The decision to revise the Administrative Reconsideration Law of the People's Republic of China was adopted by the Standing Committee of the National People's Congress on September 1, 2023. The new Administrative Reconsideration Law will come into force on January 1, 2024.
In order to ensure that administrative authorities exercise their powers in a lawful, procedurally justifiable, efficient, and convenient manner, to prevent and rectify illegal or improper administrative actions, and to protect the legitimate rights and interests of administrative counterparts, a comprehensive revision of the Administrative Reconsideration Law has been carried out.
The revision of the Administrative Reconsideration Law this time emphasizes the implementation of the people-centered development ideology. It further clarifies and optimizes the functions of the government, adapts to the requirements of the rapidly developing era while ensuring fairness and justice, and enhances the efficiency of resolving administrative disputes. The highlights of this revision include:
I. Broader scope of administrative reconsideration cases
1.1 Optimizing the specific scope of administrative reconsideration through positive and negative listing
The revised Article 11 of the Administrative Reconsideration Law has been expanded from the previous eleven items to fifteen items. It explicitly includes all administrative penalties, compulsory administrative measures, compulsory administrative enforcement, administrative licensing, decisions on collection and expropriation and on compensation, administrative compensation, work-related injury determinations, exclusions or restrictions on competition, administrative agreements, and government information disclosure, strengthening the role of administrative reconsideration in resolving administrative disputes.
Article 12, on the other hand, provides a negative list, explicitly stating the following matters that are not within the scope of administrative reconsideration:
(1) Acts of the state in national defense and foreign affairs, among others;
(2) Administrative regulations and rules, or decisions, orders and other normative documents with general binding force made and issued by administrative authorities;
(3) Decisions of administrative authorities on rewards, punishments, appointments, and dismissals of personnel within administrative authorities;
(4) Mediation made for civil disputes by administrative authorities.
1.2 Clarifying and refining the scope of incidental review applications for abstract administrative actions
The new law has revised the previous broad and vague "provisions" regarding incidental review applications to specifically refer to "normative documents." The agencies authorized to make such "normative documents" have been explicitly listed, including departments under the State Council, local people's governments at or above the county level and their respective working departments, people's governments of villages and town, as well as organizations authorized by laws, regulations, and rules.
II. Efficiency and convenience in administrative reconsideration applications
2.1 Removing the restrictions on the administrative actions
In reality, the definition and determination of specific and abstract administrative actions are not very clear to the administrative counterpart. And the excessive discretionary power of the administrative authorities may lead to a ruling of inadmissibility by the administrative authority because the administrative action is not a specific administrative action. Thus the administrative counterpart's reasonable requests cannot be resolved.
Therefore, the revised Administrative Reconsideration Law has expanded the scope of objects for administrative reconsideration applications from "specific administrative actions" to "administrative actions." This change has to some extent broadened the range of objects for which applicants can apply for administrative reconsideration.
2.2 Further clarifying the time limit for accepting administrative reconsideration cases
Article 20 has been added to stipulate that if an administrative authority fails to inform the applicant of the time limit for filing a reconsideration application when issuing an administrative action, the application period shall be counted from the date when the applicant knew or should have known their right to apply for administrative reconsideration, the administrative reconsideration authority, and the application deadline. However, this period shall not exceed one year.
Article 21 also provides specific time limits. For administrative reconsideration cases involving real estate disputes the time limit is twenty years after the administrative action was issued, and for any other administrative reconsideration cases, the time limit is five years after the administrative action was issued. Any application filed after such time limit has expired will not accepted by the administrative reconsideration authority
2.3 Diversifying the methods of submitting written applications for administrative reconsideration
According to Article 22 of the Administrative Reconsideration Law, for written applications for administrative reconsideration, applicants have the option to submit the application documents through mail, internet channels designated by the administrative reconsideration authority, or in person. When delivering administrative action decisions through internet channels, the administrative authority should also provide the internet channel for submitting administrative reconsideration applications. This provision adapts to the efficient and convenient advantages brought about by the development of technology in modern times.
2.4 Expanding scope of mandatory administrative reconsideration prior to litigation
In order to enhance the professionalism and convenience of administrative reconsideration and better resolve administrative disputes, Article 23 of the new law has expanded the scope of mandatory administrative reconsideration prior to litigation. While retaining the mandatory administrative reconsideration prior to litigation for cases related to the confirmation of natural resources rights, it has also added situations such as dissatisfaction with on-site administrative penalty decisions, claims of non-performance of statutory duties by administrative authorities, and applications for disclosure of government information that was denied by administrative authorities.
On the other hand, it has been specified that mandatory administrative reconsideration prior to litigation must be directly prescribed by laws and administrative regulations, excluding the power of local regulations to establish any mandatory administrative reconsideration prior to litigation.
Additionally, the new law emphasizes the obligation of administrative authorities to provide notification. It explicitly states that in cases where mandatory administrative reconsideration prior to litigation is required by law, administrative authorities should inform the administrative counterpart to first apply for administrative reconsideration with the administrative reconsideration authority before taking any administrative action.
III. Facilitating the public in administrative reconsideration acceptance
3.1 Clarifying acceptance criteria for administrative reconsideration
The criteria for accepting administrative reconsideration have been made public to facilitate the exercise of rights by right holders and to ensure that administrative authorities fulfill their responsibilities in a timely manner. Administrative reconsideration authorities should accept cases that meet the following requirements:
(1) where there is a clear applicant and a respondent who meets the requirements stipulated in this law;
(2) where the applicant has a direct interest in the administrative action subject to the administrative reconsideration;
(3) where there is a specific request and basis for the administrative reconsideration;
(4) where the application is submitted within the statutory application period;
(5) where the case falls within the scope of administrative reconsideration as defined by this law;
(6) where the case falls within the jurisdiction of the administrative reconsideration authority; and
(7) where the administrative reconsideration authority has not previously accepted an administrative reconsideration application from the same applicant regarding the same administrative action, and the people's court has not accepted an administrative litigation filed by the same applicant regarding the same administrative action.
3.2 Establishing rectification policy for application materials
For applicants who submit incomplete or unclear application materials, they are allowed to make rectifications within a certain period of time and will be informed about the specific items that need to be rectified.
3.3 Establishing quick application process for simple administrative actions
For simple specific administrative actions, such as on-the-spot penalties or penalty decisions based on evidence recorded by electronic monitoring devices, a more convenient administrative reconsideration application process has been established.
For parties who are dissatisfied with the aforementioned two types of administrative penalty decisions, they can directly submit an administrative reconsideration application to the administrative authority that issued the penalty decision. Upon receiving the administrative reconsideration application, the administrative authority should handle it promptly. If the administrative authority believes that the administrative penalty decision should be upheld, it should transfer the case to the administrative reconsideration authority within five days from the date of receiving the administrative reconsideration application.
3.4 Effectively protecting the legitimate rights and interests of the parties
In order to ensure that administrative authorities fulfill their duties in accordance with the law and to effectively protect the rights of the parties involved, the new law has introduced remedies for situations where the party’s application has been rejected or the party does not receive a response within the administrative reconsideration period after their application has been accepted by the administrative reconsideration authority. Specifically:
According to Article 34 of the new law, for mandatory administrative reconsideration prior to litigation where the administrative reconsideration authority refuses to accept the application, rejects the application, or fails to respond within the administrative reconsideration period, an administrative counterpart can, within fifteen days from the date of receiving the decision or the expiration of the administrative reconsideration period, initiate an administrative lawsuit with the people's court in accordance with the law.
According to Article 35 of the new law, for an administrative reconsideration application filed in accordance with the law, if the administrative reconsideration authority, without justifiable reasons, refuses to accept the application, rejects the application, or fails to respond within the administrative reconsideration period, the applicant has the right to report the matter to the higher-level administrative authority. The higher-level administrative authority should instruct the lower-level authority to rectify the situation. If necessary, the higher-level administrative reconsideration authority may directly handle the case.
The revised Administrative Reconsideration Law includes certain supplements and provisions for the examination and decision-making of administrative reconsideration, making the entire process of administrative reconsideration from application to decision-making more standardized and further clarifying the statutory responsibilities of administrative authorities.
The revision of the Administrative Reconsideration Law prominently emphasizes the overall requirement of being "convenient and beneficial to the people." It provides the general public with more accessible, efficient, and diversified channels for applying for administrative reconsideration. It is also fully harnesses the functional role of the administrative reconsideration law in upholding fairness and justice.
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