(1) Impact likely to be produced on economy and society in carrying out the administrative license;

(2) Impact on rights and duties of citizens, legal entities and other organizations in carrying out the administrative license;

(3) Whether or not the administrative license is operable; and

(4) Cost-effect evaluation of carrying out the administrative license.

Article 4 (Mode of Soliciting Opinions)

Where a regulation of the Municipal People' s Government plans to create a temporary administrative license, the drafting unit shall solicit opinions. In soliciting opinions, the following modes shall be adopted:

(1) Openly soliciting opinions from the general public;

(2) Holding demonstration meetings; and

(3) Soliciting in writing opinions of relevant administrative organs.

In line with actual circumstances, the following modes may also be adopted in soliciting opinions:

(1) Holding hearings;

(2) Entrusting a relevant institution to make a cost-effect evaluation; and

(3) Other modes necessary as deemed by the drafting unit.

Article 5 (Scheme for Soliciting Opinions)

Prior to soliciting opinions, the drafting unit shall make a scheme for soliciting opinions, and specify the key demonstration contents for soliciting opinions, the modes to be adopted and the time arrangement.

Prior to the implementation of a scheme for soliciting opinions, the drafting unit shall seek opinions from the legislative affairs department under the Municipal People' s Government.

Article 6 (Openly Soliciting Opinions from the Public)

Where a regulation of the Municipal People' s Government plans to create a temporary administrative license, the drafting unit shall, in the drafting process, via "China Shanghai" , the government website, and its own website on Internet, announce to the society matters respecting the creation of temporary administrative license so as to openly seek opinions from citizens, legal entities or other organizations.

Apart from the modes set out in the preceding clause, the drafting unit may also put up a public notice on the notice board for open government affairs at its own office place or through other open media of this Municipality.

The contents of a public notice shall cover the item name, exercising organ, condition, procedure and term of the temporary administrative license planned to be created as well as the explanation for the legality, necessity and feasibility of the temporary administrative license planned to be created. Meanwhile, the notice shall state explicitly the channel and deadline for the public to air opinions, and make known the contact mode as well.

Citizens, legal entities or other organizations may, via mail, fax, e-mail and other forms, feedback opinions to the drafting unit. The time limit to solicit opinions of the public shall be not less than 20 days from the date of the announcement.

The drafting unit shall gather, sort out and analyze the opinions of the public. After the passage of a regulation, matters related to adoption of opinions shall be feedback to the public and explanations shall be given as well.

Article 7 (Demonstration Meetings)

Where a regulation of the Municipal People' s Government plans to create a temporary administrative license, the drafting unit shall hold demonstration meetings. The following persons and organizations may be invited to attend the demonstration meeting:

(1) Experts in specialized technology, administrative management and law as well as experts in other relevant fields;

(2) Representatives of citizens, legal entities or other organizations related to the administrative license planned to be created;

(3) Deputies to the people' s congress and members of the political consultative conference; and

(4) Representatives of related trade organizations.

When holding a demonstration meeting, the drafting unit shall, five days in advance, send to the persons and organizations concerned the subjects under discussion and materials related to the temporary administrative license planned to be created. The drafting unit shall make the minutes of the demonstration meeting.

Article 8 (Soliciting in Writing Opinions of Relevant Administrative Organs)

Where a regulation of the Municipal People' s Government plans to create a temporary administrative license, the drafting unit shall solicit in writing opinions of relevant administrative organs. The administrative organ whose opinions are solicited shall put forward within the set time written opinions, which shall be sent to the drafting unit after being affixed with the seal of the organ; if no reply is given before the deadline, it shall be construed as no opinion.

Where there are different opinions between the drafting unit and the relevant administrative organs, consultations shall be conducted fully; where no unanimity of opinion can be reached after consultations, the drafting unit shall report to the legislative affairs department of the Municipal People' s Government for coordination; where there is still disaccord upon coordination, the legislative affairs department of the Municipal People' s Government shall report to the leadership of the Municipal People' s Government for decision.

Article 9 (Organization of Hearings)

Where a temporary administrative license planned to be created under a regulation of the Municipal People' s Government directly involves the immediate interests of citizens, legal entities or other organizations, or where relevant organs, organizations and individual persons have a sharp difference in opinion, the drafting unit shall hold a hearing.

Apart from the case set out in the preceding clause, the drafting unit, if considering it necessary, may also hold a hearing.

The legal affairs organization of the drafting unit is responsible for organizing a hearing, and the relevant professional organization shall cooperate and participate.

The drafting unit shall draw up a hearing program, specify the host of a hearing, the subject under discussion, agenda, time and place of a hearing, the rule and deadline for entry of participants and visitors, and other contents, and make known to the public the hearing program via "China Shanghai" , the government website, 30 days before the holding of the hearing.

Before the hearing program is made known to the public, the drafting unit shall seek opinions of the legislative affairs department of the Municipal People' s Government, which shall render necessary assistance and attend the hearing as a nonvoting delegate.

Article 10 (Determining Participants in a Hearing)

Citizens, legal entities or other organizations may enter their name for the hearing; with a large number of entries, the drafting unit shall, in the principle of openness, fairness and impartiality, determine the attendants to a hearing.

The drafting unit may, depending on actual needs, invite relevant organizations and individual persons to attend a hearing.

The drafting unit shall make a list of participants in the hearing, stating their name and occupation or the organization they represent as well as the basic viewpoints they hold.

Article 11 (Determining Visitors)

Citizens, legal entities or other organizations may enter their name for being visitors at a hearing; with entries outnumbering the visitors' seats, the drafting unit shall, in order of entry precedence or by random draw in the principle of impartiality, determine the visitors at a hearing.

Article 12 (Holding of a Hearing)

The drafting unit shall, five days before the holding of a hearing, notify in writing the participants in the hearing and publish via "China Shanghai" , the government website, their name and occupation and the organization they represent.

At a hearing, the participants in the hearing are entitled to air their opinions, furnish materials, debate on relevant issues, and may put questions to the drafting unit. The representative of the drafting unit shall give explanations and give reasons therefor.

Article 13 (Minutes of a Hearing)

The drafting unit shall tape-record the hearing and make the minutes of the hearing, and take accurate notes on main viewpoints and reasons of the speakers.

A participant in the hearing who considers that the minutes of the hearing differ from his or her speech is entitled to request the drafting unit to make correction.

The minutes of the hearing shall be accessible to the public.

Article 14 (Entrusting the Conduct of Cost-effect Evaluation)

The drafting unit may entrust a relevant specialized institution or social organization to conduct in a scientific way a cost-effect evaluation of a temporary administrative license planned to be created, assessing the possible impact thereof on economy, society, citizens, legal entities and other organizations. The entrusted institution or organization shall submit an evaluation report to the drafting unit as required.

Article 15 (Report on Matters of Soliciting Opinions)

After soliciting opinions in compliance with these Provisions, the drafting unit shall make a report on matters about soliciting opinions, and put forward suggestions on whether the Municipal People' s Government regulation shall create a temporary administrative license.

In making a report on matters about soliciting opinions, the drafting unit shall have the report based on the collection of opinions heard from the general public, the suggestions of demonstration meetings, the written proposals of relevant administrative organs, the minutes of hearings and the cost-effect evaluation report, and classify and itemize the different opinions.

Article 16 (Giving Reasons)

When reporting to the Municipal People' s Government a draft regulation of the Municipal People' s Government under which a temporary administrative license is planned to be created, the drafting unit shall submit at the same time the report on matters of soliciting opinions, stating the legality, necessity and feasibility of the temporary administrative license planned to be created, the possible impact thereof on economy and society as well as matters of hearing and adopting opinions of the public.

Article 17 (Examination)

When examining the draft regulation of the Municipal People' s Government submitted by the drafting unit, the legislative affairs department of the Municipal People' s Government shall examine at the same time the legality, necessity, feasibility and proper procedure of the temporary administrative license planned to be created in the draft, and put forward the examination comments:

(1) Where the temporary administrative license planned to be created by the government regulation conforms to provisions of law, is really necessary to be created and is feasible, it shall be handled in accordance with the procedure of the State and this Municipality respecting the formulation of regulations.

(2) Where the drafting unit fails to solicit opinions or give reasons in accordance with the prescribed procedure, the draft may be returned to the drafting unit, with requirement for the performance of the prescribed procedure; and

(3) Where the temporary administrative license planned to be created by the Municipal People' s Government regulation has any problem in terms of the legality, necessity or feasibility, a proposal that the drafting unit make further studies may be put forward.

Article 18 (Mid-term Evaluation)

The department that carries out the regulation of the Municipal People' s Government shall, six months after carrying out the temporary administrative license, make an evaluation of the enforcement, effect and necessity of continuous implementation of the temporary administrative license, and submit an evaluation report to the legislative affairs department of the Municipal People' s Government three months before the expiration of the implementation.

The legislative affairs department of the Municipal People' s Government shall, within two months after receiving the evaluation report, conduct examination, and put forward a handling proposal based on soliciting opinions of the parties concerned to the Municipal People' s Government.

Article 19 (Disposition at Expiration of Implementation)

On the basis of the mid-term evaluation report and the proposals on handling, the Municipal People' s Government shall, before the expiration of the implementation of the temporary administrative license, make the following disposition:

(1) Where the temporary administrative license has any problem in terms of legality, necessity or feasibility, the Municipal People' s Government shall make a decision to stop the enforcement and make such decision known to the general public; and

(2) Where the temporary administrative license is considered as really necessary to be created and enforced continually after a year of implementation, refer it to the municipal people' s congress or the standing committee for the formulation or revision of relevant local law and regulation to create the administrative license.

Article 20 (Link to Regulation Formulating Procedure)

The investigation and study of and the solicitation of opinions about the creation of a temporary administrative license may be conducted along with the procedure of drawing up the regulation of the Municipal People' s Government, or they may also be conducted separately as well.

Article 21 (Simplifying Procedure)

Where, based on the need of safeguarding public interests, an administrative license really has to be put into effect at an early date, the drafting unit may, upon approval of the Municipal People' s Government, simplify the procedure related to the temporary administrative license planned to be created.

Article 22 (Administrative License Planned to be Created under the Draft Local Law and Regulation)

The procedure related to this Municipality' s administrative organ making a draft local law and regulation that plans to create an administrative license shall follow these Provisions. Where there are provisions otherwise provided by laws and regulations, such provisions shall apply.

Article 23 (Effective Date)

These Provisions shall become effective on February 1, 2005.