法律法規/司法行政/行政復議條例(附英文)
【標題】：行政復議條例(附英文)
【頒佈方】：國務院
【頒佈日期】：19901224
【實施日期】：19910101
【類別】：司法行政
【內容】：文條文文附(附文附(行第一章 總 則
第一條 為了維護和監督行政機關依法行使職權，防止和糾正違法或者不當的具體行
政行為，保護公民、法人和其他組織的合法權益，根據憲法和有關法律，制定本條例。
第二條 公民、法人或者其他組織認為行政機關的具體行政行為侵犯其合法權益，可
以依照本條例向行政機關申請復議。
第三條 復議機關依法行使職權，不受其他機關、社會團體和個人的非法干預。
第四條 本條例所稱復議機關，是指受理復議申請，依法對具體行政行為進行審查並
作出裁決的行政機關。
本條例所稱復議機構，是指復議機關內設的負責有關復議工作的機構。
第五條 除法律、行政法規另有規定的外，行政復議實行一級復議制。
第六條 行政復議遵循合法、及時、準確和便民的原則。
第七條 復議機關依法對具體行政行為是否合法和適當進行審查。
第八條 復議機關審理復議案件，不適用調解。
第二章 申請復議範圍
第九條 公民、法人和其他組織對下列具體行政行為不服可以向行政機關申請復議：
（一）對拘留、罰款、吊銷許可證和執照、責令停產停業、沒收財物等行政處罰不服的；
（二）對限制人身自由或者對財產的查封、扣押、凍結等行政強制措施不服的；
（三）認為行政機關侵犯法律、法規規定的經營自主權的；
（四）認為符合法定條件申請行政機關頒發許可證和執照，行政機關拒絕頒發或者不予答復的；
（五）申請行政機關履行保護人身權、財產權的法定職責，行政機關拒絕履行或者不予答復的；
（六）認為行政機關沒有依法發給撫恤金的；
（七）認為行政機關違法要求履行義務的；
（八）認為行政機關侵犯其他人身權、財產權的；
（九）法律、法規規定可以提起行政訴訟或者可以申請復議的其他具體行政行為。
第十條 公民、法人和其他組織對下列事項不服，不能依照本條例申請復議：
（一）對行政法規、規章或者具有普遍約束力的決定、命令不服的；
（二）對行政機關工作人員的獎懲、任免等決定不服的；
（三）對民事糾紛的仲裁、調解或者處理不服的；
（四）對國防、外交等國家行為不服的。
第三章 復議管轄
第十一條 對縣級以上的地方各級人民政府工作部門的具體行政行為不服申請的復議，由上一級主管部門管轄。但有下列情形之一的，由本級人民政府管轄：
（一）上一級沒有相應主管部門的；
（二）法律、法規規定由人民政府管轄的。
對國務院各部門的具體行政行為不服申請的復議，由作出具體行政行為的部門管轄。
第十二條 對地方各級人民政府的具體行政行為不服申請的復議，由上一級人民政府管轄。
對省、自治區、直轄市人民政府的具體行政行為不服申請的復議，由作出具體行政行為的省、自治區、直轄市人民政府管轄。
第十三條 對兩個或者兩個以上行政機關以共同的名義作出的具體行政行為不服申請的復議，由它們的共同上一級行政機關管轄。
第十四條 對縣級以上的地方人民政府的派出機關的具體行政行為不服申請的復議，由設立該派出機關的人民政府管轄。
對人民政府的工作部門設立的派出機構根據法律、法規和規章規定以自己的名義作出的具體行政行為不服申請的復議，由設立該派出機構的部門管轄。
第十五條 對法律、法規和規章授權的組織作出的具體行政行為不服申請的復議，由直接主管該組織的行政機關管轄。
對受委託的組織作出的具體行政行為不服申請的復議，由委託的行政機關的上一級行政機關管轄。
第十六條 對法律、法規規定需要上級批准的具體行政行為不服申請的復議，由最終批准的行政機關管轄。法律、法規另有規定的除外。
第十七條 對被撤銷的行政機關在其被撤銷前作出的具體行政行為不服申請的復議，由繼續行使其職權的行政機關的上一級行政機關管轄。
第十八條 復議機關發現受理的案件不屬於自己管轄，應當移送有管轄權的復議機關。受移送的復議機關不得再自行移送。
第十九條 行政機關因復議管轄發生爭議，爭議雙方應當協商解決。協商不成的，由它們的共同上一級行政機關指定管轄。
第二十條 申請人向兩個或者兩個以上有管轄權的行政機關申請復議的，由最先收到復議申請書的行政機關管轄。
第二十一條 公民、法人或者其他組織在法定申請復議期限內向信訪部門申訴的，信訪部門應當及時告知申訴人向有復議管轄權的行政機關申請復議。
第二十二條 其他復議管轄，依照法律、法規和規章的規定。
第四章 復議機購
第二十三條 復議機關應當根據工作需要，確立本機關的復議機構或者專職復議人員。
第二十四條 縣級以上的地方各級人民政府的復議機構，應當設在政府法制工作機構內或者與政府法制工作機構合署辦公。
第二十五條 復議機構或者專職復議人員在復議機關的領導下工作，履行下列職責：
（一）審查復議申請是否符合法定條件；
（二）向爭議雙方、有關單位及有關人員調查取證、查閱檔和資料；
（三）組織審理復議案件；
（四）擬訂復議決定；
（五）受復議機關法定代表人的委託出庭應訴；
（六）法律、法規規定的其他職責。
第五章 復議參加人
第二十六條 依照本條例申請復議的公民、法人或者其他組織，是申請人。
有權申請復議的公民死亡的，其近親屬可以申請復議；有權申請復議的公民為無行為能力或者限制行為能力的，其法定代理人可以代為申請復議。
有權申請復議的法人或者其他組織終止的，承受其權利的法人或者其他組織可以申請復議。
第二十七條 同申請復議的具體行政行為有利害關係的其他公民、法人或者其他組織，經復議機關批准，可以作為第三人申請參加復議。
第二十八條 公民、法人或者其他組織對行政機關的具體行政行為不服申請復議的，該行政機關是被申請人。
兩個或者兩個以上行政機關以共同名義作出具體行政行為的，共同作出具體行政行為的行政機關是共同被申請人。
法律、法規和規章授權的組織作出具體行政行為的，該組織是被申請人。行政機關委託的組織作出具體行政行為的，委託的行政機關是被申請人。
作出具體行政行為的機關被撤銷的，繼續行使其職權的行政機關是被申請人。
第六章 申請與受理
第二十九條 公民、法人或者其他組織向有管轄權的行政機關申請復議，應當在知道具體行政行為之日起十五日內提出，法律、法規另有規定的除外。
因不可抗力或者其他特殊情況耽誤法定申請期限的，在障礙消除後的十日內，可以申請延長期限，是否准許，由有管轄權的行政機關決定。
第三十條 公民、法人或者其他組織向人民法院起訴，人民法院已經受理的，不得申請復議。
公民、法人或者其他組織向復議機關申請復議，復議機關已經受理的，在法定復議期限內不得向人民法院起訴。
第三十一條 申請復議應當符合下列條件：
（一）申請人是認為具體行政行為直接侵犯其合法權益的公民、法人或者其他組織；
（二）有明確的被申請人；
（三）有具體的復議請求和事實根據；
（四）屬於申請復議範圍；
（五）屬於受理復議機關管轄；
（六）法律、法規規定的其他條件。
第三十二條 申請人向行政機關申請復議應當遞交復議申請書。
第三十三條 復議申請書應當載明下列內容：
（一）申請人的姓名、性別、年齡、職業、住址等（法人或者其他組織的名稱、位址、法定代表人的姓名）；
（二）被申請人的名稱、地址；
（三）申請復議的要求和理由；
（四）提出復議申請的日期。
第三十四條 復議機關應當自收到復議申請書之日起十日內，對復議申請分別作出以下處理：
（一）復議申請符合本條例規定的，應予受理；
（二）復議申請不符合本條例第三十一條規定之一的，裁決不予受理並告之理由；
（三）復議申請書未載明本條例第三十三條規定內容之一的，應當把復議申請書發還申請人，限期補正。過期不補正的，視為未申請。
第三十五條 公民、法人或者其他組織依法提出復議申請，復議機關無正當理由拒絕受理或者不予答復的，上一級行政機關或者法律、法規規定的行政機關應當責令其受理或者答復。
第三十六條 法律、法規規定應當先向行政機關申請復議，對復議不服再向人民法院提起訴訟的，申請人對復議機關不予受理的裁決不服，可以在收到不予受理裁決書之日起十五日內，向人民法院起訴。法律、法規另有規定的除外。
第七章 審理與決定
第三十七條 行政復議實行書面復議制度，但復議機關認為有必要時，可以採取其他方式審理復議案件。
第三十八條 復議機關應當在受理之日起七日內將復議申請書副本發送被申請人。被申請人應當在收到復議申請書副本之日起十日內，向復議機關提交作出具體行政行為的有關材料或者證據，並提出答辯書。逾期不答辯的，不影響復議。
第三十九條 復議期間具體行政行為不停止執行。但有下列情形之一的，可以停止執行：
（一）被申請人認為需要停止執行的；
（二）復議機關認為需要停止執行的；
（三）申請人申請停止執行，復議機關認為其要求合理，裁決停止執行的；
（四）法律、法規和規章規定停止執行的。
第四十條 復議決定作出以前，申請人撤回復議申請，或者被申請人改變所作的具體行政行為，申請人同意並申請撤回復議申請的，經復議機關同意並記錄在案，可以撤回。
申請人撤回復議申請，不得以同一的事實和理由再申請復議。
第四十一條 復議機關審理復議案件，以法律、行政法規、地方性法規、規章，以及上級行政機關依法制定和發佈的具有普遍約束力的決定、命令為依據。
復議機關審理民族自治地方的復議案件，並以該民族自治地方的自治條例、單行條例為依據。
第四十二條 復議機關經過審理，分別作出以下復議決定：
（一）具體行政行為適用法律、法規、規章和具有普遍約束力的決定、命令正確，事實清楚，符合法定許可權和程式的，決定維持；
（二）具體行政行為有程式上不足的，決定被申請人補正；
（三）被申請人不履行法律、法規和規章規定的職責的，決定其在一定期限內履行；
（四）具體行政行為有下列情形之一的，決定撤銷、變更，並可以責令被申請人重新作出具體行政行為：
１．主要事實不清的；
２．適用法律、法規、規章和具有普遍約束力的決定、命令錯誤的；
３．違反法定程式影響申請人合法權益的；
４．超越或者濫用職權的；
５．具體行政行為明顯不當的。
第四十三條 復議機關審查具體行政行為時，發現具體行政行為所依據的規章或者具有普遍約束力的決定、命令與法律、法規或者其他規章和具有普遍約束力的決定、命令相抵觸的，在其職權範圍內依法予以撤銷或者改變。
復議機關認為具體行政行為所依據的規章或者具有普遍約束力的決定、命令與法律、法規或者其他規章和具有普遍約束力的決定、命令相抵觸，而復議機關又無權處理的，向其上級行政機關報告。上級行政機關有權處理的，依法予以處理；上級行政機關無權處理的，提請有權機關依法處理。處理期間，復議機關停止對本案的審理。
第四十四條 被申請人作出的具體行政行為侵犯申請人的合法權益造成損害，申請人請求賠償的，復議機關可以責令被申請人按照有關法律、法規的規定負責賠償。
被申請人賠償損失後，應當責令有故意或者重大過失的行政機關工作人員承擔部分或者全部賠償費用。
第四十五條 復議機關作出復議決定，應當製作復議決定書。復議決定書應當載明下列事項：
（一）申請人的姓名、性別、年齡、職業、住址（法人或者其他組織的名稱、位址、法定代表人的姓名）；
（二）被申請人的名稱、地址，法定代表人的姓名、職務；
（三）申請復議的主要請求和理由；
（四）復議機關認定的事實、理由，適用的法律、法規、規章和具有普遍約束力的決定、命令；
（五）復議結論；
（六）不服復議決定向人民法院起訴的期限，或者終局的復議決定，當事人履行的期限；
（七）作出復議決定的年、月、日。
復議決定書由復議機關的法定代表人署名，加蓋復議機關的印章。
第四十六條 復議機關應當在收到復議申請書之日起兩個月內作出決定。法律、法規另有規定的除外。
復議決定一經送達即發生法律效力。
第四十七條 除法律規定終局的復議外，申請人對復議決定不服的，可以在收到復議決定書之日起十五日內，或者法律、法規規定的其他期限內向人民法院起訴。
對申請人逾期不起訴又不履行復議決定的，分別情況處理：
（一）維持原具體行政行為的復議決定，由最初作出具體行政行為的行政機關申請人民法院強制執行，或者依法強制執行；
（二）改變原具體行政行為的復議決定，由復議機關申請人民法院強制執行，或者依法強制執行。
第八章 期間與送達
第四十八條 期間以時、日、月計算。期間開始的時和日，不計算在期間內。
期間屆滿的最後一日是節假日的，以節假日後的第一日為期間屆滿的日期。
期間不包括在途時間。
第四十九條 送達復議決定書必須有送達回證，由受送達人在送達回證上記明收到日期，簽名或者蓋章。
受送達人在送達回證上的簽收日期為送達日期。
郵寄送達，以掛號回執上注明的收件日期為送達日期。
第五十條 復議機關送達復議決定書，應當直接送交受送達人；本人不在的，交其同住的成年家屬或者所在單位簽收；本人已向復議機關指定代收人的，交代收人簽收；受送達人是法人或者其他組織的，交其收發部門簽收。
受送達人拒絕接受復議決定書的，送達人應當邀請有關人員到場，說明情況，在送達回證上記明拒收事由和日期，由送達人、見證人簽名或者蓋章，把復議決定書留在受送達人的住處或者收發部門，即視為送達。
第五十一條 復議機關送達復議決定書，可以委託其他行政機關代為送達，或者郵寄送達。
第九章 法律責任
第五十二條 被申請人拒絕履行復議決定的，復議機關可以直接或者建議有關部門對其法定代表人給予行政處分。
第五十三條 復議人員失職、徇私舞弊的，復議機關或者有關部門應當批評教育或者給予行政處分，情節嚴重、構成犯罪的，依法追究其刑事責任。
第五十四條 復議參加人或者其他人拒絕、阻礙復議人員依法執行職務未使用暴力、威脅方法的，由公安機關依照《中華人民共和國治安管理處罰條例》第十九條的規定，處十五日以下拘留、二百元以下罰款或者警告。以暴力、威脅方法阻礙復議人員依法執行職務的，依法追究其刑事責任。
第十章 附 則
第五十五條 外國人、無國籍人、外國組織在中華人民共和國進行行政復議，適用本條例。法律、法規另有規定的除外。
第五十六條 本條例由國務院法制局解釋。
第五十七條 本條例自一九九一年一月一日起施行。
【名稱】REGULATIONS ON ADMINISTRATIVE RECONSIDERATION
【題注】
Important Notice: (注意事項)
英文本源自中華人民共和國務院法制局編譯, 中國法制出版社出版的《中華人民
共和國涉外法規彙編》(1991年7月版).
當發生歧意時, 應以法律法規頒佈單位發佈的中文原文為准.
This English document is coming from "LAWS AND REGULATIONS OF THE
PEOPLE’S REPUBLIC OF CHINA GOVERNING FOREIGN-RELATED MATTERS" (1991.7)
which is compiled by the Brueau of Legislative Affairs of the State
Council of the People’s Republic of China, and is published by the China
Legal System Publishing House.
In case of discrepancy, the original version in Chinese shall prevail.
Whole Document (法規全文)
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)
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
the performance 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 county
level, 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 the administrative 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, the said 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.
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
organ for 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
withdraws 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 may
be 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 by
law, 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.
【時效】：失效
【序號】：2257