The Supreme People's Court Provisions on Case Filing Procedures for Administrative Retrial Applications

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Title: The Supreme People's Court Provisions on Case Filing Procedures for Administrative Retrial Applications
Promulgating Entities:Supreme People's Court
Reference number: 法释[2017]18号
Promulgation Date: 2017-12-1
Expiration date: 
Source of text: http://www.chinacourt.org/law/detail/2017/12/id/149607.shtml

法释[2017]18号

(Adopted at the 1700th meeting of the adjudication committee of the Supreme People's Court on November 21, 2016; to take effect on January 1, 2018)

These Provisions are formulated on the basis of the "Administrative Litigation Law of the People's Republic of China" and other relevant provisions, together wth the actual conditions of trial work, so as to lawfully ensure parties rights to apply for a retrial and to regulate the people's courts' work in filing administrative retrial cases.

Article 1: Retrial applications shall meet to the following requirements:

(1) The retrial applicant is a party listed in an effective judgment document, or another citizen, legal person, or other organization with an interest in the administrative conduct who was not listed as a party in a judgment opinion for reasons for which they are not responsible.

(2) The people's court accepting the application for retrial is the people's court at the level above that which issued the effective judgement;

(3) the judgment for which a retrial is being applied is an effective judgment as provided for in article 90 of the Administrative Litigation Law;

(4) the matter for which a retrial is being applied is one provided for in article 91 of the Administrative Litigation Law;

Article 2: Where applications for retrial have any of the following situations, the people's courts shall not file the case:

(1) Where after an application for retrial was rejected, an application was again submitted;

(2) An application is submitted on a retrial judgment or ruling;

(3) Where after the people's procuratorate has put forward a procuratorial recommendation to not accept a party's application, or made a protest appeal decision, an application was again submitted;

In the circumstances provided in items (1) and (2) of the preceding paragraph, the people's court shall inform the parties that they may apply to the people's procuratorate for a procuratorial recommendation or a protest appeal.

Article 3: Where a person is retained to apply for retrial on one's behalf, the agent ad litem should be one of the following:

(1)lawyers or basic-level legal service workers;

(2)The close relatives or staff of the parties;

(3)Citizens recommended by the parties' community, workplace or social groups.

Article 4: Applications for retrial shall submit the following materials;

(1)A written application for retrial with copies in a number sufficient to be submitted to the subject of the application and other parties of the original judgment;

(2) Where the retrial applicant is a natural person, they shall submit a copy of their I.D.; where the retrial applicant is a legal person or other organization they shall submit copies of their business licenses, copies of their organization code certificate, and the I.D. of their legally-designated representative or principle responsible person; and where the legal person or other organization is unable to provide their organization code certificate, they shall provide an explanation of the situation;

(3) Where others have been retained to make a retrial application, they shall provide proof of authorization for the retention and the I.D. of the representative;

(4) The original judgment document, written ruling, or a copy of the original verified as having no errors;

(5) Other materials that laws or regulations provide must be submitted.

Article 5: Parties applying for retrial should also generally submit the following materials:

(1)Copies of the complaint from the first-instance trial, and the second-instance trial appeal;

(2) The main evidence materials submitted during the course of the original litigation;

(3) Evidence materials supporting the subject matter of the application for retrial and the retrial demands;

(4) Evidence materials on the administrative organs taking relevant administrative action;

(5) Evidence materials on their having submitted applications to the administrative organs, but for which the administrative organ did not take action;

(6) Other materials that need to be submitted on the basis of case circumstances.

Article 6: When the retrial applicant submits the written application for retrial and other materials, they shall sign a service address confirmation document and may attach electronic documents of other materials.

Article 7: The retrial application shall indicate the following matters:

(1) The basic circumstances of the retrial applicant, the person subject to the application, and other parties. Where the parties are natural persons, their names, sex, birthdate, ethnicity, residential address and valid phone number and address for correspondence should be listed; where the parties are legal persons or other organizations, their names, domicile, and the name, occupation, and effective telephone number and address for correspondence of their legally-designated representative or principle responsible person;

(2) The name of the original people's court, and the case number of the original judgment, ruling, or settlement document;

(3) Specific demands on retrial;

(4) The specific legally-prescribed subject matter for the retrial application, as well as the facts and grounds;

(5) The name of the people's court accepting the application for retrial;

(6) The name, fingerprint or seal of the retrial applicant;

(7) The date on which the written retrial application was delivered.

Article 8: Where the written retrial application and other materials submitted by the retrial applicant meet the requirements described above, the people's court shall issue a "List of Received Litigation Materials", noting the date on which the materials were received and affixing a special seal for receipt of materials. The "List of Received Litigation Materials" is to have two identical copies, one to be included in the case file by the people's court, the other to be stored with the retrial applicant.

Article 9: Where the application submitted by the retrial applicant does not comply with this provision, the people's court shall inform the retrial applicant on the spot.

Where the written retrial application and other materials submitted by the retrial applicant do not meet the requirements, the people's court shall return the materials to the retrial applicant and fully inform them a single time to supplement and correct the materials within a reasonable designated time period. Where the retrial applicant does not supplement and correct the materials within the designated time, but still persists in applying for retrial, the people's court shall rule to reject their retrial application.

The people's courts must not find that the materials provided by retrial applicants do not meet the requirements because they did not provide the materials provided for in article 5 of these Provisions.

Article 10: People's courts shall promptly file a case for retrial applications that meet the requirements above, should send an acceptance notice to the retrial applicant within five days of receiving the compliant written retrial application and other materials, and concurrently send a notification to respond to the lawsuit, a copy of the retrial application, and a confirmation of delivery address to the subject of the application and the other parties to the original litigation.

Where, due to reasons such as incomplete addresses, the notice of receipt, notice to respond, copy of the retrial application, or other such materials are not served on the parties, it does not impact the review of the case.

The subject of the application may submit written response comments to the people's court within 15 days of having received a copy of the written retrial application, but where the subject of the application does not submit written response comments, it does not impact the people's court's review.

Article 11: Where a retrial applicant applies for retrial to the original people's court or to a court several levels above, the original people's court or the relevant higher level people's court shall inform them to submit it to the people's court at the level above that which made the effective judgment.

Article 12: Parties applying for retrial shall submit the application within six months of the judgment, ruling, or mediation document takes legal effect.

The period for applying for retrial begins from the date on which the people's court delivers the judgment document through to the date when the retrial applicant applies for retrial to the people's court at the level above.

The period for applying for retrial is unchangeable and provisions on discontinuations, suspensions, and extentions are not applied.

Where the retrial applicant applies for retrial of a judgment, ruling, or mediation document that took effect before the 2015/5/1 Administrative Litigation Law was implemented, the people's court is to follow the 2 year period for retrial applications determined in article 73 of the "Supreme People's Court Interpretation on Several Issues on the Implementation of the 'People's Republic of China Administrative Litigation Law', except where the period was not completed by 2015/10/31 it is found to be 2015/10/31.

Article 13: Where the people's courts find that a retrial application has not complied with the legally-prescribed time periods for retrial applications, they shall inform the retrial applicant.

Where the retrial applicant feels that they have not exceeded the legally-prescribed time period, the people's court may request that they submit a copy of the effective judgments delivery receipt, or other evidence materials that can show the actual date on which the judgment document took effect, within 10 days. Where the retrial applicant refuses to submit the above evidence materials or does not provide them within the proper time, or where the evidence materials provided are insufficient to prove that the application for retrial was timely, the people's court is to rule to reject the retrial application.

Article 14: Where the retrial applicant applies to withdraw their application for retrial, and the case has not yet been filed, the people's court is to return the materials that have already been submitted and note this in the registry; where the case has already been filed, the people's court is to rule on whether or not to permit the withdrawal of the application. Where after the people's court permits the withdrawal of the retrial application or handles the application to withdraw the retrial application, the applicant again applies for a retrial, the people's court is not to file the case, except that where there are circumstances such as those provided for in in items (2),(3), (7) or (8) of Article 91 of the Administrative Litigation Law, and the application is submitted with six months of when they knew or should have known.

Article 15: These Provisions shall come into force on January 1, 2018, and where relevant provisions previously released by the Supreme People's Court are not in accord with these Provisions, implementation is to be in accordance with these Provisions.

 

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