PRC, Administrative Review Law

(Adopted at the 9th Meeting of the Standing Committee of the 9th National People's Congress and promulgated on 29 April 1999, and effective as of 1 October 1999.)

PART ONE: GENERAL PROVISIONS

Article 1: This Law is formulated in accordance with the Constitution and relevant laws in order to prevent and correct specific administrative acts that are illegal or improper, to safeguard the legal rights and interests of citizens, legal persons and other organizations, and to safeguard and supervise the legal exercise of their powers by administrative organizations.

Article 2: This Law applies to applications for administrative reviews made to administrative organizations, and the acceptance of such applications and the issue of administrative review decisions by administrative agencies, when citizens, legal persons or other organizations consider that specific administrative acts of administrative organizations infringe their legal rights and interests.

Article 3: The administrative agency responsible in accordance with this Law for carrying out the administrative review shall be the administrative review agency. The organization of that agency responsible for legal work shall specifically handle administrative review matters and carry out the following duties:

1. acceptance of the administrative review application;

2. investigation of and collection of evidence from the relevant organizations and persons, and consultation of documents and information;

3. examination of whether the specific administrative act for which the review is requested is or is not legal or proper, and drafting of the administrative review decision;

4. handling or transferring applications for investigation as stipulated in Article 7 of this Law;

5. making proposals for the handling of acts by administrative organizations in violation of the provisions of this Law, within the limits of its stipulated powers and in accordance with the stipulated procedure;

6. handling of correspondence to administrative litigation filed because of dissatisfaction with administrative review decisions; and

7. other duties as stipulated by laws and regulations.

Article 4: In carrying out their administrative review responsibilities, administrative review agencies should abide by the principles of lawfulness, impartiality, openness, timeliness and for the convenience of the people. They shall insist that mistakes be rectified and shall safeguard the correct implementation of laws and regulations.

Article 5: Citizens, legal persons and other organizations which do not accept an administrative review decision can file administrative litigation in the People's Courts in accordance with the provisions of the Administrative Litigation Law, except when the administrative review decision is stipulated by law to be the final ruling.

PART TWO: SCOPE OF ADMINISTRATIVE REVIEWS

Article 6: Citizens, legal persons and other organizations can apply for an administrative review in accordance with this Law in any one of the following circumstances:

1. refusing to accept an administrative sanction ruling by an administrative organization such as a warning, fine, confiscation of illegal gains, confiscation of illegal property, order to cease production or business, temporary suspension or revocation of a permit, temporary suspension or revocation of a licence, or administrative detention;

2. refusing to accept a decision by an administrative organization on administrative enforcement measures such as restriction of personal freedom or sealing up, seizure or freezing of property;

3. refusing to accept a decision by an administrative organization to change, suspend or revoke a certificate such as a permit, licence, certificate of quality or certificate of qualification;

4. refusing to accept a decision by an administrative organization on ownership or leaseholds of recognized natural resources such as land, mineral resources, waters, forests, mountains, grassland, wasteland, beaches and sea areas;

5. an alleged infringement by an administrative organization of legal business autonomy;

6. an alleged change to or annulment of an agricultural contract in infringement of legal rights and interests;

7. alleged illegal collection of funds, levying of property or apportionment of fees, or illegal requisition of other obligations, by an administrative organization;

8. failure by an administrative organization to handle in accordance with the law applications for certificates such as permits, licences, certificates of quality or certificates of qualification issued by that administrative organization, or of applications to the administrative organization on matters related to examination, approval and registration;

9. failure by an administrative organization to carry out in accordance with the law its statutory duty with regard to applications for protection of personal rights, property rights and the right to education;

10. failure by an administrative organization to pay in accordance with the law applications to that administrative organization for pensions for the disabled and families of the deceased, social insurance or minimum subsistence; or

11. other specific administrative acts by an administrative organization which infringe legal rights and interests.

Article 7: Where citizens, legal persons or other organizations consider that specific administrative acts by administrative organizations based on the following regulations are illegal they may, at the same time as applying for an administrative review of the specific administrative act, apply in parallel to the administrative review agency for an investigation of that regulation:

1. regulations of the State Council departments;

2. regulations of all levels of local People's Governments, and their work departments, above county level; and

3. regulations of town and township People's Governments.

The regulations listed above do not include State Council ministry and commission rules and regulations and local People's Government rules and regulations. Investigation of these shall be handled in accordance with the law and with administrative laws and regulations.

Article 8: Those dissatisfied with administrative sanctions or other personnel decisions imposed by administrative organizations shall appeal in accordance with the law and with administrative laws and regulations.

Those dissatisfied with mediation or handling of civil disputes by administrative organizations shall apply for arbitration in accordance with the law or file litigation in the People's Courts.

PART THREE: APPLICATIONS FOR ADMINISTRATIVE REVIEWS

Article 9: Citizens, legal persons or other organizations which consider a specific administrative act to be an infringement of their legal rights and interests can apply for an administrative review within 60 days of the date on which they learn of the specific administrative act, except where the application deadline stipulated by law exceeds 60 days.

In the case of failure to meet the statutory deadline for applications because of force majeure or other legitimate reasons, calculation of the application deadline shall continue from the date the obstacle is eliminated.

Article 10: A citizen, legal person or other organization which applies for an administrative review in accordance with this Law shall be the applicant.

If a citizen with the right to apply for an administrative review dies, his close relative may apply for the review. If a citizen with the right to apply for an administrative review is without the capacity to act or has limited capacity to act, his statutory agent may apply for the administrative review on his behalf. If a legal person or other organization with the right to apply for an administrative review is terminated, the legal person or other organization that succeeds to its rights and interests may apply for the administrative review.

Other citizens, legal persons or organizations which have an interest in the specific administrative act in respect of which an application for administrative review is submitted may participate in the administrative review as third parties.

When citizens, legal persons or other organizations are dissatisfied with a specific administrative act of an administrative organization and apply for an administrative review, the administrative organization that committed the specific administrative act shall be the respondent.

Applicants and third parties may appoint agents to participate in administrative reviews on their behalf.

Article 11: Applicants applying for an administrative review may apply in writing or orally. In the case of oral applications, the administrative review agency shall record on the spot the applicant's basic circumstances, the administrative review request, and the principal facts, reasons and timing of the administrative review applied for.

Article 12: Those dissatisfied with a specific administrative act of a work department of any level of local People's Government above county level may, at the choice of the applicant, apply for an administrative review to the People's Government at the level of that department or to the competent department one level higher.

Those dissatisfied with a specific administrative act of administrative organizations under the direct leadership such as the Customs, Administration of Finance, Taxation or Foreign Exchange Control, or of State security organizations, shall apply for an administrative review to the competent department one level higher.

Article 13: Those dissatisfied with a specific administrative act of any level of local People's Government shall apply for an administrative review to the local People's Government one level higher.

Those dissatisfied with a specific administrative act of a county level People's Government subordinate to a representative organization which has been established in accordance with the law by the People's Government of a province or autonomous shall apply for an administrative review by that representative organization.

Article 14: Those dissatisfied with a specific administrative act of a State Council department or the People's Government of a province, autonomous region or centrally-governed municipality shall apply for an administrative review to that State Council department or to the People's Government of that province, autonomous region or centrally-governed municipality. Those dissatisfied with the administrative review decision may bring a civil action in the People's Court, and may also apply for a ruling to the State Council. The State Council shall make the final ruling in accordance with the provisions of this Law.

Article 15: Those dissatisfied with a specific administrative act of an administrative organization or association other than those stipulated in Articles 12, 13 and 14 of this Law shall apply for an administrative review in accordance with the following regulations:

1. those dissatisfied with a specific administrative act of a representative organization legally established by a local People's Government above county level shall apply for an administrative review to the People's Government that established the representative organization;

2. those dissatisfied with a specific administrative act performed in its own name and in accordance with laws, regulations and rules by a representative body of a work department of a People's Government shall apply for an administrative review to the department that established the representative body or to the local People's Government at the same level as that department;

3. those dissatisfied with a specific administrative act of an organization authorized under laws and regulations shall apply for an administrative review respectively to the local People's Government, local People's Government work department or State Council department directly in charge of that organization;

4. those dissatisfied with a specific administrative act performed in the joint name of two or more administrative organizations shall apply for an administrative review to the next higher level administrative organization which is in charge of all those administrative organizations; and

5. those dissatisfied with a specific administrative act of an abolished administrative organization performed before that organization was abolished shall apply for an administrative review to the administrative organization one level above the administrative organization which continues to exercise the powers of the abolished organization.

In any of the above circumstances the applicant may apply for an administrative review to the local county level People's Government of the locality in which the specific administrative act took place. The local county level People's Government receiving the application shall deal with it in accordance with the provisions of Article 18 of this Law.

Article 16: If citizens, legal persons and other organizations have applied for an administrative review and the administrative review agency has accepted the case in accordance with the law, or if laws or regulations stipulate that an application for review must first be made to the administrative review agency and then a case brought before the People's Court if the administrative review decision is unsatisfactory, an administrative litigation may not be filed with the People's Court within the statutory review period.

If citizens, legal persons and other organizations have filed an administrative litigation with the People's Court and the People's Court has accepted the case in accordance with the law, an administrative review may not be applied.

PART FOUR: ACCEPTANCE OF ADMINISTRATIVE REVIEWS

Article 17: Once an administrative review agency has received an application for administrative review, it should investigate this within five days. Administrative review applications not in accord with the provisions of this Law shall not be accepted and the applicant shall be informed in writing. If an application is in accord with the provisions of this Law but does not come under that agency, the agency should inform the applicant which administrative review agency to apply to.

Except where the provisions of the above paragraph apply, applications for administrative review should be accepted from the date they are received by the body of the administrative review agency responsible for legal work.

Article 18: Local county level People's Governments which receive applications for administrative review in accordance with the provisions of paragraph 2, Article 15 of this Law shall transfer those applications which, in accordance with paragraph 1, Article 15 of this Law should be accepted by another administrative review agency, to that agency within seven days of the date of receiving the applications, and inform the applicant in writing. The administrative review agency receiving the transferred application shall deal with it in accordance with Article 17 of this Law.

Article 19: If laws or regulations stipulate that an application for administrative review should first be made to an administrative review agency and an administrative litigation then filed with the People's Court if there is dissatisfaction with the administrative review decision, and if the administrative review agency decides not to accept the application or having accepted it fails to reply within the administrative review period, citizens, legal persons and other organizations may file an administrative litigation with the People's Court in accordance with the law within 15 days of receiving the letter giving the decision not to accept the application or within 15 days of the date the administrative review period expired.

Article 20: If an administrative review agency, without good reason, does not accept an application for administrative review made in accordance with the law by a citizen, legal person or other organization, the administrative organization one level higher shall be responsible for ordering it to accept the application. When necessary the administrative agency one level higher can directly accept the application.

Article 21: The implementation of the specific administrative act shall not be suspended during the review, but may be suspended in any one of the following circumstances:

1. the respondent considers that implementation needs to be suspended;

2. the administrative review agency considers that implementation needs to be suspended;

3. the applicant applies for suspension of implementation and the administrative review agency considers the request to be reasonable and decides that implementation be suspended; or

4. a law or regulation provides for implementation to be suspended.

PART FIVE: ADMINISTRATIVE REVIEW DECISIONS

Article 22: Administrative reviews shall in principle be conducted in writing. But at the applicant's request, or when the body of the administrative review agency responsible for legal work deems it necessary, the agency can investigate the circumstances of the organizations and persons involved and listen to the views of the applicant, the respondent and third parties.

Article 23: The body of the administrative review agency responsible for legal work shall send a copy of the administrative review application or of the written record of the administrative review application to the respondent within seven days of the date of acceptance of the application. Within ten days of receipt of the copy of the application or written record of application the respondent shall reply in writing and provide the evidence of, basis for or other relevant information on its performance at the time of the specific administrative act.

The applicant and third parties may consult the evidence of, basis for and other relevant information on the performance of the specific administrative act provided by the respondent except where State secrets, commercial secrets or personal privacy are involved. The administrative review agency may not refuse.

Article 24: In the course of an administrative review the respondent may not of its own accord collect evidence from the applicant or other organizations or individuals involved.

Article 25: If the applicant requests a withdrawal of the administrative review application before the administrative review decision is made, it may be withdrawn once the reasons for this are explained. If applications for administrative review are withdrawn, the administrative review shall be stopped.

Article 26: If when applying for an administrative review an applicant applies in parallel for an investigation of related regulations as listed in Article 7 of this Law, and the administrative review agency is authorized to deal with those regulations, it shall deal with this in accordance with the law within 30 days. If it is not authorized to deal with those regulations it shall within seven days transfer the application in accordance with the statutory procedure to the authorized administrative organization, which shall deal with it in accordance with the law within 60 days. During the period in which this is being dealt with, the investigation of the specific administrative act shall be suspended.

Article 27: When an administrative review agency investigating the specific administrative act performed by the respondent believes that there is no legal basis for the act, and that agency is authorized to handle this, it shall deal with it in accordance with the law within 30 days. If it is not authorized to handle this, it shall within seven days transfer the case to the authorized State organization which shall deal with it in accordance with the law. During the period in which this is being dealt with, the investigation of the specific administrative act shall be suspended.

Article 28: The body of the administrative review agency responsible for legal work shall investigate the specific administrative act by the respondent, and provide an opinion. The administrative review decision shall be made in accordance with the following regulations once the opinion has been agreed, or collectively discussed and adopted, by the responsible persons in the administrative review agency:

1. if the acknowledged facts of the specific administrative act are clear, the evidence conclusive, the basis correct, the procedure legal and the content appropriate, the decision shall be to uphold the act;

2. if the respondent failed to perform its statutory duties, the decision shall be that it shall perform these within a set time;

3. if one of the following applies to the specific administrative act the decision shall be to quash or change the act, or to acknowledge that it was illegal. If the decision is to quash the specific administrative act, or to acknowledge that it was illegal, the respondent can be ordered to perform another specific administrative act within a set period:
    

   1. the main facts are unclear and the evidence insufficient;

   2. the basis for the act was mistaken;

   3. statutory procedures were violated;

   4. official powers were exceeded or abused; or

   5. the specific administrative act was obviously improper.

4. if the respondent fails in accordance with Article 23 of this Law to provide a written reply and the evidence of, basis for and other relevant information on the specific administrative act, then the specific administrative act shall be regarded as having no proof or basis and the decision shall be to quash that act.

When an administrative review agency orders a respondent to perform another specific administrative act the respondent may not use the same facts and reasons to perform the same, or basically the same, act as the original specific administrative act.

Article 29: When applying for an administrative review the applicant may in parallel claim the administrative compensation. If the administrative review agency should grant compensation in accordance with State Compensation Law, when the administrative review agency decides that such specific administrative act be quashed, changed or acknowledged to be illegal, it shall at the same time decide that the applicant be compensated in accordance with the law.

If an applicant applying for an administrative review does not in parallel claim the administrative compensation, when the administrative review agency in accordance with the law decides to quash or change a fine, or quash a specific administrative act involving the illegal collection of funds, confiscation of property, levying of property, or sealing up, seizure or freezing of property, it shall at the same time order the respondent to return the property, remove the measures for sealing up, seizing or freezing the property, or provide the equivalent sum in compensation.

Article 30: If a citizen, legal person or other organization considers that a specific administrative act of an administrative organization infringes their legally acquired ownership or leaseholds over natural resources such as land, mineral resources, waters, forests, mountains, grassland, wasteland, beaches or sea areas, they should first apply for an administrative review. Those dissatisfied with the administrative review decision may file an administrative suit in the People's Court.

In accordance with the decisions on exploration, adjustment or requisitioning of land by the State Council or People's Governments of provinces, autonomous regions and centrally-governed municipalities, the administrative decisions on the ownership or leaseholds over natural resources such as land, mineral resources, waters, forests, mountains, grassland, wasteland, beaches or sea areas by People's Governments of provinces, autonomous regions and centrally-governed municipalities are final rulings.

Article 31: Administrative review agencies shall make an administrative review decision within 60 days of the date of receipt of the application, except where the statutory administrative review period stipulated by law is less than 60 days. If circumstances are complicated and it is impossible to make an administrative review decision within the stipulated time this may be extended appropriately and the applicant and respondent informed. But the extension period shall not exceed 30 days in maximum.

When making an administrative review decision the administrative review agency shall prepare a written decision on administrative review and affix its seal to this.

Written decisions on administrative review shall become immediately legally effective upon service.

Article 32: The respondent shall implement the administrative review decision.

If the respondent does not implement the administrative review decision, or delays the implementation without good reason, the administrative review agency or the administrative organization at one level higher involved shall order it to implement the decision within a set time.

Article 33: If an applicant neither files a suit nor implements the administrative review decision, or does not implement the final ruling on the administrative review decision within the time limit, this shall be handled according to the following provisions:

1. if the administrative review decision upholds the specific administrative act, the administrative organization that performed the specific administrative act shall enforce the decision in accordance with the law or apply for enforcement to the People's Court;

2. if the administrative review decision changes the specific administrative act, the administrative review agency shall enforce the decision according to the law or apply for enforcement to the People's Court.

PART SIX: LIABILITY

Article 34: If in violation of the provisions of this Law an administrative review agency fails to accept without good reason an application for administrative review made in accordance with the law, or does not transfer such an application in accordance with the provisions, or fails to make an administrative review decision within the statutory period, those in charge who are directly responsible and other directly responsible persons shall be penalized in accordance with the law by being given a warning, recorded demerit or major recorded demerit. If the agency does not accept an administrative review application, or transfer it in accordance with the provisions, when ordered to accept it, and the consequences are serious, they shall be penalized in accordance with the law by being demoted, dismissed or expelled.

Article 35: If in the course of their administrative review activities administrative review agency personnel practice favouritism, graft or other acts in dereliction of their duties, they shall be penalized in accordance with the law by being given a warning, recorded demerit or major recorded demerit. If the circumstances are serious, they shall be penalized in accordance with the law by being demoted, dismissed or expelled. If the case constitutes a criminal offence, they shall be prosecuted in accordance with the law.

Article 36: If in violation of the provisions of this Law a respondent fails to provide a written reply or the evidence of, basis for and other relevant information on the specific administrative act, or obstructs or covertly obstructs a citizen, legal person or other organization from applying for administrative review in accordance with the law, those in charge directly and other directly responsible persons shall be penalized in accordance with the law by being given a warning, recorded demerit or major recorded demerit. Those who retaliate by making false charges shall be penalized in accordance with the law by being demoted, dismissed or expelled. If the case constitutes a criminal offence they shall be prosecuted in accordance with the law.

Article 37: If a respondent fails to implement an administrative review decision, or delays the implementation without good reason, those in charge directly and other directly responsible persons shall be penalized in accordance with the law by being given a warning, recorded demerit or major recorded demerit. If it refuses to implement the decision on being ordered to, they shall be penalized in accordance with the law by being demoted, dismissed or expelled.

Article 38: If the organization of an administrative review agency responsible for legal work discovers circumstances such as failure to accept an administrative review application without good reason, failure to make an administrative review decision in accordance with the stipulated time limit, practising favouritism, retaliation against the applicant, or failure to implement an administrative review decision, it shall make a proposal to the administrative organization involved. The administrative agency involved shall handle the case in accordance with this Law and relevant laws and administrative regulations.

PART SEVEN: SUPPLEMENTARY PROVISIONS

Article 39: When accepting applications for administrative reviews, administrative review agencies may not levy any charges on the applicant. The expenses required for an administrative review shall be included in the administrative expenses of that organization and guaranteed by government finance at the same level.

Article 40: The calculation of administrative review time periods and the serving of administrative review documents shall be implemented in accordance with the provisions of the Civil Procedure Law on time periods and servings.

The provisions of this Law on "five days" and "seven days" as related to administrative review time periods refer to working days and do not include holidays.

Article 41: When foreigners, stateless persons or foreign organizations apply for an administrative review within the People's Republic of China, this Law shall apply.

Article 42: If provisions relating to administrative review contained in laws promulgated prior to the implementation of this Law are not in accord with the provisions of this Law, the provisions of this Law shall apply.

Article 43: This Law shall be effective as of 1 October 1999. The PRC, Administrative Review Regulations promulgated by the State Council on 24 December 1990, and revised by the State Council on 9 October 1994, shall be repealed as of that date.