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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II SCOPE OF ADMINISTRATIVE RECONSIDERATION CHAPTER III APPLICATION FOR ADMINISTRATIVE RECONSIDERATION CHAPTER IV ACCEPTING AN ADMINISTRATIVE RECONSIDERATION CHAPTER V ADMINISTRATIVE RECONSIDERATION DECISION CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Procedures have been enacted in accordance with the Law of the People's Republic of China on Administrative Reconsideration and the Regulations of the People's Republic of China on the Administration of Foreign Exchange in order to prevent and correct an illegal or inappropriate specific administrative act in the administration of foreign exchange, to ensure and oversee that the State Administration of Foreign Exchange and its branches (hereinafter simply referred to "foreign exchange administration") practice according to law, and to safeguard the lawful rights and interest of citizens, legal persons and other organizations. Article 2. If a citizen, a legal person or any other organization considers that his or its lawful rights and interests have been infringed upon by the specific administrative act of the foreign exchange administration, he or it shall have the right to apply for administrative reconsideration to the competent foreign exchange administration. The present Procedures is applicable when the foreign exchange administration as the administrative reconsideration organ accepts application for administrative reconsideration and makes administrative reconsideration decision. Article 3. The foreign exchange administration (hereinafter simply referred to "administrative reconsideration organ") as the administrative reconsideration organ mentioned in this procedure includes the State Administration of Foreign Exchange and the branches under its jurisdiction, foreign exchange control offices and the central offices. Article 4. When an administrative organ handles an administrative reconsideration case, it shall perform the following duties according to law: (1) deciding whether to accept the application for administrative reconsideration or not; (2) conducting investigations among and collecting evidence from the relevant organizations and people, consulting documents and materials; (3) deliberating the contents of the reconsideration put forward by the party, and examining the legality and propriety of specific administrative acts and making administrative reconsideration decision; (4) providing suggestions to handle acts undertaken by the foreign exchange administrations which violate the provisions of this procedure in the light of the justified powers and procedures; (5) examining the legality of other regulatory documents below the rules and regulations on the foreign exchange control stipulated by the bureau at or below the corresponding level, and making decisions; (6) handling or transferring the application for the examination of the stipulations on which the specific act was based; (7) undertaking the matters to meet the administrative lawsuit brought against the administrative reconsideration decision; and (8) other duties stipulated by laws and regulations Article 5. When the administration reconsideration organ performs its administrative reconsideration duties, it shall accord with the principles of legality, fairness, openness, timeliness, and convenience for the people, and shall correct the errors if any occurs, and shall guarantee the accuracy of the implement of laws and regulations. CHAPTER II SCOPE OF ADMINISTRATIVE RECONSIDERATION Article 6. In any of the following situations, a citizen, a legal person or any other organization may apply for an administrative reconsideration in accordance with law: (1) if he or it refuses to accept an administrative penalty imposed by an foreign exchange administration , such as a warning, a circulated notice of criticism, a fine, a confiscation of illegal gains if any, compulsory convert of the foreign exchange, an order to make corrections, interim suspension or termination of the business of sale and purchase of foreign exchange, interim suspension or termination of the business of foreign exchange transaction, and cancellation of the foreign exchange account; (2) if he or it considers that the foreign exchange administration fails to handle his or its application for the business of cancellation of payments for import and export proceeds which he or it considers himself or itself legally qualified for; (3) if he or it considers that the foreign exchange administration fails to satisfy his or its applications for license, examination and approval, getting registered and being put on record, and other applications to the foreign exchange administration for examination and approval, and registration, which he or it considers himself or itself legally qualified for; (4) if he or it deems that the specific administrative act of the foreign exchange administration infringes upon his or its lawful managerial decision-making powers; or (5) if he or it considers the specific administrative acts of the foreign exchange administration infringe upon his or its lawful rights and interests. Article 7. If a citizen, a legal person or any other organization considers unlawful other regulatory documents below the rules and regulations on foreign exchange administration on which a specific administrative act was based, he or it may file an application for examination of these documents when he or it applies for an administrative reconsideration. Examination of the regulations of the foreign exchange administration shall be conducted in accordance with laws and administrative rules and regulations. Article 8. Refusal to accept an administrative sanction imposed upon by the foreign exchange administration or another personnel decision may cause a petition in accordance with relevant laws, rules and regulations. CHAPTER III APPLICATION FOR ADMINISTRATIVE RECONSIDERATION Article 9. If a citizen, a legal person or any other organization considers that infringement upon his rights and interests is imposed by a specific administrative act undertaken by the foreign exchange administration, he or it may first summit an application to the administrative reconsideration organ within 60 days from the date when he or it knows or should know this administrative act. In the event that he or it refuses to accept the reconsideration decision, he or it may bring a suit before the people's court. If the time limitation of application is delayed because of force majeure or for other legitimate reasons, the limitation shall resume on the day when the obstacle is eliminated. Article 10. A citizen, a legal person or any other organization that presents an application in accordance with this procedure shall be an applicant. The foreign exchange administration that has conducted the specific act shall be the respondent. If a citizen who has the right to bring forward an application for an administrative reconsideration is decreased, his near relatives may bring forward the application. If a citizen who has the right to bring forward an application for an administrative reconsideration is a person with no or limited capacity for civil conduct, his statutory agent may bring forward the application. If a legal person or any other organization that has the right to bring forward an application terminates, the legal person or any other organization that succeeds its rights may bring forward the application. If any other citizen, legal person or any other organization has interests in a specific administrative act undertaken by a foreign exchange administration, he or it may, as a third party, participate in the administrative reconsideration. The applicant and the third party may entrust agents ad litem to represent him or it in the administrative reconsideration. Article 11. For the purpose of an application for administrative reconsideration, the applicant may file the application in writing or orally. If the application is filed in the written form, it shall bear the following: (1) name/title of the applicant, address, representative of the legal person, rank (if the applicant is a natural person, his given name, family name, work unit and address shall be listed); (2) name and address of the respondent; (3) cause or causes , and claim or claims for the application; (4) date on which the application for an administrative reconsideration is put forward; and (5) administrative penalty decision or other administrative decisions or supplementary documents of other evidence. If the application is orally presented, the administrative organ shall make an on-the-spot record of the basic information of the applicant, of his claim or claims for the administration reconsideration, of the essential facts and grounds for which the administrative reconsideration application is raised, and of the time. The applicant shall be asked to undersign the record. Article 12. If a citizen, a legal person or any other organization is not subject to the specific administrative act undertaken by the foreign exchange control bureau, he or it may apply for administrative reconsideration to the foreign exchange control bureau at the next higher level; If a citizen, a legal person or any other organization is not subject to the specific administrative act undertaken jointly by two or more than two units in their joint name, he or it may apply for administrative reconsideration to the foreign exchange control bureau at their joint next higher level; If a citizen, a legal person or any other organization is not subject to the specific administrative act undertaken by an abolished foreign exchange administration before its abolishment, he or it may apply for an application of administrative reconsideration to the foreign exchange administration at the next higher level of the bureau that continues to exercise the abolished one's functions and powers. If a citizen, a legal person or any other organization is not subject to the specific administrative act undertaken by the State Administration of Foreign Exchange, he or it may apply to the State Administration of Foreign Exchange for a reconsideration. If he or it is not subject to the reconsideration decision made by the State Administration of Foreign Exchange, he or it may either bring an administrative suit to the people's court according to law or apply to the State Council for the final ruling. Article 13. If the application for administrative reconsideration filed by a citizen, a legal person or any other organization has been accepted by the administrative reconsideration organ, he or it shall not bring a suit before the people's court within the reconsideration time period prescribed by law. CHAPTER IV ACCEPTING AN ADMINISTRATIVE RECONSIDERATION Article 14. When an administrative reconsideration organ receives an application for administrative reconsideration, it shall examine the application within 5 days. If the application is inconsistent with the Administrative Reconsideration Law of the People's Republic of China and the provisions of this procedure, the organ shall decide to reject the application and advise the applicant in writing. If the application is in conformity with the relevant provisions but is not under the administrative reconsideration organ's jurisdiction, the organ shall advise the applicant to file the application to the relevant reconsideration organ. In addition to the stipulations in the above paragraph, the application for administrative reconsideration is considered to be accepted from the day when the administrative reconsideration organ receives the application. Article 15. If a citizen, a legal person or any other organization files an application for the administrative reconsideration, but the administrative reconsideration organ decides to reject the application or fails to make a reconsideration decision on the expiration of the time limit, for the administrative reconsideration, he or it may, in accordance with law, bring an administrative lawsuit before the people's court within 15 days from the receipt of the decision announcing the reject of the application or after the time limit for administrative reconsideration expires. Article 16. If a citizen, a legal person or any other organization files an application for the administrative reconsideration, but the administrative reconsideration organ decides to reject the application without justified reasons, the administrative foreign exchange organ at the higher level shall order the former to accept the application; when necessary, the later may accept the application directly. Article 17. Execution of the specific administrative act shall not be suspended during the time of administrative reconsideration; but under any of the following circumstances the act may be suspended: (1) where suspension of execution is deemed necessary by the respondent (2) where suspension of execution is deemed necessary by the administrative reconsideration organ; (3) where suspension of execution is decided by the administrative reconsideration organ at the request of the applicant because, in the view of the administrative reconsideration organ, the applicant's request is reasonable; or (4) where suspension of execution is required by the provisions of laws or regulations. CHAPTER V ADMINISTRATIVE RECONSIDERATION DECISION Article 18. In principle the trial of an administrative reconsideration is conducted by an administrative reconsideration organ through written examination, but if the applicant requests it or the administrative reconsideration organ deems it necessary, the administrative reconsideration organ may make investigations among organizations and people concerned, heed the opinions of the applicants, of the respondent, and of the third person. Article 19. The administrative reconsideration organ shall send a copy of the administrative reconsideration application or a copy of the record of the oral administrative reconsideration application to the respondent within 7 days from the acceptance of the administrative reconsideration application. The respondent shall offer a reply in writing within 15 days from the receipt of the copy of the administrative reconsideration application and the copy of the record of the oral administrative reconsideration application, and shall summit the evidence, basis and relevant materials on grounds of which the specific administrative act has been undertaken. The applicant and the third person may consult the written reply, and the evidence, basis and relevant materials provided by the respondent on grounds of which the administrative act is undertaken. The administrative reconsideration organ shall not reject the applicant's requirement unless the evidence, basis and relevant materials include state secrets, business secrets or privacy of individuals. Article 20. In the process of administrative reconsideration, the respondent shall not collect evidence from the applicant and other organizations or persons. Article 21. Prior to the decision of an administrative reconsideration, if the applicant demands the revocation of his application he shall provide a written application and state the justified reasons, then his demand may be satisfied; where the revocation of the application is approved, the administrative reconsideration shall be terminated. Article 22. If, along with the application for administrative reconsideration, the applicant files an application for the examination of the provisions stipulated in Article 7 of this procedure, and if the foreign exchange administration has the power to handle the application for the examination, the bureau shall handle the application for the examination in accordance with law within 30 days. If the bureau has no power to handle the application for examination, it shall transfer the application within 7 days according to legal proceedings to the authentic foreign exchange administration or other administrative organs for handling. In the course of handling, the examination of the specific administrative act shall be suspended. Article 23. In examining the specific administrative act conducted by the respondent, if the administrative reconsideration organ considers illegal the basis on which the administrative act is conduct, and if the organ has the power to handle it, the organ shall handle it within 30 days in accordance with law. If the organ fails to have the power to handle it, the organ shall transfer the application within 7 days according to legal proceedings to the authentic foreign exchange administration or other administrative organs for handling. In the course of handling, the examination of the specific administrative act shall be suspended. Article 24. The administrative reconsideration organ shall examine the specific administrative act conducted by the respondent, and make reconsideration decision according to the following provisions; in the event of specific administrative acts involving a large amount of fine and a great complexity, which have been arranged for a hearing prior to the making of the administrative penalty, and which are consistent with the provisions stipulated by Article 7 of this procedure, the administrative reconsideration organ shall come up with reconsideration decision after discussion at the work conference of the bureau: (1) if the facts are clearly ascertained, the evidence is well-arrested, the basis is correctly applied, the procedure is legal, and the content of the act is proper, the specific administrative act shall be sustained; (2) if the respondent fails to perform the statutory duty, a fixed time limit shall be set for its performance of the duty by decision; (3) if a specific administrative act has been undertaken in one of the following circumstances, the act shall be annulled, amended or justified to be illegal by decision. If a specific administrative act has been annulled or justified to be illegal by decision, the respondent may be required by decision to undertake a specific administrative act anew within a certain time limit: 1. unclearness of the essential facts, and inadequacy of evidence; 2. erroneous application of basis; 3. violation of legal procedure; 4. exceeding authority or abuse of powers; or 5. obvious inappropriateness of the specific administrative act; and (4) if, in violation of the provisions of this procedure, the respondent fails to make a written reply, or summit the evidence, basis and relevant materials on grounds of which the specific administrative act has been undertaken, this specific administrative act shall be considered to have undertaken on grounds on no evidence, basis or relevant materials and shall be annulled by decision. If the respondent is charged by the administrative reconsideration organ to undertake a specific administrative acct anew, the respondent shall not, on the basis of the same fact and for the same reason, undertake a same or almost same specific administrative act as the original one. Article 25. An applicant who files an application for administrative reconsideration may claim administrative compensation simultaneously when applying for administrative reconsideration. If the claim for administrative compensation is consistent with the provisions of the Law of the People's Republic of China on the State Compensation and should be satisfied, the administrative reconsideration organ shall simultaneously make the decision upon the administrative compensation to be made by the respondent when deciding the specific administrative act to be annulled, amended or justified illegal. If the applicant does not claim for administrative compensation when applying for administrative reconsideration, the administrative reconsideration organ shall simultaneously charge the respondent to return the property, or reimburse the corresponding price when the administrative reconsideration organ decide to annul or amend the fine, to annul illegal income obtained from illegal activities. Article 26. The administrative reconsideration organ shall make administrative reconsideration decision within 60 days from the acceptance of the application. If because of complex circumstances, the administrative reconsideration organ cannot make the decision within the time limit, the time limit may be extended, and the applicant and the respondent shall be notified of the extension. But the extension of time limit shall not be more than 30 days. Article 27. When the administrative reconsideration organ makes administrative reconsideration decision, it shall fill out form of decision for administrative reconsideration decision, affixed with the seal of the administrative organ that make the decision. The administrative reconsideration decision shall be legally effective upon the service. An administrative reconsideration decision shall set forth the following: (1) specific information about the applicant and the respondent of the administrative reconsideration. If the applicant is a person, his name, sex, age, address, work unit. If the applicant or the respondent is a unit, its title, address, legal representative, and specific information about the agent ad litem if any agent ad litem is entrusted to represent the applicant or the respondent in the administrative reconsideration; (2) facts and grounds on which the administrative reconsideration is based; (3) investigations conducted by the administrative reconsideration organ; (4) administrative reconsideration decision and its basis; and (5) notification to the parties of the rights to bring an administrative lawsuit before the people's court and the time limit. Article 28. The respondent shall carry out the administrative reconsideration decision. If the respondent fails to carry out the administrative reconsideration decision or delays to perform the decision without justified reasons, the administrative organ or the foreign exchange administration at the higher level shall charge the respondent to perform the decision within a limited time period. Article 29. If the applicant neither brings a suit before the people's court nor carries out the administrative reconsideration decision on the expiration of date, or nor carries out the final ruling as the administrative reconsideration decision, the stipulations set forth below shall be adopted respectively: (1) if the administrative reconsideration decision is to sustain the specific administrative act, the foreign exchange administration that has undertaken the act shall apply to the people's court for compulsory execution in accordance with law; and (2) if the administrative reconsideration decision is to amend the specific administrative act, the administrative reconsideration organ shall apply to the people's court for compulsory execution in accordance with law. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 30. If administrative reconsideration organs, administrative reconsideration staff and workers, and the respondent are in violation of the Administrative Reconsideration Law of the People's Republic of China and provisions of this procedure, they or he shall be handled by relevant departments. Article 31. Administrative reconsideration organs shall not charge the applicant any expenses for accepting application for administrative reconsideration. The cost needed for the proceeding of administrative reconsideration shall be entered in the administrative outlays of the administrative bureau handling the application for administrative reconsideration. Article 32. The calculation of time period for administrative reconsideration and the service of the administrative reconsideration documents shall be conducted in accordance with the provisions of limitation and service of the Civil Procedure Law of the Peoples Republic of China. Article 33. The present Procedures shall be applicable to application for administrative reconsideration filed by foreign nationals, stateless persons and foreign organizations within the territory of the People's Republic of China. Article 34. The present Procedures shall come into force as of the date when it is issued. The power to interpret the present Procedures shall remain with the State Administration of Foreign Exchange. |
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