Legal proceedings

▲ Prosecution procedure Prosecution procedure means that the plaintiff brings a lawsuit against an administrative dispute that meets the conditions for prosecution within the statutory time limit in accordance with the procedures prescribed by law. The former refers to the time limit for prosecution, and the latter refers to whether the prosecution must go through administrative reconsideration. (I) Time limit for prosecution According to the Administrative Procedure Law and its relevant laws and regulations, the time limit for prosecution of administrative cases is five days, 15, 30 days and three months. 1. The prosecution period is 5 days. For example, Article 39 of the Regulations on Administrative Penalties for Public Security stipulates that if the punished person or the infringed person refuses to accept the ruling, "he shall bring a lawsuit to the local people's court within 5 days after receiving the notice." At present, in the practice of administrative trial, the time limit for prosecution of public security administrative cases or other administrative cases that are punished by invoking the regulations on administrative penalties for public security shall abide by this provision. 2. The prosecution period is 15 days. Article 38 of the Administrative Procedure Law stipulates: "If the applicant refuses to accept the reconsideration decision, he may bring a lawsuit to the people's court within 15 days from the date of receiving the reconsideration decision. If the reconsideration organ fails to make a decision within the time limit, the applicant may bring a lawsuit to the people's court within 05 days from the date of expiration of the reconsideration. " Other separate administrative regulations, such as Postal Law, Statistics Law, Water Pollution Prevention Law, Marine Environmental Protection Law, Drug Administration Law, and Food Hygiene Law (for Trial Implementation), all stipulate that the time limit for prosecution is 15, which is a common provision in China's current administrative regulations. 3. The time limit for prosecution is 30 days. This time limit is mainly applicable to cases that are complicated and inconvenient to prosecute, such as administrative cases such as taxation, resources and customs. China's forest law, land management law, fishery law, customs law and other provisions of the prosecution period is 30 days. 4. The time limit for prosecution is 3 months. Article 39 of the Administrative Procedure Law stipulates: "If a citizen, a legal person or any other organization directly brings an administrative lawsuit to the people's court, it shall do so within three months from the date of knowing that it has taken a specific administrative act". In fact, this is the most general time limit for the parties to directly file a lawsuit in the people's court in China's administrative litigation. In addition, the second paragraph of Article 40 of the Patent Law also stipulates: "If the applicant for a patent for invention refuses to accept the decision of the Patent Reexamination Board to reject the request for reexamination, he may bring a lawsuit to the people's court within three months after receiving the notice." (2) Prosecution and administrative reconsideration Administrative litigation is different from civil litigation. In civil litigation, as long as there is a dispute between the parties, they can bring a lawsuit to the people's court; In administrative litigation, disputes caused by parties' dissatisfaction with specific administrative acts of administrative organs often require administrative reconsideration before they can bring a lawsuit to the people's court. As for which cases should be reconsidered and which cases can be prosecuted without reconsideration, it depends on the different provisions of laws and regulations involved in each specific case. Judging from the relevant laws and regulations in China, there are four situations as follows: 1. Many laws and regulations stipulate that citizens, legal persons or other organizations may bring a lawsuit directly to the people's court without reconsideration by the administrative organ at the next higher level. For example, Article 21 of the Frontier Health and Quarantine Law stipulates: "If a party refuses to accept the fine imposed by the frontier health and quarantine organ, he may bring a lawsuit to the local people's court within 15 days after receiving the notice." The Food Hygiene Law (for Trial Implementation), Trademark Law, Forest Law, Land Management Law, Drug Administration Law, Fisheries Law and Grassland Law have also made similar provisions. 2. Some laws and regulations stipulate that if a citizen or legal person refuses to accept the administrative decision of an administrative organ, he must first apply to the administrative organ at the next higher level for reconsideration. Only if he refuses to accept the reconsideration decision of the administrative organ at the next higher level can he bring a lawsuit to the people's court. Paragraph 2 of Article 37 of the Administrative Procedure Law stipulates: "Where laws and regulations stipulate that an application for reconsideration shall be filed with an administrative organ first, and a lawsuit is brought to a people's court if the person refuses to accept the reconsideration, the provisions of laws and regulations shall prevail." China's current Regulations on Administrative Penalties for Public Security, the Income Tax Law for Sino-foreign Joint Ventures, the Individual Income Tax Law and the Income Tax Law for Foreign Enterprises have all made such provisions. 3. According to some laws and regulations, if citizens and organizations are dissatisfied with the administrative decision of the administrative organ, they may first apply for reconsideration to the administrative organ that made the decision or its superior administrative organ. If they are still dissatisfied with the reconsideration decision, they may bring a lawsuit to the people's court; You can also bring a lawsuit directly to the people's court. For example, the first paragraph of Article 37 of the Administrative Procedure Law stipulates: "Citizens, legal persons or other organizations may first apply for reconsideration to an administrative organ at the next higher level or an administrative organ prescribed by laws and regulations for an administrative case that falls within the scope of acceptance by the people's court, and then bring a lawsuit to the people's court if they are dissatisfied with the reconsideration; You can also bring a lawsuit directly to the people's court. " Article 53 of the Customs Law also stipulates: "If a party refuses to accept the penalty decision of the Customs, he may bring a lawsuit to the people's court within 30 days from the date of receiving the penalty notice. The parties may also directly bring a suit in a people's court within 30 days from the date of receiving the penalty notice or the announcement of the customs penalty decision. "4. According to some laws and regulations, if citizens and organizations are not satisfied with the administrative decisions of administrative organs, they may apply to the administrative organs at the next higher level for reconsideration or bring a lawsuit directly to the people's court. However, if a party chooses to reconsider, the decision after reconsideration shall be final. If the party refuses to accept it, he cannot bring a lawsuit to the people's court. If the parties choose to bring a lawsuit to the court, the people's court will resolve the dispute through litigation procedures. For example, Article 15 of the Law on the Administration of Citizens' Exit and Entry stipulates: "If a citizen who is detained and punished by a public security organ refuses to accept the punishment, he can lodge a complaint with the public security organ at the next higher level within 15 days from the date of receiving the notice, and the public security organ at the next higher level will make a final ruling, or he can directly file a lawsuit with the people's court."