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Rules
of Shenzhen Special Economic Zone on Settlement of the Appeal
case against the Administrative
Supervision
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(Adopted
at the 106th executive meeting of the Second Shenzhen
Municipal People' s Government, and promulgated by Decree No.79
of the Shenzhen Municipal People' s Government on November 2,
1998.)
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Chapter ¢ñ General
Provisions
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Article 1 In order to guarantee the supervisory
department and its working staff to exercise the functions and
powers according to law, settle the appeal case in time, and
safeguard the legal rights and interests of the
state civil
servants, other persons appointed by the state administrative
organization as well
as the citizen, legal person and other
organizations involved in the activities of administrative
supervision, these rules are formulated according to the
provisions of the laws and regulations.
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Article 2 These rules shall be applicable to the
settlement of the cases of appeals against the activities of
administrative supervision and the administrative sanctions,
which are filed by the supervised of administrative
supervision
in the administrative region of Shenzhen Municipality
(hereinafter referred to as the
Municipality), or the citizens,
legal persons and other organizations involved in the activities
of administrative supervision.
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The
supervised of administrative organization mentioned in these
rules refer to the organizations
and persons who are supervised
by the supervisory department according to the provisions of
Article
16 of the Law of the People' s Republic of China on
Administrative Supervision.
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Article 3 The supervisory department shall observe the
principles of seeking truth from facts, correcting mistakes,
accuracy and in-time to settle the appeal case according to law.
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Article 4 The municipal or district supervisory
department shall
be responsible for settlement of the appeal case against the
administrative supervision at
respective level, and carry out
the system of closing case by review and adjudication.
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Article 5 During the period, when the supervisory
department is settling the appeal case, the enforcement of the
administrative supervision decision relevant to the appeal shall
not be suspended.
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Chapter ¢ò Scope
of Appeals and Jurisdiction
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Article 6 The supervisory department shall accept the
following appeals:
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(1)
Being not satisfied with the administrative sanction made by the
supervisory department and
other administrative organization;
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(2)
Being not satisfied with the supervisory decision made by the
supervisory department on confiscation,
revendication, or
ordering to return and pay compensation;
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(3)
Being not satisfied with the decision made by the supervisory
department on reexamination, or
retrial, or having dissent from
the supervisory opinion and reply;
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(4)
Being not satisfied with the supervisory measures taken by the
supervisory department, when
it performs the functions and
duties and investigates into the corruption, bribe, embezzlement
of public funds or other acts violating the administrative
disciplines;
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(5)
Considering that the supervisory department or its working staff
has illegally exercised the
functions and powers and infringed
the legal rights and interests of the citizen, legal person or
other organization;
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(6)
Other appeals that shall be accepted by the supervisory
department as stipulated in laws or
regulations.
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The
appeals stipulated in the six subparagraph of the proceeding
paragraph shall be settled according
to the procedures
stipulated in laws or regulations.
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Article 7 The following cases of appeal shall be under
the jurisdiction of the municipal supervisory department:
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(1)
Being not satisfied with the decision made by the municipal
supervisory department, department
of the municipal people' s
government or the district people' s government on the
administrative
punishment;
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(2)
Being not satisfied with the supervisory decision made by the
municipal supervisory department
or the supervisory measure
taken by it;
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(3)
Having dissent from the supervisory proposal made by the
municipal supervisory department or
the reply to the supervisory
proposal made by the district supervisory department;
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(4)
Being not satisfied with the decision made by the district
supervisory department on retrial
or reexamination;
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(5)
Considering that the municipal supervisory department or its
working staff has illegally exercised
the functions and powers
and infringed the legal rights and interests of the citizen,
legal person
or other organization;
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(6)
The cases of appeal assigned by the people' s government at the
same level or the superior supervisory
department.
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Article 8 The following cases of appeal shall be under the
jurisdiction of the district supervisory department:
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(1)
Being not satisfied with the decision made by the district
supervisory department, department
of the district people' s
government or the people' s government of town on the
administrative
sanction;
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(2)
Being not satisfied with the supervisory decision made by the
district supervisory department
or the supervisory measure taken
by it;
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(3)
Having dissent from the supervisory proposal made by the
district supervisory department;
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(4)
Considering that the district supervisory department or its
working staff has illegally exercised
the functions and powers
and infringed the legal rights and interests of the citizen,
legal person
or other organization;
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(5)
The cases of appeal assigned by the people' s government at the
same level or the superior supervisory
department.
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Article 9 If there is a dispute about the jurisdiction of
the appeal case, the jurisdiction shall be consulted and
determined by the departments of supervision involved in, or be
designated the jurisdiction by their common
superior supervisory
department.
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Chapter ¢ó
Organization for Settlement of the Appeal Case
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Article 10 The supervisory department shall set up the
committee for settlement of the appeal case, which shall mainly
perform the following functions and duties:
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(1)
To deliberate the hearing report of the appeal case;
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(2)
To put forward the settlement opinion to the appeal case;
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(3)
To direct the settlement work of the appeal cases.
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Article 11 The working division of legal affairs of the
supervisory department (hereinafter referred to as the
settlement division) shall be concretely responsible for the
settlement work of the appeal cases, which shall
mainly perform
the following functions and duties:
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(1)
To examine whether the filing of the appeal accords with the
legal requirements;
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(2)
To investigate, collect evidence, inquiry about the documents
and materials of the case to the
party, relevant unit or person;
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(3)
To hear the appeal case and write the hearing report;
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(4)
To submit the hearing report to the committee for settlement of
appeal cases for deliberation;
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(5)
To draw up the decision on settlement of the appeal case.
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If
there is no working division of legal affairs under the
supervisory department, the hearing department
shall appoint
more than 2 working staff, who are not the original undertaker
of the case, to settle
the appeal case.
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Chapter ¢ô Filing
and Acceptance of the Appeal
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Article 12 The appeal shall be filed by the supervised of
administrative supervision, or the involved citizen, legal
person or other organization (hereinafter referred to as the
appellant), who is given the administrative
sanction, or is not
satisfied with the supervisory decision, the supervisory
measures, or the supervisory
proposal of the supervisory
department, or considers that the supervisory department or its
working
staff has infringed his legal rights and interests by
performing functions and powers
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If
the appellant is dead or loses the capacity of disposition, his
close relative may file the appeal.
If the appellant is the
legal person or other organization, and the legal person or
organization
is revoked or terminated, the legal person or other
organization, that has inherited the rights of the revoked or
terminated legal person or organization, may file the appeal.
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Article 13 If the appellant is not satisfied with the
administrative sanction made by the administrative organization,
he may apply for reexamination to the supervisory department
with the jurisdiction within 30 days from
the date when he
receives the decision on administrative sanction. If he is not
satisfied with
the decision of reexamination yet, he may apply
for review to the superior supervisory department within 30 days
from the date when he receives the decision of reexamination.
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Article 14 If the appellant is not satisfied with the
supervisory decision, he may apply for reexamination to the
supervisory department making the decision within 30 days from
the date when he receives the supervisory
decision. If he is not
satisfied with the decision of reexamination yet, he may apply
for review
to the superior supervisory department within 30 days
from the date when he receives the decision of reexamination.
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Article 15 If the appellant has dissent from the
supervisory proposal, he may appeal to the supervisory
department
making the supervisory proposal and ask for reply
within 30 days from the date when he receives the supervisory
proposal. The supervisory department shall give reply within 30
days from the date of acceptance.
If the appellant has dissent
from the reply yet, he may put forward the dissent within 30
days
from the date when he receives the reply, the supervisory
department making the reply shall report it to the people'
s
government at the same level or the superior supervisory
department for adjudication within 15
days.
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Article 16 If the appellant is not satisfied with the
supervisory measures, he may appeal to the supervisory
department taking the supervisory measures within 15 days from
the date when he receives the written notice of
taking the
supervisory measures. The supervisory department shall give the
reply of maintaining
or suspending enforcing the measures within
7 days from the date when it receives the appeal. If the
appellant is not satisfied with the reply, he may apply for
reexamination or review according to the provisions
of the
Article 14 of these rules.
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Article 17 If the appellant considers that the supervisory
department or the supervisory person has illegally exercised the
functions and powers and infringed the legal rights and
interests of the citizen, legal person
or other organization, he
shall appeal to the supervisory department within 15 days from
the date
when he has found or should have known that his legal
rights and interests have been infringed. The supervisory
department shall give reply within 30 days from the date when it
receives the appeal. If the appellant
is not satisfied with the
reply, he may apply for reexamination or review according to the
provisions
of the Article 14 of these rules.
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Article 18 The filing of appeal shall accord with the
following requirements:
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(1)
Be one of the appealing matters stipulated by the Article 6 of
these rules;
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(2)
Having concrete appealing claim and factual basis;
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(3)
Filing the appeal within the legal time limit;
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(4)
Other requirements stipulated by the laws or regulations.
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Article 19 If the appellant files an appeal, he shall
submit a written appeal to the supervisory department within the
stipulated appealing time-limit, and attaches the original
decision on administrative sanction and the
decision of
reexamination, the original supervisory decision and the
decision of review, the original
supervisory proposal and the
reply, or the original notice of supervision, and relevant
evidence
materials.
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The
written appeal shall include the following contents:
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(1)
The name, sex, age, working unit and the domicile of the
appellant; or the name and address
of the legal person or other
organization, and the name and position of the legal
representative
or the person in charge;
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(2)
The name of the appealed organization;
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(3)
The appealing claim and reason;
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(4)
The date, on which the appeal is filed.
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Article 20 Except the special time limits stipulated in
these rules, the supervisory department shall make the following
treatments separately within 15 days from the date when it
receives the written appeal:
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(1)
The appeal according with the provisions of the Article 18 of
these rules shall be accepted;
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(2)
The appeal case without the jurisdiction of this supervisory
department shall be referred to
the supervisory department or
other relevant government organ or unit with jurisdiction, and
the
appellant shall be informed;
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(3)
The appeal not according with one of the requirements stipulated
by the Article 12 and 18 of
these rules shall not be accepted,
and the reason shall be given to the appellant in writing;
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(4)
The written appeal not clearly including one of the contents
stipulated in the Article 19 of
these rules shall be returned to
the appellant, which shall be completed within a prescribed time
limit.
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Chapter ¢õ Hearing
and Adjudication
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Article 21 The supervisory department shall close the
appeal case within the time limit stipulated as following:
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(1)
The decision of reexamination on the application of
reexamination for being not satisfied with
the decision of
administrative sanction made by a competent administrative
organization shall be
made within 30 days from the date of
acceptance;
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(2)
The decision of reexamination on the application of
reexamination for being not satisfied with
the supervisory
decision shall be made within 30 days from the date of
acceptance;
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(3)
The decision of review on the application of review for being
not satisfied with the decision
on retrial or reexamination
shall be made within 60 days from the date of acceptance;
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(4)
If the appellant has dissent from the supervisory proposal or is
not satisfied with the supervisory
measures, it shall be settled
according to the provisions of the Article 15 and 16 of these
rules.
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Due
to special reason, the time-limit for the supervisory department
to hear the appeal case may
be extended for another 60 days at
the longest, with an approval of the leading official of the
supervisory department at the same level.
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If
an appeal case is not closed within the prescribed time limit,
the supervisory department hearing
the case shall report it to
the people' s government at the same level or the superior
supervisory
department, and give reasons. If there are no fair
reasons, the person directly liable shall be given the
administrative sanction according to the circumstances.
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Article 22 If the appealed organization of the appeal case
is the inferior supervisory department or other administrative
organization, the supervisory department accepting the appeal
shall send a duplicate of the written
appeal to the appealed
organization within 7 days. The appealed organization shall
submit all the
materials or evidences relevant to the appealing
matters and give written explanation and statement to the
supervisory department accepting the appeal within 10 days from
the date when it receives the duplicate
of the written appeal.
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If
the appealed organization fails to give explanation and
statement, the hearing of the appeal
case shall not be affected
therefore.
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Article 23 During the appeal period, the original decision
on administrative sanction made by a competent administrative
organization, the original supervisory decision, decision of
retrial or reexamination, or supervisory
measures of the
supervisory department shall not be suspended the enforcement,
except that one
of the following circumstances appears:
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(1)
The appealed organization considers that it needs to suspend the
enforcement;
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(2)
The supervisory department hearing the appeal considers that it
needs to suspend the enforcement;
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(3)
The appellant applies for the suspension of the enforcement, and
the supervisory department
hearing the appeal considers that the
application is reasonable, and makes decision on suspending the
enforcement;
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(4)
The enforcement shall be suspended according to laws or
regulations.
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Article 24 The appellant may withdraw the appeal before
that the supervisory department makes a settlement decision on
the appeal case. The appeal may also be withdrew, if the
appealed organization changes the original
decision, the
appellant agrees to withdraw the appeal, and the supervisory
department hearing the
appeal agrees and makes a record.
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If
the appellant appeals again within the legal period for the same
facts and reasons after withdrawing
the appeal, the supervisory
department shall accept it. The appeal beyond the legal period
shall
not be accepted.
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Article 25 When the supervisory department hears an appeal
case, it shall consult all the materials relevant to the case,
comprehensively examine the facts of the case, and shall not be
restricted by the claim of the appeal.
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Article 26 When the supervisory department hears an appeal
case, it shall examine the following contents:
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(1)
Whether the facts are clear, and the evidences are authentic and
sufficient;
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(2)
Whether the application of laws, regulations or policies is
correct, or whether the characterization
is correct;
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(3)
Whether the administrative sanction made by the appealed
organization, or the supervisory decision
or the supervisory
measures taken are correct;
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(4)
Whether the legal procedures for case settlement are complied
with;
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(5)
Whether the supervisory department or the supervisory person has
illegally exercised the functions
and powers;
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(6)
Other matters needed to be investigated and ascertained.
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Article 27 The supervisory department may hear the appeal
case by the following means according to the needs:
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(1)
Examining the materials of the case by record;
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(2)
Investigating and certifying directly;
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(3)Requiring
the original deciding organization to investigate and supplement
evidences within a
time limit.
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Article 28 The undertaker of the supervisory department,
who hears the appeal case, shall check and examine the materials
and evidences relevant to the appeal case seriously and make
record.
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If
he believes that it is necessary to investigate and verify after
checking and examining the file,
he shall determine the main
matters needed to be investigated and verified, and draw up the
scheme
of investigation and verification, which shall be
approved by the leading official of the supervisory department.
The investigation and certification shall be carried out
according to the stipulated procedures.
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Article 29 After an appeal case is heard by the
supervisory department, the settlement organization or the
undertaker shall put forward a hearing repot of the appeal case,
which shall be reported to the committee for settlement
of
appeal cases for discussion. The hearing report shall clearly
include the following main contents:
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(1)
The claim and reasons of the appeal;
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(2)
The course that the appealed organization settled the original
case, the facts determined in
the original decision on
administrative sanction or other supervisory decisions, and the
decisions
on retrial or reexamination and their settlement
conclusions, the facts determined in the original supervisory
proposal and its reply, and the proposal matters, and the main
foundations and reasons for taking
the supervisory measures;
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(3)
The examination of the appealed matters, the determined facts,
evidences and characterization
after the examination, and the
provisions of the applied laws, regulations and policies;
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(4)
The opinion of retrial, reexamination or review, as well as the
settlement opinion to the supervisory
proposal or supervisory
measures.
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Article 30 After the hearing, if the original decision on
administrative sanction, supervisory treatment decision,
decision of reexamination or retrial, supervisory measure, or
supervisory proposal or its reply is considered
by the
supervisory department to satisfies the following requirements,
and passed the discussion
of the committee for settlement of
appeal cases and the check of the leading official of the
supervisory
department, it shall be sustained:
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(1)
The facts are clear, and the evidences are authentic and
sufficient;
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(2)
The application of the laws, regulations and policies is
correct, and the characterization is
accurate;
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(3)
Legal competence and procedures are complied with;
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(4)
The settlement is proper.
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Article 31 After the hearing, if the original decision on
administrative sanction, supervisory treatment decision,
decision of reexamination or retrial, or supervisory measure is
considered by the supervisory department
to satisfies the
following requirements, and passed the discussion of the
committee for settlement
of appeal cases and the check of the
leading official of the supervisory department, it shall be
canceled, or the supervisory department shall order the inferior
supervisory department or the competent administrative
organization to cancel it:
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(1)
The determined facts of violation of law or discipline do not
exist;
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(2)
The determined facts are not clear or the determined evidences
are not sufficient;
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(3)
The legal procedures are not complied with, which affected the
fair settlement of the case.
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Article 32 After the hearing, if the original decision on
administrative sanction, supervisory treatment decision,
decision of reexamination or retrial, or supervisory proposal or
its reply is considered by the supervisory
department to
satisfies the following requirements, and passed the discussion
of the committee
for settlement of appeal cases and the check of
the leading official of the supervisory department, the supervisory department may
decide to modify it directly,
or order the inferior supervisory department or the
competent administrative department to modify it:
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(1)
The application of laws, regulations or policies is not proper,
or the characterization is not
accurate;
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(2)
The settlement is obviously not proper, or the reason is not
sufficient.
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Article 33 If the new facts of violating law or
disciplines are found in the hearing of the appeal case, and the
found violation needs to be settled as a separate case, the
settlement organization or the undertaker shall
propose an
opinion, and
provide the
opinion to the committee for settlement of appeal cases. After
the committee for settlement
of appeal cases has approved the
opinion, the found violation shall be referred to the relevant
department or government organization to settle according to
law.
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Article 34 When the supervisory department makes
settlement decision on an appeal case, it shall separately make
a decision document for the settlement of the appeal case, such
as the written decision on retrial, reexamination
or review, the
written reply to the supervisory proposal, or the written reply
to the supervisory
measures according to the character of the
appeal case.
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The
decision documents listed in the proceeding paragraph shall
clearly include the following main
contents:
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(1)
The name, sex, age and working unit of the appellant, the name
of the legal person or other
organization, the name and position
of the legal representative or the person in charge;
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(2)
The name of the appealed organization;
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(3)
The appealing claim and the main reasons;
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(4)
The main facts and reasons determined in the original decision
on administrative sanction, supervisory
decision, decision on
retrial or reexamination, supervisory measures, or the original
supervisory
proposal and its reply, the applied laws,
regulations or policies;
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(5)
The facts and reasons determined by the supervisory department
after hearing of the appeal case,
the applied laws, regulations
or policies;
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(6)
The settlement conclusion;
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(7)
The time limit of applying for review or adjudication, if the
appellant or the appealed organization
is not satisfied with the
settlement decision on the appeal;
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(8)
The date, on which the decision, reply or adjudication is
made.
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The
decision documents of the settlement of the appeal case shall be
stamped by the supervisory
department that made the decision,
reply, or adjudication.
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Article 35 The supervisory department shall service the
decision document of the settlement of the appeal on the
appellant and the appealed organization according to relevant
provisions of the Civil Procedure Law within
7 days from the
date when it makes the settlement decision of the appeal case.
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Article 36 The settlement decision on appeal or the
adjudication to the reply of the supervisory proposal made by
the superior supervisory department of the appealed organization
is the final decision on the appeal case.
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Chapter ¢ö
Supplementary Provisions
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Article 37 If there are other provisions of laws or
regulations on the remedy means and procedures for the
supervised to file an appeal, these provisions shall be
observed.
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Article 38 These
rules shall go into effect as of the date of promulgation. |
