Measures Of China Banking Regulatory Commission On Administrative Reconsideration

Original Language Title: 中国银行业监督管理委员会行政复议办法

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(December 28, 2004 Chinese Banking Regulatory Commission order 2004 published 8th February 1, 2005) first in order to prevent and correct unlawful or improper administrative action to protect banking institutions and other legitimate rights and interests of units and individuals, safeguards and the supervision of China Banking Regulatory Commission (hereinafter referred to as the CBRC) and its agencies shall exercise their powers under the People's Republic of China administration reconsideration law, the
    People's Republic of China Banking Regulatory Act and related laws, administrative regulations, and these measures are formulated.
    Second banking institutions, other entities and individuals believe that the CBRC or its Agency for violations of their legitimate rights and interests of a specific administrative act, apply to the administrative review to the administrative body for reconsideration, administrative reconsideration organs receive an application for administrative reconsideration, administrative reconsideration decision, these measures shall apply.
    Article III administrative reconsideration organs mentioned in these measures refers to, in accordance with the People's Republic of China administration reconsideration law and the way to discharge the responsibilities of administrative reconsideration organs, that is, the China Banking Regulatory Commission and China Banking Regulatory Commission.
    Fourth administrative reconsideration institutions to perform their duties of administrative reconsideration shall follow the principles of lawfulness, fair, open, timely, convenient, and any mistake shall be corrected, guarantee the correct implementation of laws, rules and regulations.
    Fifth, one of the following circumstances, banking institutions, other entities and individuals may apply for administrative reconsideration in accordance with these measures: (a) made to the regulator or its agency warnings, fines, confiscation of illegal proceeds, is ordered to suspend business or financial license revoked, not satisfied with the decision.
    (B) made to the regulator or its agency, cancellation of banking financial institution directors, senior management or a certain period of lifelong qualification does not accept the decision.
    (C) considered the CBRC or its agency specific administrative act violated their legitimate ownership.
    (D) considered the CBRC or its agency is not in accordance with the law of administrative licensing matters concerning his application.
    (E) considered the CBRC or its agency of other violations of the legitimate rights and interests of a specific administrative act.
    Article sixth of banking institutions, other entities and individuals believe that the CBRC or its agency of specific administrative act on the basis of the provisions of the financial regulation the following illegal, at the time of applying for administrative reconsideration of specific administrative acts, provisions can be made to the administrative reconsideration organ of the review application.
    Financial regulation is referred to in the preceding paragraph means the People's Republic of China legislative provisions of the law, the CBRC set, and signed by the Chairman of the China Banking Regulatory Commission ordered to be published normative documents financial regulation refers to the provisions of the CBRC and its local agencies to develop and publish other normative documents.
    Article seventh Banking Regulatory Commission governs the administrative reconsideration cases: (a) the specific administrative acts to the CBRC, may apply for administrative reconsideration cases; (b) the specific administrative acts to the banking Board, may apply for administrative reconsideration cases; (c) the regulator that should govern other administrative reconsideration cases.
    Article eighth of the CBRC specific administrative acts, may apply for administrative reconsideration cases by higher banking regulatory Bureau of the CBRC.
    Nineth CBRC, area equipped with the CBRC supervision Board reconsideration Committee.
    Tenth Administrative Review Committee by the administrative reconsideration organ in charge, composed of Heads of departments and the control and inspection authorities.
    Administrative reconsideration shall have a Director and a member of the Committee, Deputy Director, several Committee members, number of Administrative Review Committee should be singular.
    11th administrative reconsideration Committee shall perform the following duties: (a) administrative review decision on an application for administrative reconsideration law.
    (B) in accordance with the applicant's application for the review of the financial regulation the provisions of the following decisions.
    (C) in accordance with the specific administrative act of the respondent made pursuant to the provisions of decision.
    (D) Administrative Review Committee considers matters that shall be determined by the other.
    12th administrative reconsideration law departments to handle administrative reconsideration matters, carry out the following functions: (a) accept an application for administrative reconsideration.
    (B) evidence from relevant organizations and researchers, access to documents and information.
    (C) review the specific administrative act may apply for administrative reconsideration is legal and appropriate, develop an administrative reconsideration decision.
    (D) the processing or transfer the sixth review applications under these measures.
    (E) acts in violation of these rules of subordinate bodies in accordance with the limits of authority and procedures for disposal.
    (Vi) handle administrative reconsideration decision litigation litigation matters.
    (VII) administrative review of the Committee's work.
    (VIII) other duties stipulated by laws and administrative regulations.
    13th banking financial institutions, other entities and individuals believe that the CBRC or its Agency for violations of the legitimate rights and interests of a specific administrative act, can know within 60 days from the date of the specific administrative act in accordance with the People's Republic of China administration reconsideration law provisions of and the measures for administrative reconsideration applications; application deadline for more than 60 days unless prescribed by law.
    Delays due to force majeure or other just cause of statutory application period, barriers continue to run from the date of the application period.
    14th apply for administrative reconsideration in accordance with these measures of banking institutions, other entity or individual is an applicant.
    Banking institutions, other entities or individuals on the CBRC specific administrative acts or its agency may apply for administrative reconsideration, the specific administrative act of the CBRC or its agency is the respondent.
    And has an interest in applying for administrative reconsideration of specific administrative act of the units and individuals may participate as a third party administrative reconsideration.
    The applicant or the third party may entrust an agent to participate in the administrative reconsideration.
    15th article applicants written application administrative reconsideration of, should submitted administrative reconsideration applications, administrative reconsideration applications including following content: (a) applicants for units of, contains Ming name, and address, and statutory representative people or main head of name, and positions, provides license copies; applicants for personal of, contains Ming name, and gender, and age, and work units, and communications address, and phone, provides ID pieces copies.
    (B) the applicant's name and address.
    (C) specific requests for administrative review.
    (D) may apply for administrative reconsideration of major facts, reasons, and evidence.
    (E) the date of the application for reconsideration.
    (Vi) copies of the written decision of administrative penalty or other administrative decisions.
    16th banking financial institutions, other entities or individuals applying for administrative reconsideration, administrative review organ has been accepted, in the people's Court within the statutory period of administrative reconsideration shall not bring an administrative suit.
    Banking institutions, other institutions and individuals to court administrative proceedings, has been accepted by the peoples Court shall apply for administrative reconsideration.
    17th administrative body for reconsideration shall upon receipt of the application for administrative reconsideration should be reviewed in the 5th, does not comply with the provisions of administrative reconsideration decision inadmissible, inadmissibility decisions issued books, advise the applicant.
    An application for administrative reconsideration of any of the following circumstances, administrative reconsideration decision not to accept: (a) the reconsideration request within the statutory period, and no legitimate reasons for such further period.
    (B) no specific respondent.
    (C) no specific review requests and based on facts.
    (Iv) do not belong to the jurisdiction of the administrative body for reconsideration.
    Do not fall within the accepted an application for administrative reconsideration, it shall notify the applicant to submit to the administrative body for reconsideration.
    In addition to the above requirements, an application for administrative reconsideration since the administrative reconsideration organ Department in charge of Legal Affairs received date is accepted.
    18th administrative reconsideration organ to the applicant submitted an application for administrative reconsideration, inadmissible, without good reason, superior organ shall order the admissibility of administrative reconsideration organs when necessary, authorities of administrative reconsideration organs can also be accepted.
    Article 19th non-stopping enforcement during administrative review specific administrative act; but one of the following circumstances, you can stop the implementation of: (a) are deemed necessary to suspend.
    (B) the administrative body for reconsideration deems it necessary to suspend.
    (C) the applicant ceases to perform, the administrative reconsideration organ considers the request to be reasonable, decided to stop the execution.
    (D) suspension of execution of legal provisions.
    Article 20th written review of the approach to the principle of administrative reconsideration.
    Requested by the applicant or the law of administrative reconsideration organs deemed necessary, can contribute to the relevant organizations and personnel to investigate the situation, listen to the views of the applicant and the respondent and the third party. 21st in investigations, the administrative body for reconsideration shall, the investigator shall not be less than two.
    Investigation, shall produce proper identification. Surveys should be investigative records, and shall set forth the time, place and specific content.
    Investigative records by investigators, investigation units or stamp or signature, was rejected by the investigation unit or staff, the investigation personnel shall indicate the reason.
    22nd an administrative application for reconsideration, the person in charge and interest of the parties, should be avoided.
    23rd of administrative reconsideration organs shall keep secret and shall not review cases processed and the reconsideration of the Board's discussions leaked to the applicant, the respondent and other personnel.
    24th administrative reconsideration law departments shall, from the date of filing of administrative reconsideration within 7th administrative reconsideration cases reply notice, an application for administrative reconsideration copy or a copy of it sent to the applicant.
    Being the applicant shall reply administrative reconsideration cases received notice and the date of the application for administrative reconsideration within 10th administrative reconsideration defence and had to make a specific administrative act evidence, evidence and other relevant material.
    Administrative reconsideration of the written pleadings shall contain the following: (a) the applicant's name, address, name of the legal representative or principal responsible person, position.
    (B) the specific legal basis for administrative acts.
    (Iii) evidence of a specific administrative act.
    (D) the applicant deems the facts and other grounds of reply. (E) the date of reply.

    Administrative reconsideration of the written pleadings shall bear the seal of the applicant.
    The applicant or the third party may have access to the respondent's written responses, evidence, based on the specific administrative act, and other related materials, in addition to involving State secrets, business secrets or personal privacy, administrative reconsideration bodies may not refuse.
    25th in the administrative review process, the applicant may not themselves collect evidence from the applicant and other interested organizations or individuals.
    26th the administrative reconsideration decision is made, applicants to withdraw an application for administrative reconsideration, with justification, can be withdrawn withdrawn an application for administrative reconsideration, administrative review terminated. 27th article applicants in application administrative reconsideration Shi, together proposed on financial regulations following of provides review application of, administrative reconsideration organ on the provides right to processing of, should in accepted of day up 30th within law processing; has no right to processing of, should in accepted of day up 7th within according to statutory program transferred right to processing of administrative reconsideration organ law processing, right to processing of administrative reconsideration organ should in accepted of day up 60 days law processing.
    During processing, suspended the review of specific administrative acts. 28th administrative body for reconsideration shall be reviewed by specific administrative act undertaken by the applicant, that its illegal, the authorities competent to deal with, should be dealt with according to law on 30th; the right to treatment, should be in accordance with legal procedure in the 7th transferred power to handle administrative reconsideration organs according to law.
    During processing, suspended the review of specific administrative acts.
    29th administrative reconsideration law departments should conduct a review of specific administrative act of the respondent comments, subject to the review of the Committee through, administrative reconsideration decision made in accordance with the following provisions: (a) the specific administrative act, the facts are clearly ascertained, is conclusive, the application properly, procedure, as appropriate, decides to maintain.
    (B) the applicant fails to perform the statutory duties, ordered to perform within a certain time period.
    (C) the specific administrative act, one of the following circumstances, decided to withdraw, modify or confirm the specific administrative act illegal; decides to revoke or confirm the specific administrative act illegal, may enjoin the respondent new specific administrative act is made within a certain period: 1. the main facts are not clear and the evidence is insufficient.
    2. According to the error.
    3. the statutory procedures are violated.
    4. beyond or abuse.
    5. the specific administrative act clearly inappropriate.
    (D) is provided by these measures are not in accordance with the applicant's written reply, submitted to a specific administrative act, the basis of evidence and other relevant material, considered the specific administrative act, there is no evidence, based on, decided to revoke the administrative act.
    Administrative reconsideration orders the respondent conducted a specific administrative act, the respondent may, on the same facts and grounds and the original specific administrative act the same or essentially the same specific administrative act. Article 30th administrative body for reconsideration shall accept an application for administrative reconsideration within 60 days from the date of the administrative decision; but the law of administrative reconsideration is limited except for less than 60 days.
    Situation is complex, cannot make a reconsideration decision within the prescribed period, approved by the heads of administrative reconsideration organs, may be appropriately extended, and inform the applicant and the respondent but extend maximum period not later than 30th.
    31st of administrative reconsideration organs decisions of administrative reconsideration shall make a written decision of administrative reconsideration, administrative reconsideration decision shall indicate the following: (a) the applicants as the basis, containing the name, address, legal representative or Chief of name and position; the applicant is an individual, containing the name, address, gender, work.
    (B) the name and address of the applicant.
    (C) the applicant's request for reconsideration, the main facts and reasons may apply for administrative reconsideration.
    (D) the administrative reconsideration organ's findings of fact and reason.
    (V) the contents of the reconsideration decision.
    (F) remedies of the applicant against an administrative decision.
    (G) the date of the administrative decision.
    Written decision of administrative reconsideration should be stamped with the seal of the administrative body for reconsideration.
    Once the administrative reconsideration decision is served, shall come into legal effect.
    32nd the respondent shall perform the administrative reconsideration decision.
    Respondent fails to perform or unwarranted delay in the fulfilment of decisions of administrative reconsideration, administrative reconsideration organ shall order the deadline to fulfil.
    Article 33rd banking institutions, other units and individuals on the regulator's administrative review decision, May 15th from the date of receipt of the written decision of administrative review within the State Department for a ruling.
    The CBRC, the banking regulatory Bureau of the administrative review decision, may initiate administrative proceedings to the people's Court according to law.
    Article 34th late nor complies with the administrative reconsideration decision not to prosecute, or failure to perform a final decision of the State Council, separately in accordance with the following provisions: (a) to maintain a specific administrative act of an administrative reconsideration decision, made the specific administrative act of the CBRC or its agency, law enforcement, or the people's Court for compulsory execution.
    (B) the administrative reconsideration decision of changing a specific administrative act, enforced by the administrative reconsideration organ, or the people's Court for compulsory execution.
    35th article administrative reconsideration organ violation this approach provides, no due reason not accepted law proposed of administrative reconsideration application or in statutory term within not made administrative reconsideration decided of, on directly is responsible for of competent personnel and other directly responsibility personnel law give warning, and demerit, and remember than of administrative sanctions; by ordered accepted still not accepted or not according to provides transferred administrative reconsideration application, caused serious consequences of, law give downgraded, and dismissed, and fired of administrative sanctions.
    36th staff in the administrative reconsideration of administrative reconsideration organs, any of the following circumstances shall be given administrative sanctions of warning, demerit, demerit; the circumstances are serious, shall be subject to administrative sanctions of demotion, dismissal, discharge constitutes a crime, criminal responsibility shall be investigated according to law: (a) engages.
    (B) breach leaked cases of administrative review process and the review of the Committee's discussions.
    (C) other acts of malfeasance, dereliction.
    37th article was applicants violation this approach provides, not proposed written replies or not submitted on applicants made specific administrative behavior of evidence, and according to and other about material, or block, and disguised block applicants law application administrative reconsideration of, on directly is responsible for of competent personnel and other directly responsibility personnel law give warning, and demerit, and remember than of administrative sanctions; for revenge framed of, law give downgraded, and dismissed, and fired of administrative sanctions; constitute crime of, law held criminal.
    Article 38th respondent fails to perform or unwarranted delay in the fulfilment of administrative review decisions, directly in charge of personnel and other persons directly responsible shall be given administrative sanctions of warning, demerit, demerit; ordered to perform still refused to comply, the demotion, dismissal, discharge shall be given administrative sanctions.
    39th regulator's Legal Department found subordinate administrative reconsideration organs without good reason shall not accept an application for administrative reconsideration, not made in accordance with the prescribed administrative review decisions, favoritism, retaliating against or does not perform an administrative reconsideration decision by the applicant, should make recommendations to the departments and supervision departments shall, in accordance with these procedures and relevant laws, administrative laws and regulations to deal with.
    Calculated during the 40th of administrative reconsideration and administrative reconsideration service of instruments, in accordance with the People's Republic of China Law of civil procedure article 75th to 84th on time periods and service provisions.
    This approach during the administrative review of the "5th", "7th" rules refers to working days, excluding holidays.
    41st banking institutions in these measures refers to in the People's Republic of China China to set up commercial banks, urban credit cooperatives, rural credit cooperatives and other financial institutions that take deposits from the public as well as policy banks.
    People's Republic of China set up asset management companies, trust and investment companies, financial companies, financial leasing companies, as well as by the banking regulatory agency of the State Council approved the establishment of other financial institutions to the CBRC or its agency may apply for administrative reconsideration, application of this approach.
    42nd foreign-funded financial institutions, foreigners, stateless persons and other foreign organizations in the People's Republic of China territory to the CBRC or its agency may apply for administrative reconsideration, application of this approach.
    Article 43rd explain these measures by the CBRC.
                              44th these measures shall come into force on February 1, 2005.

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