I. What can I do if I refuse to accept administrative punishment or other personnel handling decisions made by administrative organs?
According to the Administrative Litigation Reconsideration Law of People's Republic of China (PRC)
Article 6 Citizens, legal persons or other organizations may apply for administrative reconsideration in accordance with this Law under any of the following circumstances:
(a) refuses to accept the administrative punishment decisions made by the administrative organ, such as warning, fine, confiscation of illegal income, confiscation of illegal property, order to suspend production or business, temporary suspension or revocation of license, temporary suspension or revocation of license, administrative detention, etc. ;
(2) Refusing to accept administrative compulsory measures such as restricting personal freedom or sealing up, distraining or freezing property made by administrative organs;
(3) Refusing to accept the decision made by the administrative organ to change, suspend or revoke the license, license, qualification certificate and other documents;
(4) Refusing to accept the decision of the administrative organ to confirm the ownership or use right of natural resources such as land, mineral deposits, water, forests, mountains, grasslands, wasteland, beaches and sea areas;
(five) that the administrative organ has infringed upon the legitimate right to operate independently;
(six) the administrative organ changes or cancels the agricultural contract, which infringes upon its legitimate rights and interests;
(seven) that the administrative organs illegally raise funds, collect property, apportion expenses or illegally require other obligations;
(eight) that meets the statutory conditions, apply for administrative organs to issue permits, licenses, qualification certificates, qualification certificates and other documents, or apply for administrative organs to examine and approve and register related matters, and the administrative organs fail to handle them according to law;
(nine) apply to the administrative organ to perform the statutory duties of protecting personal rights, property rights and the right to education, and the administrative organ fails to perform them according to law;
(ten) to apply for an administrative organ to issue a pension, social insurance premium or minimum living allowance according to law, and the administrative organ fails to issue it according to law;
(eleven) that other specific administrative acts of administrative organs infringe upon their legitimate rights and interests.
According to the Administrative Procedure Law of the People's Republic of China
Article 12 The people's courts shall accept the following lawsuits filed by citizens, legal persons or other organizations:
(1) Refusing to accept administrative punishments such as administrative detention, temporary suspension or revocation of permits and licenses, order to stop production and business, confiscation of illegal income, confiscation of illegal property, fines and warnings;
(2) Administrative compulsory measures and administrative enforcement such as restricting personal freedom or sealing up, distraining and freezing property;
(three) the administrative organ refuses or fails to reply to the application for administrative license within the statutory time limit, or refuses to accept other administrative licensing decisions made by the administrative organ;
(4) Refusing to accept the decision of the administrative organ to confirm the ownership or use right of natural resources such as land, mineral deposits, water, forests, mountains, grasslands, wasteland, beaches and sea areas;
(five) refuses to accept the decision of expropriation and requisition and compensation;
(six) the application for administrative organs to perform the statutory duties of protecting personal rights, property rights and other legitimate rights and interests, and the administrative organs refuse to perform or refuse to reply;
(seven) that the administrative organ has violated its right to independent management or the right to contracted management of rural land;
(eight) the administrative organ abuses administrative power to exclude or restrict competition;
(nine) that the administrative organs illegally raise funds, apportion expenses or illegally require the performance of other obligations;
(ten) that the administrative organ fails to pay pension, minimum living allowance or social insurance benefits according to law;
(eleven) that the administrative organ fails to perform in accordance with the law, fails to perform in accordance with the agreement or illegally changes or terminates the government franchise agreement, land and housing expropriation compensation agreement and other agreements;
(twelve) that administrative organs infringe upon the personal rights, property rights and other legitimate rights and interests of others.
In addition to the provisions of the preceding paragraph, the people's courts accept other administrative cases that can be brought to court according to laws and regulations.
Two. Administrative reconsideration procedure
1. The application for administrative reconsideration is accepted by the Administrative Reconsideration Section. The staff in charge of reception shall carefully examine the application for reconsideration and related materials, ask the contact telephone number and mailing address of the applicant, issue a receipt of the application for administrative reconsideration and submit it to the applicant for acceptance. If the application is made orally, the person in charge of reception shall also write the application or put it on record.
2. For cases that are obviously not under the jurisdiction of the municipal government and cases that are not under the jurisdiction of administrative reconsideration, the reasons shall be explained to the applicant, and it is suggested that he apply to the competent authority. If the applicant refuses to accept the proposal and insists on applying, it shall be handled in accordance with the provisions of Article 1.
3, after receiving the application for administrative reconsideration, the undertaker shall register in the administrative reconsideration acceptance register.
4. The person who receives the application for administrative reconsideration shall hand over the received materials to the department head in time, and the department head shall decide the specific undertaker. The undertaker shall, within 3 days, put forward opinions on whether to accept or not, fill in the "Approval Form for Accepting Administrative Reconsideration Cases" and submit it to the person in charge of the department for approval. The office leader shall sign the examination and approval opinions within 2 days, and the contractor shall issue relevant legal documents according to the examination and approval opinions. If it decides not to accept the application and informs the applicant of its rights, it shall inform the applicant in writing. If it decides to accept the application, it shall notify the applicant and the respondent within 2 days after making the decision.
5. The case-handling personnel shall promptly urge the respondent to respond to the lawsuit. Upon the expiration of the reply period, if the respondent fails to reply after being urged twice, the undertaker shall put forward the handling opinions, fill in the Approval Form for Handling Opinions on Administrative Reconsideration Cases, and report it to the person in charge of the department for approval. An important decision to revoke a specific administrative act shall be submitted to the municipal government for approval.
6. After receiving the written reply from the respondent, the undertaker shall conduct a comprehensive review of the legality and appropriateness of the specific administrative act. If there is a third party, the undertaker may notify the third party to participate in the reconsideration, but the necessary preparation time shall be reserved for the third party.
7. Administrative reconsideration shall be conducted in writing in principle. If it is really necessary to investigate, the undertaker shall put forward his opinions, report to the person in charge of the department for approval, and arrange 2 people to investigate.
8, the facts are clear, the plot is simple, obviously can draw a reconsideration conclusion of the case, by the undertaker put forward opinions, fill in the "administrative reconsideration case handling opinions Shen Qian form", after examination, draft the "administrative reconsideration decision", reported to the office leaders after the preliminary examination according to the procedures reported to the municipal government for approval.
9 for major or complex cases, the undertaker shall put forward preliminary handling opinions. The undertaker, after being audited by the department head, will hold a case analysis meeting, invite comrades from relevant departments to participate, discuss the handling opinions of the case, and report the discussion results to the secretary's office for research and decision. The undertaker shall write a written decision of administrative reconsideration according to the opinions decided by the director's office, and submit it to the municipal government for approval according to the procedures.
10. In order to ensure that the administrative reconsideration decision is made as scheduled, the undertaker should set aside at least 15 days as the time to report to the government before the legal closing deadline. In order to ensure administrative efficiency, in principle, no extension decision will be applied without special circumstances.
1 1. After the written decision of administrative reconsideration is issued by the leaders of the municipal government, it shall be delivered to all parties within 5 days. The administrative reconsideration department is responsible for the delivery. When the administrative reconsideration department is understaffed, the office leader will arrange the cooperation of other departments.
Three. Administrative litigation procedure
(1) Administrative litigation jurisdiction
The jurisdiction of administrative litigation is divided into three categories: hierarchical jurisdiction, regional jurisdiction and ruling jurisdiction.
1. level jurisdiction
Hierarchical jurisdiction is to divide the division of labor and authority of the people's courts at lower and higher levels to accept administrative cases of first instance.
The basic people's court is the most basic unit of judicial organs in China, and general administrative cases are under the jurisdiction of the basic people's court unless otherwise stipulated by law.
The administrative cases of first instance under the jurisdiction of the Intermediate People's Court are:
(1) Confirm invention patent cases and cases handled by customs;
(two) cases of litigation against specific administrative acts made by various departments in the State Council or the governments of provinces (autonomous regions and municipalities directly under the Central Government);
(3) Major and complicated cases within its jurisdiction.
The Higher People's Court has jurisdiction over major and complicated administrative cases of first instance within its jurisdiction.
The Supreme People's Court has jurisdiction over major and complicated administrative cases of first instance nationwide.
2. Territorial jurisdiction
Regional jurisdiction is to determine the division of labor and authority between people's courts at the same level to accept cases of first instance. The territorial jurisdiction stipulated in China's administrative procedure law includes general territorial jurisdiction, special territorial jurisdiction, exclusive territorial jurisdiction and * * * same territorial jurisdiction.
3. Trial jurisdiction
Jurisdiction refers to the jurisdiction freely decided by the people's court in accordance with the relevant provisions of the Administrative Procedure Law under certain special circumstances. Trial jurisdiction is divided into transferred jurisdiction and designated jurisdiction. Transfer to jurisdiction means that after accepting an administrative case, the people's court finds that the case does not belong to its own jurisdiction and should transfer it to the people's court with jurisdiction. Designated jurisdiction means that the people's court at a higher level assigns the case to the people's court at a lower level for jurisdiction by ruling.
(2) Burden of proof
Article 32 of the Administrative Procedure Law stipulates: "The defendant bears the burden of proof for a specific administrative act and shall provide the evidence and normative documents on which the specific administrative act is based." This is the difference between administrative litigation and civil litigation. This is because in the administrative legal relationship, the plaintiff and the defendant are in an unequal position, which is a relationship between management and being managed.
(3) Litigation
1. Preliminary review
(1) Prosecution
In administrative litigation, the principle of "no prosecution, no coming" is actually written, that is, the people's court cannot take the initiative to accept it if the parties do not prosecute.
(2) Accept
If the people's court considers that it meets the conditions for prosecution after examination, it shall file a case for acceptance within 7 days. If it does not meet the conditions for prosecution after examination, it shall be ruled inadmissible within the statutory time limit.
(3) Trial
The main content of the people's court hearing is to examine the legality of specific administrative acts. Mediation is not applicable to the trial of administrative cases by people's courts.
If he refuses to accept the administrative punishment, the person subjected to execution may apply for administrative reconsideration or administrative litigation.