The following acts do not belong to the scope of administrative litigation of the people's court:
(1) Acts carried out by public security, national security and other organs according to the explicit authorization of the Criminal Procedure Law;
(2) Mediation and arbitration as provided by law;
(3) administrative guidance;
(four) to reject the repeated complaints of the parties to the administrative act;
(five) acts made by administrative organs that do not produce foreign legal effects;
(6) Procedural acts such as preparation, demonstration, investigation, report and consultation made by administrative organs;
(seven) the execution behavior made by the administrative organ according to the effective judgment of the people's court and the notice of assistance in execution, except that the administrative organ expands the scope of execution or adopts illegal means;
(eight) the behavior of the higher administrative organ to listen to the report, inspect the law enforcement and urge the lower administrative organ to perform its duties based on the internal hierarchical supervision relationship;
(nine) opinions made by administrative organs on the registration, acceptance, assignment, transfer, review and review of letters and visits;
(10) Acts that have no actual impact on the rights and obligations of citizens, legal persons or other organizations.
Article 2 The acts of the state stipulated in Item 1 of Article 13 of the Administrative Procedure Law refer to the acts related to national defense and diplomacy carried out in the name of the state by the State Council, the Central Military Commission (CMC), the Ministry of National Defense and the Ministry of Foreign Affairs under the authorization of the Constitution and laws, and the acts of state organs authorized by the Constitution and laws to declare a state of emergency.
The "universally binding decisions and orders" stipulated in the second paragraph of Article 13 of the Administrative Procedure Law refer to the normative documents that can be repeatedly applied by administrative organs to unspecified objects.
The "decision on rewards and punishments, appointment and dismissal of staff of administrative organs" stipulated in the third paragraph of Article 13 of the Administrative Procedure Law refers to the decision made by administrative organs involving the rights and obligations of civil servants of administrative organs.
The "law" in the "administrative act that the law provides for the final ruling by the administrative organ" stipulated in Item 4 of Article 13 of the Administrative Procedure Law refers to the normative documents formulated and adopted by the National People's Congress and its Standing Committee.
Two. jurisdiction
Article 3 The administrative courts of the people's courts at all levels shall hear administrative cases and examine cases in which administrative organs apply for execution of their administrative acts.
Special people's courts and people's courts do not try administrative cases, nor do they examine and execute cases in which administrative organs apply for compulsory execution of their administrative acts. The railway transport court and other special people's courts shall implement the provisions of the second paragraph of Article 18 of the Administrative Procedure Law when trying administrative cases.
Article 4 After placing a case on file, the jurisdiction of the people's court against which the case is filed shall not be affected by changes in facts and legal status, such as changes in the domicile of the parties and the increase in the number of defendants.
Article 5 Under any of the following circumstances, it belongs to the "major and complicated cases in this area" stipulated in Item (3) of Article 15 of the Administrative Procedure Law:
(1) Incidental litigation cases with great social impact;
(2) Cases involving foreign affairs or involving Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan Province Province;
(3) Other major and complicated cases.
Article 6 If the parties consider that the case is so serious and complicated that it is not suitable for the grass-roots people's court with jurisdiction to exercise jurisdiction or bring a lawsuit to the intermediate people's court in accordance with the provisions of Article 52 of the Administrative Procedure Law, the intermediate people's court shall, within seven days, make the following treatments according to different situations:
(1) Deciding to hear the case by itself;
(two) to designate other basic people's courts in this area for jurisdiction;
(3) Inform the parties in writing to bring a suit in a grass-roots people's court with jurisdiction.
Article 7 If the basic people's court considers that the administrative case of first instance under its jurisdiction needs to be tried by the intermediate people's court or designated for jurisdiction, it may report it to the intermediate people's court for decision. The intermediate people's court shall, according to different circumstances, make the following treatments within seven days:
(1) Deciding to hear the case by itself;
(two) to designate other basic people's courts in this area for jurisdiction;
(3) The judgment shall be tried by the people's court that submitted the judgment.
Article 8 The plaintiff's location mentioned in Article 19 of the Administrative Procedure Law includes the plaintiff's domicile, habitual residence and restricted personal freedom.
Based on the same fact, if an administrative organ takes both administrative compulsory measures restricting citizens' personal freedom and other administrative compulsory measures or administrative penalties, it shall be under the jurisdiction of the people's court where the defendant is located or where the plaintiff is located.
Article 9 The real estate administrative litigation stipulated in Article 20 of the Administrative Procedure Law refers to the litigation brought because of the change of real estate property rights caused by administrative acts.
If the real estate has been registered, the location recorded in the real estate register shall be the location of the real estate; If the immovable property is not registered, the actual location of the immovable property shall be the location of the immovable property.
Article 10 After the people's court accepts the case, if the defendant has any objection to the jurisdiction, he shall raise it within 15 days from the date of receiving the copy of the indictment.
The people's court shall examine the jurisdictional objections raised by the parties. If the objection is established, it shall be ordered to transfer the case to the people's court with jurisdiction; If the objection is not established, the ruling shall be rejected.
If the people's court determines that it has jurisdiction after examining the objection to jurisdiction, it will not change its jurisdiction because the parties increase or change their claims, except those that violate the provisions on hierarchical jurisdiction and exclusive jurisdiction.
Eleventh any of the following circumstances, the people's court shall not review:
(1) In a case remanded by the people's court or retried in accordance with the procedure of first instance, the parties raise an objection to jurisdiction;
(2) The parties did not raise an objection to jurisdiction within the time limit and form prescribed by law in the procedure of first instance, but raised it in the procedure of second instance.
Three. Participants in litigation
Twelfth any of the following circumstances, which belongs to the provisions of the first paragraph of article twenty-fifth of the administrative procedure law "has an interest in administrative acts":
(1) The sued administrative act involves neighboring rights or fair competition rights;
(2) Being added as a third person in administrative procedures such as administrative reconsideration;
(three) to require the administrative organ to investigate the legal responsibility of the offenders according to law;
(four) to revoke or change the administrative act involving their legitimate rights and interests;
(five) in order to safeguard their legitimate rights and interests, the administrative organ responsible for handling complaints has made or failed to make a complaint;
(six) other circumstances that have an interest in the administrative act.
Article 13 Where a creditor brings an administrative lawsuit on the grounds that the administrative action taken by an administrative organ against the debtor damages the realization of the creditor's rights, the people's court shall inform him to bring a civil lawsuit for the civil dispute, unless the administrative organ protects or considers the administrative action according to law.
Article 14 The term "close relatives" as mentioned in the second paragraph of Article 25 of the Administrative Procedure Law includes spouses, parents, children, brothers and sisters, grandparents, grandchildren, grandchildren and other dependent relatives.
If a citizen cannot bring a lawsuit because of the restriction of personal freedom, his close relatives may, on the basis of his oral or written entrustment, bring a lawsuit in the name of the citizen. If a close relative can't get in touch with a citizen whose personal freedom is restricted when he files a lawsuit, he can file a lawsuit first and submit a supplementary certificate of entrustment in the lawsuit.
Article 15 When a partnership brings a lawsuit to a people's court, it shall take the name approved for registration as the plaintiff. All the partners of an individual partnership enterprise that has not registered and obtained a business license according to law are * * * and the plaintiff; All partners may elect representatives, and the elected representatives shall be signed by all partners in writing.
If an individual industrial and commercial household brings a lawsuit to the people's court, the operator registered with the business license shall be the plaintiff. If there is a brand name, the plaintiff shall be the brand name registered in the business license, and the basic information of the brand name operator shall be indicated.
Article 16 If the shareholders' meeting, shareholders' meeting and board of directors of a joint-stock enterprise think that the administrative act made by an administrative organ infringes on the autonomy of the enterprise, they may bring a lawsuit in the name of the enterprise.
If the parties to a joint venture, a Chinese-foreign joint venture or a Chinese-foreign contractual joint venture believe that the rights and interests of the joint venture, a Chinese-foreign joint venture or a Chinese-foreign contractual joint venture or their legitimate rights and interests have been infringed upon by administrative actions, they may bring a lawsuit in their own names.
If a non-state-owned enterprise is revoked, revoked, merged, forced to merge, sold, divided or changed its affiliation by an administrative organ, the enterprise or its legal representative may bring a lawsuit.
Seventeenth institutions, social organizations, foundations, social service institutions and other non-profit legal persons, investors and founders believe that administrative acts harm the legitimate rights and interests of legal persons, they can bring a lawsuit in their own name.
Article 18 The owners' committee may, in its own name, bring a lawsuit against an administrative act made by an administrative organ involving the interests of the owners.
If the owners' committee does not file a lawsuit, the owners whose exclusive parts account for more than half of the total construction area or more than half of the total number of households may file a lawsuit.
Article 19 If a party refuses to accept an administrative act approved by an administrative organ at a higher level and brings a lawsuit to a people's court, the organ that signed the legally effective document shall be the defendant.
Article 20 If an administrative organ establishes and entrusts an institution with administrative functions but does not have the ability to independently undertake legal responsibilities, and the party refuses to accept the lawsuit, the administrative organ that established the institution shall be the defendant.
If the administrative organ authorized by laws, regulations or rules has internal organs, dispatched offices or other organizations to carry out administrative acts beyond the statutory authorization, and the party refuses to accept the lawsuit, the institution or organization that carried out the act shall be the defendant.
Without the provisions of laws, regulations or rules, an administrative organ authorizes its internal organs, agencies or other organizations to exercise administrative functions and powers, which belongs to the entrustment stipulated in Article 26 of the Administrative Procedure Law. If a party refuses to accept the lawsuit, it shall take the administrative organ as the defendant.
Twenty-first parties to the the State Council and the provincial people's government approved the administrative act of the development zone management agencies, the development zone management agencies as the defendant; If a lawsuit is brought against the administrative actions made by the functional departments of the development zone management agencies approved by the State Council and the provincial people's governments, the functional departments shall be the defendants; If a lawsuit is brought against the administrative actions made by the functional departments of other development zone management agencies, the development zone management agencies are the defendants; If the administrative agency of the Development Zone has no administrative subject qualification, the local people's government that established the agency shall be the defendant.
Article 22 The change of the original administrative act by the reconsideration organ as stipulated in the second paragraph of Article 26 of the Administrative Procedure Law refers to the result of the change of the original administrative act by the reconsideration organ. If the reconsideration organ changes the main facts and evidence identified by the original administrative act and the normative basis for the application of the original administrative act, but does not change the result of the original administrative act, it shall be determined that the reconsideration organ maintains the original administrative act.
The reconsideration organ confirms that the original administrative act is invalid, which belongs to changing the original administrative act.
The reconsideration organ confirms that the original administrative act is illegal, which belongs to changing the original administrative act, except that the reconsideration organ confirms that the original administrative act is illegal on the grounds of violating legal procedures.
Article 23 If an administrative organ is revoked or its functions and powers are changed, and there is no administrative organ that continues to exercise its functions and powers, the people's government to which it belongs shall be the defendant; If vertical leadership is implemented, the administrative organ at the next higher level under vertical leadership shall be the defendant.
Twenty-fourth parties to the villagers' committee or residents' committee in accordance with the laws, regulations and rules authorized to perform administrative duties, the villagers' committee or residents' committee as the defendant.
If a party refuses to accept the behavior of a villagers' committee or a residents' committee entrusted by an administrative organ, the entrusted administrative organ is the defendant.
If a party refuses to accept the administrative acts authorized by laws, regulations and rules by institutions such as colleges and universities and industry associations such as lawyers' associations and certified public accountants' associations, the institutions and industry associations shall be the defendants.
If a party refuses to accept the entrustment of an administrative organ by institutions such as institutions of higher learning and trade associations such as lawyers' associations and certified public accountants' associations, the entrusted administrative organ is the defendant.
Twenty-fifth city and county people's government to determine the housing levy department to organize the implementation of the administrative act made in the process of housing levy and compensation, and the expropriated person refuses to accept the lawsuit, the housing levy department is the defendant.
The implementation unit of expropriation is entrusted by the house expropriation department to engage in acts within the scope of entrustment, and if the expropriated person refuses to accept the lawsuit, the house expropriation department is the defendant.
Article 26 If the defendant sued by the plaintiff is unqualified, the people's court shall inform the plaintiff to replace the defendant; If the plaintiff does not agree to the change, the prosecution shall be dismissed.
The defendant shall be added, and if the plaintiff does not agree to the addition, the people's court shall notify him to participate in the litigation as a third party, except that the administrative reconsideration organ is the defendant.
Twenty-seventh parties who must participate in litigation according to law shall notify them to participate in litigation; The parties may also apply to the people's court for participation.
The people's court shall examine the application put forward by the parties, and if the reasons for the application are not established, the people's court shall rule to reject it; If the reason for the application is established, it shall be notified in writing to participate in the proceedings.
The term "simultaneous litigation" as mentioned in the preceding paragraph refers to the litigation in which one or both parties are more than two, and the people's court must combine the litigation because of the same administrative act.
Article 28 If the people's court increases the number of litigants, it shall notify the other parties. If the plaintiff who should be added has explicitly given up his substantive rights, it may not be added; Those who are unwilling to participate in the litigation and do not give up their substantive rights shall be added as a third person, and they shall not participate in the litigation and shall not hinder the people's court from hearing and judging the case.
Article 29 "A large number of people" as stipulated in Article 28 of the Administrative Procedure Law generally refers to more than ten people.
According to the provisions of Article 28 of the Administrative Procedure Law, if there are a large number of parties, the parties shall elect their representatives. If the parties cannot be elected, the people's court may appoint a representative among the parties to the lawsuit.
The number of deputies stipulated in Article 28 of the Administrative Procedure Law is two to five. A representative may entrust one or two persons as agents ad litem.
Article 30 If the same administrative act of an administrative organ involves more than two interested parties, and some interested parties bring a lawsuit against the administrative act, the people's court shall notify the other interested parties who have not brought a lawsuit to participate in the lawsuit as a third party.
A third person who has an interest in the outcome of an administrative case may apply to participate in the litigation, or be notified by the people's court to participate in the litigation. A third party who is judged by the people's court to assume obligations or reduce rights and interests has the right to appeal or apply for retrial.
If a third person as stipulated in Article 29 of the Administrative Procedure Law does not participate in the proceedings for reasons not attributable to him, but there is evidence that a legally effective judgment, ruling or conciliation statement has harmed his lawful rights and interests, he may, in accordance with the provisions of Article 90 of the Administrative Procedure Law, apply to the people's court at the next higher level for retrial within six months from the date when he knows or should know that his lawful rights and interests have been harmed.
Article 31 If a party entrusts an agent ad litem, it shall submit a power of attorney signed or sealed by the client to the people's court. The power of attorney shall specify the entrusted matters and specific authority. If a citizen is unable to entrust in writing under special circumstances, he may also be entrusted by others and confirmed by his own seal. The people's court shall verify it and record it in the record; If the sued administrative organ or any other organ with the obligation to assist refuses the people's court to verify with the citizen whose personal freedom is restricted, it shall be regarded as entrustment. If a party cancels or changes the entrustment, it shall report to the people's court in writing.
Article 32 In accordance with Item 2, Paragraph 2, Article 31 of the Administrative Procedure Law, employees who have legal labor and personnel relations with the parties may act as agents ad litem in the name of the staff members of the parties. When a staff member as a party participates in litigation activities, he shall submit one of the following evidences:
(1) Paying social insurance record vouchers;
(two) to receive wage vouchers;
(3) Other evidence that can prove the identity of the staff of the party concerned.
Article 33 According to Item 3, Paragraph 2, Article 31 of the Administrative Procedure Law, if a social organization recommends a citizen as an agent ad litem, it shall meet the following conditions:
(1) Social organizations are non-profit legal person organizations registered or exempted from registration according to law;
(2) The principal is a member of the social group, or the domicile of one party is located in the activity area of the social group;
(3) Agency affairs belong to the business scope stipulated in the articles of association of social organizations;
(4) The recommending citizen is the person in charge of the social organization or a staff member who has legal labor and personnel relations with the social organization.
Patent agents, recommended by the All-China Patent Agents Association, can act as litigation agents in patent administrative cases.
Fourth, evidence.
Article 34 According to the first paragraph of Article 36 of the Administrative Procedure Law, if the defendant applies for an extension of providing evidence, he shall submit it to the people's court in writing within 15 days from the date of receiving the copy of the indictment. If the people's court allows an extension of proof, the defendant shall provide evidence within 15 days after the legitimate reasons are eliminated. If it fails to provide it within the time limit, it shall be deemed that there is no corresponding evidence for the sued administrative act.