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行政复议条例(二)

2006-05-17 15:26   我要纠错 | 打印 | 收藏 | | |

  Article 32 An applicant, while applying to an administrative organ for reconsideration, shall submit a written application for reconsideration.

  Article 33 the written application shall contain the following contents:

  (1) the name, sex, age, occupation, and address of the applicant (the name and address of the legal person or any other organization, and the name of its legal representative);

  (2) the name and address of the defending party of the application for reconsideration;

  (3) the claim and reasons for applying for reconsideration;

  (4) the date of filing the application for reconsideration.

  Article 34 The administrative organ for reconsideration shall, within 10 days from the date of receiving the written application for reconsideration, handle the reconsideration applications respectively as follows:

  (1) reconsideration applications that are in conformity with the provisions of these Regulations shall be accepted;

  (2) applications for reconsideration that are not in conformity with one of the provisions in Article 31 of these Regulations shall not be accepted, and the applicant shall be notified of the reasons for this decision;

  (3) where a written reconsideration application fails to include one item of the contents as prescribed in the provisions of Article 33 of these Regulations, the written application shall be returned to the applicant, and a time limit for making up the said contents shall be set. If the applicant fails to fulfil the making-up, the above mentioned Application shall be considered to have not been made.

  Article 35 Where a citizen, a legal person, or any other organization has filed an application for reconsideration according to law, but the administrative organfor reconsideration refuses, without any justification, to accept the application or fails to respond to the application, the administrative organ at the next higher level, or the administrative organ prescribed by the laws and regulations, shall instruct the said administrative organ for reconsideration to accept the said application or to respond to the application.

  Article 36 Except as otherwise provided by the laws and regulations, in circumstances where, in accordance with the provisions of pertinent laws and regulations, a person concerned shall first apply to an administrative organ for reconsideration and then bring a suit before a people's court if the person concerned does not accept the reconsideration decision, if the applicant does not accept the decision made by the administrative organ for reconsideration to reject the application, the applicant may, within 15 days from the date of receiving the written decision on the rejection of the application, bring a suit before the people's court.

  Chapter VII Hearing and Decision

  Article 37 Administrative reconsideration shall be conducted by applying the system of reconsideration by written documents; however, when administrative organ for reconsideration deems it necessary, other forms for hearing of reconsideration cases may be adopted.

  Article 38 The administrative organ for reconsideration shall, within 7 days from the day of filing the case, deliver a copy of the written application for reconsideration to the defending party of the said application. The defending party of the application shall, within 10 days from the day of receiving the copy of the written application for reconsideration, provide the administrative organ for reconsideration with the relevant materials or evidence for undertaking the specific administrative act and submit a written defence. Failure by the defending party to submit a written defence within the time limit shall not stop the procedures of reconsideration.

  Article 39 In the course of hearing a reconsideration case, execution of the specific administrative act shall not be suspended. However, under one of the following circumstances, the execution of the specific administrative act may be suspended:

  (1) where suspension is deemed necessary by the defending party;

  (2) where suspension is deemed necessary by the administrative organ for reconsideration;

  (3) where suspension of execution is requested by the applicant and the administrative organ for reconsideration deems it reasonable and makes the decision on the suspension of the execution;

  (4) where suspension is required by the provisions of the laws, regulations and rules.

  Article 40 Prior to the making of a reconsideration decision, if the applicant with draws the application for reconsideration, or the defending party of the application has changed the specific administrative act it has undertaken, and the applicant agrees and applies for the withdrawal of the application for reconsideration, the application for reconsideration maybe withdrawn with the approval of the administrative organ for reconsideration and after the reconsideration case is recorded on file. Where an applicant has withdrawn his application for reconsideration, he may not apply for reconsideration again for the same facts and reasons.

  Article 41 In handling reconsideration cases, the administrative organ for reconsideration shall base itself on the laws, administrative rules and regulations, local regulations and rules as well as the decisions and orders with a general binding force formulated and promulgated by administrative organs at higher levels according to law. In handling reconsideration cases of the nationality autonomous regions, the administrative organ for reconsideration shall also base itself on the regulations on autonomy and separate regulations of the nationality autonomous regions.

  Article 42 The administrative organ for reconsideration shall, after the hearing, respectively make the following reconsideration decisions:

  (1) if the application of the laws, regulations and rules as well as the decisions and orders with a general binding force to the specific administrative act is correct, the facts are clearly ascertained, and the statutory limits of authority and procedures are complied with, the specific administrative act shall be sustained by decision;

  (2) if there are some inadequacies in the specific administrative act in terms of procedures, a decision shall be made for the defending party of an application for reconsideration to make them up and improve them;

  (3) if the defending party of an application for reconsideration fails to perform its duty as prescribed by laws, regulations and rules, a fixed time shall be set for the defending party to perform the duty;

  (4) if a specific administrative act has been undertaken in one of the following circumstances, the act shall be annulled or changed, or the defending party may be required by decision to undertake a specific administrative act anew:

  (a) ambiguity of the main facts;

  (b) erroneous application of the laws, regulations and rules and of decisions and orders with a general binding force;

  (c) violation of legal procedures, that affects unfavorably the lawful rights and interests of the applicant;

  (d) excess of authority or abuse of powers;

  (e) obvious inappropriateness of the specific administrative act.

  Article 43 Where, in the course of reviewing a specific administrative act, an administrative organ for reconsideration finds that the rules, or decisions and orders with a general binding force, which serve as the basis for a specific administrative act, are in conflict with the laws, regulations and rules or, other rules, decisions and orders with a general binding force, the competent administrative organ for reconsideration shall, within its scope of functions and powers, decide on their nullification or change according to law. Where the administrative organ for reconsideration deems that the rules or decisions and orders with a general binding force, which serve as the basis for a specific administrative act, are in conflict with the laws, regulations and rules, or other rules, decisions and orders with a general binding force, but the administrative organ for reconsideration has no power to handle the case, then this case shall be reported to the administrative organ at a higher level. The administrative organ at a higher level which has the power to handle the case, shall handle it according to law; if the administrative organ at a higher level does not have the power to handle the case, the case shall be submitted to an organ which has the power to handle it. In the course of the handling of the case, the administrative organ for reconsideration shall cease its hearing of the said case.

  Article 44 Where a specific administrative act, undertaken by the defending party of an application for reconsideration, infringes upon the lawful rights and interests of the applicant and causes damage, and the applicant claims a compensation, the administrative organ for reconsideration may instruct the defending party of an application for reconsideration to make the compensation in accordance with the provisions of the pertinent laws and regulations. After making the compensation, the defending party shall instruct those working personnel of the administrative organ, who have committed intentional or gross mistakes in the case, to bear part or all of the damages.

  Article 45 While making its reconsideration decision, the administrative organ for reconsideration shall prepare a written reconsideration decision. The written reconsideration decision shall indicate the following items:

  (1) the name, sex, age, occupation, and address of the applicant (the name and address of the legal person or of any other organization, and the name of its legal representative);

  (2) the name and address of the defending party of an application, the name and position of its legal representative;

  (3) the main claims and reasons for the application for reconsideration;

  (4) the facts and reasons, as established by the administrative organ for reconsideration; and the laws, regulations and rules as well as the decisions and orders with a general binding force applied;

  (5) the conclusion of the reconsideration;

  (6) the time limit for bringing a suit before the people's court if the applicant does not accept the reconsideration decision; or the time limit for the parties to execute the final decision on the reconsideration case;

  (7) the date (year, month, day) on which the reconsideration decision is made. The written decision on the reconsideration case shall be signed by the legal representative of the administrative organ for reconsideration, with the official seal of the administrative organ for reconsideration affixed to it.

  Article 46 The administrative organ for reconsideration shall, within two months after the day of receiving the reconsideration application, make its reconsideration decision, except as otherwise provided for in the laws and regulations. Once the written reconsideration decision is served on the parties concerned, it shall become legally effective.

  Article 47 With the exception that the reconsideration is final as provided for bylaw, an applicant who does not accept a reconsideration decision may, within 15 days from the days of receiving the written decision, or within other time limits as prescribed by the laws and regulations, bring a suit before the people's court. Where an applicant neither initiates a suit before the people's court, nor implement the reconsideration decision within the time limit, the case shall be dealt with according to different conditions:

  (1) with respect to a reconsideration decision sustaining the original specific administrative act, the administrative organ, which has originally undertaken the specific administrative act, shall apply to the people's court for compulsory execution, or proceed with compulsory execution according to law;

  (2) with respect to a reconsideration decision changing the original specific administrative act, the administrative organ for reconsideration shall apply to the people's court for compulsory execution, or proceed with compulsory execution according to law.

  Chapter VIII Time Periods and Service

  Article 48 Time periods shall be counted by the hour, the day, and the month. The hour and the day from which a time period begins shall not be counted as within the time period. If the expiration date of a time period falls on a holiday, then the day immediately following the holiday shall be regarded as the expiration date. A time period shall not include travelling time.

  Article 49 The service of a written reconsideration decision must be certified by a certificate of service, on which the date of receipt shall be indicated by the recipient of the service and his signature or seal shall be affixed. The date of receipt indicated on the certificate of service by the recipient of the service, shall be the date of service. With respect to service by mail, the date indicated in the receipt of registered mail shall be the date of service.

  Article 50 When a written reconsideration decision is served by the administrative organ for reconsideration, it shall be delivered directly to the recipient of service; if the recipient of service is absent, it shall be delivered to an adult family member living together with him/her, or to the unit to which he/she belongs, for a signed receipt; if the person has designated an agent to receive it for him, then the written decision shall be delivered to the agent for a signed receipt; if the person is a legal person or other organization, the written decision shall be delivered to its reception office for a signed receipt. In case that the recipient of service refuses to receive the written reconsideration decision, the person serving the decision shall invite persons concerned to be present on the scene, explain the situation to them, record in the certificate of service the reasons for and the date of the refusal, and the certificate of services shall be signed or sealed by the person serving the decision, and the witnesses, then the written decision shall be left at the residence or at the reception office, the service shall be deemed as completed.

  Article 51 The administrative organ for reconsideration may entrust other administrative organs with the service of a reconsideration decision or making the service by mail.

  Chapter IX Legal Responsibility

  Article 52 In case that the defending party of an application for reconsideration refuses to implement a reconsideration decision, the administrative organ for reconsideration may directly impose administrative sanctions on the legal representative of the defending party, or suggest that the department concerned should do so.

  Article 53 In case that the personnel handling reconsideration cases have neglected their duties or bent the law for the benefit of themselves, the administrative organ for reconsideration, or other competent departments concerned, shall criticize and admonish them, or impose administrative sanctions on them; if the case is serious enough to constitute a crime, criminal responsibilities shall be investigated according to law.

  Article 54 In case that participants in a reconsideration case, or other persons concerned, refuse or hamper, without resorting to violence or threats, the personnel handling reconsideration cases from executing their duties according to law, the organs of public security shall, in accordance with the provisions of Article 19 in the Regulations of the People's Republic of China on Administrative Penalties for Public Security, impose on the aforesaid persons detention for not more than 15 days, or a fine of 200 yuan (RMB) or less, or a warning. With respect to those who have resorted to violence or threat to hamper the personnel handling reconsideration cases from executing their duties, their criminal responsibilities shall be investigated according to law.

  Chapter X Supplementary Provisions

  Article 55 These Regulations shall apply to the resorting to Administrative reconsideration by foreigners, stateless persons, or foreign organizations engaged in administrative reconsideration in the People's Republic of China, except as otherwise provided for by the laws and regulations.

  Article 56 The Bureau of Legislative Affairs of the State Council shall be responsible for the interpretation of these Regulations.

  Article 57 These Regulations shall become effective as of January 1, 1991.

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