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行政复议条例(一)

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行政复议条例
REGULATIONS ON ADMINISTRATIVE RECONSIDERATION

(Adopted at the 71st Executive Meeting of the State Council on November 9, 1990, promulgated by Decree No. 70 of the State Council of the People's Republic of China on December 24, 1990 and effective as of January 1, 1991)
时效性:已被修正  颁布日期:19901224  实施日期:19910101  失效日期:941009  颁布单位:国务院

  Chapter I General Provisions

  Article 1 These Regulations are enacted pursuant to the Constitution and the pertinent laws, with a view to safeguarding and supervising administrative organs in exercising their functions and powers, preventing and correcting any malfeasant or improper specific administrative acts, and protecting the lawful rights and interests of citizens, legal persons and other organizations.

  Article 2 Where citizens, legal persons, or other organizations hold that a specific administrative act of an administrative organ has infringed upon their lawful rights and interests, they may, in accordance with these Regulations, file an application to the competent administrative organ for reconsideration.

  Article 3 The administrative organ for reconsideration shall exercise its functions and powers according to law and shall not be subject to any illegal interference from other organs, public organizations and individuals.

  Article 4 The “administrative organs for reconsideration”, as mentioned in these Regulations, refers to those administrative organs which accept applications for reconsideration, and shall, according to law, conduct reviews over the specific administrative acts, and make a decision. The “reconsideration office”, as mentioned in these Regulations, refers to the offices which are set up within the administrative organs for reconsideration and are responsible for the affairs relating to the reconsideration.

  Article 5 Except as otherwise stipulated by the laws and administrative rules And regulations, the administrative reconsideration shall apply a single-level system of reconsideration.

  Article 6 The administrative reconsideration shall follow the principle of being “lawful, timely, accurate, and convenient for the people”。

  Article 7 The administrative organ for reconsideration shall, according to law, conduct review over the legality and appropriateness of a specific administrative act.

  Article 8 The administrative organ for reconsideration shall not apply Conciliation in handling reconsideration cases.

  Chapter II The Scope of Application for Reconsideration

  Article 9 Citizens, legal persons, and other organizations may file an Application to the administrative organs for reconsideration if they refuse to accept any of the following specific administrative acts:

  (1) an administrative sanction, such as detention, fine, rescission of a permit or a licence, order to suspend production or business operations or confiscation of property and article, which one refuses to accept;

  (2) a compulsory administrative measure, such as restriction of personal freedom or the sealing up, distraint, or freezing of property, which one refuses to accept;

  (3) infringement upon one's managerial decision-making power as stipulated by the laws and regulations, which is held to have been perpetrated by an administrative organ;

  (4) refusal by an administrative organ to issue a permit or licence, which one holds oneself legally qualified to apply for, or its failure to respond to the application;

  (5) refusal by an administrative organ to perform its statutory functions and duties of protecting one's personal rights and property rights, as one has applied for, or its failure to respond to the application;

  (6) cases where an administrative organ is held to have failed to pay the pensions for the disabled or for the family of the deceased according to law;

  (7) cases where an administrative organ is held to have illegally demanded theperformance of duties;

  (8) cases where an administrative organ is held to have infringed upon other personal rights and property rights;

  (9) other specific administrative acts against which, according to the laws and regulations, an administrative lawsuit or an application for reconsideration may be instituted.

  Article 10 Citizens, legal persons, or other organizations shall not file an application for reconsideration in accordance with these Regulations if they are not satisfied with any one of the following matters:

  (1) administrative regulations, rules, or decisions and orders with a general binding force;

  (2) decisions on awards or punishments or on the appointment of or removal from a position with respect to personnel working in administrative organs;

  (3) arbitration or conciliation or disposition of civil disputes;

  (4) acts of the State in areas such as national defence and foreign affairs.

  Chapter III Jurisdiction for Reconsideration

  Article 11 In case that a specific administrative act has been undertaken by the working department of a local people's government at or above the countylevel, and an application is filed for reconsideration, the case shall be under the jurisdiction of the competent department at a higher level. A case that falls under one of the following circumstances shall be under the jurisdiction of the people's government at the same level:

  (1) there is no corresponding competent department at a higher level;(2) cases that shall be under the jurisdiction of the people's governments as stipulated by the provisions of the laws and regulations. In case that an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by any of the departments under the State Council, the case shall be under the jurisdiction of the department which has undertaken the said specific administrative act.

  Article 12 In case that an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by any of the local people's governments at various levels, the case shall be under the jurisdiction of the people's government at a higher level. In case that an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by the people's government of a province, an autonomous region, or a municipality directly under the Central Government, the case shall be under the jurisdiction of the people's government which has undertaken the aforesaid specific administrative act.

  Article 13 In case that an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken jointly by two or more administrative organs, the case shall be under the jurisdiction of an administrative organ at the next higher level over the aforesaid two or more administrative organs.

  Article 14 In case that an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an agency of a local people's government at or above the county level, the case shall be under the jurisdiction of the local people's government which has established the agency. In case that an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an agency which is established by a working department of the people's government in its own name according to the provisions of the laws, regulations and rules, the case shall be under the jurisdiction of the department which has established the said agency.

  Article 15 In case that an application for reconsideration is filed by a person Who does not accept a specific administrative act undertaken by an organization authorized by laws, regulations and rules, the case shall be under the jurisdiction of the competent administrative organ immediately over the said organization. In cases that an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an entrusted organization, the case shall be under the jurisdiction of an administrative organ at the next higher level over the commissioning administrative organ.

  Article 16 In case that an application for reconsideration is filed by a person who does not accept a specific administrative act which, according to the provisions of the laws and regulations, is subject to the approval of an administrative organ at a higher level, the case shall be under the jurisdiction of the administrative organ which makes the final decision unless otherwise provided for by the laws and regulations.

  Article 17 In case that an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an administrative organ prior to its abolition, the case shall be under the jurisdiction of theadministrative organ at the next higher level over the administrative organ which has succeeded to the functions and powers of the administrative organ abolished.

  Article 18 Where an administrative organ for reconsideration finds that a case it has accepted is not under its jurisdiction, it shall transfer the case to an administrative organ which has jurisdiction over the case. The administrative organ, to which the aforesaid case has been transferred, shall not transfer the case again on its own initiative.

  Article 19 Where a dispute arises between administrative organs over jurisdiction for reconsideration, the dispute shall be resolved by the parties to the dispute through consultation. If consultation fails, the administrative organ immediately over the two parties shall designate jurisdiction.

  Article 20 Where a person applies for reconsideration to two or more administrative organs that have jurisdiction, the case shall be under the jurisdiction of the administrative organ that has first received the application for reconsideration.

  Article 21 Where citizens, legal persons, and other organizations make a complaint to the correspondence and reception department within the time limit stipulated by law for filing an application for reconsideration, the correspondence and reception department shall timely notify the complainant to file an application for reconsideration to the administrative organ that has jurisdiction for reconsideration.

  Article 22 Other cases involving jurisdiction for reconsideration shall be Handled according to the provisions of the laws, regulations and rules.

  Chapter IV The Reconsideration Office

  Article 23 The administrative organ for reconsideration shall, in light of the needs of its work, establish the reconsideration office, or appoint full- time personnel that handle reconsideration cases, for the organ itself.

  Article 24 Reconsideration offices of various local people's governments at or above the county level shall be established within the government's office of legislative affairs, or the government's office of legislative affairs work in the name of the reconsideration office.

  Article 25 The reconsideration office, or the full-time personnel that handle reconsideration cases, shall work under the leadership of the administrative organ for reconsideration and carry out the following functions and duties:

  (1) to review whether reconsideration applications are in conformity with the statutory requirements;

  (2) to conduct investigations among, and collect evidence from, both parties to a dispute and relevant units and personnel, and to consult relevant documents and materials:

  (3) to organize the handling of reconsideration cases;

  (4) to draft reconsideration decisions;

  (5) to respond to prosecution in court, as entrusted by the legal representative of the administrative organ for reconsideration;

  (6) to carry out other functions and duties stipulated by the laws and regulations.

  Chapter V Participants in Reconsideration

  Article 26 Citizens, legal persons, or other organizations that file an application for reconsideration are applicants. Where a citizen who has the right to apply for reconsideration is deceased, his/her near relatives may apply for reconsideration; where a citizen who has the right to apply for reconsideration is incompetent or with limited capacity for conduct, his/her legal representative may apply for reconsideration on behalf of him/her. Where a legal person, or any other organization, that has the right to apply for reconsideration terminates, the legal person or any other organization that succeeds to its rights may apply for reconsideration.

  Article 27 Where any other citizen, legal person, or organization has an interest in a specific administrative act, for the reconsideration of which an application has already been filed, he/she or it may, with the approval of the administrative organ for reconsideration, file a request for participation in the reconsideration as a third party.

  Article 28 Where a citizen, legal person, or organization applies for reconsideration against a specific administrative act undertaken by an administrative organ, the said administrative organ is the defending party of the application. Where two or more administrative organs have undertaken a specific administrative act in their combined name, the administrative organs which have jointly undertaken the specific administrative act are the joint defending parties of an application. Where a specific administrative act is undertaken by an organization authorized by the Laws, regulations and rules, thesaid organization is the defending party of an application. Where a specific administrative act is undertaken by an organization authorized by the laws, regulations and rules, the said organization is the defending party of an application. Where a specific administrative act is undertaken by an organization entrusted by an administrative organ, the said commissioning administrative organ is the defending party of an application. Where a specific administrative act has been undertaken by an organ which has already been abolished, the administrative organ that continues to exercise the abolished organ's functions and powers is the defending party of an application.

  Chapter VI Application and Acceptance

  Article 29 Where a citizen, a legal person or any other organization files An application for reconsideration with the administrative organ that Has jurisdiction over the case, he/she or it shall do so within 15 days from the day when he/she or it becomes aware of the specific administrative act, except as otherwise stipulated by the laws and regulations. Where a citizen, a legal person or any other organization fails to observe the time limit prescribed by law due to force majeure or other special circumstances, he/she or it may, within 10 days after the obstacle is removed, apply for an extension of the time limit; the administrative organ that has jurisdiction shall decide whether to approve the aforesaid application or not.

  Article 30 Where a citizen, a legal person or any other organization brings a suit before the people's court, and the people's court has accepted the case, then he/she or it may not apply for reconsideration. Where a citizen, a legal person or any other organization applies for reconsideration to an administrative organ, and the administrative organ for reconsideration has accepted the application, then the applicant mentioned above may not bring a suit before the people's court within the statutory time limit for conducing reconsideration.

  Article 31 The following requirements shall be met when an application is made for reconsideration:

  (1) the applicant shall be a citizen, a legal person, or any other organization that holds that a specific administrative act has directly infringed upon his/her or its lawful rights and interests;

  (2) there must be a specific defending party or parties of an applications;

  (3) there must be a specific claim for reconsideration and a corresponding factual basis;

  (4) the case must fall within the scope for application

  for reconsideration;

  (5) the case must fall under the jurisdiction of the administrative organ that accepts the said case;

  (6) other requirements stipulated by the laws and regulations.

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