|
Welcome Guest
|
|
You are using Guest Account
|
|
||||||||||||||||||||||||||||||||||
|
Article 1. In order to prevent and rectify illegal or improper specific administrative acts, to protect the legitimate rights and interests of the citizens, legal persons and other organizations and to ensure and supervise administrative organs for domestic and foreign trade and international economic cooperation perform their functions in accordance with the law, the Present Measures are formulated in accordance with the Administrative Law of the People's Republic of China (hereinafter referred to the AL). Article 2. The Ministry of Commerce (hereinafter referred to the MOFCOM) shall perform the administrative reconsideration functions prescribed in the AL and the present Measures. The institution of legal affairs of the Ministry of Commerce (Department of Treaty and Legal Affairs) shall handle the specific affairs relating to administrative reconsideration in the MOFCOM, and shall perform the functions described in Article 3 of the AL. Article 3. Anyone who has objections to any of the following specific administrative acts may file an application with the MOFCOM for administrative reconsideration: (1) A specific administrative act of the MOFCOM; (2) The administrative act made by an institution dispatched by the MOFCOM in its own name according to law, regulation or administrative rule; (3) A specific administrative act of an organization directly administered by the MOFCOM under any law or regulation; (4) Anyone who has any objections to the specific administrative act made by the administrative organ for domestic and foreign trade and international economic cooperation of a province, autonomous region, or municipality directly under the Central Government may file an application to the people's government of the province, autonomous region, or municipality directly under the Central Government involved for administrative reconsideration as well. Article 4. Where a party concerned files a written application for administrative reconsideration, it shall submit one original application, and shall submit duplicates as many as the number of the respondents. The reconsideration application shall contain: (1) The name, occupation and address of the applicant and its agent (the name and address of legal person or any other organization, the name of the legal representative); (2) The name and address of the respondent (s); (3) The specific claims for the administrative reconsideration application; (4) The main facts and reasons (including the time when he or it becomes aware of the specific administrative act); and (5) The date on which the administrative reconsideration application is filed. A reconsideration application shall bear the signature and seal of the applicant or those of the legal representative of the applicant, and shall be accompanied by necessary proofs. If the applicant is a natural person, he shall submit the photocopy of his ID card or any other valid certificate. If the applicant is a legal person or any other organization, it shall submit the photocopy of its business license or any other valid certificate as well as the identification certification of its legal representative. Article 5. Where a citizen, legal person or any other organization who is an interested party of the administrative act requests, as a third party, to participate in the administrative reconsideration, he (it) shall file a written application. Upon examination and approval of the MOFCOM, he (it) may participate in the administrative reconsideration as a third party. Where the MOFOCOM deems necessary, it may inform the other interested citizens, legal persons or other organizations that they may participate in the administrative reconsideration as a third party. Article 6. Anyone who applies for reconsideration in the MOFCOM shall go through the relevant application formalities in the institution of legal affairs of the MOFCOM. The institution of legal affairs shall record the date of receipt on the application, and shall request the deliverer to affix his signature to the said application for confirmation. Article 7. After the institution of legal affairs of the MOFCOM receives an administrative reconsideration application, it shall examine it in pursuance of the AL within 5 working days, and shall, in accordance with the law, decide whether to accept it or not. Except that it decides not to accept the application or informs the applicant that he (it) shall apply for administrative reconsideration in another reconsideration organ, the administrative reconsideration application shall be deemed as being accepted from the day when it is received by the institution of legal affairs of the MOFCOM. Article 8. Where an administrative reconsideration application is under any of the following circumstances, it shall be rejected, and the applicant shall be given a written notice: (1) The claims for administrative reconsideration are not within the scope provided for in Article 6 of the AL; (2) The applicant is not a qualified subject for administrative reconsideration; (3) The applicant charges against a wrong respondent, but refuses to change; (4) The statutory time limit for the application of administrative reconsideration has expired and there is no justifiable reason; (5) The applicant has lodged an administrative lawsuit, but applies for an administrative reconsideration notwithstanding the court has accepted or hasn't decided whether to accept the case; (6) The applicant has filed an application for administrative reconsideration to another administrative organ with jurisdiction, and the application has been accepted by the said organ in accordance with the law; (7) The applicant has withdrawn the application for reconsideration, and it has no justifiable reason to file a new application for reconsideration; (8) The applicant applies for reconsideration by going beyond the reconsideration jurisdiction or the immediate leadership (excluding the circumstances listed in Article 20 of the AL); or (9) Not meeting the other statutory requirements for administrative reconsideration application. Article 9. The institution of legal affairs of the MOFCOM shall, within 7 days as of the administrative reconsideration organ's acceptance of an application for administrative reconsideration, the copy of the administrative reconsideration application or the copy of the written notes of application shall be sent to the respondent. The respondent shall make a written response within 10 days as of the receipt of the application or the photocopy of the transcripts of application, and shall submit a complete set of the proofs, basis and the other relevant materials led to the original specific administrative act. The written response submitted by the applicant shall contain the following: (1) The basic information of the respondent; (2) The reasons for arguments, the basic process and information of the case; (3) The factual basis and relevant evidential materials for the specific administrative act; (4) The specific articles and text of the laws, regulations and the regulating documents applied to by the respondent when the original specific administrative act was made; and (5) The time when the response is made. The written response shall bear the seal of the entity of the respondent. If the respondent is the MOFCOM, it shall bear the seal of the department that makes the specific administrative act. Article 10. Where the respondent fails to make any written response and submit the proofs, basis and the other relevant materials that led to the original specific administrative act as required in Article 23 of the AL and Article 10 of the present Measures, it shall be deemed to have no evidence or basis for the specific administrative act, thus it shall be decided to revoke the specific administrative act. Article 11. As a general rule, the method of written review shall be adopted in administrative reconsideration, but, except that the case is very complicate or it is unable to find the truth through written review, the opinions of the parties concerned may be heard, onsite investigations may be conducted, and special institutions may be invited to test and authenticate the relevant items. Article 12. In the course of the administrative reconsideration, the respondent and its agent shall not gather proofs from the applicant and the other relevant organizations or individuals on its (their) own initiative, nor may they consider any fact or information found after having made the specific administrative act as the factual basis for the specific administrative act. Article 13. The institution of legal affairs shall review the specific administrative act made by the respondent and give an opinion. After having been approved by the person-in-charge of the MOFCOM, or having been adopted upon collective deliberation, an administrative reconsideration decision shall be made in accordance with Article 28 of the AL. Article 14. With regard to an applicant who requests for administrative compensation when it applies for administrative reconsideration, it shall clearly state the specific claims for compensation, factual basis and reasons in accordance with Article 12 of the Law of the People's Republic of China on State Compensation. If the applicant meets the requirements for state compensation, when the reconsideration organ decides to revoke or change the specific administrative act or to determine the specific administrative act as unlawful, it shall simultaneously decide that the respondent shall make compensation in accordance with the law. Article 15. The power to interpret the present Measures shall remain with the Ministry of Commerce. The Present Measures takes effect as of July 1, 2004. |
||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||
|
Copyright 2002 NovexCn.com
|