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(1adopted at the second session of the Seventh National People's Congress on April 4, 989, and is hereby promulgated. DecreeNo. 16 of the President of the People's Republic of China was promulgated on April 4, 1989 and implemented on 10/0)
administrative procedure law of the people's republic of china
Chapter I General Provisions
Chapter II Scope of Accepting Cases
Chapter III Jurisdiction
Chapter IV Participants in Litigation
Chapter V Evidence
Chapter VI Prosecution and Acceptance
Chapter VII Trials and Judgments
Chapter VIII Implementation
Chapter IX Liability for Tort Compensation
Chapter X Administrative Litigation Involving Foreign Elements
Chapter II XI Supplementary Provisions
(1adopted at the second session of the Seventh National People's Congress on April 4, 989, and is hereby promulgated. DecreeNo. 16 of the President of the People's Republic of China was promulgated on April 4, 1989 and implemented on 10/0)
Chapter I General Provisions
Article 1 This Law is formulated in accordance with the Constitution in order to ensure that the people's courts correctly and timely hear administrative cases, protect the legitimate rights and interests of citizens, legal persons and other organizations, and safeguard and supervise the administrative organs in exercising their administrative functions and powers according to law.
Article 2 Citizens, legal persons or other organizations that believe that specific administrative acts of administrative organs and their staff infringe upon their legitimate rights and interests have the right to bring a lawsuit to the people's court in accordance with this Law.
Article 3 The people's courts independently exercise jurisdiction over administrative cases according to law, and are not subject to interference by administrative organs, social organizations or individuals. The people's court shall set up an administrative tribunal to hear administrative cases.
Article 4 In trying administrative cases, the people's courts shall take facts as the basis and the law as the criterion.
Article 5 When trying administrative cases, the people's courts shall examine the legality of specific administrative acts.
Article 6 In handling administrative cases, the people's courts shall practise a system of collegiate bench, recusal, public trial and final adjudication by two trials according to law.
Article 7 The parties have equal legal status in administrative litigation.
Article 8 Citizens of all ethnic groups have the right to use their own spoken and written languages in administrative proceedings.
In areas where ethnic minorities live in compact communities or where many ethnic groups live together, the people's courts shall conduct trials and issue legal documents in the spoken and written languages commonly used by local ethnic groups.
The people's court shall provide translators for participants in the proceedings who are not familiar with the spoken and written languages commonly used by local nationalities.
Article 9 The parties have the right to debate in administrative proceedings.
Article 10 The People's Procuratorate has the right to exercise legal supervision over administrative litigation.
Chapter II Scope of Accepting Cases
Article 11 The people's courts shall accept the lawsuits brought by citizens, legal persons and other organizations against the following specific administrative acts: (1) Those who refuse to accept administrative punishments such as detention, fines, revocation of permits and licenses, order to stop production or business, confiscation of property, etc. ; (2) Refusing to accept administrative compulsory measures such as restricting personal freedom or sealing up, distraining or freezing property;
(three) that the administrative organ has violated the right of independent management as stipulated by law;
(four) the administrative organ refuses to issue or reply to the license application and the license issued by the administrative organ that meet the statutory conditions; (five) the application for administrative organs to perform the statutory duties of protecting personal rights and property rights, and the administrative organs refuse to perform or refuse to reply; (six) that the administrative organ fails to issue pensions according to law;
(seven) that the administrative organ illegally requires it to perform its obligations;
(eight) that the administrative organ violates other personal rights and property rights.
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.
Article 12 The people's courts shall not accept lawsuits filed by citizens, legal persons or other organizations on the following matters:
(1) National defense, foreign affairs and other acts of the state;
(2) Administrative regulations, rules or decisions and orders with general binding force formulated and issued by administrative organs; (three) the decision of the administrative organ on the reward and punishment, appointment and removal of the staff of the administrative organ;
(4) The specific administrative act finally decided by the administrative organ according to law.
Chapter III Jurisdiction
Thirteenth basic people's courts have jurisdiction over administrative cases of first instance.
Article 14 The Intermediate People's Court shall have jurisdiction over the following administrative cases of first instance:
(1) Cases in which the invention patent right is confirmed and cases handled by the customs;
(two) cases of litigation against specific administrative acts of various departments in the State Council or the people's governments of provinces, autonomous regions and municipalities directly under the central government; (3) Major and complicated cases within its jurisdiction.
Article 15 The Higher People's Court shall have jurisdiction over major and complicated administrative cases of first instance within its jurisdiction.
Article 16 the Supreme People's Court has jurisdiction over major and complicated administrative cases of first instance nationwide.
Article 17 An administrative case shall be under the jurisdiction of the people's court where the administrative organ that initially made the specific administrative act is located. After reconsideration, if the reconsideration organ changes the original specific administrative act, it may also be under the jurisdiction of the people's court where the reconsideration organ is located.
Article 18 A lawsuit brought against administrative compulsory measures restricting personal freedom shall be under the jurisdiction of the people's court where the defendant is located or where the plaintiff is located.
Article 19 Administrative litigation brought by real estate shall be under the jurisdiction of the people's court where the real estate is located.
Article 20 In a case where two or more people's courts have jurisdiction, the plaintiff may choose one of them to bring a lawsuit. If the plaintiff brings a lawsuit to two or more people's courts with jurisdiction, it shall be under the jurisdiction of the people's court that first received the complaint.
Article 21 When a people's court finds that a case it accepts is not under its jurisdiction, it shall transfer it to a people's court with jurisdiction. The transferred people's court shall not transfer it by itself.
Article 22 If a people's court with jurisdiction is unable to exercise jurisdiction due to special reasons, the people's court at a higher level shall designate jurisdiction. Disputes over the jurisdiction of the people's courts shall be settled by both parties to the dispute through consultation. If negotiation fails, it shall be reported to the people's court at a higher level for designated jurisdiction.
Article 23 A people's court at a higher level has the right to try administrative cases of first instance under the jurisdiction of a people's court at a lower level, or it may transfer administrative cases of first instance under its jurisdiction to a people's court at a lower level for trial.
If the people's court at a lower level thinks that the administrative case of first instance under its jurisdiction needs to be tried by the people's court at a higher level, it may report it to the people's court at a higher level for decision.
Chapter IV Participants in Litigation
Article 24 A citizen, legal person or other organization that brings a lawsuit in accordance with this Law is the plaintiff.
If a citizen who has the right to file a lawsuit dies, his close relatives may file a lawsuit.
The legal person or other organization that has the right to bring a lawsuit is terminated, and the legal person or other organization that inherits its rights may bring a lawsuit.
Twenty-fifth citizens, legal persons or other organizations directly to the people's court, the administrative organ that made the specific administrative act is the defendant.
After reconsideration, if the reconsideration organ decides to maintain the original specific administrative act, the administrative organ that made the original specific administrative act is the defendant; If the reconsideration organ changes the original specific administrative act, the reconsideration organ is the defendant.
If two or more administrative organs have committed the same specific administrative act, the same administrative organ that committed the specific administrative act is the same defendant. The specific administrative act made by an organization authorized by laws and regulations is the defendant. For a specific administrative act made by an organization entrusted by an administrative organ, the entrusted administrative organ is the defendant.
If the administrative organ is revoked, the administrative organ that continues to exercise its functions and powers shall be the defendant.
Article 26 Where one or more parties are two or more, an administrative case arising from the same specific administrative act, or an administrative case arising from the same specific administrative act, which the people's court considers can be tried jointly, is a * * * lawsuit.
Twenty-seventh other citizens, legal persons or other organizations interested in the specific administrative act of bringing a lawsuit may apply to participate in the lawsuit as a third party, or the people's court shall notify them to participate in the lawsuit.
Article 28 A citizen without civil capacity shall be represented by his legal representative. If the legal representative shirks the agency responsibility, the people's court shall appoint one of them to represent the lawsuit.
Twenty-ninth parties and legal representatives may entrust one or two people to represent the litigation.
Lawyers, social organizations, close relatives of citizens who file lawsuits or people recommended by their units, as well as other citizens with the permission of the people's court, may be entrusted as agents ad litem.
Article 30 Lawyers acting as agents in litigation may consult the relevant materials of this case in accordance with regulations, and may investigate and collect evidence from relevant organizations and citizens. Materials involving state secrets and personal privacy shall be kept confidential according to law. With the permission of the people's court, the parties and other agents ad litem may consult the trial materials of this case, except those involving state secrets and personal privacy.
Chapter V Evidence
Article 31 There are the following types of evidence:
(1) Documentary evidence;
(2) Physical evidence;
(3) Audio-visual materials;
(4) Testimony of witnesses;
(5) statements of the parties;
(6) Evaluation conclusion;
(7) Records of inspection and on-site records.
The above evidence can only be used as the basis for finalizing the case if it is verified by the court.
Article 32 The defendant bears the burden of proof for a specific administrative act, and shall provide the evidence of the specific administrative act and the normative documents on which it is based.
Article 33 In the course of litigation, the defendant may not collect evidence from the plaintiff and witnesses by himself.
Article 34 The people's court has the right to require the parties to provide or supplement evidence.
People's courts have the right to obtain evidence from relevant administrative organs, other organizations and citizens.
Thirty-fifth in the course of litigation, the people's court believes that specialized issues need to be identified, it should be submitted to the statutory identification department for identification; If there is no statutory appraisal department, it shall be appraised by the appraisal department designated by the people's court.
Article 36 In case the evidence may be lost or difficult to obtain later, the participants in the proceedings may apply to the people's court for evidence preservation, and the people's court may also take preservation measures on its own initiative.
Chapter VI Prosecution and Acceptance
Article 37 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; if they are dissatisfied, they may bring a lawsuit to the people's court; You can also bring a lawsuit directly to the people's court.
Where laws and regulations stipulate to apply for reconsideration to the administrative organ first, and then bring a lawsuit to the people's court if they refuse to accept the reconsideration, the provisions of laws and regulations shall prevail.
Thirty-eighth citizens, legal persons or other organizations apply to the administrative organ for reconsideration, and the reconsideration organ shall make a decision within two months from the date of accepting the application. Except as otherwise provided by laws and regulations.
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 15 days after the expiration of the reconsideration period. Except as otherwise provided by law.
Thirty-ninth citizens, legal persons or other organizations directly to the people's court, should be within three months from the date of knowing the specific administrative act. Except as otherwise provided by law.
Article 40 Where a citizen, legal person or other organization delays the statutory time limit due to force majeure or other special circumstances, it may apply for an extension within 10 days after the obstacle is removed, which shall be decided by the people's court.
Article 41 A lawsuit shall meet the following conditions:
(a) the plaintiff is a citizen, a legal person or any other organization that believes that a specific administrative act infringes upon his lawful rights and interests;
(2) Having a clear defendant;
(three) there are specific requests and factual basis;
(4) Being within the scope of accepting cases by the people's courts and under the jurisdiction of the people's courts under appeal.
Article 42 After receiving a complaint, the people's court shall, after examination, file a case within seven days or rule that it will not be accepted. If the plaintiff refuses to accept the ruling, he can appeal.
Chapter VII Trials and Judgments
Article 43 The people's court shall send a copy of the indictment to the defendant within five days from the date of filing the case. The defendant shall, within ten days from the date of receiving the copy of the indictment, submit to the people's court the relevant materials for the specific administrative act and submit a reply. The people's court shall send a copy of the defense to the plaintiff within five days from the date of receiving the defense.
If the defendant fails to submit the defense, it will not affect the trial of the people's court.
Article 44 During the litigation, the execution of a specific administrative act shall not be suspended. But in any of the following circumstances, the specific administrative act shall be suspended:
(1) The defendant considers it necessary to stop execution;
(2) The plaintiff applied to stop the execution, and the people's court decided to stop the execution because it believed that the execution of the specific administrative act would cause irreparable losses, and the suspension would not harm the public interests;
(three) the provisions of laws and regulations to stop execution.
Article 45 The people's courts shall hear administrative cases in public, except those involving state secrets, personal privacy and other provisions of the law.
Article 46 In trying administrative cases, the people's courts shall be composed of judges or judges and jurors. The members of the collegial panel shall be an odd number of three or more.
Article 47 If a party thinks that a judge has an interest in the case or has other relations that may affect a fair trial, he has the right to apply for the withdrawal of the judge.
If the judge thinks that he has an interest or other relationship with the case, he shall apply for withdrawal.
The provisions of the preceding two paragraphs shall apply to clerks, translators, expert witnesses and inspectors.
The withdrawal of the president as the presiding judge shall be decided by the judicial Committee; The withdrawal of the judge is decided by the president; The withdrawal of other personnel shall be decided by the presiding judge. If a party refuses to accept the decision, it may apply for reconsideration.
Article 48 If the plaintiff refuses to appear in court after being legally summoned twice by the people's court without justifiable reasons, it shall be deemed as an application for withdrawal of the lawsuit; If the defendant refuses to appear in court without justifiable reasons, he may make a judgment by default.
Article 49 If a litigant participant or any other person commits one of the following acts, the people's court may, according to the seriousness of the case, admonish him, order him to make a statement of repentance or impose a fine of less than 1,000 yuan and detention of less than 15 days; If the case constitutes a crime, criminal responsibility shall be investigated according to law: (1) the person who has the obligation to assist in execution delays, refuses or hinders the execution of the notice of assistance in execution by the people's court without reason; (2) Forging, concealing or destroying evidence;
(3) instigating, bribing or coercing others to commit perjury or threatening or preventing witnesses from testifying;
(4) Concealing, transferring, selling off or damaging the property that has been sealed up, detained or frozen;
(5) obstructing the staff of the people's court from performing their duties or disturbing the working order of the people's court by violence, threat or other means; (6) Insulting, slandering, framing, beating or retaliating against the staff of the people's court, participants in litigation or assisting the executor. Fines and detention must be approved by the president of the people's court. If a party refuses to accept the decision, it may apply for reconsideration.
Article 50 Mediation is not applicable to the people's courts in trying administrative cases.
Article 51 Before the people's court pronounces a judgment or ruling on an administrative case, if the plaintiff applies to withdraw the lawsuit, or the defendant changes the specific administrative act that has been done, and the plaintiff agrees and applies to withdraw the lawsuit, the people's court shall decide whether to allow it or not.
Article 52 The people's courts shall try administrative cases on the basis of laws, administrative regulations and local regulations. Local regulations apply to administrative cases within their respective administrative areas.
The people's courts shall try administrative cases in ethnic autonomous areas on the basis of the autonomous regulations and separate regulations of ethnic autonomous areas.
Article 53 In trying administrative cases, the people's courts shall refer to the rules formulated and promulgated by the Ministry and the Commission of the State Council in accordance with laws and administrative regulations, decisions and orders of the State Council, as well as the rules formulated and promulgated by the people's governments of provinces, autonomous regions, municipalities directly under the Central Government, cities where the people's governments of provinces and autonomous regions are located and large cities approved by the State Council in accordance with laws and administrative regulations. If the people's court considers that the rules formulated and promulgated by the local people's government are inconsistent with those formulated and promulgated by the Ministry of the State Council and the Commission of the State Council, the Supreme People's Court shall send them to the State Council for explanation or ruling.
Article 54 After hearing the case, the people's court made the following judgments according to different situations:
(1) If the evidence of the specific administrative act is conclusive, the applicable laws and regulations are correct and conform to legal procedures, the judgment shall be upheld. (2) If a specific administrative act is under any of the following circumstances, the judgment is revoked or partially revoked, and the defendant may be sentenced to make a new specific administrative act:
The main evidence is insufficient;
The application of laws and regulations is wrong;
3. Violation of legal procedures;
4. Exceeding authority;
5. Abuse of power.
(3) If the defendant fails to perform or delays in performing his statutory duties, he shall be sentenced to perform them within a certain period of time.
(four) administrative punishment of obviously unfair, can be changed.
Article 55 If the people's court judges the defendant to re-engage in a specific administrative act, the defendant shall not engage in a specific administrative act that is basically the same as the original specific administrative act with the same facts and reasons.
Article 56 In handling an administrative case, if the people's court considers that the person in charge of an administrative organ or the person directly responsible has violated administrative discipline, it shall transfer the relevant materials to the administrative organ or its superior administrative organ, supervision and personnel organ; If a criminal act is considered, the relevant materials shall be transferred to the public security and procuratorial organs.
Article 57 The people's court shall make a judgment of first instance within three months from the date of filing the case. If there are special circumstances that need to be extended, it shall be approved by the Higher People's Court. If the Higher People's Court needs to extend the trial of cases of first instance, it shall be approved by the Supreme People's Court.
Article 58 If a party refuses to accept the judgment of the people's court of first instance, he has the right to appeal to the people's court at the next higher level within 15 days from the date when the judgment is served. If a party refuses to accept the ruling of the people's court of first instance, he has the right to appeal to the people's court at the next higher level within 10 days from the date when the ruling is served. If no appeal is made within the time limit, the judgment or ruling of the people's court of first instance shall become legally effective.
Article 59 A people's court may hear an appeal case with clear facts in writing.
Article 60 When trying an appeal case, the people's court shall make a final judgment within two months from the date of receiving the appeal. If there are special circumstances that need to be extended, it shall be approved by the Higher People's Court. If the Higher People's Court needs to extend the hearing of appeal cases, it shall be approved by the Supreme People's Court.
Article 61 When trying an appeal case, the people's court shall handle it separately according to the following circumstances:
(a) the original judgment found that the facts were clear and the applicable laws and regulations were correct, dismissed the appeal and upheld the original judgment; (two) the original judgment found that the facts were clear, but the applicable laws and regulations were wrong, and the judgment was changed according to law;
(3) If the facts of the original judgment are unclear, the evidence is insufficient, or the violation of legal procedures may affect the correct judgment of the case, the original judgment shall be revoked and sent back to the people's court that originally tried the case for retrial, or the judgment shall be revised after the facts are ascertained. The parties may appeal against the judgment or ruling of the retrial case.
Article 62 If a party considers that a legally effective judgment or written order is indeed wrong, it may appeal to the people's court that originally tried it or the people's court at the next higher level, but the execution of the judgment or written order will not be suspended.
Article 63 If the president of the people's court finds that the legally effective judgment or ruling of the people's court violates the provisions of laws and regulations and thinks that a retrial is necessary, he shall submit it to the judicial committee to decide whether to retry.
If the people's court at a higher level finds that the legally effective judgment or ruling of the people's court at a lower level violates the provisions of laws and regulations, it has the right to send it back or instruct the people's court at a lower level to try it again.
Article 64 If a people's procuratorate finds that a legally effective judgment or ruling of a people's court violates the provisions of laws and regulations, it has the right to lodge a protest in accordance with the procedure of trial supervision.
Chapter VIII Implementation
Article 65 A legally effective judgment or ruling of a people's court must be fulfilled by the parties concerned.
If a citizen, legal person or other organization refuses to perform the judgment or ruling, the administrative organ may apply to the people's court of first instance for compulsory execution, or enforce it according to law.
If the administrative organ refuses to perform the judgment or ruling, the people's court of first instance may take the following measures:
(1) Notifying the bank to transfer the fine that should be returned or the compensation that should be paid from the account of the administrative organ; (two) if it is not implemented within the prescribed time limit, the administrative organ shall be fined from fifty yuan to one hundred yuan per day from the date of expiration; (3) to make judicial suggestions to the administrative organs or the administrative organs at the next higher level of the supervisory and personnel organs. The organ that accepts the judicial proposal shall handle it in accordance with the relevant provisions and inform the people's court of the handling situation;
(4) Refusing to execute the judgment or ruling, if the circumstances are serious enough to constitute a crime, the person in charge and the person directly responsible shall be investigated for criminal responsibility according to law.
Article 66 If a citizen, legal person or other organization neither brings a lawsuit nor performs a specific administrative act within the statutory time limit, the administrative organ may apply to the people's court for compulsory execution, or enforce it according to law.
Chapter IX Liability for Tort Compensation
Article 67 Citizens, legal persons or other organizations whose legitimate rights and interests are infringed by specific administrative acts of administrative organs and their staff have the right to claim compensation.
Where a citizen, legal person or other organization makes a separate claim for damages, it shall be settled by the administrative organ first. If the administrative organ refuses to accept the handling, it may bring a lawsuit to the people's court.
Mediation can be applied to compensation litigation.
Article 68 If a specific administrative act of an administrative organ or its staff infringes upon the lawful rights and interests of a citizen, legal person or other organization and causes damage, the administrative organ where the administrative organ or its staff is located shall be responsible for compensation. After the administrative organ compensates for the losses, it shall order the staff of the administrative organ who has intentionally or grossly neglected to bear part or all of the compensation expenses.
Sixty-ninth compensation expenses shall be paid from the financial departments at all levels. People's governments at all levels may order the responsible administrative organs to pay part or all of the compensation expenses. Specific measures shall be formulated by the State Council.
Chapter X Administrative Litigation Involving Foreign Elements
Article 70 This Law shall apply to foreigners, stateless persons and foreign organizations in administrative proceedings in People's Republic of China (PRC). Except as otherwise provided by law.
Article 71 Foreigners, stateless persons and foreign organizations shall enjoy the same litigation rights and obligations as People's Republic of China (PRC) citizens and organizations in administrative litigation.
If a foreign court restricts the administrative litigation rights of citizens and organizations in People's Republic of China (PRC), the people's court shall apply the principle of reciprocity to the administrative litigation rights of citizens and organizations in that country.
Article 72 Where the international treaties concluded or acceded to by People's Republic of China (PRC) have different provisions from this Law, the provisions of the international treaties shall apply. Except for the clauses on which People's Republic of China (PRC) has declared reservations.
Article 73 If a foreigner, stateless person or foreign organization entrusts a lawyer to represent them in administrative litigation in People's Republic of China (PRC), they shall entrust a lawyer from a People's Republic of China (PRC) law firm.
Chapter II XI Supplementary Provisions
Article 74 When trying an administrative case, the people's court shall collect litigation fees. The litigation costs shall be borne by the losing party, and both parties shall share the responsibilities. Specific measures for charging litigation fees shall be formulated separately.
Article 75 This Law shall come into force as of 1990 10/0/day.