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深圳经济特区行政监察申诉案件处理办法 Rules of Shenzhen Special Economic Zone on Settlement of the Appeal case against the Administrative Supervision

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深圳市人民政府令第79号
颁布日期:19981102  实施日期:19981102  颁布单位:深圳市人民政府

  Rules of Shenzhen Special Economic Zone on Settlement of the Appeal case against the Administrative Supervision

  (Adopted at the 106th executive meeting of the Second Shenzhen Municipal People’s Government, and promulgated by Decree No.79 of the Shenzhen Municipal People’s Government on November 2, 1998.)

  Chapter Ⅰ General Provisions

  Article 1 In order to guarantee the supervisory department and its working staff to exercise the functions and powers according to law, settle the appeal case in time, and safeguard the legal rights and interests of the state civil servants, other persons appointed by the state administrative organization as well as the citizen, legal person and other organizations involved in the activities of administrative supervision, these rules are formulated according to the provisions of the laws and regulations.

  Article 2 These rules shall be applicable to the settlement of the cases of appeals against the activities of administrative supervision and the administrative sanctions, which are filed by the supervised of administrative supervision in the administrative region of Shenzhen Municipality (hereinafter referred to as the Municipality), or the citizens, legal persons and other organizations involved in the activities of administrative supervision.

  The supervised of administrative organization mentioned in these rules refer to the organizations and persons who are supervised by the supervisory department according to the provisions of Article 16 of the Law of the People’s Republic of China on Administrative Supervision.

  Article 3 The supervisory department shall observe the principles of seeking truth from facts, correcting mistakes, accuracy and in-time to settle the appeal case according to law.

  Article 4 The municipal or district supervisory department

  shall be responsible for settlement of the appeal case against the administrative supervision at respective level, and carry out the system of closing case by review and adjudication.

  Article 5 During the period, when the supervisory department is settling the appeal case, the enforcement of the administrative supervision decision relevant to the appeal shall not be suspended.

  Chapter Ⅱ Scope of Appeals and Jurisdiction

  Article 6 The supervisory department shall accept the following appeals:

  (1) Being not satisfied with the administrative sanction made by the supervisory department and other administrative organization;

  (2) Being not satisfied with the supervisory decision made by the supervisory department on confiscation, revendication, or ordering to return and pay compensation;

  (3) Being not satisfied with the decision made by the supervisory department on reexamination, or retrial, or having dissent from the supervisory opinion and reply;

  (4) Being not satisfied with the supervisory measures taken by the supervisory department, when it performs the functions and duties and investigates into the corruption, bribe, embezzlement of public funds or other acts violating the administrative disciplines;

  (5) Considering that the supervisory department or its working staff has illegally exercised the functions and powers and infringed the legal rights and interests of the citizen, legal person or other organization;

  (6) Other appeals that shall be accepted by the supervisory department as stipulated in laws or regulations.

  The appeals stipulated in the six subparagraph of the proceeding paragraph shall be settled according to the procedures stipulated in laws or regulations.

  Article 7 The following cases of appeal shall be under the jurisdiction of the municipal supervisory department:

  (1) Being not satisfied with the decision made by the municipal supervisory department, department of the municipal people’s government or the district people’s government on the administrative punishment;

  (2) Being not satisfied with the supervisory decision made by the municipal supervisory department or the supervisory measure taken by it;

  (3) Having dissent from the supervisory proposal made by the municipal supervisory department or the reply to the supervisory proposal made by the district supervisory department;

  (4) Being not satisfied with the decision made by the district supervisory department on retrial or reexamination;

  (5) Considering that the municipal supervisory department or its working staff has illegally exercised the functions and powers and infringed the legal rights and interests of the citizen, legal person or other organization;

  (6) The cases of appeal assigned by the people’s government at the same level or the superior supervisory department.

  Article 8 The following cases of appeal shall be under the jurisdiction of the district supervisory department:

  (1) Being not satisfied with the decision made by the district supervisory department, department of the district people’s government or the people’s government of town on the administrative sanction;

  (2) Being not satisfied with the supervisory decision made by the district supervisory department or the supervisory measure taken by it;

  (3) Having dissent from the supervisory proposal made by the district supervisory department;

  (4) Considering that the district supervisory department or its working staff has illegally exercised the functions and powers and infringed the legal rights and interests of the citizen, legal person or other organization;

  (5) The cases of appeal assigned by the people’s government at the same level or the superior supervisory department.

  Article 9 If there is a dispute about the jurisdiction of the appeal case, the jurisdiction shall be consulted and determined by the departments of supervision involved in, or be designated the jurisdiction by their common superior supervisory department.

  Chapter Ⅲ Organization for Settlement of the Appeal Case

  Article 10 The supervisory department shall set up the committee for settlement of the appeal case, which shall mainly perform the following functions and duties:

  (1) To deliberate the hearing report of the appeal case;

  (2) To put forward the settlement opinion to the appeal case;

  (3) To direct the settlement work of the appeal cases.

  Article 11 The working division of legal affairs of the supervisory department (hereinafter referred to as the settlement division) shall be concretely responsible for the settlement work of the appeal cases, which shall mainly perform the following functions and duties:

  (1) To examine whether the filing of the appeal accords with the legal requirements;

  (2) To investigate, collect evidence, inquiry about the documents and materials of the case to the party, relevant unit or person;

  (3) To hear the appeal case and write the hearing report;

  (4) To submit the hearing report to the committee for settlement of appeal cases for deliberation;

  (5) To draw up the decision on settlement of the appeal case.

  If there is no working division of legal affairs under the supervisory department, the hearing department shall appoint more than 2 working staff, who are not the original undertaker of the case, to settle the appeal case.

  Chapter Ⅳ Filing and Acceptance of the Appeal

  Article 12 The appeal shall be filed by the supervised of administrative supervision, or the involved citizen, legal person or other organization (hereinafter referred to as the appellant), who is given the administrative sanction, or is not satisfied with the supervisory decision, the supervisory measures, or the supervisory proposal of the supervisory department, or considers that the supervisory department or its working staff has infringed his legal rights and interests by performing functions and powers

  If the appellant is dead or loses the capacity of disposition, his close relative may file the appeal. If the appellant is the legal person or other organization, and the legal person or organization is revoked or terminated, the legal person or other organization, that has inherited the rights of the revoked or terminated legal person or organization, may file the appeal.

  Article 13 If the appellant is not satisfied with the administrative sanction made by the administrative organization, he may apply for reexamination to the supervisory department with the jurisdiction within 30 days from the date when he receives the decision on administrative sanction. If he is not satisfied with the decision of reexamination yet, he may apply for review to the superior supervisory department within 30 days from the date when he receives the decision of reexamination.

  Article 14 If the appellant is not satisfied with the supervisory decision, he may apply for reexamination to the supervisory department making the decision within 30 days from the date when he receives the supervisory decision. If he is not satisfied with the decision of reexamination yet, he may apply for review to the superior supervisory department within 30 days from the date when he receives the decision of reexamination.

  Article 15 If the appellant has dissent from the supervisory proposal, he may appeal to the supervisory department making the supervisory proposal and ask for reply within 30 days from the date when he receives the supervisory proposal. The supervisory department shall give reply within 30 days from the date of acceptance. If the appellant has dissent from the reply yet, he may put forward the dissent within 30 days from the date when he receives the reply, the supervisory department making the reply shall report it to the people’s government at the same level or the superior supervisory department for adjudication within 15 days.

  Article 16 If the appellant is not satisfied with the supervisory measures, he may appeal to the supervisory department taking the supervisory measures within 15 days from the date when he receives the written notice of taking the supervisory measures. The supervisory department shall give the reply of maintaining or suspending enforcing the measures within 7 days from the date when it receives the appeal. If the appellant is not satisfied with the reply, he may apply for reexamination or review according to the provisions of the Article 14 of these rules.

  Article 17 If the appellant considers that the supervisory department or the supervisory person has illegally exercised the functions and powers and infringed the legal rights and interests of the citizen, legal person or other organization, he shall appeal to the supervisory department within 15 days from the date when he has found or should have known that his legal rights and interests have been infringed. The supervisory department shall give reply within 30 days from the date when it receives the appeal. If the appellant is not satisfied with the reply, he may apply for reexamination or review according to the provisions of the Article 14 of these rules.

  Article 18 The filing of appeal shall accord with the following requirements:

  (1) Be one of the appealing matters stipulated by the Article 6 of these rules;

  (2) Having concrete appealing claim and factual basis;

  (3) Filing the appeal within the legal time limit;

  (4) Other requirements stipulated by the laws or regulations.

  Article 19 If the appellant files an appeal, he shall submit a written appeal to the supervisory department within the stipulated appealing time-limit, and attaches the original decision on administrative sanction and the decision of reexamination, the original supervisory decision and the decision of review, the original supervisory proposal and the reply, or the original notice of supervision, and relevant evidence materials.

  The written appeal shall include the following contents:

  (1) The name, sex, age, working unit and the domicile of the appellant; or the name and address of the legal person or other organization, and the name and position of the legal representative or the person in charge;

  (2) The name of the appealed organization;

  (3) The appealing claim and reason;

  (4) The date, on which the appeal is filed.

  Article 20 Except the special time limits stipulated in these rules, the supervisory department shall make the following treatments separately within 15 days from the date when it receives the written appeal:

  (1) The appeal according with the provisions of the Article 18 of these rules shall be accepted;

  (2) The appeal case without the jurisdiction of this supervisory department shall be referred to the supervisory department or other relevant government organ or unit with jurisdiction, and the appellant shall be informed;

  (3) The appeal not according with one of the requirements stipulated by the Article 12 and 18 of these rules shall not be accepted, and the reason shall be given to the appellant in writing;

  (4) The written appeal not clearly including one of the contents stipulated in the Article 19 of these rules shall be returned to the appellant, which shall be completed within a prescribed time limit.

  Chapter Ⅴ Hearing and Adjudication

  Article 21 The supervisory department shall close the appeal case within the time limit stipulated as following:

  (1) The decision of reexamination on the application of reexamination for being not satisfied with the decision of administrative sanction made by a competent administrative organization shall be made within 30 days from the date of acceptance;

  (2) The decision of reexamination on the application of reexamination for being not satisfied with the supervisory decision shall be made within 30 days from the date of acceptance;

  (3) The decision of review on the application of review for being not satisfied with the decision on retrial or reexamination shall be made within 60 days from the date of acceptance;

  (4) If the appellant has dissent from the supervisory proposal or is not satisfied with the supervisory measures, it shall be settled according to the provisions of the Article 15 and 16 of these rules.

  Due to special reason, the time-limit for the supervisory department to hear the appeal case may be extended for another 60 days at the longest, with an approval of the leading official of the supervisory department at the same level.

  If an appeal case is not closed within the prescribed time limit, the supervisory department hearing the case shall report it to the people’s government at the same level or the superior supervisory department, and give reasons. If there are no fair reasons, the person directly liable shall be given the administrative sanction according to the circumstances.

  Article 22 If the appealed organization of the appeal case is the inferior supervisory department or other administrative organization, the supervisory department accepting the appeal shall send a duplicate of the written appeal to the appealed organization within 7 days. The appealed organization shall submit all the materials or evidences relevant to the appealing matters and give written explanation and statement to the supervisory department accepting the appeal within 10 days from the date when it receives the duplicate of the written appeal.

  If the appealed organization fails to give explanation and statement, the hearing of the appeal case shall not be affected

  therefore.

  Article 23 During the appeal period, the original decision on administrative sanction made by a competent administrative organization, the original supervisory decision, decision of retrial or reexamination, or supervisory measures of the supervisory department shall not be suspended the enforcement, except that one of the following circumstances appears:

  (1) The appealed organization considers that it needs to suspend the enforcement;

  (2) The supervisory department hearing the appeal considers that it needs to suspend the enforcement;

  (3) The appellant applies for the suspension of the enforcement, and the supervisory department hearing the appeal considers that the application is reasonable, and makes decision on suspending the enforcement;

  (4) The enforcement shall be suspended according to laws or regulations.

  Article 24 The appellant may withdraw the appeal before that the supervisory department makes a settlement decision on the appeal case. The appeal may also be withdrew, if the appealed organization changes the original decision, the appellant agrees to withdraw the appeal, and the supervisory department hearing the appeal agrees and makes a record.

  If the appellant appeals again within the legal period for the same facts and reasons after withdrawing the appeal, the supervisory department shall accept it. The appeal beyond the legal period shall not be accepted.

  Article 25 When the supervisory department hears an appeal case, it shall consult all the materials relevant to the case, comprehensively examine the facts of the case, and shall not be restricted by the claim of the appeal.

  Article 26 When the supervisory department hears an appeal case, it shall examine the following contents:

  (1) Whether the facts are clear, and the evidences are authentic and sufficient;

  (2) Whether the application of laws, regulations or policies is correct, or whether the characterization is correct;

  (3) Whether the administrative sanction made by the appealed organization, or the supervisory decision or the supervisory measures taken are correct;

  (4) Whether the legal procedures for case settlement are complied with;

  (5) Whether the supervisory department or the supervisory person has illegally exercised the functions and powers;

  (6) Other matters needed to be investigated and ascertained.

  Article 27 The supervisory department may hear the appeal case by the following means according to the needs:

  (1) Examining the materials of the case by record;

  (2) Investigating and certifying directly;

  (3)Requiring the original deciding organization to investigate and supplement evidences within a time limit.

  Article 28 The undertaker of the supervisory department, who hears the appeal case, shall check and examine the materials and evidences relevant to the appeal case seriously and make record.

  If he believes that it is necessary to investigate and verify after checking and examining the file, he shall determine the main matters needed to be investigated and verified, and draw up the scheme of investigation and verification, which shall be approved by the leading official of the supervisory department. The investigation and certification shall be carried out according to the stipulated procedures.

  Article 29 After an appeal case is heard by the supervisory department, the settlement organization or the undertaker shall put forward a hearing repot of the appeal case, which shall be reported to the committee for settlement of appeal cases for discussion. The hearing report shall clearly include the following main contents:

  (1) The claim and reasons of the appeal;

  (2) The course that the appealed organization settled the original case, the facts determined in the original decision on administrative sanction or other supervisory decisions, and the decisions on retrial or reexamination and their settlement conclusions, the facts determined in the original supervisory proposal and its reply, and the proposal matters, and the main foundations and reasons for taking the supervisory measures;

  (3) The examination of the appealed matters, the determined facts, evidences and characterization after the examination, and the provisions of the applied laws, regulations and policies;

  (4) The opinion of retrial, reexamination or review, as well as the settlement opinion to the supervisory proposal or supervisory measures.

  Article 30 After the hearing, if the original decision on administrative sanction, supervisory treatment decision, decision of reexamination or retrial, supervisory measure, or supervisory proposal or its reply is considered by the supervisory department to satisfies the following requirements, and passed the discussion of the committee for settlement of appeal cases and the check of the leading official of the supervisory department, it shall be sustained:

  (1) The facts are clear, and the evidences are authentic and sufficient;

  (2) The application of the laws, regulations and policies is correct, and the characterization is accurate;

  (3) Legal competence and procedures are complied with;

  (4) The settlement is proper.

  Article 31 After the hearing, if the original decision on administrative sanction, supervisory treatment decision, decision of reexamination or retrial, or supervisory measure is considered by the supervisory department to satisfies the following requirements, and passed the discussion of the committee for settlement of appeal cases and the check of the leading official of the supervisory department, it shall be canceled, or the supervisory department shall order the inferior supervisory department or the competent administrative organization to cancel it:

  (1) The determined facts of violation of law or discipline do not exist;

  (2) The determined facts are not clear or the determined evidences are not sufficient;

  (3) The legal procedures are not complied with, which affected the fair settlement of the case.

  Article 32 After the hearing, if the original decision on administrative sanction, supervisory treatment decision, decision of reexamination or retrial, or supervisory proposal or its reply is considered by the supervisory department to satisfies the following requirements, and passed the discussion of the committee for settlement of appeal cases and the check of the leading official of the supervisory department,

  the supervisory department may decide to modify it directly, or order the inferior supervisory department or the competent administrative department to modify it:

  (1) The application of laws, regulations or policies is not proper, or the characterization is not accurate;

  (2) The settlement is obviously not proper, or the reason is not sufficient.

  Article 33 If the new facts of violating law or disciplines are found in the hearing of the appeal case, and the found violation needs to be settled as a separate case, the settlement organization or the undertaker shall propose an opinion, and provide the opinion to the committee for settlement of appeal cases. After the committee for settlement of appeal cases has approved the opinion, the found violation shall be referred to the relevant department or government organization to settle according to law.

  Article 34 When the supervisory department makes settlement decision on an appeal case, it shall separately make a decision document for the settlement of the appeal case, such as the written decision on retrial, reexamination or review, the written reply to the supervisory proposal, or the written reply to the supervisory measures according to the character of the appeal case.

  The decision documents listed in the proceeding paragraph shall clearly include the following main contents:

  (1) The name, sex, age and working unit of the appellant, the name of the legal person or other organization, the name and position of the legal representative or the person in charge;

  (2) The name of the appealed organization;

  (3) The appealing claim and the main reasons;

  (4) The main facts and reasons determined in the original decision on administrative sanction, supervisory decision, decision on retrial or reexamination, supervisory measures, or the original supervisory proposal and its reply, the applied laws, regulations or policies;

  (5) The facts and reasons determined by the supervisory department after hearing of the appeal case, the applied laws, regulations or policies;

  (6) The settlement conclusion;

  (7) The time limit of applying for review or adjudication, if the appellant or the appealed organization is not satisfied with the settlement decision on the appeal;

  (8) The date, on which the decision, reply or adjudication is made.

  The decision documents of the settlement of the appeal case shall be stamped by the supervisory department that made the decision, reply, or adjudication.

  Article 35 The supervisory department shall service the decision document of the settlement of the appeal on the appellant and the appealed organization according to relevant provisions of the Civil Procedure Law within 7 days from the date when it makes the settlement decision of the appeal case.

  Article 36 The settlement decision on appeal or the adjudication to the reply of the supervisory proposal made by the superior supervisory department of the appealed organization is the final decision on the appeal case.

  Chapter Ⅵ Supplementary Provisions

  Article 37 If there are other provisions of laws or regulations on the remedy means and procedures for the supervised to file an appeal, these provisions shall be observed.

  Article 38 These rules shall go into effect as of the date of promulgation.

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