The following translation was retrieved from the State Environmental Protection Agency Web site on June 26, 2006. The Chinese text was retrieved from the National People's Congress Web site on February 19, 2013.
Administrative Reconsideration Law of the People's Republic of China
(Adopted at the Ninth Meeting 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 effective as of October 1, 1999.)
Contents:
Chapter I General Provisions
Chapter II Scope of Administrative Reconsideration
Chapter III Application of Administrative Reconsideration
Chapter IV Acceptance of Administrative Reconsideration
Chapter V Decision of Administrative Reconsideration
Chapter VI Legal Responsibility
Chapter VII Supplementary Provisions
Chapter I General Provisions
Article 1 This Law is enacted pursuant to the Constitution for the purpose of preventing and correcting any illegal or improper specific administrative acts, protecting the lawful rights and interests of citizens, legal persons and other organizations, safeguarding and supervising the exercise of functions and powers by administrative organs in accordance with law.
Article 2 This Law is applicable to a citizen, legal person or any other organization who considers that his or its lawful rights and interests have been infringed upon by a specific administrative act, and applies for administrative reconsideration to an administrative organ which accepts the application for administrative reconsideration, and makes a decision of administrative reconsideration.
Article 3 Administrative organs performing their duties of administrative reconsideration in accordance with this Law are administrative reconsideration organs. The offices responsible for legal affairs within administrative reconsideration organs shall handle concrete matters related to administrative reconsideration and perform the following duties:
(1) accepting applications for administrative reconsideration;
(2) taking of evidence from organizations and persons concerned, and consulting files and materials;
(3) reviewing the legality and appropriateness of any specific administrative acts being applied for administrative reconsideration, and drawing up decisions of administrative reconsideration;
(4) handling or forwarding applications for reviewing items listed in Article 7 of this Law;
(5) putting forward proposals, in accordance with statutory authorities and procedures, on disposing acts violating the provisions of this Law committed by administrative organs;
(6) handling affairs responding to action, if deciding to bring a suit in circumstances of refusing to accept the reconsideration decision;
(7) other duties prescribed by laws and regulations.
Article 4 Administrative reconsideration organs shall, when performing duties of administrative reconsideration, follow the principles of being lawful, fairness, openness, timely, and convenient to peoples, insist on correcting every wrong, and ensuring to implement laws and regulations correctly.
Article 5 If any citizen, legal person or any other organization refuses to accept an administrative reconsideration decision, he or it may, in accordance with the provisions of Administrative Procedure Law of the People's Republic of China, bring an administrative lawsuit before a people's court, except that the administrative decision is, as provided for by law, a final decision.
Chapter II Scope of Administrative Reconsideration
Article 6 A citizen, legal person, or any other organization may, in accordance with this Law, file an application for administrative reconsideration under any one of the following circumstances:
(1) an administrative sanction, such as warning, fine, confiscation of illegal gains or property, order to suspend production or business, suspension or rescission of license or permit, administrative attachment, which one refuses to accept;
(2) a compulsory administrative measure, such as restriction of personal freedom or the sealing up, seizing or freezing of property, which one refuses to accept;
(3) an administrative decision of altering, suspending or discharging certificates, such as a license, permit, credit certificate, credential, which one refuses to accept;
(4) an administrative decision of confirming ownership or right to use of natural resources, such as land, mineral resources, rivers, forests, mountains, grasslands, unreclaimed land, beaches, maritime waters, which one refuses to accept;
(5) infringement upon one's managerial decision-making power, which, one holds,has been perpetrated by an administrative organ;
(6) cases where an administrative organ, which has altered and nullified one's agricultural contract, is considered to have infringed upon one's rights and interests;
(7) cases where an administrative organ is considered to have illegally raised funds, levied property, apportioned charge, or demanded the performance of duties;
(8) cases where an administrative organ is considered to have illegally handled issuing a certificate, such as a permit, license, credit certificate, or credential, or examining and approving or registering relative items, which one considers oneself legally qualified to apply for;
(9) cases where an administrative organ is considered to have failed to perform its statutory duty, according to law, of protecting one's rights of the person and of property, and one's rights to receive education, as one has applied for;
(10) cases where an administrative organ is considered to have failed to issue a pension, social insurance money or minimum maintenance fee for living according to law; and
(11) cases in which other specific administrative acts of an administrative organ are considered to have infringed upon other lawful rights and interests.
Article 7 If a citizen, legal person or any other organization considers any of the following provisions, which is the basis of a specific administrative act of an administrative organ, to be illegal, he or it may, when filing an application for administrative reconsideration on a specific administrative act, file an application to the administrative reconsideration organ for reviewing the said provisions:
(1) provisions of departments under the State Council;
(2) provisions of local people's governments at or above the county level and their departments;
(3) provisions of people's governments of towns or townships.
The provisions set forth in the preceding paragraph do not include rules of departments and commissions under the State Council, and local people's governments. Review on rules shall be handled according to relevant laws and administrative regulations.
Article 8 If an administrative sanction or any other personnel disposition by an administrative organ is refused to accept, appeal may be made according to the relevant provisions of laws and administrative regulations.
If mediation or any other disposition on a civil dispute undertaken by an administrative organ is refused to accept, an application for arbitration may be made or a lawsuit may be brought before a people's court.
Chapter III Application of Administrative Reconsideration
Article 9 Any citizen, legal person or any other organization, who considers that a specific administrative act has infringed upon his or its lawful rights and interests, may file an application for administrative reconsideration within 60 days from the day when he or it knows the specific administrative act, except that the time limit prescribed in laws exceeds 60 days.
If the time limit prescribed by law is delayed due to force majeure or other special reasons, the time limit shall be accounted continuously from the day when the obstacle is removed.
Article 10 Any citizen, legal person or any other organization that files an application for administrative reconsideration in accordance with this Law is an applicant.
If a citizen who has the right to apply for administrative reconsideration is deceased, his near relatives may apply for administrative reconsideration. If a citizen who has the right to apply for administrative reconsideration is incompetent or with limited capacity for civil conduct, his statutory agent may apply for administrative reconsideration on behalf him. If legal person, or any other organization, that has the right to apply for administrative reconsideration terminates, the legal person or any other organization that succeeds to its rights may apply for administrative reconsideration.
Any other citizen, legal person or any other organization that has an interest in a specific administrative act, for the administrative reconsideration of which an application has already been filed may, file a request for participation in the administrative reconsideration as a third party.
If a citizen, legal person or any other organization refuses to accept a specific administrative act undertaken by an administrative organ and applies for administrative reconsideration, the said administrative organ that undertook the specific administrative act is the respondent of the application.
The applicant and the third party may delegate agent(s) to participate in the administrative reconsideration.
Article 11 An applicant may apply for administrative reconsideration in written or in oral. If an applicant apply for administrative reconsideration in oral, the administrative reconsideration organ shall transcribe fundamental facts of the applicant, claims of the administrative reconsideration, and main facts, grounds and time on which the application for administrative reconsideration is based.
Article 12 An applicant, who refuses to accept a specific administrative act of the departments under local people's governments at or above the county level may apply for administrative reconsideration to the people's government at the same level; an applicant may also apply for administrative reconsideration to the competent authority at the next higher level.
An applicant, who refuses to accept a specific administrative act of an administrative organ, who carries out vertical management system, such as Customs, banking, tax collection, foreign exchange control, or by a State security organ, shall apply for administrative reconsideration to the competent authority at the next higher level.
Article 13 A citizen, legal person, or any other organization that refuses to accept a specific administrative act of local people's governments at various levels shall apply for administrative reconsideration to the local people's government at the next higher level.
An applicant who refuses to accept a specific administrative act of a local people's government at the county level, which belongs to a dispatched organ legally established by a people's government of a province or an autonomous region, shall apply for administrative reconsideration to the dispatched organ.
Article 14 A citizen, legal person, or any other organization that refuses to accept a specific administrative act of a department under the State Council, or the people's government of a province, an autonomous region, or a municipality directly under the Central Government, shall apply for administrative reconsideration to the department under the State Council, or the people's government of the province, the autonomous region, or the municipality directly under the Central Government that undertook the specific administrative act. The applicant who refuses to accept the administrative reconsideration decision may bring a suit before a people's court; or apply to the State Council for a ruling, and the State Council shall make a final ruling according to the provisions of this Law.
Article 15 A citizen, legal person, or any other organization, who refuses to accept a specific administrative act of an administrative organ or an organization, except for the administrative organs prescribed in Articles 12, 13, and 14 of this Law, shall apply for administrative reconsideration in accordance with the following provisions:
(1) an applicant, who refuses to accept a specific administrative act of a dispatched organ established by a local people's government at or above the county level, may apply for administrative reconsideration to the people's government that established the dispatched organ;
(2) an applicant, who refuses to accept a specific administrative act of a dispatched organ, established by departments under governments in accordance with the provisions in laws, regulations or rules, in its own name, shall apply for administrative reconsideration to the department who established the dispatched organ, or the local people's government at the same level with the department;
(3) an applicant who refuses to accept a specific act of an organization authorized by laws or regulations shall respectively apply for administrative reconsideration to the local people's government, the department under a local people's government, or the department under the State Council, who is directly in charge of the organization;
(4) an applicant who refuses to accept a specific act of two or more than two administrative organs in their common name shall apply for administrative reconsideration to their common administrative organ at a higher level;
(5) an applicant who refuses to accept a specific act of an abolished administrative organ shall apply for administrative reconsideration to the administrative organ at the next higher level than the administrative organ that carries on the exercise of functions and powers of the abolished organ.
Under one of the circumstances listed in the preceding paragraphs, the applicant may also apply for administrative reconsideration to the local people's government, in the locality of the specific administration act, at county level, and the local people's government at county level accepting the application shall handle the administrative reconsideration in accordance with the provisions of Article 18 of this Law.
Article 16 If a citizen, legal person or any other organization applies for administrative reconsideration, and an administrative reconsideration organ accepts the application in accordance with laws, or if, in accordance with relevant provisions of laws or regulations, he or it shall first apply to an administrative reconsideration organ for administrative reconsideration and then bring an administrative suit before a people's court, if he or it refuses to accept the reconsideration decision, he or it shall not bring an administrative suit before a people's court within the statutory time limit for administrative reconsideration.
If a citizen, legal person, or any other organization brings a suit before a people's court, and the people's court, in accordance with law, accepts the suit, he or it shall not apply for administrative reconsideration.
Chapter IV Acceptance of Administrative Reconsideration
Article 17 An administrative reconsideration organ shall, after receiving an application for administrative reconsideration, examine the application within five days, and it shall inform the applicant in written if it refuses to accept the application in circumstances where the application for administrative reconsideration does not comply with the provisions in this Law; it shall inform the applicant to apply to the relative administrative reconsideration organ if the application, not within the scope of administrative reconsideration applications acceptable to this organ, comply with the provisions in this Law.
Except for the provisions in the preceding paragraph, an administrative reconsideration organ shall be considered to accept the administrative reconsideration application from the day when the office responsible for legal affairs receives the application.
Article 18 The people's government that, according to the provisions prescribed in the second paragraph of Article 15 of this Law, receives an administrative reconsideration application shall transfer an administrative reconsideration application that, according to the first paragraph of Article 15 of this Law, shall be accepted by another administrative reconsideration organ to the relative administrative reconsideration organ and inform the applicant within seven days from the day when it receives the administrative application. The administrative reconsideration organ that receives the transferred application shall handle it in accordance with the provisions of Article 17 of this Law.
Article 19 If, in accordance with relevant laws or regulations, a citizen, legal person or any other organization shall first apply to an administrative reconsideration organ for administrative reconsideration and then bring a suit before a people's court, the administrative reconsideration organ refuses to accept the application or fails to make a decision on the expiration of the time limit, the applicant may, in accordance with law, bring a suit before a people's court from the day when he or it receives a written refusal-of-acceptance decision or within 15 days after the time limit for administrative reconsideration expires.
Article 20 If a citizen, legal person, or any other organization applies to an administrative reconsideration organ for administrative reconsideration according to law, and the administrative reconsideration organ refuses to accept the application without due reasons, administrative organs at the higher level shall order it to accept the application and may also, if necessary, accept the application directly.
Article 21 During the time of administrative reconsideration, execution of the specific administrative act shall not be suspended. Execution of the specific administrative act may be suspended under one of the following circumstances:
(1) where suspension of execution is deemed necessary by the applied;
(2) where suspension of execution is deemed necessary by the administrative reconsideration organ;
(3) where suspension of execution is decided by the administrative reconsideration organ at the request of the applicant because the administrative reconsideration organ considers the request to be reasonable;
(4) where suspensions of execution is required by the provisions of laws.
Chapter V Decision of Administrative Reconsideration
Article 22 Administrative reconsideration shall, in principle, examine the application in written. Except for the circumstances where the applicant makes a require or the office responsible for legal affairs of the administrative reconsideration organ deems it necessary, the administrative reconsideration organ may investigate facts among the organizations and citizens concerned and listen to the views of the applicant, the respondent of the application, and the third party.
Article 23 The office responsible for legal affairs of the administrative reconsideration organ shall send a duplicate of the application form for administrative reconsideration or a copy of the transcript of the administrative reconsideration application to the respondent of the application within 7 days from the day of acceptance of the application for administrative reconsideration. The respondent of the application shall reply in written within 10 days from the day of the receipt of the duplicate of the application form or the copy of the transcript of acceptance, and provides the evidence, grounds, and other relevant documents, on the basis of which the specific administrative act has been undertaken.
The applicant and the third party may consult the reply in written and the evidence, grounds, and other relevant materials, on the basis of which the specific administrative act has been undertaken, and the administrative reconsideration organ shall not refuse the requirement except that those involve State secrets, business secrets, or the private affairs of individuals.
Article 24 In the proceeding of administrative reconsideration, the respondent of the application shall not collect evidence from the applicant and other organizations or individuals concerned by himself.
Article 25 Before a decision of administrative reconsideration is made, the applicant who applies for the withdrawal of the application for administrative reconsideration may withdraw his application after stating grounds, and the administrative reconsideration ceased in case of the withdrawal of the administrative reconsideration application.
Article 26 If the applicant applies for reviewing the relevant provisions listed in Article 7 of this Law, along with the application for administrative reconsideration, and the administrative reconsideration organ has the authority to handle the provisions, the administrative reconsideration organ shall make a decision in accordance with law within 30 days; if the administrative reconsideration organ has no authority to handle the provisions, it shall transfer, in accordance with the legal procedures, to the administrative organ who has the authority to handle them within 7 days. During the period of handling, the specific administrative act shall be suspended to execute.
Article 27 In examining a specific administrative act undertaken by the respondent of the application, the administrative reconsideration organ considers the grounds, on the basis of which the specific administrative act has been undertaken, are illegal, if the administrative reconsideration organ has the authority to handle them, the organ shall, in accordance with law, handle them within 30 days; if the administrative reconsideration organ has not authority to handle them, the organ shall transfer the application to the State organ who has authority to handle them within 7 days according to the legal procedure. During the period of handling, the specific administrative act shall be suspended to execute.
Article 28 The office responsible for legal affairs of an administrative reconsideration organ shall examine the specific administrative act undertaken by the respondent of the application, put forward its opinions and make the decision of administrative reconsideration after the approval of the responsible persons of the administrative reconsideration organ or the assent after the group discussion, in accordance with the following provisions:
(1) if the facts are clearly ascertained by a specific administrative act, the evidence for the act is conclusive, the application of grounds is correct, the procedure is legal, and the content of the act is proper, the specific administrative reconsideration act shall be sustained by decision;
(2) the applied who fails to perform the statutory duties shall be required to perform the duties within a fixed time by decision;
(3) if a specific administrative act has been undertaken in one of the following circumstances, the act shall be annulled, altered, or confirmed as illegal by decision; if the specific administrative act is altered, or confirmed as illegal by decision, the applied may be ordered to undertake a specific administrative act anew within a fixed time:
a. ambiguity of essential facts, and inadequacy of evidence;
b. erroneous application of grounds;
c. violation of legal procedures;
d. excess of authority or abuse of powers;
e. obvious inappropriateness of the specific administrative act.
(4) if the respondent of the application fails to reply in written, or provide the evidence, grounds, and other relevant materials for a specific administrative act that has been undertaken, the specific administrative act shall be considered to have no evidence and grounds and be annulled by decision.
If an administrative reconsideration organ orders the respondent of the application to undertake a specific administrative act anew, the respondent of the application must not, based on the same fact and reason, undertake a specific administrative act identical or essentially identical with the original specific administrative act.
Article 29 An applicant may put forward the request for administrative compensation along with applying for administrative reconsideration, and in cases where damages shall be paid in accordance with the relevant provisions of the State Compensation Law, the administrative reconsideration organ shall make a decision to order the respondent of the application to pay the damages according to law, simultaneous with a decision to annul or alter the specific administrative act or to confirm the specific administrative act as illegal.
If in applying for administrative reconsideration, an applicant does not apply for administrative compensation, an administrative reconsideration organ shall order the respondent of the application to return the property, abolish the measures of sealing up, seizing, or freezing the property, or compensate the corresponding amount, simultaneous with making a decision to annul or alter a fine, or to annul a specific administrative act, such as illegally raising funds, confiscating property, levying property, apportioning charge, and sealing up, seizing, or freezing property.
Article 30 If a citizen, legal person, or any other organization considers that a specific administrative act of an administrative organ has infringed upon his or its ownership and right to use, which are acquired according to law, of natural resources, such as land, mineral resources, rivers, forests, mountains, grasslands, unreclaimed land, beaches, maritime waters, he or it shall first apply for administrative reconsideration and then bring a suit before a people's court according to laws if he or it refuses to accept the administrative reconsideration decision.
According to the decisions of the State Council or the people's governments of provinces, autonomous regions and municipalities directly under the Central Government to prospect and confirm or adjust administrative divisions into districts, or to requisition lands, an administrative reconsideration decision, which is made by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government, to confirm ownership and right to use of natural resources, such as land, mineral resources, rivers, forests, mountains, grasslands, unreclaimed land, beaches, maritime waters, is a final riling.
Article 31 An administrative reconsideration organ shall make an administrative reconsideration decision within 60 days from the day of acceptance of application, except for the circumstances where the time of administrative reconsideration set in laws is shorter than 60 days. If circumstances are complex, and an administrative reconsideration organ fails to make a decision within the prescribed time limit, the responsible persons of the administrative reconsideration organ may approve an proper extension of the time limit within 30 days, and the extension of the time limit shall be informed to the applicant and the respondent of the application.
An administrative reconsideration organ that makes an administrative reconsideration decision shall draw up a written administrative reconsideration decision on which the organ shall stamp a seal.
Once thew written administrative reconsideration decision is served, the decision is instantly legally effective.
Article 32 The respondent of the application shall perform the administrative reconsideration decision. If the respondent of the application does not perform or delays performing the administrative reconsideration decision without due reasons, the administrative reconsideration organ or an relevant administrative organ at higher level shall order the respondent of the application to perform the decision within a fixed time.
Article 33 An applicant, who fails to bring a suit by the expiration of the time limit and does not perform an administrative reconsideration decision or an administrative reconsideration decision as final ruling, shall be disposed respectively according to the following provisions:
(1) an administrative reconsideration decision to sustain a specific administrative act shall be executed compulsorily, in accordance with law, by an administrative organ that has undertaken the specific administrative act, or be applied to a people's court for compulsory execution;
(2) an administrative reconsideration decision to alter a specific administrative act shall be executed compulsorily, in accordance with law, by the administrative reconsideration organ, or be applied to a people's court for compulsory execution.
Chapter VI Legal Responsibility
Article 34 If an administrative reconsideration organ, in violation of the provisions of this Law, refuses to accept, without due reasons, an application for administrative reconsideration applied in accordance with law, or fails to transfer an application for administrative reconsideration according to the relevant provisions, or fails to make an administrative reconsideration decision within statutory time limit, the persons in charge directly responsible and the other directly responsible persons shall, according to law, be given administrative sanctions such as warning, demerit record, or heavy demerit record; if an administrative reconsideration organ still refuses to accept the administrative reconsideration application after being ordered to accept the application or transferring the application out in accordance with the relevant provisions causes serious consequences, they shall, according to law, be given administrative sanctions such as being demoted, being dismissed from post,or being discharged.
Article 35 If any staff member of an administrative reconsideration organ in administrative reconsideration activities, practices favoritism for personal interests or commits any other acts of jobbery and misfeasance, he shall , according to law, be given an administrative sanction such as warning, demerit record or heavy demerit record; if the circumstance is serious, he shall, according to law, be given an administrative sanction such as being demoted, being dismissed from post,or being discharged; if a crime is constituted, he shall be investigated for criminal responsibility according to law.
Article 36 If the respondent of the application, in violation the provisions of this Law, fails to reply in written or fails to provide evidence, grounds, and other relevant materials for a specific administrative act, or obstructs or disguised obstructs a citizen, legal person or any other organization to apply for administrative reconsideration, the persons in charge directly responsible and the other directly responsible persons shall, according to law, be given administrative sanctions such as warning, demerit record, heavy demerit record; anyone who conduct retaliation shall, according to law, be given an administrative sanction such as being demoted, or being dismissed from post, being discharged; anyone who commits a crime shall be investigated for criminal responsibility according to law.
Article 37 If the respondent of the application fails to perform or delays, without due reasons, performing an administrative reconsideration decision, the persons in charge directly responsible and the other directly responsible persons shall, according to law, be given administrative sanctions such as warning, demerit record, or heavy demerit record; if the respondent of the application still refuses to perform after being ordered to perform, they shall, according to law, be given administrative sanction such as being demoted, being dismissed from post, or being discharged.
Article 38 If an office responsible for legal affairs of an administrative reconsideration organ finds the circumstances, such as refusing to accept an application for administrative reconsideration without due reasons, failing to make an administrative reconsideration decision within a prescribe time limit, practicing favoritism for personal interests attacking an applicant in retaliation, or failing to perform an administrative reconsideration decision, the Institute shall put forward a proposal to a relevant administrative organ, and the relevant administrative organ shall deal with the circumstances in accordance with the provisions of this Law, the relevant laws and administrative regulations.
Chapter VII Supplementary Provisions
Article 39 An administrative reconsideration organ shall not charge any fees for accepting an application for administrative reconsideration to an applicant. Fees for administrative reconsideration shall be absorbed into administrative fees of the administrative reconsideration organ and be guaranteed by the government budget at the same level.
Article 40 The count of administrative reconsideration period and the serving of administrative reconsideration documents shall be executed according to the provisions of the Civil Procedure Law concerning the time and the serving.
"5 days" and "7 days" in the provisions related to administrative reconsideration period prescribed in this Law refers to workdays, not including holidays.
Article 41 If foreigners, stateless persons, or foreign organizations are engaged in administrative reconsideration in the People's Republic of China, this Law shall be applied.
Article 42 If the provisions on administrative reconsideration in other laws promulgated before this Law comes into force do not conform with the provisions in this Law, the provisions in this Law shall prevail.
Article 43 This Law shall come into force on October 1, 1999.Regulations on Administrative Reconsideration promulgated by the State Council on December 24, 1990 and revised and re-promulgated by the State Council on October 9, 1994 shall simultaneously be annulled.
