|
Welcome Guest
|
|
You are using Guest Account
|
|
||||||||||||||||||||||||||||||||||
|
TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II ADMINISTRATIVE RECONSIDERATION SCOPE CHAPTER III ADMINISTRATIVE RECONSIDERATION APPLICATION CHAPTER IV THE ACCEPTANCE OF ADMINISTRATIVE RECONSIDERATIONS CHAPTER V ADMINISTRATIVE RECONSIDERATION DECISION CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. In order to protect the legal rights and interests of the citizens, legal persons or the other organizations, to ensure that the securities regulatory institutions exercise their supervisory and regulatory functions in accordance with the law, the present Measures are formulated in compliance with the Securities Law of the People's Republic of China (hereinafter referred to Securities Law) and the Administrative Reconsideration Law of the People's Republic of China (hereinafter referred to Administrative Reconsideration Law) and the other relevant regulations. Article 2. The present Measures shall be applicable to the circumstance that a citizen, legal persons or any other organization files an application to the administrative reconsideration organ for administrative reconsideration in accordance with the law when he (it) considers that the specific administrative act of the China Securities Regulatory Commission (hereinafter referred to as CSRC) or any of its dispatched institutions or authorized organizations, impairs his (its) legal rights and interests, and the administrative reconsideration organ accepts such application and make an administrative reconsideration decision. Article 3. The term "administrative reconsideration organ" mentioned in the present Measures refers to the CSRC. The CSRC shall accept the applications for administrative reconsideration in accordance the law, and shall examine the specific administrative acts applied for administrative reconsideration and make decisions. Article 4. The institution responsible for legal affairs in CSRC (hereinafter referred to administrative reconsideration institution shall handle the specific matters related to the administrative reconsideration on behalf of the CSRC and shall fulfill the following functions: (1) To accept applications for administrative reconsideration; (2) To conduct investigations among and gather proofs from the relevant organizations and persons, and consult relevant documents and materials; (3) To review whether the administrative acts for which an application is filed for administrative reconsideration is legitimate and appropriate or not, to draw out decisions about the administrative reconsideration; (4) To handle or send on the examination applications listed in Article 8 of the present Measures; (5) Where the CSRC, or any of its dispatched institutions or authorized organs, violates the Administrative Reconsideration Law and the present Measures, it shall offer a settlement opinion in accordance with the prescribed functions and procedures; and (6) Other functions prescribed by the laws and regulations. Article 5. The administrative reconsideration organ shall fulfill the administrative reconsideration functions, shall adhere to the principle of legitimacy, impartiality, publicity, timeliness and convenience. It shall insist on setting every wrong act right, ensure that the laws and regulations are implemented correctly. Article 6. The administrative reconsideration personnel shall undertake the following duties: (1) They shall strictly abide by the Constitution, the laws and regulations; (2) In the course of reviewing the administrative reconsideration cases, they shall execute the law impartially by taking facts as the basis and law as the yardstick; (3) They shall protect the legal rights and interests of the participants of administrative reconsideration in accordance with the law; and (4) They shall protect the interests of the state, and guarantee the legal rights and interests of the citizens, legal persons and the other organizations. CHAPTER II ADMINISTRATIVE RECONSIDERATION SCOPE Article 7. Where an applicant refuses to accept the specific administrative act of the CSRC, or any of its dispatched institution or authorized organizations within the scope of administrative reconsideration prescribed in Article 6, it may apply for administrative reconsideration except for the following acts of the CSRC or its dispatched institutions or authorized organizations: (1) The administrative sanctions and the other settlement decisions to the personnel made by the CSRC or its dispatched institutions or authorized organizations; (2) The mediation of the civil disputes over securities and futures made by the CSRC or its dispatched institutions or authorized organizations; (3) The non-mandatory administrative guidance about securities and futures; (4) The re-handling of the appeals lodged by any citizen, legal person or any other organization for the specific administrative acts of rebutting the demands by the CSRC or any of its detached institutions or authorized organizations; or (5) The acts that will not really affect the rights and obligations of the citizens, legal persons and the other organizations. Article 8. Where a citizen, a legal person or any other organization considers that the regulation, on which the specific administrative act of the CSRC, or any of its dispatched institutions or authorized organization base, is inappropriate, it may apply for examining the regulation in the administrative reconsideration organ along with the reconsideration application except that it is otherwise provided for by the laws, regulations and rules. CHAPTER III ADMINISTRATIVE RECONSIDERATION APPLICATION Article 9. Where a citizen, a legal person or the any other organization considers that the specific administrative act of the CSRC, or any of its dispatched institutions or authorized organs has infringed upon its legal rights and interests, it may file an administrative reconsideration application within 60 days as of the awareness of the specific administrative act. Where a citizen, a legal person or any other organization fails to observe the time limit for application due to force majeure or other reasonable grounds, he (it) may file an application for extension, and upon the examination and approval of the administrative reconsideration organ, the extension of the time limit shall continue to be calculated as of the date on which the obstacle is removed. Article 10. Where a citizen, a legal person or any other organization files an application for administrative reconsideration in accordance with the present Measures, he (it) shall be the applicant of administrative reconsideration. Where a citizen who is entitled to file an application of administrative reconsideration is deceased, any of his close relatives may file an application for administrative reconsideration. Where a citizen who is entitled to file an application of administrative reconsideration is a person without civil capacity, or a person with limited civil capacity, his legal representative may apply for administrative reconsideration on his behalf. Where a legal person or any other organization is merged, split, or terminated, the legal person or any other organization that takes over its rights may file an administrative reconsideration application. Article 11. Where a citizen, legal person or any other organization refuses to accept the specific administrative act of the CSRC, or any of its dispatched institutions or authorized organizations, the CSRC, or its dispatched institution or authorized organization that undertook the administrative act shall be the defending party of application. Where an application for administrative reconsideration is filed because the specific administrative act undertaken by a institution or organ, which is authorized by the CSRC in accordance with the laws and regulations, is refused, the authorized institution or organization shall be the defending party. Where an application for administrative reconsideration is filed because the specific administrative act undertaken by an institution or organ, which is entrusted by the CSRC or its dispatched institutions, is refused, the entrusted institution or organization shall be the defending party. Where an application for administrative reconsideration is filed because the specific administrative act jointly undertaken by two or more of its dispatched institutions or authorized organizations, the institutions or organizations that undertook the specific administrative act shall be the joint defending parties of application. Where the institution that undertook the specific administrative act has been canceled, the institution or organ that continues to exercise its power is the defending party of application; if there is no institution or organ continuing to exercise its power, the organ that decided to cancel it shall be the defending party of application. Article 12. Any other interested citizens, legal persons or organizations involved in the specific administrative act for which an application is filed for administrative reconsideration may participate in the administrative reconsideration by applying as a third party. The administrative reconsideration organ may also notify them that they may participate in the administrative reconsideration as the third party. The third party who participates in the administrative reconsideration shall be entitled to bring claims relevant to the administrative reconsideration it participates in. Article 13. An applicant or a third party may authorize one or two agents to file the application and take the administrative reconsideration on (his) its behalf. In filing the application and taking the administrative reconsideration, the authorized agents shall submit to the administrative reconsideration organ an authorization signed by the authorizing party, and shall show the legal and valid identity certificates of the authorizing party and the agents. Article 14. Where an application for administrative reconsideration is filed due to the specific administrative act of the CSRC, or any of its dispatched institutions or authorized organizations, is refused, the application shall be filed to the CSRC for administrative reconsideration. Where an administrative reconsideration decision made by the CSRC is refused, an application may be filed to the State Council for a final ruling; or may file an administrative lawsuit in the people's court. Article 15. Where an applicant requests for administrative reconsideration, he (it) shall file an application to the CSRC. The applicant may file an application for administrative reconsideration in either written or oral form. When an oral application is being filed, the administrative organ shall take notes simultaneously, and the notes shall be signed by the applicant. An application for administrative reconsideration shall contain the following: (1) The basic information of the applicant; (2) The claim for the administrative reconsideration; (3) The main facts and reasons for the administrative reconsideration application; (4) The address of the service of the administrative reconsideration decision; and (5) The date on which the administrative reconsideration application is filed. Article 16. Where an applicant files to the administrative reconsideration organ an application for administrative reconsideration and the application has been received by the said organ, the applicant shall not bring a lawsuit to the people's court within the statutory time limit for administrative reconsideration; where an applicant files an administrative action to the people's court and the said court has accepted the case in accordance with the law, the applicant shall not apply for administrative reconsideration. Where the administrative reconsideration organ and the people's court accept the case simultaneously, the party concerned shall choose to take either administrative reconsideration or administrative lawsuit. CHAPTER IV THE ACCEPTANCE OF ADMINISTRATIVE RECONSIDERATIONS Article 17. The administrative reconsideration organ shall examine the administrative reconsideration application within 5 days as of the acceptance of the application, it shall make a Decision of Rejection and notify the applicant if it decides to reject the application under any of the following circumstances: (1) The statutory time limit for the application of administrative reconsideration has expired and there is no good reason for extending the time limit; (2) There is no definite defending party of application; (3) The applicant is not a qualified applicant; (4) There lacks a concrete claim for administrative reconsideration and important factual basis; (5) Not within the jurisdiction of the administrative reconsideration of administrative reconsideration organ prescribed by the present Measures; or (6) The applicant has brought an administrative action in the people's court, and the people's court has accepted it in accordance with the law. Except for the requirements provided for in the preceding paragraph, the date on which the administrative reconsideration organ receives an application shall be the date of acceptance. Article 18. Where a citizen, a legal person or any other organization applies for administrative reconsideration, and the administrative reconsideration organ decides to reject, or fails to make a reply, within the prescribed time limit for administrative reconsideration after the acceptance of the application, the applicant may bring an administrative action in the people's court in accordance with the law within 15 days as of the service of the Decision of Rejection or the expiration of the time limit for the administrative reconsideration. Article 19. During the period of administrative reconsideration, the specific administrative act shall not be stopped; but it may be stopped under any of the following circumstances: (1) The defending party of application considers it necessary; (2) The administrative reconsideration organ considers it necessary; (3) The applicant requests to stop it, and the administrative reconsideration organ considers it's request reasonable and decides to stop it; or (4) It shall be stopped in accordance with the law. CHAPTER V ADMINISTRATIVE RECONSIDERATION DECISION Article 20. As a general rule, the method of written review shall be adopted in administrative reconsideration, but, except that it is requested by the applicant or the administrative reconsideration organ considers it necessary, the administrative reconsideration organ may conduct investigations among the relevant organizations and persons, may hear the opinions of the applicant, the defending party of the application and the third party. Article 21. 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 defending party of the application. The defending party of the application shall make a written response within 10 days as of the receiving of the copy of application or the copy of the written notes 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 defending party of application; (2) The facts determined, the proof possessed, ant the laws, regulations and the regulating documents applied to by the defending party of application when it made the original specific administrative act; it shall give an clear indication of the relevant proofs and their sources in the part of factual statements; (3) It shall make arguments on each of the facts and reasons stated in the administrative reconsideration application of the applicant and shall produce relevant proofs; (4) Conclusions; and (5) The date on which the written response is made, the signature and seal of the defending party of application. The relevant proofs, basis and the other relevant materials submitted by the defending party of application shall be bound into books. Where an administrative reconsideration is brought against the specific administrative act of the CSRC, the functional department of the CSRC that undertakes the relevant operations shall submit a written response in accordance with the above-mentioned requirements. Article 22. An applicant and a third party may consult the written response made by the defending party of application, the proofs, basis and the other relevant materials led to the original specific administrative act, which shall not be refused by the administrative reconsideration organ except for the state secrets, trade secrets and personal secrets. When consulting the above-mentioned materials, it shall comply with the following procedures and requirements: (1) It shall file an application to the administrative reconsideration organ and shall be subject to its examination and approval in accordance with the law; (2) The personnel of the administrative reconsideration organ shall be present at the spot when the materials are being consulted by the applicant or the third party; and (3) The applicant and the third party shall not alter, destroy, replace, remove and add the consulting materials; without the consent of the administrative reconsideration organ, he (it) shall not copy, re-photograph and duplicate the materials. Article 23. In the course of the administrative reconsideration, the defending party of application shall not gather proofs from the applicant and the other relevant organizations or individuals by himself (itself). Article 24. If, before an administrative reconsideration decision is made, the applicant requests to withdraw the administrative reconsideration application, he (it) may withdraw the application after stating the reasons; if the administrative reconsideration application is withdrawn, the administrative reconsideration shall be terminated accordingly. If an administrative reconsideration is terminated, the administrative reconsideration organ shall make an Administrative Reconsideration Termination Notice, and shall notify the applicant, the third party and the defending party of application. Article 25. In the course of administrative reconsideration, if any of the following circumstances occurs, the administrative reconsideration organ shall terminate the review of the specific administrative act concerned, make an Administrative Reconsideration Termination Notice and notify the applicant, the third party and the defending party of application: (1) The circumstances listed in Articles 25, 27 of the Administrative Reconsideration Law; (2) As the applicant, the legal person or any other organization has terminated, but the party to take over its rights and obligations is not determined yet; (3) The applicant is deceased, it is necessary to wait for the his close relatives to express whether to participate in the administrative reconsideration; (4) The applicant lost civil capability and the legal representative is not determined yet; (5) The administrative reconsideration decision shall be made on the basis of the decision or conclusion of an judicial organ, any other administrative organ or institution; or (6) Other circumstances in which the administrative reconsideration shall terminate. Article 26. The administrative reconsideration institution shall review the lawfulness and appropriateness of the specific administrative act of the defending party of application and give an opinion. After having been approved by the person in charge of the administrative reconsideration organ, or having been adopted upon collective deliberation, an administrative reconsideration decision shall be made in accordance with Article 28 of the Administrative Reconsideration Law. For an ordinary administrative reconsideration application, the administrative reconsideration institution shall review it, give a settlement opinion and make a decision upon the consent of the person in charge of the administrative reconsideration organ. For a significant and complex administrative reconsideration application, the administrative reconsideration institution shall review it, give a settlement opinion, then develop an administrative reconsideration opinion upon the reconsideration of the CSRC and the collective deliberation of the litigation commission, and finally make a decision upon the consent of the person in charge of the administrative reconsideration organ. Article 27. The administrative reconsideration organ shall make an administrative reconsideration decision within 60 days as of the acceptance of the application except that statutory time limit for administrative reconsideration is less than 60 days. If the circumstances are complex, it is unable to make an administrative reconsideration decision within the prescribed time limit, the time limit may be extended appropriately upon the approval of the person in charge of the administrative reconsideration organ, and shall notify the applicant and defending party of application; but the extension shall not be more than 30 days. Article 28. The service of the administrative reconsideration documents shall be executed in accordance with the requirements for service prescribed in the Civil Procedural Law. Once an administrative reconsideration decision is served, it shall have legal effectiveness. Article 29. The defending party of application shall execute the administrative reconsideration decisions. If the defending party of application fails to execute, or delays the execution of the administrative reconsideration decision without valid reason, the administrative reconsideration organ shall make a Notice of Execution Order to order it to execute the decision within a time limit. The defending party of application and the relevant liable persons who fail to execute the administrative reconsideration decision shall be subject to the responsibilities by the CSRC in accordance with the relevant laws, regulations and the other requirements. Article 30. For an applicant who fails to file a lawsuit and refuses to execute the administrative reconsideration decision within the time limit, or fails to execute the administrative reconsideration decision upon final ruling, the CSRC may apply to the people's court for mandatory enforcement. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 31. Where any of the personnel of the administrative reconsideration organ or the defending party of application violates the Administrative Reconsideration Law and the present Measures in the activities of administrative reconsideration, he (it) shall be subject to the legal liabilities in accordance with the requirements of Chapter 6 of the Administrative Reconsideration Law. Article 32. The administrative reconsideration organs may, in the course of accepting, reviewing and deciding an administrative reconsideration application, use a special seal for administrative reconsideration. The legal documents of administrative reconsideration shall be made by reference to the standard forms of legal documents of administrative reconsideration as required by the CSRC. Article 33. The present Measures shall be implemented as of January 1, 2003. Atttachments: 1. CSRC Administrative Reconsideration Legal Document Format (I) (omitted) 2. CSRC Administrative Reconsideration Legal Document Format (II) (omitted) 3. CSRC Administrative Reconsideration Legal Document Format (III) (omitted) 4. CSRC Administrative Reconsideration Legal Document Format (IV) (omitted) 5. CSRC of Administrative Reconsideration Legal Documents Format (V) (omitted) 6. CSRC of Administrative Reconsideration Legal Documents Format (VI) (omitted) 7. CSRC Administrative Reconsideration Legal Document Format (VII) (omitted) 8. CSRC Administrative Reconsideration Legal Documents Format (VIII) (omitted) 9. CSRC Administrative Reconsideration Legal Document Format (IX) (omitted) 10. CSRC Administrative Reconsideration Legal Documents Format (X) (omitted) |
||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||
|
Copyright 2002 NovexCn.com
|