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15 July 2015

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Hunan Provincial Administrative Procedure Provisions

Decree No. 222 of the People's Government of Hunan Province

 

Hunan Provincial Administrative Procedure Provsions are adopted on April 9, 2008 at the 4th Executive Meeting of the Hunan Provincial People's Government and are hereby promulgated and shall come into force as of October 1, 2008.

 

Zhou Qiang, Governor 

April 17, 2008

 

Article 1. For the purposes of regulating administrative procedures, ensuring the exercise of administrative power by administrative organs in a lawful, fair, and highly efficient way, safeguarding the lawful rights and interests of citizens, legal persons and other organizations, promoting administration in accordance with the law, and constructing a rule of law government, these Provisions are formulated in accordance with the Constitution and relevant laws and regulations, and in line with the actual situation of Hunan Province.

 

Article 2. These Provisions shall apply to administrative organs, organizations authorized by the law or regulations, organizations entrusted with certain authority in accordance with the law in Hunan Province when carrying out administrative functions.When laws and regulations have provided otherwise concerning administrative procedures, the provisions of such laws and regulations shall apply.

 

Article 3. Administrative actions of administrative organs shall be taken in accordance with the provisions of the law, regulations and rules and within the legal scope of authority and comply with the administrative procedures stipulated by law.

 

Article 4. Administrative organs should treat citizens, legal persons and other organizations equally and may not discriminate against any of them.The exercise of discretionary power by administrative organs should conform with their legislated purposes and principles. The measures taken should be necessary and appropriate. When implementing administrative management, if administrative organs have the option of using different ways to achieve their administrative purposes, they should choose those measures that are most favorable to maximizing protection of the rights and interests of citizens, legal persons and other organizations.

 

Article 5. Administrative organs should make public to citizens, legal persons and other organizations the basis, processes and outcomes of their exercise of administrative power, except those involving state secrets or legally protected commercial secrets or the privacy of individuals. 

 

Article 6. Citizens, legal persons and other organizations have the right to participate in administrative management according to the law and to put forward opinions and recommendations on administrative management.Administrative organs should provide the necessary conditions for citizens, legal persons and other organizations to participate in administrative management, and accept their reasonable opinions and suggestions.

 

Article 7. When exercising administrative power, administrative organs should abide by the time limits established by the law, actively fulfill their legal obligations, enhance work efficiency, and provide quality services to citizens, legal persons and other organizations.

 

Article 8. Administrative organs may not revoke or revise administrative decisions that are in force because of reasons other than matters stipulated by the law, or without going through the legal procedures. If a decision has to be revoked or revised because of national interests, public interests or other matters stipulated by the law, it shall be done in accordance with the scope of authority and the procedures stipulated by the law, and compensation shall be made, in accordance with the law, for property losses suffered by citizens, legal persons or other organizations.

 

Article 9. People’s governments at the county level and above shall be responsible for the implementation of these Provisions in their respective administrative areas.The legislative affairs departments of the governments at the county level and above and the organs of in charge of legislative affairs for functional departments shall be responsible for the concrete work of implementing these Provisions.

The general offices and the departments of supervision, personnel, organization1 and finance shall do a good job of implementing these Provisions in accordance with their respective division of responsibilities.

 

Chapter II  Subjects of Administrative Procedures

 

Section 1. Administrative Organs

Article 10. Administrative organs referred to in these Provisions are people’s governments at different levels and their functional departments and the assigned organs of people’s governments at the county level and above.

 

Article 11. The authority and jurisdiction of administrative organs shall be established in accordance with the provisions of law, regulations and rules.

Administrative organs should establish a power structure and operating mechanism in accordance with the principle of having the decision-making power, executive power and supervision power mutually restrain and mutually coordinate with each other.

Higher-level administrative organs may, in accordance with the provisions of the Law of the People’s Republic of China on the Organization of Local People’s Congresses and People’s Governments at Different Levels and other relevant laws, regulations and rules, concretely determine the division of authority and jurisdiction among lower-level administrative organs.

People's governments at the county level and above may, in accordance with the provisions of the Law of the People’s Republic of China Law on the Organization of Local People’s Congresses and People’s Governments at Different Levels and other relevant laws, regulations and rules, concretely stipulate the mandate and authority of their subordinate functional departments and determine the division of jurisdiction among their subordinate functional departments.

 

Article 12. If the laws, regulations or rules have not provided in clear terms for the division of administrative power and duties between higher and lower level administrative organs, the higher-level administrative organs should decide the matter in accordance with the principle of being conducive to effective administration, better alignment of financial and administrative powers, and coordinating authority with responsibilities, and the principle of moving the center of gravity of administrative management downwards as appropriate.

Administrative matters that can be decided and handled by lower-level administrative organs independently should be left to lower-level administrative organs to decide and handle independently.

 

Article 13. If it is not provided for in clear terms by the laws, regulations or rules, jurisdiction shall be established in accordance with the following principles:

(1) A matter involving matters of identity of a citizen shall be under the jurisdiction of the administrative organ in the place where the citizen’s domicile is located. Where the domicile is different from his habitual residence, the matter shall be under the jurisdiction of the administrative organ in the place where the citizen’s habitual residence is located. When neither the domicile nor the habitual residence is clear, the matter shall be under the jurisdiction of the administrative organ in the place where the citizen last stayed;

(2) A matter concerning the qualification of a legal person or other organization to act shall be under the jurisdiction of the administrative organ in the place where the principal place of business or the principal office of the legal person or other organization is located;

(3) A matter involving real property shall be under the jurisdiction of the administrative organ in the place where the real property is located;and

(4) Administrative matters that are not listed in sub-paragraphs (1) to (3) shall be under the jurisdiction of administrative organs in the places where the matters take place.

 

Article 14. When a dispute over the authority or jurisdiction arises among administrative organs, it shall be resolved by the disputing parties through consultation. If the dispute cannot be resolved through consultation, it shall be handled in accordance with the following rules:

(1) When a dispute involves the delineation of authority, the organization management department that has jurisdiction over the matter shall raise an opinion for coordination and submit it to the people's government at the same level for its decision; and

(2) When a dispute involves the enforcement of the laws, regulations or rules, it shall be coordinated and handled by the legislative affairs department of the government that has jurisdiction. If it is a major issue that requires a decision by the government, the legislative affairs department of the government shall raise an opinion in accordance with the law and submit it to the people’s government at the same level for decision.

 

Article 15. For the sake of economic and social development and effectively carrying out administrative management, people’s governments at different levels may carry out cooperation among administrative areas in accordance with the principles of legality, equality, and mutual benefit.

Cooperation among administrative areas may be carried out by adopting such methods as signing cooperative agreements, establishing the system of joint conferences of heads of administrative areas, setting up specialized working groups, and promoting integration of the regional economy.

The higher-level people's government should strengthen the organization, guidance, coordination and supervision of cooperation among administrative areas by lower-level governments.

 

Article 16. When several government functional departments are involved in administrative management, a system of departmental joint conferences may be established with the principal department taking the lead and other relevant departments participating.

The system of departmental joint conferences should clearly identify the department taking the lead, the participating departments, their authority, the rules of operation, and other matters.

With respect to matters that are not successfully settled through consultation in departmental joint conferences, the department taking the lead shall clearly list the opinions, reasons and basis put forward by the relevant departments, come up with its own suggestions and submit them to the people’s government at the same level for a decision.

 

Article 17. An administrative organ should ask relevant administrative organs to offer assistance under any one of the following circumstances:

(1) When it is impossible to achieve the administrative targets by exercising administrative power single-handedly;

(2) When the administrative organ is not able by itself to investigate the facts and materials as needed to perform its duties;

(3) The documents, materials and information needed to perform its duties are controlled by other administrative organs and it is difficult for the administrative organ in question to collect them by itself; or

(4) Other circumstances under which it is necessary to ask for administrative assistance.

Administrative organs receiving such requests should fulfill their duties to provide assistance promptly, and may not procrastinate or refuse to help.

When it is unable to assist, an administrative organ should notify the requesting administrative organ in writing in a timely manner and explain the reasons for its inability to assist.

When a dispute arises over administrative assistance, the common superior administrative organ at the next higher level of the requesting organ and assisting organ shall make a decision.  

The assisting organ shall bear responsibility for implementing administrative assistance. The requesting organ shall bear responsibility for any administrative actions made pursuant to administrative assistance.

 

Article 18. When performing official duties, a staff member of an administrative organ should apply to be recused under any one of the following circumstances. If such staff member fails to apply to be recused, the administrative organ concerned should order him to withdraw. Citizens, legal persons or other organizations may also request recusal:

(1) When the staff member has a personal stake in the administrative matter;

(2) When the staff member’s spouse, direct blood relatives, collateral relatives within three generations or close relatives by marriage have a stake in the administrative matter;or

(3) Other circumstances that might influence the fair execution of his official duty.

The recusal of a staff member shall be decided by the principal responsible person of the administrative organ concerned or the responsible person of the administrative organ that is in charge of the matter.

The recusal of a principal responsible person of an administrative organ shall be decided by the people's government at the same level or the department-in-charge at the next higher level.

 

Section 2. Other Organizations That Exercise Administrative Power

Article 19. Other organizations that exercise administrative power include organizations authorized by the law or regulations, and organizations that are entrusted in accordance with the law.

The organizations authorized by the law or regulations shall make decisions in their own names within the authority authorized by the law, and bear responsibility for corresponding legal consequences.

When administrative power is exercised in the name of an administrative organ by an organization that is entrusted by that administrative organ in accordance with the law within the authority of the entrustment, the legal consequences arising therefrom shall be borne by the entrusting administrative organ.

When exercising administrative power externally, the internal units or assigned units of an administrative organ should make administrative decisions in the name of the administrative organ with which they are affiliated. The legal consequences arising therefrom shall be borne by that administrative organ, except when the law or regulations provide otherwise.

 

Article 20. When the law, regulations, or rules provide that administrative organs may entrust other organizations to exercise administrative power, the organizations to be entrusted should possess the qualifications for performing the relevant duties.

 

Article 21. The entrusting administrative organ should conclude an entrustment agreement in writing with the entrusted organization and file it for the record with the legislative affairs department of the people’s government at the same level.

 

Article 22. Entrusted organizations should accomplish the entrusted matters by themselves and may not re-entrust the matters to other organizations or individuals.

 

Section 3. Parties and Other Participants

Article 23. The parties referred to in these Provisions are citizens, legal persons or other organizations that have a legal interest in an administrative action and participate in administrative procedures in their own names. 

 

Article 24. Citizens, legal persons or other organizations that have a legal interest in the consequences of an administrative action are interested parties and administrative organs should notify them to take part in the administrative procedure.

 

Article 25. Parties with restricted competence may participate in administrative procedures that are appropriate for their age and intellectual competence. For other administrative procedures, they shall be represented by their legal agents stipulated by the law or shall seek the consent of their legal agents.

Persons with no competence shall be represented by their legal agents in administrative procedures.

Parties and interested persons may entrust one or two agents to participate in administrative procedures. When the laws, regulations and rules clearly stipulate that the parties and interested persons have to participate in the administrative procedures in person, they should participate in the administrative procedures in person.

 

Article 26. When the number of parties and interested persons is large and no common agent is entrusted, representatives should be selected to take part in administrative procedures.

The representatives shall take part in the administrative procedures on behalf of all parties and interested persons.

The selection, addition or reduction or replacement of the representatives should be reported to the administrative organs concerned in writing.

 

Article 27. The public, experts and consultant agencies shall take part in administrative procedures in accordance with these Provisions.

 

Article 28. Participants in administrative procedures shall enjoy in accordance with the law the right to know, the right to participate, the right of expression and the right to supervise.