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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II APPLICATION AND ACCEPTANCE CHAPTER III EXAMINATION AND DECISION CHAPTER IV HEARING CHAPTER V SUPERVISION AND INSPECTION CHAPTER VI LEGAL LIABILITIES CHAPTER VII SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. With a view to regulating the implementation and supervision of administrative licensing by judicial administrative organs, maintaining the correct implementation of law, guaranteeing the legitimate rights and interests of the administrative addressees, the present Rules are formulated in accordance with the Administrative License Law of the People's Republic of China (hereinafter referred to the Administrative License Law) and other laws, administrative regulations and relevant decisions of the State Council. Article 2. The administrative licensing items for the implementation by judicial administrative organs shall be established in pursuance of the law. The subject for the implementation of administrative licensing shall be determined in accordance with the law. The judicial administrative organs shall, under the Administrative License Law, other relevant laws, rules and regulations and the present Rules, implement administrative licensing and shall conduct supervision over the administrative licensing acts and the administrative licensing activities carried out by citizens, legal persons and other organizations. Article 3. Where a judicial administrative organ implements administrative licensing, it shall comply with the principle of openness, fairness, impartiality, facilitating people, high efficiency and trust-based protection. Article 4. In the implementation and supervision of administrative licensing, the instrumentalities of the judicial administrative organs shall, according to the principles of clear division of powers and responsibilities and combining separation of functions with collaboration, strictly perform their functions and provide quality services. The implementation of administrative licensing shall be carried out by a certain functionary instrumentality of the statutory judicial administrative organs. If it needs several functionary instrumentalities to complete the work, the leading functionary instrumentality or the general office shall be responsible for accepting all administrative license applications, put forward examination opinions upon mediation and serve the administrative licensing decisions on the applicants. The relevant administrative licensing documents and certificates shall be published or issued in the name of the implementation organ. CHAPTER II APPLICATION AND ACCEPTANCE Article 5. A judicial administrative organ shall, in pursuance of the first paragraph of Article 30 of the Administrative License Law, display the administrative licensing items within its statutory functions in its office, and may also publicize the said items through the government website set up by itself. Where an applicant requests the judicial organ to account for or to give explanations about the publicized or displayed items, the functionary instrumentality or persons who are responsible for the licensing items shall dutifully do so. Article 6. Where an applicant applies to the judicial administrative organ for administrative licensing, the functionary instrumentality shall record relevant information immediately. The record of an administrative licensing application shall note the date of receiving the application. Where it is possible for a judicial administrative organ to handle its affairs by way of e-government, the relevant functionary instrumentality shall arrange for a special person to check and receive the administrative licensing applications submitted through the channel of electronic data exchange. Article 7. After a judicial administrative organ receives an administrative licensing application, it shall decide whether to accept the application or not by examining the following items: (1) Whether the matter applied for is within the jurisdiction of this organ or not; (2) Whether the matter applied for shall be subject to administrative license or not in accordance with the law; (3) Whether the applicant is banned from filing an administrative licensing application or not; (4) Whether the applicant has submitted the application materials in conformity with the type and content prescribed in the laws, regulations and rules; and (5) Whether the application materials submitted by the applicant meet the prescribed formats and quantities. Article 8. In accordance with Article 32 of the Administrative License Law, a judicial administrative organ shall, upon examination, handle the administrative licensing applications in light of the following circumstances: (1) For the matter applied for that is not subject to administrative licensing in accordance with the law, the judicial administrative organ shall inform the applicant of the rejection immediately; (2) If the matter applied for isn't within the functions of the judicial administrative organ, it shall make a decision of rejection immediately and shall inform the applicant that it shall file an application to the competent administrative organ; (3) Where the errors in the application materials can be corrected on the spot, the applicant shall be permitted to correct them on the spot; (4) Where the application materials are incomplete or inconsistent with the prescribed formats and quantities, the judicial administrative organ shall inform the applicant on the spot or inform it of all the items that need to be supplemented or corrected within 5 days from the day when it receives the application materials and it shall record all the items it informs the applicant. If it fails inform the applicant of the said items within the time limit, the day when it receives the application materials shall be considered the acceptance day; (5) As for an application that meet the requirements of Article 52 (5) of the Administrative License Law, it shall be accepted. As for an administrative licensing application, the judicial administrative organ shall make a written decision of acceptance or rejection, affix the seal of this organ to it, note the date and serve it on the applicant. Article 9. The judicial administrative organ shall provide the applicant with standard administrative licensing application forms free of charge. The Ministry of Justice shall formulate standard administrative application forms for the judicial administrative organs' administrative licensing items prescribed in the laws and regulations and those determined by the state council. CHAPTER III EXAMINATION AND DECISION Article 10. With regard to an administrative licensing application, the judicial administrative organ shall examine the application materials according to the statutory conditions. When doing so, it shall lay emphasis on: (1) whether the applicant described in the application materials meets the statutory conditions; and (2) whether the relevant content of the application materials is authentic or not. Under the statutory conditions and procedures, if it is necessary to verify the substantial content of the application materials, it shall designate at least 2 people to verify. The verification information shall be recorded and a verification report shall be submitted. Article 11. For an administrative license that is subject to the examination of an inferior judicial administrative organ before it is reported and submitted to a superior judicial administrative organ, the inferior organ shall complete the examination within 20 days from the day when an administrative licensing application is accepted and shall submit the preliminary examination opinions and the complete set of application materials to the superior organ. Where a judicial administrative organ implements the examination of a pre-administrative licensing, it shall complete the examination according to the time limit prescribed in relevant law or regulation, and shall transfer the preliminary examination opinions and the complement set of application materials to the superior judicial administrative organ. With regard to the time limit for the preliminary examination, if it is otherwise prescribed in any law or regulation, such law or regulation shall prevail. Article 12. After the judicial administrative organ receives an administrative licensing application, it shall, within the statutory time limit, approve or disapprove the administrative licensing in written decision according to relevant procedures unless it can make a decision on the spot. Where the application of an applicant meets the statutory conditions or standards, the judicial administrative organ shall, in accordance with the law, approve the administrative licensing in written decision. Where the judicial administrative organ makes a written decision of disapproval, it shall give explanations to and inform the applicant that it is entitled to apply for administrative reconsideration or to file an administrative lawsuit in pursuance of the law. Article 13. The written decision of approval or disapproval of administrative licensing made by the judicial administrative organ shall be served on the applicant by the functionary instrumentality within 10 days from the day when the decision is made. The service shall be made by analogy to pertinent provisions in the Civil Procedure Law of the People's Republic of China. When making a decision of approval of administrative licensing, if it is necessary to issue an administrative license, the judicial administrative organ shall simultaneously issue an administrative license bearing the seal of this organ to the applicant. Article 14. The judicial administrative organ shall publicize the decisions of approval of administrative licensing made by it. If any person requests for consulting such decisions, it shall allow them to do so and provide them with necessary convenience. Article 15. Where a licensee requests for modifying the matters under administrative licensing, and if it files an application to the judicial administrative organ that made the administrative licensing decision, the judicial administrative organ shall handle the application according to the relevant provisions of this Chapter regarding the examination over administrative licensing applications; however, if it is otherwise provided for in any law or regulation, the law or regulation shall prevail. Where a licensee files, in accordance with the law, an application for extending the valid period of the administrative licensing item it has obtained, the judicial administrative organ shall handle the application according to the relevant provisions of this Chapter regarding the examination of administrative licensing applications, and it shall, prior to the expiration of the valid period, approve or disapprove the extension application in written decision. Article 16. In accordance with Article 42 of the Administrative License Law, the judicial administrative organ shall make a decision on the administrative license within 20 days from the day when it accepts such an application unless it can make a decision on the spot. If it can't make a decision within 20 days, it may extend for 10 days upon approval of the person-in-charge of the functionary instrumentality and shall give explanations to the applicant about the extension; if the explanations are made orally, the content of oral explanations shall be recorded. However, if it is otherwise provided for in any law or regulation, the law or regulation shall be followed. Article 17. Where the judicial administrative organ charges fees for the implementation of administrative licensing in accordance with the laws and administrative regulations, the fees shall accord with the items and standards ratified and published by the administrative organ of administrative fees. CHAPTER IV HEARING Article 18. For any matter that is subject to hearing provided for in any law, regulation or rule for the implementation of administrative licensing, or for any other licensing matter of great importance to the public interests that judicial administrative organ considers it necessary to hold a hearing, the judicial administrative organ shall announce it to the public within the areas involved. The persons related to the administrative licensing item may apply for attending the hearing. A hearing announcement shall state the matters to be heard, the time and place of hearing, requirements for the attendees, and when and how to apply. Article 19. If the administrative licensing is of great importance to the applicant or other people, the judicial administrative organ shall, before it makes an administrative licensing decision, send a Notification Letter of Administrative Licensing Hearing to the applicant and the interested parties to inform them of the right to request for hearing, and when and how to apply. Where an applicant or interested party requests for hearing, it shall, within 5 days from the day when it receives the Notification Letter of Administrative Licensing Hearing, applies for hearing by filing a written application; if it fails to do so within the time limit, it shall be deemed as have waived such right. The judicial administrative organ shall, within 20 days after it receives a hearing application, organize a hearing. If the hearing applicant withdraws its application before the hearing is held and if the administrative licensing applicant or interested party raises no objection, the judicial administrative organ shall permit the withdrawal and record it. Article 20. A hearing shall be organized by the department of legal affairs of the judicial administrative organ that implements the administrative licensing, and shall be presided over by the person designated thereby. The personnel who examined the administrative licensing application shall not act as the presiding hearer of the hearing. The time necessary to organize the hearing shall be excluded from the time period for the examination of administrative licensing. The judicial administrative organ shall inform the applicant of the time necessary for hearing through the Notification Letter of Administrative Licensing Hearing. The judicial administrative organ shall bear the expenses for organizing a hearing. Article 21. In accordance with Article 48 of the Administrative License Law, the judicial administrative organ shall organize a hearing according to the following procedures and requirements: (1) The administrative organ shall notify the applicant and interested party of the time and place of the hearing 7 days before it is held, and shall announce it to the public where necessary; (2) The hearing shall be held openly unless it involves any state secret, business secret or personal privacy; (3) Under any of the following circumstances, the presiding hearer of the hearing shall withdraw on his own initiative; the applicant or interested party shall be entitled to apply for the withdrawal of the presiding hearer: 1. if he is a close relative of the applicant, interested party or its agent; 2. if he is of direct interest to the administrative licensing item; or 3. if he has other relationship with the applicant or interested party, which may affect the impartial hearing; (4) While holding a hearing, the persons who are responsible for the examination of an application for administrative licensing shall provide examination opinions and produce relevant evidences and reasons. The applicant and the interested party may produce evidences, defend and conduct cross-examinations; and (5) Transcripts shall be made for the hearing. The presiding hearer of the hearing and the person who makes the transcripts shall affix their signatures or seals to the transcripts after they have confirmed them as inerrant by the attendees. Where any attendee makes any objection to the transcripts, the presiding hearer of the hearing shall apprise other attendees of it. If all parties consider that the objection can stand, the transcripts shall be supplemented or corrected. If there are disputes over the objection, and if the presiding hearer of the hearing holds that the objection is groundless or the attendees of the hearing refuse to affix their signatures or seals, the presiding hearer of the hearing shall clearly note the relevant information in the transcripts of the hearing. The transcripts of the hearing shall mainly include the matters under hearing, the date and place of hearing, the content of administrative licensing application, the examination opinion and relevant proofs of the functionary instrumentality, the statement, proofs and reasons of the applicant and interested party, the arguments, cross examinations and final statements made by the examiners, applicant and interested parties. Article 22. The judicial administrative organ shall, according to the transcripts of hearing, make a decision of approval or disapproval of administrative licensing. As for any matter or proof not ascertained or recorded in the transcripts of hearing, if the applicant or interested party presents any new fact or proof during the period after the hearing is hold and before a decision of administrative licensing is made, and if the judicial administrative organ believes that it is sufficient to have a bearing on the decision of administrative licensing, it shall notify the interested party or applicant of the circumstance and consult their opinions. After the applicant or interested party affix their signatures to the transcripts, the judicial administrative organ shall, in light of the actual circumstance, decide whether to adopt the relevant fact or proof as the basis for making the administrative licensing decision. Where necessary, the judicial administrative organ shall hold a new hearing. CHAPTER V SUPERVISION AND INSPECTION Article 23. A judicial administrative organ shall strengthen the internal supervision over its implementing administrative licensing and over its personnel so as to ensure that the implementation of administrative licensing and the supervision thereon proceed in strict accordance with the law. A superior judicial administrative organ shall intensify the supervision over the inferior judicial administrative organs in the implementation of administrative licensing. If it funds any act that needs to be rectified, it shall timely put forward an opinion and order the inferior to get right within a time limit. After a judicial administrative organ is informed or complained against that its functionary instrumentality and its personnel violate pertinent provisions in the implementation of administrative licensing, it shall timely investigate into the case and carefully handle it or request the supervisory organ to handle it, and it shall notify the informer or complainant of the handling result by written reply. It shall keep confidential the information of the informer or complainant. Article 24. Where a judicial administrative conducts supervision and inspection over the licensee's implementation of administrative licensing, it shall mainly examine the written materials and annual reports related to the licensee's activities under administrative licensing. Where necessary, it may conduct an onsite inspection. The judicial administrative organ shall establish archives on the basis of the information about licensee's activities under administrative licensing, the materials of supervision and inspection, the opinions of evaluation and the handling results. If anyone requests for consulting the archives, the judicial administrative organ shall timely make an arrangement after it receives an application. With regard to the state secrets, commercial secrets or personal privacy involved in the supervision or inspection, the judicial administrative organ shall keep them confidential. Article 25. When conducting supervision and inspection, the judicial administrative organ and its personnel shall abide by the rules and disciplines on official activities, shall not hinder the normal business activities of the licensee, or extort or accept properties of the licensee, or seek other interests by taking the advantage of its power, nor may it injure the interests of others or public interests in collusion with the licensee. Article 26. Where a licensee commits any offence involving administrative licensing within the jurisdiction of the judicial administrative organ that makes the administrative licensing decision, it shall be subject to punishment by the said judicial administrative organ in accordance with the law. Where a licensee commits any offence involving administrative licensing beyond the jurisdiction of the judicial administrative organ, the judicial administrative organ of the locality where the offence is committed shall investigate into and punish it in accordance with the law, and give the judicial administrative organ, which made the administrative licensing decision, written information about the investigation and punishment. If it is necessary to impose punishment on the licensee such as stopping business, suspending business for rectification, revoking the license or cancelling the administrative license, it shall put forward a proposal of punishment and transfer the licensee to the judicial administrative organ that made the administrative licensing decision. Article 27. In accordance with the first paragraph of Article 69 of the Administrative License Law, if the interested party applies for revoking the administrative licensing, the judicial administrative organ shall, within 30 days after it receives the application materials, complete the examination, approve or disapprove the cancellation of the administrative license in written decision, and serve the decision on the interested party and the licensee. Where the judicial administrative organ finds any circumstance, under which an administrative licensing may be revoked, it may make a decision to revoke the administrative licensing and serve the decision on the licensee. Where an administrative license is revoked, the compensation for the damage to the legitimate rights and interests of the licensee and the protection of the relevant prospective interests shall be implemented according to the fourth paragraph of Article 69 of the Administrative License Law. Article 28. While conducting supervision and inspection over a licensee, the judicial administrative organ finds that it is under any of the circumstances described in Article 70 of the Administrative License Law, it shall, in accordance with the law, handle the formalities for the cancellation of the pertinent administrative licensing, inform the licensee in writing of the reasons and basis for cancellation, withdraw the administrative license, and make an announcement where necessary. Article 29. The judicial administrative organ may modify or revoke the administrative licensing if: (1) the law, regulation or rule, on which the administrative licensing is based, is amended or abolished; or (2) the objective circumstance, on which the administrative licensing is based, has significantly changed. When modifying or revoking an administrative license in accordance with the law, the judicial administrative organ shall make a written decision, specifying the reasons and basis, and serve it on the licensee. Where any damage is caused to the property of a party concerned because an administrative license is modified or revoked, such damage shall be handled according to the second paragraph of the Article 8 of the Administrative License Law. CHAPTER VI LEGAL LIABILITIES Article 30. Where the superior judicial administrative organ finds any of its inferior judicial administrative organs set any administrative licensing item by violating Article 17 of the Administrative License Law, it shall order it to get right within a time limit. The inferior judicial organ shall, prior to the deadline, report the rectification to the superior; otherwise the superior shall revoke the administrative licensing item in accordance with the law. Article 31. Where a judicial administrative organ finds that its functionary instrumentality and its personnel or the superior administrative organ finds any of its inferior judicial administrative organs and its personnel is under any of the circumstances listed in Articles 72 through 77, this judicial administrative organ or the superior judicial administrative organ shall, or propose the supervisory organ to, order them to get right in light of the specific circumstance; if the circumstance is serious, the direct liable person-in-charge and other direct liable persons shall be given an administrative sanction in accordance with the law; if any crime is constituted, they shall be subject to criminal liabilities. Article 32. Where a judicial administrative organ infringes upon the legitimate rights and interests of a party concerned due to its illegal implementation of administrative licensing, it shall make compensations under the State Compensation Law of the People's Republic of China. If a judicial administrative organ is liable for making compensations due to its illegal implementation of administrative licensing, it may, according to the first paragraph of Article 14 of the State Compensation Law of the People's Republic of China, order the intentional personnel or the personnel who commits any serious fault to bear part or all of the compensation. Article 33. If an administrative licensing applicant is under the circumstance described in Article 78 of the Administrative License Law, or if a licensee is under any of the circumstances described in Article 79 or 80, it shall be handled by the judicial administrative organ in pursuance of the law. Article 34. Where a citizen, legal person or any other organization carries out, without administrative license, any activity that it should have obtained the administrative license of the judicial administrative organ in accordance with the law, the judicial administrative organ shall take measures to curb such activity, and give him (it) an administrative punishment or propose the relevant organ to punish him (it) in accordance with the law. CHAPTER VII SUPPLEMENTARY PROVISIONS Article 35. The judicial administrative organs of all provinces, autonomous regions, and municipalities directly under the Central Government, shall establish a sound system for the implementation and supervision of administrative licensing in accordance with the Administrative License Law and relevant laws, regulations, bylaws and the present Rules. The pertinent regulatory documents shall be reported to the Ministry of Justice for archival purposes. Article 36. The power to interpret the present Rules shall remain with the Ministry of Justice. Article 37. The present Rules shall come into effect as of the promulgation date. |
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