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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II ESTABLISHMENT OF ITEMS OF ADMINISTRATIVE EXAMINATION AND APPROVAL CHAPTER III APPLICATION AND ACCEPTANCE CHAPTER IV EXAMINATION AND APPROVAL CHAPTER V SUPERVISION AND LIABILITIES CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Measures have been formulated on the basis of the relevant provisions of the State Council concerning the reform of the system of administrative examination and approval for the purpose of regulating the establishment and implementation of the administrative examination and approval by the State Economic and Trade Commission (hereafter "SETC"), enhancing administrative efficiency, and protecting the lawful rights and interests of the natural persons, legal persons and other organizations. Article 2. The SETC shall be responsible for the establishment and implementation of the items of administrative examination and approval such as granting approval to the natural persons, legal persons or other organizations, upon the applications filed thereby, to engage in particular economic and trade activities, and acknowledge the qualifications and aptitudes thereof, and shall abide by the present Measures. The present Measures shall apply to the items of administrative examination and approval established by the SETC for implementation by the economic and trade commissions (or economic commissions) of all provinces, autonomous regions, and municipalities directly under the Central Government, the Xinjiang Construction Corps, and the relevant commercial commissions (or offices for industrial sectors). Article 3. The establishment and implementation of administrative examinations and approvals shall be in conformity with the principle of legitimacy and reasonableness, the principle of fairness and impartiality, the principle of openness and transparency, the principle of streamlining and efficiency, and the principle of consistency between rights and obligations. CHAPTER II ESTABLISHMENT OF ITEMS OF ADMINISTRATIVE EXAMINATION AND APPROVAL Article 4. To establish any item of administrative examination and approval, the law of the socialist market economy shall be followed so as to help arousing the initiative and enthusiasm of the natural persons, legal persons or any other organizations, to maintain the public good and social order, and to promote the coordinated development of the economy, society and the biological environment. Article 5. The SETC may, according to the demand of the administrative management of the economy and trade, propose to establish items of administrative examination and approval in any of the following circumstances: (1) When the security of the state, economy, the public good, personal health, or the security of life or property is directly concerned; (2) When it concerns the exploitation and utilization of the limited natural resources or the distribution of the limited public resources; (3) Where irremediable effects or unrecoverable great losses would otherwise be caused; (4) Where it is required to establish such items of administrative examination and approval according to the international treaties which China has entered into or acceded to; and (5) Other items of administrative examination and approval required for establishment by any of the laws, regulations, or the universally binding decisions of the State Council. Article 6. For any of the matters described in Items 1, 2, and 3 of Article 5 of the present Measures, no proposal for establishing items of administrative examination and approval may be put forward if it may be solved by any of the ways: (1) It is up to the independent decision of natural persons, legal persons or other organizations without impairing the lawful rights or interests of the state, society, collective, or any other person; (2) It may be solved through the market mechanisms or through any lawfully established intermediary organizations; (3) It can be solved by formulating and enforcing mandatory standards or technical regulations; (4) It can be solved through ex post facto supervision or remedies. Article 7. The establishment of any item of administrative examination and approval shall be based on the laws or administrative regulations of the state or universally binding decisions of the State Council, and the object of administrative examination and approval, conditions, procedures, time limits, ways of supervision, etc. shall be specified by way of ministerial rules of the SETC. Article 8. The items of administrative examination and approval to be established by the SETC shall be proposed upon research by relevant functionary departments according to the relevant provisions of Articles 5, 6, and 7 of the present Measures. The specific contents of the proposals shall include the name of the items, the basis of establishment, and draft of relevant ministerial rules. Where it is not based on any law or administrative regulation or any universally binding decision of the State Council and it is necessary to establish the item of administrative examination and approval, the relevant functionary departments of the SETC shall, at the same of enlisting the necessities for establishing the item of administrative examination and approval, put forward legislative proposals or drafts of administrative regulations (or documents of the State Council). Article 9. After proposing the items for administrative examination and approval to be established, the legal affairs organ of the SETC shall examine the lawfulness of the items, and make inspections and appraisals concerning the reasonableness, efficacy, responsibility, and principles of supervision of the item of administrative examination and approval in collaboration with the Department of General Office and the organs of government supervision, enterprise superintendence, personnel, etc. Article 10. The items of administrative examination and approval to be established shall, after being passed the inspection, be submitted to the directors' executive meeting of the SETC for deliberation, in the process of which the departments responsible for the proposal and inspection of the item of administrative examination and approval to be established shall make accounts, and the executive meeting shall decide whether the items proposed will be established or not. In case the draft of the legislative proposal and administrative regulation (or document of the State Council) for the items of administrative examination and approval is not based on any law, administrative regulation or any of the universally bind decision of the State Council, it shall be submitted, after being passed at the directors' executive meeting of the SETC, to the State Council for approval. CHAPTER III APPLICATION AND ACCEPTANCE Article 11. The SETC shall publicize the name, basis, conditions, procedures, time limits, and expenses of the item of administrative examination and approval to be established as well as all the materials that need to be submitted and the sample texts of applications at the office places of administrative examination and approval, and have the publicized the contents in the Gazette of the State Economic and Trade Commission of the People's Republic of China and the webpages of the SETC. Article 12. The natural persons, legal persons and other organizations that file applications according to law for administrative examination and approval are the applicants for of administrative examination and approval (hereafter "applicant"). An applicant may entrust agents to file applications for administrative examination and approval. Article 13. An application for administrative examination and approval shall be file in written form. The applicant may file applications for administrative examination and approval by post, digital messages (including telegraphs, telexes, faxes, electronic digital exchanges, and emails), unless it is provided by any law, administrative regulation, or ministerial rule that the applicant shall file the application for administrative examination and approval at the administrative organ. Article 14. The department or bureau of the SETC that undertakes the administrative examination and approval (hereafter "undertaking department") may not demand the applicant to submit any other material that has not been provided in any law, administrative regulation, or decision of the State Council with universal binding force, or any ministerial rule or document of the SETC. Article 15. The undertaking department shall, after receiving an application for administrative examination and approval, issue corresponding receipts to the applicant, make formal inspections, and decide within 5 days as of receiving the application for administrative examination and approval whether it will be accepted or not. Article 16. Where an application fails to meet the conditions for acceptance, the undertaking department shall deal with it according to the following circumstances: (1) If the matter under application does not fall within the scope of administrative examination and approval, the undertaking department shall decide in written form not to accept it, and inform the applicant of the reasons; (2) If the matter under application does not fall within the scope of functions of the SETC, the undertaking department shall decide in written form not to accept it, and inform the applicant of the organ that is entitled to accept the application; (3) If the application materials are not complete or do not meet the legal requirements, the undertaking department shall inform the applicant in written form to make them up within a reasonable time limit. If the applicant fails to make them up, it shall be deemed that no application has been filed; (4) If the matter under application does not meet the legal procedures, the undertaking department shall decide not to accept it, and inform the applicant of the reasons in proper ways. Article 17. If the matter under application falls within the functions of the SETC and the scope of administrative examination and approval, and the application materials are complete and meet the legal requirements, the undertaking department shall accept it, and issue a notice of acceptance to the applicant. In case the undertaking department fails to issue a notice of acceptance within the time limit provided in Article 15 of the present Measures, it shall be deemed that it has accepted the application. CHAPTER IV EXAMINATION AND APPROVAL Article 18. The undertaking department shall, after accepting an application for administrative examination and approval, make substantive inspections to the application materials according to the legal conditions and procedures. Where it is necessary to make on-the-spot verifications before making the decision of administrative examination and approval, the undertaking department shall designate two or more staff members to make on-the-spot inspections. Article 19. An application for administrative examination and approval that is subject to the inspection of the economic and trade commission on the provincial level before being submitted to the SETC, the economic and trade commission on the provincial level shall, provided it approves the application within the time limit provided in the administrative examination and approval procedures, submit it opinions of initial inspections and the application materials to the SETC. The undertaking may not demand the applicant to repeat the submission of application materials. Article 20. Where an administrative examination and approval involves two or more departments of the SETC, one of the departments concerned shall take the lead and be responsible for consulting the relevant departments concerned before handling it together. It may also be handled by way of collaborated working and in a concentrated way. If any other functionary department of the State Council is involved, the undertaking department shall consult the opinions of the relevant departments involved on its own initiative. Article 21. In the process of substantive inspection of the application for administrative examination and approval, the undertaking department shall listen to the opinions of different sides. Where any party interested in the administrative examination and approval have different ideas concerning the application for administrative examination and approval, the undertaking department shall listen to the opinions of the applicant and the interested parties, and make inspections on the basis of the reasons and grounds put forward by both parties. Article 22. In any of the following circumstances, the undertaking department shall, before making the decision of administrative examination and approval, inform the applicant and the interested party of the right to hold hearings, and arrange for hearings on the basis of the application filed by the applicant for holding hearings: (1) Matters such as the exploitation and utilization of limited natural resources, the distribution of limited public resources, and the market entry of monopolistic enterprises that directly concerns the public good for which neither the approach of bid nor auction has been employed and concerns the significant interests of the applicant or the interested parties; (2) Important matters that directly concerns the social public good; or (3) Any other matters for which hearings shall be held according to the provisions of laws, administrative regulations or ministerial rules. Article 23. If an administrative examination and approval is professionally or technically important, the undertaking department consult the opinions of relevant exports by means of holding assessment seminars, written questionnaires, etc. Article 24. The undertaking department shall make substantive inspections within 30 days as of accepting the application, and decide, in the name of the SETC or the General Office of the SETC, whether approval will be granted or not. If it fails make a decision with 30 days, the time limit may be extended for 15 days, subject to the approval of the leader of the SETC in charge, and the undertaking department shall inform the applicant of the extended time limit and the reasons. Hearings and bid invitations shall be held according to the provisions of law. In the case of bid invitation, authentication, and appraisal by experts, the undertaking department shall, within 30 days as of accepting the application, decide whether a hearing, bid invitation, or expert appraisal is to be effected, and may appropriately postpone the time limit for deciding whether approval is to be granted. In case an application for administrative examination and approval needs to be inspected or verified by the State Council or to be subject to the consultation of the opinions of other government organs before any decision is made, the time limit shall be provided according to the principles described in Paragraphs 1 and 2 of the present Article in the procedures of specific items of administrative examination and approval. Where there are different provisions concerning the time limit for the administrative examination and approval in any of the laws or administrative regulations of the state, such provisions shall prevail. Article 25. In case an application for administrative examination and approval is not to be approved according to law, the undertaking department shall inform the applicant in appropriate ways, including the written form, and specify the reasons, within the time period stipulated in Article 24 of the present Measures. Article 26. The SETC shall establish the system for the registration of administrative examination and approval. The undertaking department shall establish archivist files for the registration and proper keeping of the all the materials involved in the items of administrative examination and approval that it is responsible for. The materials that should be put in the archivist files for registration include: application materials, notices of acceptance or refusal, materials of inspection or verification, decisions of approval or disapproval, the number of case file, the person that specifically handled the case, and the time of handling. The applicant and other relevant persons may consult all the materials registered in the archivist files so long as none of the state secrets or business secrets of the enterprises is involved. Article 27. The SETC shall establish a system for disclosing the results of administrative examination and approval. The undertaking department shall, within 10 days as of the day when the application for administrative examination and approval is approved, disclosing the results of the administrative examination and approval in the Gazette of the State Economic and Trade Commission of the People's Republic of China and on the webpages of the SETC, unless any state secret is involved. CHAPTER V SUPERVISION AND LIABILITIES Article 28. The supervision of administrative examination and approval shall include the supervision of the activities of the person under the items of administrative examination and approval, and the supervision of the internal administrative examination and approval of the SETC. Article 29. The enterprise oversight bodies of the SETC and the relevant parties shall supervise through the verification of oversight reports and relevant materials submitted by the appointees. Where necessary, pick tests, inspections, checkups, and on-spot examinations on the person under administrative examination and approval. The appointees subject to administrative examination and approval shall be more self-disciplined according to law. Article 30. The supervision organs stationed at the SETC shall be responsible for inspecting the situation of the undertaking departments' regulation of the procedures for administrative examination and approval, the supervisory and restrictive measures for the establishment of the levels, and links of administrative examination and approval, be responsible for exercising administrative supervision over the administrative examination and approval of the SETC, and for accepting the charges and accusations for violations of administrative disciplines in administrative examination and approval, and handling the cases through investigations. Article 31. The legal affairs office of the SETC shall discharge its duty of law enforcement and supervision in the implementation of administrative examination and approval, be responsible for the acceptance and inspection of administrative reviews as well as responding to administrative litigations incurred from administrative examination and approval. Article 32. The SETC shall establish a system for the appraisal of administrative examination and approval. The implementation of administrative examination and approval shall be subject to appraisal every two years. Where there is no need for any item of administrative examination and approval to exist, it shall be canceled according to the procedures provided in Articles 8, 9, and 10 of the present Measures. In case any item of administrative examination and approval is not well-established in procedures, not definite in conditions, or of low efficiency, it shall be improved and ameliorated in good time. Article 33. The departments and staff members of the SETC that take charge of administrative examination and approval or supervision shall voluntarily abide by the Some Guidelines for Party Members and Leaders to Keep Clean in Political Work (for Trial Implementation) and the Some Rules for the Staff Members of the SETC to Keep Clean in Political Work. Article 34. Where any of the departments or staff members of the SETC that takes charge of administrative examination and approval or supervision violates any of the provisions of the present Measures, he shall be subject to administrative liabilities according to the limit of power for the administration of leaders. Such administrative liabilities mainly include: ordering the offender to apologize, giving administrative admonitions, circulating notices of criticisms, changing jobs, suspending duties for self-questioning, ordering the offender to take the blame and resign. At the same time, the relevant personnel who are held to be liable shall be given corresponding administrative punishments according to law. If any of them has violated any provisions of the Criminal Law of the People's Republic of China, the offender shall be delivered to the judicial organs for taking criminal liabilities. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 35. The time limits for administrative examination and approval provided in the present Measures are counted on the basis of workdays, not including legal festivals and holiday. Article 36. The power to interpret the present Measures shall remain with the SETC. Article 37. The present Measures shall take force as of March 1, 2003. |
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