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Decree of the National Development and Reform Commission
No. 46
With a view to guaranteeing the correct and timely handling of administrative review cases, the Measures of the National Development and Reform Commission for Implementing the Administrative Review System, which were investigated and adopted at the chairmen's executive meeting of the National Development and Reform Commission, were formulated in accordance with the Administrative Review Law of the People's Republic of China, are hereby promulgated and shall get into effect as of July 1, 206.
Director of the National Development and Reform Commission, Ma Kai
April 30, 2006
Measures of the National Development and Reform Commission for Implementing the Administrative Review System
Chapter I General Rules
Article 1
For the purpose of preventing and correcting illegal or improper specific administrative acts, protecting the legitimate rights and interests of citizens, legal persons and other organizations, safeguarding and supervising the exercise of functions and powers by the development and reform organs according to the law, these Measures are enacted according to the Administrative Review Law of the People's Republic of China.
Article 2
These Measures shall apply to such circumstances as any citizen, legal person or any other organization who holds that his or its legitimate rights and interests have been infringed upon by a specific administrative act undertaken by the development and reform organ, and applies for administrative review to the National Development and Reform Commission (referred to as the NDRC hereinafter), and the NDRC accepts the application and makes an administrative review decision.
Article 3
The "development and reform organs" as mentioned in these Measures refer to the NDRC and the development and reform organs of the provinces, autonomous regions or municipalities directly under the Central Government. The development and reform organs of the provinces, autonomous regions or municipalities directly under the Central Government shall cover the development and reform commissions, commissions of foreign trade or economic and price bureaus at the provincial level as well as other related organs under the provincial people's governments with powers and functions matching those of the NDRC.
Article 4
The NDRC shall perform the duty of administrative review in accordance with the Administrative Review Law and these Measures. The legal affairs organ under the NDRC shall deal with the concrete administrative review matters of the NDRC, and perform duties as follows:
(1)
to accept the applications for administrative review;
(2)
to conduct investigations and collect proofs from the organizations and persons concerned, and consult related documents and materials;
(3)
to review the legality and propriety of any specific administrative act being applied for administrative review in accordance with the laws and regulations, and make administrative review decisions;
(4)
to handle or transfer the applications for review as prescribed in Article 16 of these Measures;
(5)
to put forward proposals, according to statutory authorities and procedures, for handling the offences committed by the development and reform organ in violation of the Administrative Review Law or these Measures;
(6)
to handle related administrative response affairs caused by the acceptance of administrative review; and
(7)
Other duties as stipulated by any law, regulation or rule.
Chapter II Applications for Administrative Review
Article 5
If any citizen, legal person or any other organization refuses to accept a specific administrative act undertaken by the NDRC, he or it may file an application to the NDRC for administrative review.
In case any citizen, legal person or any other organization refuses to accept a specific administrative act jointly undertaken by the NDRC and any other department, he or it shall apply for administrative review with each related departments that made the aforesaid specific administrative act at the same time.
In case any citizen, legal person or any other organization refuses to accept a specific administrative act undertaken by the development and reform organ of a province, autonomous region or municipality directly under the Central Government, he or it may apply for administrative review to the people's government of the province, autonomous region or municipality directly under the Central Government or the NDRC.
Article 6
In case any citizen, legal person or other organization holds that a specific administrative act undertaken by the development and reform organ of a province, autonomous region or municipality directly under the Central Government or the NDRC has infringed upon his or its lawful rights and interests, he or it may apply for administrative review to the NDRC within 60 days from the day when he or it knows the specific administrative act, except the time limit for such an application as stipulated in the law is more than 60 days.
If the statutory time limit for application is delayed owing to force majeure or any other justifiable reason, the time limit shall be calculated continuously from the day when the obstacle is eliminated.
Article 7
In case any citizen, legal person or any other organization refuses to accept a administrative review decision made by the NDRC, he or it may bring forward an administrative lawsuit before the people's court or apply to the State Council for a ruling.
Article 8
In case a party concerned applies for administrative review in written form, the applicant shall present one original of the application form; if there is any common respondent, the applicant shall present the duplicates of the application form in light of the number of respondents.
Article 9
An application form for administrative review shall set out:
(1)
the name, profession and address of the applicant and its agent (the name, address and the name if the applicant is a legal person or any other organization and the name of its legal representative), as well as the contact methods;
(2)
the name, address and contact methods of the respondent;
(3)
the concrete requirements of the application for administrative review;
(4)
main facts and reasons (including the time when he/it knows the specific administrative act); and
(5)
the date on which the application for review is brought forward.
An application form for administrative review shall be signed or sealed by the applicant or its legal representative (or authorized agent) and be affixed with the necessary evidences. In case the applicant is a natural person, the photocopy of his ID card or any other valid certificate shall be presented; in case the applicant is a legal person or any other organization, the photocopy of its business license or any other valid certificate and the identification document of its legal representative shall be presented; and if the applicant entrusts an agent to bring forward the application, the lawful identification documents of the applicant and the trustee as well as a power of attorney shall be presented.
Article 10
Such following circumstances shall not be treated as applying for review:
(1)
the tip-off or accusation concerning an illegal or irregular act undertaken by any staff of the development and reform organ, or the objection to the attitude or work style of any staff, or any other matter regarding complaint letters and visits;
(2)
the objection to the operational policies and the system, method or procedure for working of the development and reform organ;
(3)
the request for interpreting the laws, regulations, rules or regulatory documents enacted by, or enacted with the participation of, the development and reform organ; or
(4)
the objection to an administrative sanction or personnel disposition conducted by the development and reform organ.
Article 11
In case any other citizen, legal person or other organization having an interest in the specific administrative act for which an application for administrative review is filed applies for participation in the administrative review in written, he or it can, upon investigation and approval of the NDRC, take part in the administrative review as a third party.
The NDRC may, when it considers necessary, inform any other citizen, legal person or other organization that has an interest in the specific administrative act for which an application for administrative review is filed to take part in such review as a third party.
Chapter III Acceptance and Examination
Article 12
The legal affairs organ in the NDRC shall, within 5 days upon the acceptance of an application for administrative review, carry out the examination in accordance with the related provisions in the Administrative Review Law, and decide whether to accept the application or not.
If the legal affairs organ holds that the contents in the application form for review do not comply with Article 9 or the application materials are incomplete, it can inform the applicant to supplement or correct them within 5 days upon the acceptance of the application. The contents need supplementing and correcting and the time limit for such supplementation and correction shall be included in the notice of supplementation and correction. In case the party concerned fails to supplement or correct within the time limit without any justifiable reason, it shall be considered as not filing an application for administrative review. The term for the legal affairs organ to deal with an administrative review case shall be commenced as of the day when the materials of final supplementation and correction are received. The term for supplementation and correction shall not be included in the statutory period for application for the applicant.
If an application for administrative review comply with the Administrative Review Law, but is beyond the acceptance scope for administrative review of the NDRC, the legal affairs organ shall issue an Administrative Review Notice to the applicant and inform the applicant to apply to the related administrative review organ.
Except that the legal affairs organ decides not to accept an application or inform the applicant to supplement or correct the materials or inform the applicant to apply to any other related administrative review organ, the date when the legal affairs organ under the NDRC receives the application shall be the date for acceptance.
Article 13
Where there are two or more applicants respectively applying for administrative review to the NDRC against a same specific administrative act made by the same development and reform organ, the NDRC can deal with it as a single case, and the date when the latter application is received shall be treated as the date of acceptance, however, the term for review of the former application shall not exceed the statutory term.
Article 14
The legal affairs organ under the NDRC shall accept an application for review, if it meets the following conditions:
(1)
in the legal sense, the applicant has an interest in the specific administrative act;
(2)
both the respondent and the administrative act are specific;
(3)
the claims for administrative review, factual basis and reasons are concrete,;
(4)
The matter applied for review falls within the scope as prescribed in Article 6 of the Administrative Review Law;
(5)
the application is filed within the statutory term;
(6)
the applicant has not filed an application for administrative review or brought forward an administrative lawsuit for the same specific administrative act;
(7)
the application falls within the acceptance powerof the NDRC; and
(8)
other conditions as stipulated in the Administrative Review Law.
Article 15
If an application for administrative review does not satisfy any of the conditions as listed in Article 14 of these Measures, the application shall not be accepted, and the legal affairs organ shall, within 5 days upon the acceptance of the application, issue a Decision on Refusal of Acceptance to the applicant in accordance with the statutory procedures.
Article 16
In case an application for administrative review as accepted by the legal affairs organ fall within any of the following circumstances, the legal affairs organ shall, within 7 days and in accordance with statutory procedures, forward it to the competent administrative organ, at the same time terminate the examination of the specific administrative act, and issue a Notice on Termination of Administrative Review to the applicant, the respondent and the third party:
(1)
the applicant has also filed an application for examination of the provisions as prescribed in Article 7 of the Administrative Review Law when applying for the administrative review, but the legal affairs organ has no power to deal with the aforesaid review; or
(2)
the basis for the respondent to undertake the specific administrative act is illegal, but the legal affairs organ has no power to deal with the aforesaid basis.
An application for administrative review forwarded in accordance with the preceding paragraph shall be reproduced for archival.
Article 17
If an application for administrative review as accepted by the legal affairs organ falls within any of the following circumstances, the legal affairs organ shall suspend the review, and issue a Notice concerning Suspension of Administrative Review to the applicant, the respondent and the third party within 7 days and in accordance with statutory procedures:
(1)
The competent department is taking measures to deal with the specific administrative act to which application for the administrative review is filed;
(2)
The applicant is a citizen and deceased, and it is necessary to await his close relative to declare whether to take part in the administrative review continuously; or the applicant is a legal person or any other organization and has been terminated, and the inheritor of rights has not been decided yet;
(3)
This administrative review case shall be heard on the basis of the conclusion of another case, and the trial of the other case has not been completed; or
(4)
Any other circumstance as stipulated by law or regulation under which the administrative review shall be suspended.
An application for administrative review whose review is suspended in accordance with the preceding paragraph shall be put on archives.
After the circumstance for suspension is removed, the legal affairs organ shall resume the review proceedings within 7 days, and inform this to the applicant, the respondent and the third party.
Article 18
In case an application for administrative review as accepted by the legal affairs organ falls within any of the following circumstances, the legal affairs organ shall terminate the review, and issue a Notice on Termination of Administrative Review to the applicant, the respondent and the third party within 7 days and in accordance with statutory procedures:
(1)
The applicant withdraws the application upon approval of the review organ;
(2)
The applicant is a citizen and has been deceased without heir, or his heir declares to abandon the review right;
(3)
The applicant is a legal person or any other organization and has been terminated without inheritor of rights or the inheritor of rights declares to abandon the review right;
(4)
The facts for review have disappeared;
(5)
It is discovered upon acceptance that the applicant has brought forward an administrative lawsuit in the people's court for the same specific administrative act, and the people's court has accepted it;
(6)
It is discovered upon acceptance that the applicant has applied for administrative review to any other administrative review organ for the same specific administrative act, and the other administrative review organ has accepted it;
(7)
It is discovered upon acceptance that the specific administrative act to be reviewed was made in the name of two or more administrative organs, and this review organ is not the common administrative organ at the next higher level thereof (except for the NDRC and other departments have jointly made a specific administrative act); or
(8)
Any other circumstance as stipulated by laws or regulations under which the administrative review shall be terminated.
An application for administrative review whose review is terminated in accordance with the preceding paragraph shall be put on archives.
Article 19
The legal affairs organ under the NDRC shall, within 7 days as of the acceptance of an application for administrative review, send the duplicate of the application form or the photocopy of the notes for the application to the respondent. The respondent shall, within 10 days as of the acceptance of the duplicate of the application form or the photocopy of the notes on the application, give a written reply and shall present the evidence, basis and other related materials for its specific administrative act as undertaken.
A written reply made by the respondent shall include:
(1)
The basic information of the respondent (except that the NDRC is the respondent);
(2)
The reasons for defense, the basic process of and cases for the specific administrative act as undertaken;
(3)
The factual basis and the related materials of evidence for conducting the specific administrative act;
(4)
The document numbers, concrete clauses and contents of the laws, regulations, rules, or regulatory documents on which the specific administrative act is based; and
(5)
The time when the reply is made.
A written reply shall be sealed by the respondent. If the respondent is the NDRC, the seal of the organ that conducted the specific administrative act shall be affixed.
Article 20
If the respondent fails to give a written reply or present the proof, basis and other related materials for making the specific administrative act according to the provisions of Article 23 of the Administrative Review Law and Article 19 of these Measures, it shall be considered to have no proof and basis for the specific administrative act, and the review organ shall decide to annul the specific administrative act.
Article 21
The applicant, the third party or the authorized agent thereof may apply to the NDRC for the consultation of the written reply presented by the respondent as well as the proof, basis and other related materials on which the specific administrative act was based, and shall conduct this in accordance with the following procedures:
(1)
The applicant, the third party or the authorized agent thereof shall apply to the legal affairs organ under the NDRC, and show their identification documents;
(2)
The legal affairs organ under the NDRC shall permit the applicant, the third party or the authorized agent thereof to consult the aforesaid materials in case it confirms, upon examination, that no state secret, business secret or personal privacy is involved in;
(3)
As the applicant, the third party or the authorized agent thereof is consulting the aforesaid materials, the functionary of the review organ shall present; and
(4)
Without approval of the review organ, the applicant, the third party or the authorized agent thereof shall, not alter, destroy, change, take away or add anything to the aforesaid materials, or make any duplicate, record, or photograph of them.
Article 22
In principle, the method of written examination shall be employed for administrative review. If the case is complicated and the case can not be confirmed upon written examination, the review organ may hear the opinions of the parties concerned face to face, conduct on-site investigations, or invite special institutions for inspection and appraisal and so on.
Article 23
In the proceeding of an administrative review, the respondent or its agent shall not illegally gather evidence from the applicant or any other organization or individual concerned on its own initiative, or take the facts or conditions that are found out after the specific administrative act is raised as the factual basis for the aforesaid specific administrative act.
Article 24
In the proceeding of an administrative review, the execution of the specific administrative act shall not be ceased, unless any of the following circumstances exists:
(1)
the suspension is considered necessary by the respondent;
(2)
the suspension is considered necessary by the NDRC;
(3)
the suspension is determined by the NDRC at the request of the applicant because the NDRC considers the request to be reasonable; or
(4)
the suspensionis required by the laws.
Where it is determined to suspend the execution, a Decision concerning Suspension of the Execution of the Specific Administrative Act shall be set down and served to the applicant, the respondent and the third party.
Article 25
In case the applicant requires to withdraw an application for administrative review, he or it shall present a written application before the administrative review decision is made, explain the reasons and sign or seal the application. If the applicant files application in oral, the functionary for review shall write it down, and the applicant shall sign seal the records upon examination.
Where an application for administrative review is revoked, the relevant administrative review shall be terminated.
Chapter IV Decision and Implementation
Article 26
The legal affairs organ under the NDRC shall conduct the examination of a specific administrative act raised by the respondent, put forward opinions, and make an administrative review decision in accordance with Article 28 of the Administrative Review Law.
In case a review decision orders the respondent to make a new specific administrative act, the respondent shall not make an identical or basically identical specific administrative act with the original one based on same facts and reasons, unless the review decision revokes the specific administrative act because of its violation of statutory procedures.
Article 27
The NDRC shall, within 60 days as of the acceptance of application for administrative review, make an administrative review decision. If the circumstances are complicated, and it is unable to make an the decision within the prescribed time limit, the time limit may be appropriately extended upon approval of the person-in-charge of the NDRC, and the applicant and the respondent shall be informed of such extension, but the extension shall not be more than 30 days.
The NDRC shall, for making an administrative review decision, formulate a Decision on Administrative Review, on which the special seal for administrative review shall be affixed.
The Decision on Administrative Review shall get into effect upon the service thereof.
Article 28
The respondent shall implement the administrative review decision.
In case the respondent fails to implement, or delays the implementation of, the administrative review decision without any justifiable reason, the NDRC shall order him or it to implement the decision within a fixed time limit.
Article 29
In case an applicant fails to bring forward a lawsuit but refuses to implement the administrative review decision, or refuses to implement the final ruling as administrative review decision, it shall be handled respectively in accordance with the following provisions:
(1)
In case the administrative review decision sustains the specific administrative act, the administrative organ that undertaken the specific administrative act shall apply to the people's court for compulsory execution; or
(2)
Incase the administrative review decision alters the specific administrative act, the administrative review organ shall apply to the people's court for compulsory execution.
Chapter V Supplementary Rules
Article 30
The calculation of the administrative review period and the service of administrative review documents shall be carried out according to the provisions concerning the period and service as stipulated in the Civil Procedural Law.
The terms "5 days" and "7 days" as mentioned in these Measures related to the administrative review period mean the working days, other than holidays and the said dates themselves.
Article 31
As for the applications for administrative review filed with the NDRC by the foreigners, stateless persons and other foreign organizations within the territory of the People's Republic of China, these Measures shall apply.
Article 32
The power to interpret these Measures shall remain with the NDRC. These Measures shall get into affect as of July 1, 2006.
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Promulgated by The National Development and Reform Commission on 2006-04-30
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