Implementation Measures of Hubei Province on

Administrative Reconsideration

Chapter I   General Provisions

Article 1  In order to bring the functions of administrative reconsideration system into full play in solving administrative disputes, building a government ruled by law and structuring a harmonious socialist society, these Measures are formulated pursuant to the Administrative Reconsideration Law of the People’s Republic of China (hereinafter referred to as the Administrative Reconsideration Law) and Regulations on the Implementation of the Administrative Reconsideration Law of the People’s Republic of China (hereinafter referred to as Regulations on the Implementation of the Administrative Reconsideration Law), and in light of the actual situation of the Province.

Article 2  The administrative body for reconsideration shall follow the principle of being lawful, impartial, timely and convenient for the people and fulfill its functions and duties in administrative reconsideration earnestly and settle administrative disputes positively.

Article 3  The administrative body for reconsideration shall put emphasis on adopting conciliation to handle the administrative disputes according to law, try to end the whole matter while closing the case, thus to achieve the unification of legal and social effect.

Article 4  The local people’s governments at or above the county level and their working departments shall establish and enhance an administrative reconsideration accountability system, apply the system for which the No.1 administrative head takes the responsibility in administrative reconsideration and integrate the work on administrative reconsideration in the target accountability system of the respective government and department.

Article 5  The administrative body shall analyze reasons, specify rectification measures, perfect the system and improve administration according to law when discovering any issue of a general nature in the implementation of a law or administrative regulation or rule in administrative reconsideration.

Chapter II   Administrative Reconsideration Offices

Article 6  The local people’s governments at or above the county level and their working departments shall establish and perfect the administrative reconsideration system.

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 of its level. Respective reconsideration offices of administrative bodies shall be established within the legislative affairs of the working departments of the people’s governments of the province, city and prefecture.

Article 7  The administrative bodies for reconsideration shall lead and support the reconsideration office to legally handle the affairs relating to the administrative reconsideration. The administrative reconsideration office shall fulfill its functions and duties prescribed by the Administrative Reconsideration Law and Regulations on the Implementation of Administrative Reconsideration Law and positively develop the administrative reconsideration work.

Article 8  The administrative bodies for reconsideration shall provide the administrative reconsideration personnel according to the relevant regulations by the State and Province to ensure the case handling capability thereof adapting to the work task.

Article 9  The administrative reconsideration personnel shall possess the qualities, expertise and capabilities that are appropriate for performing their responsibilities for administrative reconsideration, and shall have obtained relevant qualifications. The confirmation for conditions and qualifications to be administrative reconsideration personnel shall be carried out according to relevant regulations of the State.

The administrative reconsideration office shall emphasize the construction of the administrative reconsideration force, organize professional training for the personnel regularly and positively advance the professional building of the administrative reconsideration force.

Article 10  The administrative reconsideration expert group system may be established at the people’s governments of the province, city and county as well as the working departments herein if conditions are permitted. The expert group members shall be chosen and employed from the experts and scholars mastering such affairs as law and economy, etc. by the administrative reconsideration office.

Article 11  The administrative bodies for reconsideration shall provide the administrative reconsideration offices necessary sites and places and working conditions to examine and try the administrative reconsideration cases.

Fees for administrative reconsideration shall be absorbed into administrative fees of the administrative body for reconsideration and be guaranteed by the government budget at the same level.

Chapter III   Application and Acceptance

Article 12  A citizen, legal person or any other organization, who considers that his or her lawful rights and interests have been infringed upon by a specific administrative act performed by an administrative body or an organization authorized by laws or regulations, may apply for administrative reconsideration to an administrative body in accordance with the provisions in the Administrative Reconsideration Law and Regulations on the Implementation of Administrative Reconsideration Law.

Article 13  A citizen, legal person or any other organization who refuses to accept a specific administrative act taken by a department subject to the vertical leadership below the provincial level as approved by the State Council may choose to apply for administrative reconsideration to the people’s government at the same level or the competent authority at the next higher level.

Article 14  An applicant, who is not satisfied with a specific administrative act of the administrative body which is legally established by the local people’s government and exercises relatively-centralized power of administrative punishment or permit, may apply for administrative reconsideration to the people’s government at the same level; an applicant may also apply for it to the administrative body at the next higher level if such a corresponding administrative body is also established there.

Article 15 The administrative reconsideration body shall smooth the administrative reconsideration channel and provide convenience for a citizen, legal person or any other organization to apply for administrative reconsideration.

Article 16  An applicant may apply for administrative reconsideration in written or in oral form. If he lodges a written application, the applicant may adopt such forms as delivering in person, or by post, fax, etc.; if in oral, the administrative reconsideration body shall, in accordance with relevant regulations, draw up the application transcript on the spot, deliver the recorded application to the applicant for check or read it to the applicant and thereafter the applicant shall confirm the recorded application by signing it.

A qualified administrative reconsideration office may accept an administrative reconsideration application lodged in the form of electronic texts like by an e-mail, it may also try out to accept an administrative reconsideration application via the Internet.

Article 17  The administrative bodies for reconsideration shall accept any administrative reconsideration application that meets the acceptance requirements, and are not allowed to shift responsibility onto others.

If the administrative body for reconsideration refuses to accept an application without proper reasons, administrative body at the higher level may first prompt the administrative reconsideration body to accept the application; if the administrative reconsideration body still rejects acceptance, it shall order the latter to accept the application within a prescribed time limit, and it may directly accept the application when necessary.

Article 18  The administrative bodies for reconsideration shall establish the system of the No.1 administrative officer being informed of the administrative reconsideration case.

The administrative bodies for reconsideration shall inform the No.1 administrative officer of relevant administrative bodies timely in written form after a significant, complicated and causing-much-concern-among-the-masses administrative reconsideration case is accepted.

Chapter IV   Evidence Rules

Article 19  The administrative reconsideration office shall, in accordance with legal procedures, examine and verify the evidence comprehensively, objectively and impartially. The evidence can be taken as the basis for the decision of the case only after it has been examined and found to be true by the administrative reconsideration office.

The evidence on which the decision of administrative reconsideration case is based shall have the nature of authenticity, legality and connection.

Article 20  The defending party of the application who undertook the specific administrative act shall bear the burden of proof for the said act, and shall submit the evidence, basis and other relevant documents for taking the specific administrative action within a prescribed time limit.

If the defending party fails to submit the said particulars without due reasons within the time limit, the specific administrative act shall be considered to have no evidence or basis and the defending party of the application shall undertake the legal liability of failure to bear the burden of proof.
    In the process of administrative reconsideration, no defending party of the application may collect evidence from the applicant or other organizations or individuals concerned on his own.

Article 21  The applicant and the third party shall provide the following evidential materials if participating in the administrative reconsideration activities:

1. In the cases concerning the administrative body’s failure to perform its statutory responsibility, the applicant and the third party shall provide evidential materials on having requested the administrative organ to perform its statutory responsibility and the latter’s failure to perform;

2. The applicant that lodges an administrative compensation and remedy claim concurrently with an application for administrative reconsideration shall provide evidential materials on the damage to his lawful rights and interests caused by the specific administrative act; or

3. Any other evidential materials that the applicant shall provide specified by laws and regulations.

Article 22  The administrative reconsideration personnel, according to the need of handling a case, shall be authorized to conduct investigations among, and collect evidence from organizations and persons concerned, and consult, duplicate and call for relevant documents and materials, ask for inquiries from persons concerned and make the on-the-spot survey and inspection if it is needed. The investigated unit and person shall not refuse or obstruct the work of the administrative reconsideration personnel.

Article 23  During the administrative reconsideration involving any specialized matter to be authenticated, the party concerned may consult and entrust a statutory authentication institution to conduct authentication. If the consultation fails, a statutory authentication institution shall be entrusted or designated by the administrative reconsideration office. The party concerned shall assume the authentication fee. The time for authentication shall not be counted in the time limit for administrative reconsideration.

Article 24  The evidence collected by the administrative reconsideration office in the course of administrative reconsideration shall not be the evidence to affirm a specific administrative act but may be the basis of the nullification or change of the original specific administrative act or confirmation of its illegality.

Article 25  The applicant and the third party and their agents may consult, excerpt and duplicate evidential materials relating to the administrative reconsideration case application, and the administrative reconsideration office is not allowed to refuse the requirement except those involving State secrets, business secrets, or individual privacy.

The administrative reconsideration office shall provide sites and places and other necessary convenient conditions for the applicant and the third party and their agents to consult, excerpt and duplicate evidential materials.

Chapter V   Hearing and Decision

Article 26  The administrative reconsideration office may conduct reviews over administrative reconsideration cases either in the written form or by adopting the form of hearing according to facts.

Article 27  The administrative reconsideration office may adopt simple and easy procedures to conduct reviews over administrative reconsideration cases with simple facts and few conflicts.

The simple and easy procedure mainly takes the form of reviewing by written documents; the specific undertaker offers opinions to responsible person in the reconsideration office for examination and then report to the leader of the reconsideration body for signing and approving.

Article 28  The administrative reconsideration offices may organize hearings to find out the facts thereof in the process of handing such cases, hear the presentation, proof, cross-examination and debate among the persons concerned about the facts, evidence, basis and procedures of the specific administrative act relating to the case.

Article 29  Administrative reconsideration offices may hold hearings where the reconsideration cases fall into one of the following situations:

1. There are many disputes among persons concerned over the facts and application basis of the case;

2. The case is complicated or difficult to handle;

3. The case has major social impacts;

4. The case contains other circumstances under which the administrative reconsideration offices deem it necessary to hold a hearing.

Article 30  After the administrative reconsideration case is accepted, the administrative reconsideration personnel shall inform the persons concerned of the right to apply for hearings if the case is considered to be in conformity with the situations of holding hearings. The persons concerned shall apply for hearings to the administrative reconsideration offices for examination and decision if they require to hold hearings. The said offices may also decide whether to hold hearings for administrative reconsideration or not by themselves.

The defending party of an application for reconsideration shall designate the responsible person relating to the reconsideration case to participate in the hearing to help evidence cross-examination and find out facts.

Article 31  Hearings of administrative reconsideration shall be conducted according to the relevant hearing procedures strictly; written hearing records shall be taken and be handed to the hearing participants for signature upon their examination and verification.

Persons concerned shall, centering around focus problems of the case, make cross-examination and debate on the authenticity, legality and connection of the evidence, whether the evidence has proof efficacy and the degree of efficacy if it has.

Article 32  The administrative bodies for reconsideration shall, in the process of conducting reviews over the administrative reconsideration cases, find out facts, distinguish between right and wrong, try to handle the case with condition on the basis of not damaging the interests of the State, public interests and other’s lawful rights and interests and voluntary of both parties to improve the mutual understanding and trust between the persons concerned and administrative bodies.

Article 33  In the process of the administrative reconsideration, the applicant and respondent of the application shall submit a written compromise agreement to the reconsideration office if they voluntarily reach a conciliation; the administrative bodies for reconsideration shall consent to the agreement on the condition that it does not damage the public interests and other’s lawful rights and interests.

The administrative reconsideration office shall positively create conditions for such a voluntary compromise agreement before making an administrative reconsideration decision.

Article 34  The administrative reconsideration office shall make a reconsideration decision promptly for the cases where mediation is not suitable or the litigants fail to reach a compromise agreement after the mediation or litigants are unwilling to reconcile.

Article 35  The administrative bodies for reconsideration shall make reconsideration decisions like affirmation, ordering to fulfill, nullification, alteration of the specific administrative act or confirmation of illegal administrative act, as well as the suspension, termination of the reconsideration case or the dismissal of the reconsideration application in accordance with relevant provisions of the Administrative Reconsideration Law and Regulations on the Implementation of the Administrative Reconsideration Law.

Article 36  Where he has objections to the reconsideration decision, the defending party of the application may bring the matter up to the administrative bodies for reconsideration that made the decision or relevant administrative body at a higher level in writing, but the execution of the reconsideration decision shall not be impacted.

The administrative body for reconsideration finds mistakes do exist and need rectifying in the effective reconsideration decisions in its own body, the No.1 administrative officer of the body shall decide whether to make rectifications or not.

The administrative body at a higher level finding mistakes do exist and need rectifying in the effective reconsideration decision made by the lower administrative body may order the said lower body to make corrections within a time limit.

Chapter VI   Guidance and Supervision

Article 37  The administrative body at the higher level shall strengthen the guidance of and supervision over the administrative reconsideration work done by that at the lower level.

The administrative body at the higher level may adopt means like on-the-spot investigation and holding meetings to promptly guide, reply and solve the problems and difficulties that the administrative body meets while performing administrative reconsideration work.

Article 38  The administrative reconsideration office shall set up the system of frequent contact for reconsideration work to announce the reconsideration working state in circular, do research in the practical reconsideration problems, establish a platform for mutual communication to perfect the administrative reconsideration work system.

The administrative reconsideration office shall set up the misjudged case analysis system and formulate and issue written administrative reconsideration proposals to set forth rectification suggestions for the existing problems in the administrative body through the analysis of typical cases.

Article 39  The administrative reconsideration office shall set up and perfect the system of quality appraisal and survey of administrative reconsideration cases.

The quality appraisal and survey activities shall be taken regularly every year, adopt the method of combining self-check, random check with overlapping evaluation and check to further raise the administrative reconsideration case handling quality.

Article 40  The administrative reconsideration work shall be combined with the urge of the administrative law enforcement responsibility system to perfect both the law enforcement responsibility system and the prosecution system of fault liability in administrative law enforcement.

Chapter VII   Legal Liability

Article 41  Where an administrative body for reconsideration or administrative reconsideration office fails to perform the functions and duties of the administrative reconsideration provided for in the Administrative Reconsideration Law and Regulations on the Implementation of the Administrative Reconsideration Law, and makes no rectification after being prompted by the competent supervisory administrative body, the direct-in-charge person(s) and the direct responsible person(s) shall be given sanctions including warning, recording a demerit, recording a major demerit in accordance with law; if serious consequence is caused, sanctions of demotion, dismissal from the post, or expulsion shall be given in accordance with law.

Article 42  Where the administrative body or any of its working staff violates the Administrative Reconsideration Law and Regulations on the Implementation of the Administrative Reconsideration Law, the administrative reconsideration office may put forward suggestions on giving sanctions to relevant responsible personnel to the department of personnel or supervision, and may also directly forward the materials on the facts of the relevant personnel’s violation of law to the said departments for handling; the department of personnel or supervision accepting the transfer shall handle it according to law and report the handling results to the forwarding administrative reconsideration office.

Article 43  In case of refusing or obstructing the administrative reconsideration personnel from investigating, taking evidence or consulting, duplicating or accessing relevant documents and materials, the relevant responsible persons shall be disciplined or punished in respect of public security administration according to law; where a crime is constituted, they shall be subject to the criminal liability.

Chapter VIII   Supplementary Provision

Article 44  These Measures shall become effective on October 1, 2007.