知识与资讯
翻译案例
 
行政复议条例
发布时间:2011-8-30 22:06:00||  点击:2072次||  文章分类:翻译案例||  发布人:翻译家(Fanyijia.com)


中华人民共和国行政复议条例

Regulations Governing Reconsideration of Administrative Measures

第一章 总则

Chapter I General Provisions

第一条 为了维护和监督行政机关依法行使职权,防止和纠正违法或者不当的具体行政行为,保护公民、法人和其他组织的合法权益,根据宪法和有关法律,制定本条例。

Article 1. These Regulations are enacted pursuant to the constitution and pertinent laws, with a view to safeguarding and supervising administrative bodies in exercising their functions and powers according to the law; preventing and correcting any malfeasant or improper specific administrative acts; and protecting the lawful rights and interests of citizens, legal persons and other organizations.

第二条 公民、法人或者其他组织认为行政机关的具体行政行为侵犯其合法权益,可以依照本条例向行政机关申请复议。

Article 2. Where citizens, legal persons or other organizations hold that a specific administrative act of an administrative body has infringed upon their lawful rights and interests, they may, in accordance with these Regulations, file an application to the competent administrative body for reconsideration.

第三条 复议机关依法行使职权,不受其他机关、社会团体和个人的非法干预。

Article 3. The administrative body for reconsideration shall exercise its functions and powers according to law and shall not be subject to any illegal interference from other bodies, public organizations and individuals.

第四条 本条例所称复议机关,是指受理复议申请,依法对具体行政行为进行审查并作出裁决的行政机关。

Article 4. The "administrative bodies for reconsideration" , as mentioned in these Regulations, refers to those administrative bodies which accept applications for reconsiderations and shall, according to law, conduct reviews over the specific administrative acts and make a decision.

本条例所称复议机构,是指复议机关内设的负责有关复议工作的机构。

The "reconsideration office" , as mentioned in these Regulations, refers to the offices which are set up within the administrative bodies for reconsideration and are responsible for affairs relating to the reconsideration.

第五条 除法律、行政法规另有规定的外,行政复议实行一级复议制。

Article 5. Except as otherwise stipulated by laws and administrative rules and regulations, the administrative reconsideration shall apply a single-level system of reconsideration.

第六条 行政复议遵循合法、及时、准确和便民的原则。

Article 6. The administrative reconsideration shall follow the principle of being lawful, timely, accurate and convenient for the people.

第七条 复议机关依法对具体行政行为是否合法和适当进行审查。

Article 7. The administrative body for reconsideration shall, according to the law, conduct a review over the legality and appropriateness of a specific administrative act.

第八条 复议机关审理复议案件,不适用调解。

Article 8. The administrative body for reconsideration shall not apply conciliation in handling reconsideration cases.

第二章 申请复议范围

Chapter II. The Scope of Application for Reconsideration

第九条 公民、法人和其他组织对下列具体行政行为不服可以向行政机关申请复议:

Article 9. Citizens, legal persons and other organizations may file an application to the administrative bodies for reconsideration if they refuse to accept any of the following specific administrative acts:

(一)对拘留、罚款、吊销许可证和执照、责令停产停业、没收财物等行政处罚不服的;

(1) an administrative sanction, such as detention, fine, rescission of a permit or a licence, order to suspend production or business operations or confiscation of property and article, which one refuses to accept;

(二)对限制人身自由或者对财产的查封、扣押、冻结等行政强制措施不服的;

(2) a compulsory administrative measure, such as restriction of personal freedom or the sealing up, distraint or freezing of property, which one refuses to accept;

(三)认为行政机关侵犯法律、法规规定的经营自主权的;

(3) infringement upon one's managerial decision making power as stipulated by laws and regulations, which is held to have been perpetrated by an administrative body;

(四)认为符合法定条件申请行政机关颁发许可证和执照,行政机关拒绝颁发或者不予答复的;

(4) refusal by an administrative body to issue a permit or licence, which one holds oneself legally qualified to apply for, or its failure to respond to the application;

(五)申请行政机关履行保护人身权、财产权的法定职责,行政机关拒绝履行或者不予答复的;

(5) refusal by an administrative body to perform its statutory functions and duties of protecting one's personal rights and property rights, as one has applied for, or its failure to respond to the application;

(六)认为行政机关没有依法发给抚恤金的;

(6) cases where an administrative body is held to have failed to pay the pensions for the disabled or for the family of the deceased according to law;

(七)认为行政机关违法要求履行义务的;

(7) cases where an administrative body is held to have illegally demanded the performance of duties;

(八)认为行政机关侵犯其他人身权、财产权的;

(8) cases where an administrative body is held to have infringed upon other personal rights and property rights;

(九)法律、法规规定可以提起行政诉讼或者可以申请复议的其他具体行政行为。

(9) other specific administrative acts against which, according to laws and regulations, an administrative lawsuit or an application for reconsideration may be instituted.

第十条 公民、法人和其他组织对下列事项不服,不能依照本条例申请复议:

Article 10. Citizens, legal persons or other organizations shall not file an application for reconsideration in accordance with these Regulations if they are not satisfied with any one of the following matters:

(一)对行政法规、规章或者具有普遍约束力的决定、命令不服的;

(1) administrative regulations, rules, or decisions and orders with a general binding force;

(二)对行政机关工作人员的奖惩、任免等决定不服的;

(2) decisions on awards or punishments or on the appointment of or removal from a position with respect to personnel working in administrative bodies;

(三)对民事纠纷的仲裁、调解或者处理不服的;

(3) arbitration or conciliation or disposition of civil disputes, with the exception however, of the decision of an administrative bodies dealing with ownership over or the right to use land, mineral, forest and other resources;

(四)对国防、外交等国家行为不服的。

(4) acts of the state in areas such as national defense and foreign affairs.

第三章 复议管辖

Chapter III. Jurisdiction for Reconsideration

第十一条 对县级以上的地方各级人民政府工作部门的具体行政行为不服申请的复议,由上一级主管部门管辖。但有下列情形之一的,由本级人民政府管辖:

Article 11. If a specific administrative act has been undertaken by the working department of a local people's government at or above the county level and an application is filed for reconsideration, the case shall be under the jurisdiction of the people's government at the same level or the competent department at a higher level.

(一)上一级没有相应主管部门的;

 Where laws or regulations require that it be placed under the jurisdiction of the people's government at the same level, those laws or regulations shall be followed;

(二)法律、法规规定由人民政府管辖的。

where laws require that it be placed under the jurisdiction of the competent department at a higher level, those laws shall be followed.

对国务院各部门的具体行政行为不服申请的复议,由作出具体行政行为的部门管辖。

If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by any of the departments under the State Council, the case shall be under the jurisdiction of the department which has undertaken the said specific administrative act.

第十二条 对地方各级人民政府的具体行政行为不服申请的复议,由上一级人民政府管辖。

Article 12. If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by any of the local people's governments at various levels, the case shall be under the jurisdiction of the people's government at a higher level.

对省、自治区、直辖市人民政府的具体行政行为不服申请的复议,由作出具体行政行为的省、自治区、直辖市人民政府管辖。

If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by the people's government of a province, an autonomous region or a municipality directly under the central government, the case shall be under the jurisdiction of the people's government which has undertaken the aforesaid specific administrative act.

第十三条 对两个或者两个以上行政机关以共同的名义作出的具体行政行为不服申请的复议,由它们的共同上一级行政机关管辖。

Article 13. If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken jointly by two or more administrative bodies, the case shall be under the jurisdiction of an administrative body at the next higher level over the aforesaid two or more administrative bodies.

第十四条 对县级以上的地方人民政府的派出机关的具体行政行为不服申请的复议,由设立该派出机关的人民政府管辖。

Article 14. If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an agency of a local people's government at or above the county level, the case shall be under the jurisdiction of the local people's government which has established the agency.

对人民政府的工作部门设立的派出机构根据法律、法规和规章规定以自己的名义作出的具体行政行为不服申请的复议,由设立该派出机构的部门管辖。

If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an agency which is established by a working department of the people's government in its own name according to the provisions of the laws, regulations and rules, the case shall be under the jurisdiction of the department that established the said agency.

第十五条 对法律、法规和规章授权的组织作出的具体行政行为不服申请的复议,由直接主管该组织的行政机关管辖。

Article 15. If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an organization authorized by the laws, regulations and rules, the case shall be under the jurisdiction of the competent administrative body immediately over the said organization.

对受委托的组织作出的具体行政行为不服申请的复议,由委托的行政机关的上一级行政机关管辖。

In cases that an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an entrusted organization, the case shall be under the jurisdiction of an administrative body at the next higher level over the commissioning administrative body.

第十六条 对法律、法规规定需要上级批准的具体行政行为不服申请的复议,由最终批准的行政机关管辖。法律、法规另有规定的除外。

Article 16. If an application for reconsideration is filed by a person who does not accept a specific administrative act which, according to the provisions of the laws, is subject to the approval of an administrative body at a higher level, the case shall be under the jurisdiction of the administrative body that makes the final decision unless otherwise provided for by the laws and regulations.

第十七条 对被撤销的行政机关在其被撤销前作出的具体行政行为不服申请的复议,由继续行使其职权的行政机关的上一级行政机关管辖。

Article 17. If an application for reconsideration is filed by a person who does not accept a specific administrative act undertaken by an administrative body prior to its abolition, the case shall be under the jurisdiction of the administrative body at the next higher level over the administrative body which has succeeded to the functions and powers of the abolished administrative body.

第十八条 复议机关发现受理的案件不属于自己管辖,应当移送有管辖权的复议机关。受移送的复议机关不得再自行移送。

Article 18. Where an administrative body for reconsideration finds that a case it has accepted is not under its jurisdiction, it shall transfer the case to an administrative body that has jurisdiction over the case. The administrative body, to which the aforesaid case has been transferred, shall not transfer the case again on its own initiative.

第十九条 行政机关因复议管辖发生争议,争议双方应当协商解决。协商不成的,由它们的共同上一级行政机关指定管辖。

Article 19. Where a dispute arises between administrative bodies over jurisdiction for reconsideration, the dispute shall be resolved by the parties to the dispute through consultation. If consultation fails, the administrative body immediately over the two parties shall designate jurisdiction.

第二十条 申请人向两个或者两个以上有管辖权的行政机关申请复议的,由最先收到复议申请书的行政机关管辖。

Article 20. Where a person applies for reconsideration to two or more administrative bodies that have jurisdiction, the case shall be under the jurisdiction of the administrative body that has first received the application for reconsideration.

第二十一条 公民、法人或者其他组织在法定申请复议期限内向信访部门申诉的,信访部门应当及时告知申诉人向有复议管辖权的行政机关申请复议。

Article 21. Where citizens, legal persons and other organizations make a complaint to the correspondence and reception department within the time limit stipulated by law for filing an application for reconsideration, the correspondence and reception department shall notify the complainant in a timely manner to file an application for reconsideration to the administrative body that has jurisdiction for reconsideration.

第二十二条 其他复议管辖,依照法律、法规和规章的规定。

Article 22. Other cases involving jurisdiction for reconsideration shall be handled according to the provisions of the laws, regulations and rules.

第四章 复议机构

Chapter IV. The Reconsideration Office

第二十三条 复议机关应当根据工作需要,确立本机关的复议机构或者专职复议人员。

Article 23. The administrative body for reconsideration shall, in light of its work needs, establish the reconsideration office, or appoint full-time personnel that handle reconsideration cases, for the body itself.

第二十四条 县级以上的地方各级人民政府的复议机构,应当设在政府法制工作机构内或者与政府法制工作机构合署办公。

Article 24. Reconsideration offices of various local people's governments at or above the county level shall be established within the government's office of legislative affairs, or the government's office of legislative affairs will work in the name of the reconsideration office.

第二十五条 复议机构或者专职复议人员在复议机关的领导下工作,履行下列职责:

Article 25. The reconsideration office, or the full-time personnel that handle reconsideration cases, shall work under the leadership of the administrative body for reconsideration and carry out the following functions and duties:

(一)审查复议申请是否符合法定条件;

(1) to review whether reconsideration applications are in conformity with the statutory requirements;

(二)向争议双方、有关单位及有关人员调查取证、查阅文件和资料;

(2) to conduct investigations among, and collect evidence from, both parties to a dispute and relevant units and personnel and to consult relevant documents and materials:

(三)组织审理复议案件;

(3) to organize the handling of reconsideration cases;

(四)拟订复议决定;

(4) to draft reconsideration decisions;

(五)受复议机关法定代表人的委托出庭应诉;

(5) to respond to litigation in court, as entrusted by the legal representative of the administrative body for reconsideration;

(六)法律、法规规定的其他职责。

(6) to carry out other functions and duties stipulated by the laws and regulations.

第五章 复议参加人

Chapter V. Participants in Reconsideration

第二十六条 依照本条例申请复议的公民、法人或者其他组织,是申请人。

Article 26. Citizens, legal persons or other organizations that file an application for reconsideration pursuant to these regulations are applicants.

有权申请复议的公民死亡的,其近亲属可以申请复议;有权申请复议的公民为无行为能力或者限制行为能力的,其法定代理人可以代为申请复议。

Where a citizen who has the right to apply for reconsideration is deceased, his/her nearest relatives may apply for reconsideration; where a citizen who has the right to apply for reconsideration is incompetent or has limited capacities, his/her legal representative may apply for reconsideration on his/her behalf.

有权申请复议的法人或者其他组织终止的,承受其权利的法人或者其他组织可以申请复议。

Where a legal person or any other organization that has the right to apply for reconsideration becomes terminated, the legal person or any other organization that succeeds to its rights may apply for reconsideration.

第二十七条 同申请复议的具体行政行为有利害关系的其他公民、法人或者其他组织,经复议机关批准,可以作为第三人申请参加复议。

Article 27. Where any other citizen, legal person or organization has an interest in a specific administrative act, for the reconsideration of which an application has already been filed, he/she or it may, with the approval of the administrative body for reconsideration, file a request for participation in the reconsideration as a third party.

第二十八条 公民、法人或者其他组织对行政机关的具体行政行为不服申请复议的,该行政机关是被申请人。

Article 28. Where a citizen, legal person or organization applies for reconsideration against a specific administrative act undertaken by an administrative body, the said administrative body is the defending party of the application.

两个或者两个以上行政机关以共同名义作出具体行政行为的,共同作出具体行政行为的行政机关是共同被申请人。

Where two or more administrative bodies have undertaken a specific administrative act in their combined name, the administrative bodies which have jointly undertaken the specific administrative act are the joint defending parties of an application.

法律、法规和规章授权的组织作出具体行政行为的,该组织是被申请人。

Where a specific administrative act is undertaken by an organization authorized by the laws, regulations and rules, the said organization is the defending party of an application.

行政机关委托的组织作出具体行政行为的,委托的行政机关是被申请人。

Where a specific administrative act is undertaken by an organization entrusted by an administrative body, the said commissioning administrative body is the defending party of an application.

作出具体行政行为的机关被撤销的,继续行使其职权的行政机关是被申请人。

Where a specific administrative act has been undertaken by an body which has already been abolished, the administrative body that continues to exercise the abolished body 's functions and powers is the defending party of an application.

第六章 申请与受理

Chapter VI. Application and Acceptance

第二十九条 公民、法人或者其他组织向有管辖权的行政机关申请复议,应当在知道具体行政行为之日起十五日内提出,法律、法规另有规定的除外。

Article 29. Where a citizen, a legal person or any other organization files an application for reconsideration with the administrative body that has jurisdiction over the case, he/she or it shall do so within 15 days from the day when he/she or it becomes aware of the specific administrative act, except as otherwise stipulated by the laws and regulations.

因不可抗力或者其他特殊情况耽误法定申请期限的,在障碍消除后的十日内,可以申请延长期限,是否准许,由有管辖权的行政机关决定。

Where a citizen, a legal person or any other organization fails to observe the time limit prescribed by law due to force majeure or other special circumstances, he/she or it may, within 10 days after the obstacle is removed, apply for an extension of the time limit: the administrative body that has jurisdiction shall decide whether to approve the aforesaid application or not.

第三十条 公民、法人或者其他组织向人民法院起诉,人民法院已经受理的,不得申请复议。

Article 30. Where a citizen, a legal person or any other organization brings a suit before the people's court and the people's court has accepted the case, then he/she or it may not apply for reconsideration.

公民、法人或者其他组织向复议机关申请复议,复议机关已经受理的,在法定复议期限内不得向人民法院起诉。

Where a citizen, a legal person or any other organization applies for reconsideration to an administrative body and the administrative body for reconsideration has accepted the application, then the applicant may not bring a suit before the people's court within the statutory time limit for conducting reconsideration.

第三十一条 申请复议应当符合下列条件:

Article 31. The following requirements shall be met when an application is made for reconsideration:

(一)申请人是认为具体行政行为直接侵犯其合法权益的公民、法人或者其他组织;

(1) the applicant shall be a citizen, a legal person, or any other organization that holds that a specific administrative act has directly infringed upon his/her or its lawful rights and interests;

(二)有明确的被申请人;

(2) there must be a specific defending party or parties of an applications;

(三)有具体的复议请求和事实根据;

(3) there must be a specific claim for reconsideration and a corresponding factual basis;

(四)属于申请复议范围;

(4) the case must fall within the scope for application for reconsideration;

(五)属于受理复议机关管辖;

(5) the case must fall under the jurisdiction of the administrative body that accepts the said case; and

(六)法律、法规规定的其他条件。

(6) other requirements stipulated by the laws and regulations.

第三十二条 申请人向行政机关申请复议应当递交复议申请书。

Article 32. An applicant, while applying to an administrative body for reconsideration, shall submit a written application for reconsideration.

第三十三条 复议申请书应当载明下列内容:

Article 33. The written application shall contain the following contents:

(一)申请人的姓名、性别、年龄、职业、住址等(法人或者其他组织的名称、地址、法定代表人的姓名);

(1) the name, sex, age, occupation and address of the applicant (the name and address of the legal person or any other organization and the name of its legal representative);

(二)被申请人的名称、地址;

(2) the name and address of the defending party of the application for reconsideration;

(三)申请复议的要求和理由;

(3) the claim and reasons for applying for reconsideration;

(四)提出复议申请的日期。

(4) the date of filing the application for reconsideration.

第三十四条 复议机关应当自收到复议申请书之日起十日内,对复议申请分别作出以下处理:

Article 34. The administrative body for reconsideration shall, within 10 days from the date of receiving the written application for reconsideration, handle the reconsideration applications respectively as follows:

(一)复议申请符合本条例规定的,应予受理;

(1) reconsideration applications that are in conformity with the provisions of these Regulations shall be accepted;

(二)复议申请不符合本条例第三十一条规定之一的,裁决不予受理并告之理由;

(2) applications for reconsideration that are not in conformity with one of the provisions in Article 31 of these Regulations shall not be accepted and the applicant shall be notified of the reasons for this decision;

(三)复议申请书未载明本条例第三十三条规定内容之一的,应当把复议申请书发还申请人,限期补正。过期不补正的,视为未申请。

(3) where a written reconsideration application fails to include one item of the contents as prescribed in the provisions of Article 33 of these Regulations, the written application shall be returned to the applicant and a time limit for making up the said contents shall be set. If the applicant fails to fulfil this, the above-mentioned application shall be considered to have not been made.

第三十五条 公民、法人或者其他组织依法提出复议申请,复议机关无正当理由拒绝受理或者不予答复的,上一级行政机关或者法律、法规规定的行政机关应当责令其受理或者答复。

Article 35. Where a citizen, a legal person, or any other organization has filed an application for reconsideration according to the law, but the administrative body for reconsideration refuses, without any justification, to accept the application or fails to respond, the administrative body at the next higher level, or the administrative body prescribed by the laws and regulations, shall instruct the said administrative body for reconsideration to accept the said application or to respond.

第三十六条 法律、法规规定应当先向行政机关申请复议,对复议不服再向人民法院提起诉讼的,申请人对复议机关不予受理的裁决不服,可以在收到不予受理裁决书之日起十五日内,向人民法院起诉。法律、法规另有规定的除外。

Article 36. Except as otherwise provided by the laws and regulations, in circumstances where, in accordance with the provisions of pertinent laws and regulations, a person concerned shall first apply to an administrative body for reconsideration and then bring a suit before a people's court if the person concerned does not accept the reconsideration decision, if the applicant does not accept the decision made by the administrative body for reconsideration to reject the application, the applicant may, within 15 days from the date of receiving the written decision on rejection of the application, bring a suit before the people's court.

第七章 审理与决定

Chapter VII. Hearing and Decision

第三十七条 行政复议实行书面复议制度,但复议机关认为有必要时,可以采取其他方式审理复议案件。

Article 37. Administrative reconsideration shall be conducted by applying the system of reconsideration by written documents; however, when the administrative body for reconsideration deems it necessary, other forms for hearing of reconsideration cases may be adopted.

第三十八条 复议机关应当在受理之日起七日内将复议申请书副本发送被申请人。被申请人应当在收到复议申请书副本之日起十日内,向复议机关提交作出具体行政行为的有关材料或者证据,并提出答辩书。逾期不答辩的,不影响复议。

Article 38. The administrative body for reconsideration shall, within 7 days from the day of filing the case, deliver a copy of the written application for reconsideration to the defending party of the said application. The defending party of the application shall, within 10 days from the day of receiving the copy of the written application for reconsideration, provide the administrative body for reconsideration with the relevant materials or evidence for undertaking the specific administrative act and submit a written defense. Failure by the defending party to submit a written defense within the time limit shall not stop the procedures of reconsideration.

第三十九条 复议期间具体行政行为不停止执行。但有下列情形之一的,可以停止执行:

Article 39. In the course of hearing a reconsideration case, execution of the specific administrative act shall not be suspended. However, under one of the following circumstances, the execution of the specific administrative act may be suspended:

(一)被申请人认为需要停止执行的;

(1) where suspension is deemed necessary by the defending party;

(二)复议机关认为需要停止执行的;

(2) where suspension is deemed necessary by the administrative body for reconsideration;

(三)申请人申请停止执行,复议机关认为其要求合理,裁决停止执行的;

(3) where suspension of execution is requested by the applicant and the administrative body for reconsideration deems it reasonable and makes the decision on the suspension of the execution;

(四)法律、法规和规章规定停止执行的。

(4) where suspension is required by the provisions of the laws, regulations and rules.

第四十条 复议决定作出以前,申请人撤回复议申请,或者被申请人改变所作的具体行政行为,申请人同意并申请撤回复议申请的,经复议机关同意并记录在案,可以撤回。

Article 40. Prior to the making of a reconsideration decision, if the applicant withdraws the application for reconsideration, or the defending party of the application has changed the specific administrative act it has undertaken, and the applicant agrees and applies for the withdrawal of the application for reconsideration, the application may be withdrawn with the approval of the administrative body for reconsideration and after the reconsideration case is recorded on file.

申请人撤回复议申请,不得以同一的事实和理由再申请复议。

Where an applicant has withdrawn his application for reconsideration, he may not apply for reconsideration again for the same facts and reasons.

第四十一条 复议机关审理复议案件,以法律、行政法规、地方性法规、规章,以及上级行政机关依法制定和发布的具有普遍约束力的决定、命令为依据。

Article 41. In handling reconsideration cases, the administrative body for reconsideration shall base itself on the laws, administrative rules and regulations, local regulations and rules as well as the decisions and orders with a general binding force formulated and promulgated by administrative bodies at higher levels according to the law.

复议机关审理民族自治地方的复议案件,并以该民族自治地方的自治条例、单行条例为依据。

In handling reconsideration cases of the nationality autonomous regions, the administrative body for reconsideration shall also base itself on the regulations on autonomy and separate regulations of the nationality autonomous regions.

第四十二条 复议机关经过审理,分别作出以下复议决定:

Article 42. The administrative body for reconsideration shall, after the hearing, respectively make the following reconsideration decisions:

(一)具体行政行为适用法律、法规、规章和具有普遍约束力的决定、命令正确,事实清楚,符合法定权限和程序的,决定维持;

(1) if the application of the laws, regulations and rules as well as the decisions and orders with a general binding force to the specific administrative act is correct, the facts are clearly ascertained and the statutory limits of authority and procedures are complied with, the specific administrative act shall be sustained by decision;

(二)具体行政行为有程序上不足的,决定被申请人补正;

(2) if there are some inadequacies in the specific administrative act in terms of procedure, a decision shall be made for the defending party of an application for reconsideration to make them up and improve them;

(三)被申请人不履行法律、法规和规章规定的职责的,决定其在一定期限内履行;

(3) if the defending party of an application for reconsideration fails to perform its duty as prescribed by laws, regulations and rules, a fixed time shall be set for the defending party to perform the duty;

(四)具体行政行为有下列情形之一的,决定撤销、变更,并可以责令被申请人重新作出具体行政行为:

(4) if a specific administrative act has been undertaken in one of the following circumstances, the act shall be annulled or changed, or the defending party may be required by decision to undertake a specific administrative act anew:

1.主要事实不清的;

(a) ambiguity of the main facts;

2.适用法律、法规、规章和具有普遍约束力的决定、命令错误的;

(b) erroneous application of the laws, regulations and rules and of decisions and orders with a general binding force;

3.违反法定程序影响申请人合法权益的;

(c) violation of legal procedures that affects unfavorably the lawful rights and interests of the applicant;

4.超越或者滥用职权的;

(d) excess of authority or abuse of powers;

5.具体行政行为明显不当的。

(e) obvious inappropriateness of the specific administrative act.

第四十三条 复议机关审查具体行政行为时,发现具体行政行为所依据的规章或者具有普遍约束力的决定、命令与法律、法规或者其他规章和具有普遍约束力的决定、命令相抵触的,在其职权范围内依法予以撤销或者改变。

Article 43. Where, in the course of reviewing a specific administrative act, an administrative body for reconsideration finds that the rules, or decisions and orders with a general binding force, which serve as the basis for a specific administrative act, are in conflict with the laws and regulations or other rules, decisions or orders with a general binding force, the competent administrative body for reconsideration shall, within its scope of functions and powers, decide on their nullification or change according to law.

复议机关认为具体行政行为所依据的规章或者具有普遍约束力的决定、命令与法律、法规或者其他规章和具有普遍约束力的决定、命令相抵触,而复议机关又无权处理的,向其上级行政机关报告。

Where the administrative body for reconsideration deems that the rules or decisions and orders with a general binding force, which serve as the basis for a specific administrative act, are in conflict with the laws and regulations, or other rules, decisions and orders with a general binding force, but the administrative body for reconsideration has no power to handle the case, then it shall be reported to the administrative body at a higher level.

上级行政机关有权处理的,依法予以处理;上级行政机关无权处理的,提请有权机关依法处理。处理期间,复议机关停止对本案的审理。

The administrative body at a higher level that has the power to handle the case, shall handle it according to the law; if the administrative body at a higher level does not have the power to handle the case, it shall be submitted to an body that has the power to handle it. In the course of handling the case, the administrative body for reconsideration shall cease its hearing of the said case.

第四十四条 被申请人作出的具体行政行为侵犯申请人的合法权益造成损害,申请人请求赔偿的,复议机关可以责令被申请人按照有关法律、法规的规定负责赔偿。

Article 44. Where a specific administrative act, undertaken by the defending party of an application for reconsideration, infringes upon the lawful rights and interests of the applicant and causes damage and the applicant claims compensation, the administrative body for reconsideration may instruct the defending party of an application for reconsideration to make compensation in accordance with the provisions of the pertinent laws and regulations.

被申请人赔偿损失后,应当责令有故意或者重大过失的行政机关工作人员承担部分或者全部赔偿费用。

After making the compensation, the defending party shall instruct working personnel of the administrative body, who have committed intentional or gross mistakes in the case, to bear part or all of the damages.

第四十五条 复议机关作出复议决定,应当制作复议决定书。

Article 45. While making its reconsideration decision, the administrative body for reconsideration shall prepare a written reconsideration decision.

复议决定书应当载明下列事项:

The written reconsideration decision shall indicate the following items:

(一)申请人的姓名、性别、年龄、职业、住址(法人或者其他组织的名称、地址、法定代表人的姓名);

(1) the name, sex, age, occupation and address of the applicant (the name and address of the legal person or of any other organization and the name of its legal representative);

(二)被申请人的名称、地址,法定代表人的姓名、职务;

(2) the name and address of the defending party of an application, the name and position of its legal representative;

(三)申请复议的主要请求和理由;

(3) the main claims and reasons for the application for reconsideration:

(四)复议机关认定的事实、理由,适用的法律、法规、规章和具有普遍约束力的决定、命令;

(4) the facts and reasons, as established by the administrative body for reconsideration; and the laws, regulations and rules as well as the decisions and orders with general binding force applied;

(五)复议结论;

(5) the conclusion of the reconsideration;

(六)不服复议决定向人民法院起诉的期限,或者终局的复议决定,当事人履行的期限;

(6) the time limit for bringing a suit before the people's court if the applicant does not accept the reconsideration decision; or the time limit for the parties to execute the final decision on the reconsideration case;

(七)作出复议决定的年、月、日。

(7) the date (year, month, day) on which the reconsideration decision is made.

复议决定书由复议机关的法定代表人署名,加盖复议机关的印章。

The written decision on the reconsideration case shall be signed by the legal representative of the administrative body for reconsideration, with the official seal of the administrative body for reconsideration affixed to it.

第四十六条 复议机关应当在收到复议申请书之日起两个月内作出决定。法律、法规另有规定的除外。

Article 46. The administrative body for reconsideration shall, within two months after the day of receiving the reconsideration application, make its reconsideration decision, except as otherwise provided for in the laws and regulations.

复议决定一经送达即发生法律效力。

Once the written reconsideration decision is served on the parties concerned, it shall become legally effective.

第四十七条 除法律规定终局的复议外,申请人对复议决定不服的,可以在收到复议决定书之日起十五日内,或者法律、法规规定的其他期限内向人民法院起诉。

Article 47. With the exception that the reconsideration is final as provided for by law, an applicant who does not accept a reconsideration decision may, within 15 days from the day of receiving the written decision, or within other time limits as prescribed by laws and regulations, bring a suit before the people's court.

对申请人逾期不起诉又不履行复议决定的,分别情况处理:

Where an applicant neither initiates a suit nor implements the reconsideration decision within the time limit, the case shall be dealt with according to different conditions:

(一)维持原具体行政行为的复议决定,由最初作出具体行政行为的行政机关申请人民法院强制执行,或者依法强制执行;

(1) With respect to a reconsideration decision sustaining the original specific administrative act, the administrative body, which has originally undertaken the specific administrative act, shall apply to the people's court for compulsory execution, or proceed with compulsory execution according to the law;

(二)改变原具体行政行为的复议决定,由复议机关申请人民法院强制执行,或者依法强制执行。

(2) with respect to a reconsideration decision changing the original specific administrative act, the administrative body for reconsideration shall apply to the people's court for compulsory execution, or proceed with compulsory execution according to the law.

第八章 期间与送达

Chapter VIII. Time Periods and Service

第四十八条 期间以时、日、月计算。期间开始的时和日,不计算在期间内。

Article 48. Time periods shall be counted by the hour, day and month. The hour and the day from which a time period begins shall not be counted as within the time period.

期间届满的最后一日是节假日的,以节假日后的第一日为期间届满的日期。

If the expiration date of a time period falls on a holiday, then the day immediately following the holiday shall be regarded as the expiration date.

期间不包括在途时间。

A time period shall not include traveling time.

第四十九条 送达复议决定书必须有送达回证,由受送达人在送达回证上记明收到日期,签名或者盖章。

Article 49. The service of a written reconsideration decision must be certified by a certificate of service, on which the date of receipt shall be indicated by the recipient of the service and his signature or seal shall be affixed.

受送达人在送达回证上的签收日期为送达日期。

The date of receipt indicated on the certificate of service by the recipient, shall be the date of service .

邮寄送达,以挂号回执上注明的收件日期为送达日期。

With respect to service by mail, the date indicated on the receipt of registered mail shall be the date of service.

第五十条 复议机关送达复议决定书,应当直接送交受送达人;

Article 50. When a written reconsideration decision is served by the administrative body for reconsideration, it shall be delivered directly to the recipient of the service;

本人不在的,交其同住的成年家属或者所在单位签收;

if the recipient is absent, it shall be delivered to an adult family member living with him/her, or to the unit to which he/she belongs, for a signed receipt;

本人已向复议机关指定代收人的,交代收人签收;

if the person has designated an agent to receive it for him, then the written decision shall be delivered to the agent for a signed receipt ;

受送达人是法人或者其他组织的,交其收发部门签收。

if the person is a legal person or other organization, the written decision shall be delivered to its reception office for a signed receipt.

受送达人拒绝接受复议决定书的,送达人应当邀请有关人员到场,说明情况,在送达回证上记明拒收事由和日期,由送达人、见证人签名或者盖章,把复议决定书留在受送达人的住处或者收发部门,即视为送达。

If the recipient of the service refuses to receive the written reconsideration decision, the person serving the decision shall invite persons concerned to be present at the scene, explain the situation to them, record in the certificate of service the reasons for and the date of the refusal and the certificate of service shall be signed or sealed by the person serving the decision and the witnesses; then the written decision shall be left at the residence or at the reception office and the service shall be deemed as completed.

第五十一条 复议机关送达复议决定书,可以委托其他行政机关代为送达,或者邮寄送达。

Article 51. The administrative body for reconsideration may entrust other administrative bodies with the service of a reconsideration decision or serving the service by mail.

第九章 法律责任

Chapter IX. Legal Responsibility

第五十二条 被申请人拒绝履行复议决定的,复议机关可以直接或者建议有关部门对其法定代表人给予行政处分。

Article 52. If the defending party of an application for reconsideration refuses to implement a reconsideration decision, the administrative body for reconsideration may directly impose administrative sanctions on the legal representative of the defending party, or suggest the department concerned do so.

第五十三条 复议人员失职、徇私舞弊的,复议机关或者有关部门应当批评教育或者给予行政处分,情节严重、构成犯罪的,依法追究其刑事责任。

Article 53. If the personnel handling reconsideration cases have neglected their duties or bent the law for their own benefit, the administrative body for reconsideration, or other competent departments concerned, shall criticize and admonish them, or impose administrative sanctions on them; if the case is serious enough to constitute a crime, criminal responsibilities shall be investigated according to the law.

第五十四条 复议参加人或者其他人拒绝、阻碍复议人员依法执行职务未使用暴力、威胁方法的,由公安机关依照《中华人民共和国治安管理处罚条例》第十九条的规定,处十五日以下拘留、二百元以下罚款或者警告。

Article 54. If participants in a reconsideration case, or other persons concerned, refuse or hamper, without resorting to violence or threats, the personnel handling reconsideration cases from executing their duties according to the law, the bodies of public security shall, in accordance with the provisions of Article 19 in the Regulations of the People's Republic of China on Administrative Penalties for Public Security, impose on the aforesaid persons detention for not more than 15 days, or a fine of 200 yuan (RMB) or less, or a warning.

以暴力、威胁方法阻碍复议人员依法执行职务的,依法追究其刑事责任。

With respect to those who have resorted to violence or threat to hamper the personnel handling reconsideration cases from executing their duties, their criminal responsibilities shall be investigated according to the law.

第十章 附则

Chapter X. Supplementary Provisions

第五十五条 外国人、无国籍人、外国组织在中华人民共和国进行行政复议,适用本条例。法律、法规另有规定的除外。

Article 55. These Regulations shall apply to the resorting to administrative reconsideration by foreigners, stateless persons or foreign organizations engaged in administrative reconsideration in the People's Republic of China, except as otherwise provided for by laws and regulations.

第五十六条 本条例由国务院法制局解释。

Article 56. The Bureau of Legislative Affairs of the State Council shall be responsible for the interpretation of these Regulations.

第五十七条 本条例自1991年1月1日起施行。

Article 57. These Regulations shall become effective on 1st January 1991.




  更多文章