(Adopted by the Ninth Session of the Standing Committee of the Ninth National People's Congress on April 29, 1999. Promulgated by order No. 16 of the President of the People's Republic of China on April 29, 1999 and shall enter into force on October 1, 1999.)
Contents
Chapter I General Provisions
Chapter II Scope of Administrative Reconsideration
Chapter III Application for Administrative Reconsideration
Chapter IV Acceptance of Administrative Reconsideration
Chapter V Administrative Reconsideration Decision
Chapter VI Legal Liability
Chapter VII Supplementary Provisions
Chapter I General Provisions
Article 1
For the purposes of preventing and correcting specific administrative acts which are illegal or improper, protecting the legitimate rights and interests of citizens, legal persons and other organizations, and ensuring and supervising the lawful exercise of functions and powers of administrative organs, and in accordance with the Constitution, this Law is enacted.
Article 2
This Law shall apply to the filing of applications for administrative reconsideration with administrative organs by citizens, legal persons or other organizations if believing that specific administrative acts infringe upon their legitimate rights and interests, and to the acceptance of applications for administrative reconsideration and to the making of administrative reconsideration decisions by administrative organs.
Article 3
Administrative organs which perform the duties in regard to administrative reconsideration pursuant to this Law shall be administrative reconsideration organs. The bodies in charge of legal affairs of administrative reconsideration organs shall actually deal with administrative reconsideration affairs and perform the following duties:
1. to accept applications for administrative reconsideration;
2. to inquire organizations and persons concerned and to gather evidences, and to consult documents and materials;
3. to review whether specific administrative acts being applied for administrative reconsideration are lawful and proper, and to draft the administrative reconsideration decisions;
4. to handle or to forward the applications for review of the relevant provisions listed in Article 7 of this Law;
5. to make, in accordance with the limits of power and procedures prescribed, proposals for disposing on the acts of administrative organs violating the provisions of this Law;
6. to handle matters responding to administrative actions brought due to disagreement of administrative reconsideration decisions;
7. other duties prescribed by laws and regulations.
Article 4
In performing their duties in regard to administrative reconsideration, administrative reconsideration organs shall comply with the principles of legality, impartiality, openness, promptness and convenience for the people, adhere to correcting of all wrongs and guarantee the correct operation of laws and regulations.
Article 5
Citizens, legal persons or other organizations may, if disagreeing with administrative reconsideration decisions, bring administrative actions before people's courts in pursuance to the provisions of the Administrative Procedure Law, unless the law provides that administrative reconsideration decisions are final.
Chapter II Scope of Administrative Reconsideration
Article 6
A citizen, legal person or any other organization may apply for administrative reconsideration pursuant to this Law if--
1. disagreeing with an administrative punishment imposed by an administrative organ, such as warning, fine, confiscation of illegal gains or illegal property, order to suspend production or business, suspension or revocation of a permit or license or administrative detention:
2. disagreeing with a decision of compulsory administrative measures made by an administrative organ, such as restriction of personal freedom or sealing up or distraint or freezing of property;
3. disagreeing with a decision made by an administrative organ on the modification, termination or revocation of a permit, license, certificate of competence or qualifications certificate;
4. disagreeing with a decision made by an administrative organ on determining the ownership or the right to the use of such natural resources as land, mineral reserves, water, forest, hills, grassland, barren land, tidal beaches and seawater areas;
5. believing that an administrative organ has infringed upon his or its managerial autonomy;
6. believing that modification or revocation of an agricultural contract by an administrative organ has infringed upon his or its legitimate rights or interests;
7. believing that an administrative organ illegally raises funds, acquisitions property, levies fees or illegally requires to perform any other obligation;
8. believing that he or it is legally qualified to apply to an administrative organ for issuance of a permit, license, certificate of competence or qualifications certificate, or to apply to an administrative organ for approval or registration of related matters, but the latter fails to do so according to law;
9. applying to an administrative organ to perform its statutory duties to protect the personal right, property right or the right to education but the latter fails to do so according to law;
10. applying to an administrative organ to pay, according to law, allowance for the disabled or family of the deceased, social security fund or amount of the minimum living expenses but the latter fails to do so according to law; or
11. believing that any other specific administrative act of an administrative organ has infringed upon his or its legitimate rights or interests.
Article 7
At the time of applying for administrative reconsideration on a specific administrative act, a citizen, legal person or any other organization may, if believing any of the following provisions on which the specific administrative act of the administrative organ is based is not appropriate, file concurrently an application with the administrative reconsideration organ for reviewing the said provision:
1. the provisions of the State Council¡¯s departments;
2. the provisions of local people's governments at and above the county level or their working departments; and
3. the provisions of township or town people's governments.
The provisions listed in the preceding paragraph shall not include the rules issued by the ministries and commissions under the State Council and by local people's governments. The review of such rules shall be governed by the relevant laws and administrative regulations.
Article 8
If disagreeing with an administrative sanction or any other decision relating to personnel issues imposed by an administrative organ, an appeal shall be filed with in accordance with the provisions of relevant laws and administrative regulations.
If disagreeing with a mediation decision or any other disposition made by an administrative organ on a civil dispute, an arbitration shall be applied for or a suit shall be brought before a people's court according to law.
Chapter III Application for Administrative Reconsideration
Article 9
If believing that a specific administrative act has infringed upon his or its legitimate rights or interests, a citizen, legal person or any other organization may, within 60 days from the date following the knowing of the said act, file an application for administrative reconsideration, except that the period for application exceeds 60 days as prescribed by law.
If it is delayed due to force majeure or any other justifiable reasons, the period for application shall continue to be computed from the day on which the obstacle is eliminated.
Article 10
Citizens, legal persons and other organizations applying for administrative reconsideration according to this Law are the applicants.
If a citizen eligible for applying for administrative reconsideration dies, his or her near relatives may do so. If a citizen eligible for applying for administrative reconsideration is a person without civil capacity or with limited civil capacity, his or her legal agent may do so on his or her behalf. If a legal person or any other organization eligible for applying for administrative reconsideration is terminated, the legal person or any other organization that acquires its rights may do so.
Any other citizen, legal person or organization that has interest in a specific administrative act being applied for administrative reconsideration may, as the third party, participate the administrative reconsideration.
If a citizen, legal person or any other organization applies for administrative reconsideration for disagreeing with a specific administrative act of an administrative organ, the administrative organ which made the act shall be the party against whom the application is filed.
Applicants and third parties may authorize agents to participate in administrative reconsideration on their behalf.
Article 11
The applicant may apply for administrative reconsideration in writing or orally. If an application is filed orally, the administrative reconsideration organ shall write down, on the spot, basic information about the applicant, claims in regard to administrative reconsideration, and main facts, reasons and the time of applying for administrative reconsideration.
Article 12
If disagreeing with a specific administrative act of a working department of the local people's government at or above the county level, the applicant may, on its own choice, apply for administrative reconsideration to the people's government at the same level with the said department or to the competent department at the next higher level.
If disagreeing with a specific administrative act of the administrative organ such as the customs, finance, State taxation or foreign exchange control where vertical leadership is adopted or of a State security organ, administrative reconsideration shall be applied for to the competent department at the next higher level.
Article 13
If disagreeing with a specific administrative act of a local people's government at any level, administrative reconsideration shall be applied for to the local people's government at the next higher level.
If disagreeing with a specific administrative act of a local people's government at the county level under the jurisdiction of the agency established according to law by the people's government of a province or an autonomous region, administrative reconsideration shall be applied for to the said agency.
Article 14
If disagreeing with a specific administrative act of the State Council¡¯s department or of the people's government of a province, autonomous region or municipality directly under the Central Government, administrative reconsideration shall be applied to the department or the people's government which made the act. If disagreeing with the administrative reconsideration decision, administrative action may be brought before a people's court or a decision may be applied for to the State Council, and the State Council shall, in accordance with the provisions of this Law, make a final decision.
Article 15
If disagreeing with a specific administrative act of an administrative organ or organization other than those specified in Article 12, 13 or 14 of this Law, administrative reconsideration shall be applied for in accordance with the following provisions:
1. If disagreeing with a specific administrative act of an agency established according to law by the local people's government at or above the county level, administrative reconsideration shall be applied for to the people's government which establishes the agency;
2. If disagreeing with a specific administrative act which is made, in accordance with the provisions of laws, regulations or rules and in its own name, by an agency established according to law by a working department of the government, administrative reconsideration shall be applied for to the department which establishes the agency or to the people's government at the same level with the said department;
3. If disagreeing with a specific administrative act of an organization authorized by laws and regulations, administrative reconsideration shall be applied for respectively to the local people's government directly managing the organization, the working department of the local people's government or the State Council¡¯s department;
4. If disagreeing with a specific administrative act made jointly by two or more administrative organs, administrative reconsideration shall be applied for to their common administrative organ at the next higher level; and
5. If disagreeing with a specific administrative act made by an administrative organ prior to its dissolution, administrative reconsideration shall be applied for to the administrative organ at the next higher level over the administrative organ which succeeds to the functions and powers of the administrative organ dissolved.
Under one of the circumstances prescribed in the preceding paragraph, the applicant may also file an application for administrative reconsideration with the local people's government at the county level in the place where the specific administrative act occurred, and the local people's government at the county level which accepts the application shall handle it according to the provisions of Article 18 of this Law.
Article 16
If an application for administrative reconsideration of a citizen, legal person or any other organization is accepted by the administrative reconsideration organ according to law or if, as required by laws and regulations, administrative consideration shall first be applied for to the administrative reconsideration organ and then an administrative action may be brought before a people's court only after disagreeing with the administrative reconsideration decision, no administrative action may be brought before the people's court within the legal period for administrative reconsideration.
If an administrative action brought by a citizen, legal person or any other organization is accepted by a people's court according to law, no administrative reconsideration may be applied for.
Chapter IV Acceptance of Administrative Reconsideration
Article 17
The administrative reconsideration organ shall, within 5 days from the date following receipt of an application for administrative reconsideration, examine the application, and if finding the application is not in conformity with the provisions of this Law, decide to deny it and inform the applicant in writing; or if finding the application is in conformity with the provisions of this Law but is not under its jurisdiction, inform the applicant to file the application with the appropriate administrative reconsideration organ.
Except for the provisions of the preceding paragraph, it shall be considered as acceptance beginning from the day on which an application for administrative reconsideration is received by the body in charge of legal affairs of the administrative reconsideration organ.
Article 18
The local people's government at the county level which receives an application for administrative reconsideration in accordance with the provisions of Paragraph 2 of Article 15 of this Law shall, if the application falls under the jurisdiction of another administrative reconsideration organ as required by the provisions of Paragraph 1 of Article 15 of this Law, forward the application to the appropriate administrative reconsideration organ and inform the applicant within 7 days following receipt of the application. The administrative reconsideration organ which receives the forwarded application shall handle it in accordance with the provisions of Article 17 of this Law.
Article 19
If laws and regulations require that administrative reconsideration shall first be applied for to the administrative reconsideration organ and then administrative action may be brought before a people's court only after disagreeing with the administrative reconsideration decision, or if the administrative reconsideration organ decides to deny the application or fails to make a reply at the expiration of the period for administrative reconsideration, the citizen, legal person or any other organization may bring administrative action before a people's court according to law within 15 days from the date following receipt of the written decision of denying or from the expiration of the period for administrative reconsideration.
Article 20
If, without any justification, the administrative reconsideration organ refuses to accept the application for administrative reconsideration filed by a citizen, legal person or any other organization according to law, the administrative organ at the higher level shall order it to accept the application, or when necessary, may directly accept the application.
Article 21
Within the period for administration reconsideration, the execution of specific administrative act shall not be suspended; under any of the following circumstances, however, the execution thereof may be suspended:
1. If the party against whom the application is filed considers it necessary to suspend its execution;
2. If the administrative reconsideration organ considers it necessary to suspend the execution;
3. If the applicant applies for suspension and the administrative reconsideration organ considers its petition reasonable and decides to suspend the execution; or
4. If laws require that the execution shall be suspended.
Chapter V Administrative Reconsideration Decision
Article 22
In principle, administrative reconsideration shall be conducted by applying the method of written inquiry; however, if the applicant requests or if the body in charge of legal affairs of the administrative reconsideration organ deems it necessary, the organizations and persons concerned may be inquired and opinions from the applicant, the party against whom the application is filed and the third party may be heard.
Article 23
The body in charge of legal affairs of the administrative reconsideration organ shall, within 7 days from the date following acceptance of the application for administrative reconsideration, send the copy of the written application or photocopy of minutes on the application to the party against whom the application is filed. The latter shall, within 10 days from the date following receipt of the copy or photocopy, submit a written reply and provide the evidence, basis and other related materials on which the specific administrative act was based.
The applicant and the third party may consult the written reply, evidence, basis and other related materials on which the specific administrative act was based, submitted and provided by the party against whom the application is filed, unless they involve State secrets, commercial secrets or personal privacy, the administrative reconsideration organ may not refuse.
Article 24
In the course of administrative reconsideration, the party against whom the application is filed may not gather any evidence from the applicant and other related organizations or persons on its own.
Article 25
If requesting before the administrative reconsideration decision is made, the applicant may withdraw the application for administrative reconsideration after explaining reasons. Once the application is withdrawn, administrative reconsideration thereon shall be discontinued.
Article 26
If, at the time of applying for administrative reconsideration, the applicant files concurrently an application for review of any provisions listed in Article 7 of this Law, the administrative reconsideration organ shall, in the case of having the power to make the review, complete it according to law within 30 days; in the case of having no power to do so, forward the application to the administrative organ which has the power to make the review within 7 days pursuant to the legal procedures, and the latter shall complete it according to law within 60 days. Within the period for reviewing the provisions, the review of the specific administrative act shall be suspended.
Article 27
The administrative reconsideration organ shall, if finding, at the time of reviewing the specific administrative act of the party against whom the application is filed, that the base for the act is appropriate, complete the deposition according to law within 30 days in the case of having the power to deposit it or forward it to the State organ which has the power to do so within 7 days pursuant to the legal procedures in the case of having no power to deposit it. Within the period of deposition, the review of the specific administrative act shall be suspended.
Article 28
The body in charge of legal affairs of the administrative reconsideration organ shall review and propose the specific administrative act of the party against whom the application is filed, and upon approval of the person in charge of the administrative reconsideration organ or upon approval through collective deliberation, make the administrative reconsideration decision in accordance with the following provisions:
1. The specific administrative act shall, by decision, be maintained if facts are clearly ascertained, evidence irrefutable, the application of basis appropriate, the procedure legal and the content appropriate;
2. The performance shall, by decision, be made within a given period if the party against whom the application is filed fails to perform its functions and duties prescribed by law;
3. The specific administrative act shall, by decision, be repealed, modified or ascertained as illegal if the act is under one of the following circumstances; if the specific administrative act is repealed or is ascertained as illegal, the party against whom the application is filed may be ordered to make a new specific administrative act within a given time limit:
(1). main unclear facts and inadequate evidence;
(2). erroneous application of basis;
(3). violation of legal procedures
(4). overstepping or abusing its powers;
(5). obviously improper specific administrative act.
4. If the party against whom the application is filed fails to submit its written reply and provide the evidence, basis and other related materials on which the specific administrative act was based in accordance with the provisions of Article 23 of this Law, it shall be deemed that there is no evidence and basis therefor and the act shall, by decision, be repealed.
If the administrative reconsideration organ orders the party against whom the application is filed to make a new specific administrative act, the latter may not make the new specific administrative act identical or basically identical to the original specific administrative act by basing on the same facts and reasons.
Article 29
The applicant may claim for administrative compensation concurrently at the time of applying for administrative reconsideration, and the administrative reconsideration organ shall, if believing that compensation shall be given in accordance with the relevant provisions of the Compensation Law of the State, concurrently decide to provide compensation by the party against whom the application is filed according to law at the time of deciding to repeal or modify the specific administrative act or ascertaining the specific administrative act illegal.
If the applicant does not claim for administrative compensation at the time of applying for administrative reconsideration, the administrative reconsideration organ shall order the party against whom the application is filed to return the property, to remove the sealing-up, distraint and freezing measures over property, or to pay appropriate prices concurrently at the time of deciding, according to law, to repeal or modify the specific administrative act such as the fine, nullification of the illegal fund-raising, confiscation of property and goods, acquisition of property and goods and apportionment of fees, as well as sealing-up, distraint and freezing of property.
Article 30
If believing that a specific administrative act of the administrative organ has infringed upon his or its ownership or right to the use of natural resources such as land, mineral reserve, water, forest, hills, grassland, barren land, tidal beaches and seawater areas already obtained according to law, the citizen, legal person or any other organization shall apply for administrative reconsideration first; and if disagreeing with the administrative reconsideration decision, may bring administrative action before a people's court according to law.
According to the decisions of the State Council or the people's governments of provinces, autonomous regions and municipalities directly under the Central Government on the demarcation, survey and adjustment of administrative division or land acquisition, the administrative reconsideration decisions made by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government on ascertaining the ownership or the right to the use of natural resources such as land, mineral reserve, water, forest, hill, grassland, barren land, tidal beaches and seawater areas shall be final.
Article 31
The administrative reconsideration organ shall make the administrative reconsideration decision within 60 days from the date following acceptance of the application, except for the case for which the period for administrative reconsideration is prescribed by law to be less than 60 days. If the circumstance is complicated and it is impossible to make the administrative reconsideration decision within the given period, it may, upon approval of the person in charge of the administrative reconsideration organ, be appropriately extended, and in this case, the applicant and the party against whom the application is filed shall be informed. The extension, however, may not exceed 30 days.
In making the administrative reconsideration decision, the administrative reconsideration organ shall prepare a written decision of administrative reconsideration and affix its seal on it.
Once it is served, the written decision of administrative reconsideration shall become legally effective.
Article 32
The party against whom the application is filed shall perform the administrative reconsideration decision.
If the party against whom the application is filed fails to perform or delays the performance of the administrative reconsideration decision without justifiable reasons, the administrative reconsideration organ or the administrative organ at the higher level concerned shall order it to perform it as scheduled.
Article 33
Failure of the applicant to initiate a suit and to perform the administrative reconsideration decision within the time limit or to perform the final administrative reconsideration decision shall be governed respectively by the following provisions:
1. The administrative reconsideration decision whereby the specific administrative act is maintained shall be compulsorily enforced by the administrative organ which made the act according to law or by the people's court after being applied to; or
2. The administrative reconsideration decision whereby the specific administrative act is modified shall be compulsorily enforced by the administrative reconsideration organ according to law or by the people's court after being applied to.
Chapter VI Legal Liability
Article 34
If the administrative reconsideration organ, in violation of the provisions of this Law and without justifiable reasons, refuses to accept an application for administrative reconsideration filed according to law or fails to forward the application as specified or fails to make the administrative reconsideration decision within the legal period, the person directly in charge and other persons directly responsible shall be given, according to law, the administrative sanction such as warning or record of a demerit or serious demerit; and if, after being ordered, it still refuses to accept or still fails to forward the application, thus causing serious outcome, be given, according to law, the administrative sanction such as demotion, removal from office or expulsion.
Article 35
A member of the administrative reconsideration organ who, during the activities of administrative reconsideration, practices favoritism or irregularities or has any other dereliction or negligence of duty, shall be given, according to law, the administrative sanction such as warning or record of a demerit or serious demerit; if the circumstance is serious, be given, according to law, the administrative sanction such as demotion, removal from office or expulsion; and if a crime is constituted, be demanded for criminal responsibility according to law.
Article 36
If the party against whom the application is filed, in violation of the provisions of this Law, fails to submit the written reply or to provide evidence, basis and other related materials on which its specific administrative act was based, or obstructs, directly or in a disguised manner, the citizen, legal person or any other organization from applying for administrative reconsideration according to law, the person directly in charge and other persons directly responsible shall be given, according to law, the administrative sanction such as warning or record of a demerit or serious demerit; if seeking revenge or frame-up, be given, according to law, the administrative sanction such as demotion, removal from office or expulsion; and if a crime is constituted, be demanded for criminal responsibility according to law.
Article 37
If the party against whom the application is filed fails to perform or without justifiable reasons, delays to perform the administrative reconsideration decision, the person directly in charge and other persons directly responsible shall be given, according to law, the administrative sanction such as warning or record of a demerit or serious demerit; and if it still refuses to make the performance after being ordered, be given, according to law, the administrative sanction such as demotion, removal from office or expulsion.
Article 38
The body in charge of legal affairs of the administrative reconsideration organ shall, if finding such circumstances as refusal to accept the application for administrative reconsideration without justifiable reasons, failure to make the administrative reconsideration decision within the time limit prescribed, practices of favoritism or irregularities, revenge against the applicant or failure to perform the administrative reconsideration decision, submit suggestions to the administrative organ concerned, and the latter shall deal with it in pursuance to the provisions of this Law and other relevant laws and administrative regulations.
Chapter VII Supplementary Provisions
Article 39
No administrative reconsideration organ may charge any fees from the applicant in accepting the application for administrative reconsideration. Expenses and costs necessary for administrative reconsideration activities shall be included in its own administrative outlay and be guaranteed by the finance department at the same level.
Article 40
The calculation of the period for administrative reconsideration and the service of administrative reconsideration documents shall be governed by the provisions of the Civil Procedure Law regarding the period and service.
The provisions of this Law on "5 days" and "7 days" relating to the period for administrative reconsideration mean the working day and do not include the holiday.
Article 41
This Law shall apply to administrative reconsideration applied for in the territory of People's Republic of China by foreigners, stateless persons and foreign organizations.
Article 42
Should any provision of laws enacted prior to the entry into force of this Law relating to administrative reconsideration is inconsistent with the provisions of this Law, the latter shall prevail.
Article 43
This Law shall enter into force on October 1, 1999. The Regulations on Administrative Reconsideration, promulgated by the State Council on December 24, 1990 and promulgated after revision by the State Council on October 9, 1994, shall be annulled simultaneously.
