People's Procuratorate Rules For Supervision of Administration Litigation (Provisional)

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People's Procuratorate Rules For Supervision of Administration Litigation (Provisional)

(Passed by the 49th Meeting of the 12th Procuratorial Committee of the Supreme People's Procuratorate on March 22, 2016)

The Supreme People's Procuratorate of the People's Republic of China

Notice

The People's Procuratorate Rules For Supervision of Administration Litigation (Provisional), having been passed by the 49th Meeting of the 12th Procuratorial Committee of the Supreme People's Procuratorate on March 22, 2016, is hereby released to take effect the same day.

Supreme People's Procuratorate

April 15, 2016

 

Chapter I: General Provisions

Chapter II: Acceptance

Chapter III: Review

Chapter IV: Supervision of Effective Judgments, Rulings, and Mediation Certificates

Section 1: Ordinary Provisions

Section 2: Procuratorate suggestions for retrial, requesting protest appeals, protest appeals

Chapter V: Supervision of Illegal Activity by Adjudicators During Trial Procedures and Supervision of Enforcement Activities

Chapter VI: Other Provisions

Chapter VII: Supplementary Provisions

 

Chapter I: General Provisions

Article 1:These Rules are drafted on the basis of the Administrative Litigation Law Procedure Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China, the People's Procuratorate Organizational Law of the People's Republic of China and other relevant provisions combined with actual procurator work experience; so as to ensure and regulate people's procuratorates performance of supervision duties over administrative lawsuits.

Article 2:Through cases supervising administrative litigation, the people's procuratorate supervises the people's courts' lawful trial and enforcement, promotes administrative organs' lawful performance of their duties, preserves judicial fairness and judicial authority, preserves the national interest and the social public interest, protects the lawful rights and interests of citizens, legal persons, and other organizations, and ensure the uniform and correct application of the nation's laws.

Article 3:People's procuratorates exercise legal supervision over administrative lawsuits through protest appeals, procuratorate suggestions and other such methods.

Article 4: People's procuratorates conducting supervision of administration litigation shall have the facts as their basis and the law their measure; shall persist in openness, fairness, and justice; and shall persist in lawfully reviewing and supervising and supporting the people's courts and administrative organs in the lawful performance of their duties.

Chapter II: Acceptance

Article 5: In any of the following circumstances, parties may apply to the people's procuratorate for supervision:

(1) people's courts reject an application for retrial of an effective judgment, ruling, or mediation document, or exceed time limits for making a ruling on an application for retrial;

(2) It is found that a judgment or ruling is truly in error;

(3) It is found that adjudicators exhibitted illegal conduct during trial procedures;

(4) It is found that there are illegal situations in a people's courts' enforcement activities.

Article 6: Parties following article 5(1),(2) of these rules to apply for supervision from the people's procuratorates shall apply within 6 months from the date of the people's court ruling to reject the application for retrial or the date on which the retrial judgment or ruling takes effect; where the people's court exceed the time limits for making a ruling on a application for retrial, the application shall be within 6 months of the date on which the period for reviewing a an application for retrial is completed.

Where parties request supervision for any of the following reasons, they shall submit it within 6 months of the day on which they became aware or should have become aware:

(1) There is new evidence sufficient to overturn a retrial judgment or ruling;

(2) The principle evidence on which the retrial judgment or ruling was determined was fabricated;

(3) The legal documents on which the retrial judgment or ruling was based have been revoked or modified;

(4) While hearing the case, adjudicators were corrupt or took bribes, used acted for personal gain, or abused the law in a capricious and arbitrary manner.

Parties following article 5(3),(4) of these Rules to apply for supervision from the people's procuratorate shall submit the application within 6 months of the date on which they become aware of or should have become aware of an adjudicator's illegal conduct unlawful circumstances in enforcement.

The time period in this provision is unchangeable and provisions on discontinuations, suspensions, and extentions are not applied.

Article 7: In any of the following circumstances, where parties apply to the people's procuratorate for supervision, the people's procuratorate will not accept it:

(1) Parties did not apply to the people's court for a retrial or have exceeded the legally prescribed time period to apply for a retrial, regarding an effective judgment or ruling;

(2) A people's court is currently conducting a review of an application for retrial, except where, with out legitimate cause, it has already exceeded 3 months without making a ruling on the application for retrial;

(3) The people's courts have already ruled for a retrial but not yet concluded trial;

(3) The people's courts have already ruled for a retrial but not yet concluded trial;

(5) The judgment, ruling, or mediation document was made by a people's court after retrial based on a people's procuratorate's protest appeal or procuratorial suggestion for retrial;

(6) The application for supervision exceeds the time period provided for in article 6 of these Rules;

(7) After parties submit objections to enforcement, applications for reconsideration, appeals, or raise lawsuits, the people's courts have already accepted and are currently reviewing and handling, except where the legally prescribed period has already been exceeded without making a disposition;

(8) Other circumstances where it should not be accepted.

Article 8:  当事人对已经发生法律效力的行政判决、裁定、调解书向人民检察院申请监督的,由作出生效判决、裁定、调解书的人民法院所在地同级人民检察院控告检察部门受理。

当事人认为审判程序中审判人员存在违法行为或者执行活动存在违法情形,向人民检察院申请监督的,由审理、执行案件的人民法院所在地同级人民检察院控告检察部门受理。

Where the people's procuratorate of the same level does not accept it, parties may apply for supervision to the people's procuratorate at the level above.

Article 9: In administrative litigation cases having any of the following circumstances, the people's procuratorates shall conduct supervision in accordance with their duties:

(1) it harms national interests or societal public interest;

(2) adjudication or enforcement personnel exhibit illegal conduct such as corruption or taking bribes, acting for personal gain, or abusing the law in a capricious and arbitrary manner;

(3) others where it is truly necessary to conduct supervision.

Chapter III: Review

Article 10: People's procuratorates' administrative investigation departments are responsible for conducting review of administrative litigation supervision cases after they are accepted.

Article 11: People's procuratorates shall make one of the following distinct decisions based on different circumstances in a cases concluding review:

(1) procuratorial suggestion for a retrial;

(2) Request a protest appeal;

(3) protest appeal;

(4) procuratorial suggestion;

(5) not sustaining a request for supervision;

(6) concluding review.

Article 12: People's procuratorates accepting cases of parties applying for supervision shall conclude review and make a decisions within three months, but time for the transfer of files, evaluations, appraisals and audits are not included in the review time. Where there are special circumstances requiring an extension, the chief procurator for that procuratorate gives approval.

Article 13: In any of the following situations people's procuratorates may investigate and verify relevant circumstances from parties or persons not involved in the case as necessary to perform their duties of legal supervision or to submit procuratorial suggestions or protest appeals.

(1) Judgments, rulings, and mediation documents might have circumstances that require supervision, and it is difficult to determine through reading the case file and reviewing materials already in hand;

(2) adjudicators might have illegal conduct;

(3) illegal circumstances might exsit in people's courts enforcement activities;

(4) Other situations requiring investigation to verify facts.

People's procuratorates must not collect evidence for the purpose of proving the legality of an administrative act. that was not gathered at the time the administrative act was taken.

Where people's procuratorate have difficulty determining facts through reading the case file and investigation, they may learn about relevant situations from adjudicators and enforcement personnel, and hear their opinions.

Chapter IV: Supervision of Effective Judgments, Rulings, and Mediation Certificates

Section 1: Ordinary Provisions

Article 14:  申请监督人提供的新的证据,能够证明原判决、裁定认定基本事实或者裁判结果错误的,应当认定为《中华人民共和国行政诉讼法》第九十一条第二项规定的情形,但原审被告无正当理由逾期提供证据的除外。

Article 15:  有下列情形之一的,应当认定为《中华人民共和国行政诉讼法》第九十一条第三项规定的“认定事实的主要证据不足”:

(一)认定的事实没有证据支持,或者认定的事实所依据的证据虚假、缺乏证明力的;

(二)认定的事实所依据的证据不合法的;

(三)认定事实的主要证据不足的其他情形。

Article 16: In any of the following situations, it shall be found that "the application laws or regulations was truly in error" as provided for in article 91(4) of the "People's Republic of China Administrative Litigation Law":

(1) the application of laws and regulations clearly does not match the character of the case;

(2) The laws or regulations applied are already out effect, or have not taken effect;

(3) violates the rules for application of the law;

(4) violates the rule of retroactive effect;

(5) the application of laws and regulations clearly contradicts the original legislative intent;

(6) The laws or regulations that should be applied were not applied;

(7) Other circumstances where the application of laws and regulations was in error.

Article 17: In any of the following situations, it shall be found that there are ""violations of legally prescribed litigation procedures that might affect fair trial" as provided for in article 91(5) of the "People's Republic of China Administrative Litigation Law":

(1) the composition of the trial organization was unlawful ;

(2) An adjudicator who should be recused in accordance with law was not recused;

(三)未经合法传唤缺席判决的;

(四)无诉讼行为能力人未经法定代理人代为诉讼的;

(五)遗漏应当参加诉讼的当事人的;

(六)违反法律规定,剥夺当事人辩论权、上诉权等重大诉讼权利的;

(七)其他严重违反法定程序的情形。

Section 2: Procuratorate suggestions for retrial, requesting protest appeals, protest appeals

Article 18: Where local people’s procuratorates at any level find any of the following circumstances in a judgment or ruling of the people’s courts at the same level that has already become legally effective, they may make procuratorial suggestions for retrial to the people’s courts at the same level :

(1) where not filing or rejecting the lawsuit was in error;

(2) where there is new evidence sufficient to overturn the original judgment or ruling;

(3) where the principal evidence for ascertaining facts in the original judgment or ruling was insufficient, was not debated in court or was fabricated;

(4) Where violations of statutory litigation procedures might influence the fairness of the judgment;

(5) Where the original judgement or ruling omitted litigation claims;

(6) Where the legal document based on which the original judgment or ruling was made has been repealed or changed.

Article 19: Where a case that satisfies the provisions of Article 18 of these Rules has one of the following circumstances, local people's procuratorates at all levels shall request the procuratorate at the level above make a protest appeal:

(1) Where the judgment or ruling was made by the people's courts at the same level after a retrial;

(2) Where the judgment or ruling was made by the adjudication committee of a people's court at the same level;

(3) Other matters that are not suitable for the people's courts at the same level to rectify with retrials.

Article 20: Where local people’s procuratorates at any level find any of the following circumstances in a judgment or ruling of the people’s courts at the same level that has already become legally effective, they shall request the procuratorate at the level above make a protest appeal:

(1) where the application of laws and regulations in the original judgment or ruling was truly in error;

(2) While hearing the case, adjudicators were corrupt or took bribes, acted for personal gain, or abused the law in a capricious and arbitrary manner.

Article 21: Where a local people's procuratorate at any level discovers that a legally effective mediation document from a people's court at the same level would endanger national or public interests, the procuratorate may submit procuratorate suggestion for retrial to the people's court at that level and may also make a request to the people's procuratorate at the level above to lodge a protest appeal.

Article 22: Where the Supreme People's Procuratorate finds any of the circumstances stipulated by Article 91 and 93 of the PRC Civil Procedure Law in a judgement, ruling, or mediation certificate of the people's courts at any level that has already become legally effective, or where an upper level people's procurate finds [the same] in a judgement, ruling, or mediation certificate of a lower level people's court that has already become legally effective, they shall file protest appeals in the people's courts at same level.

Article 23:  人民检察院提出再审检察建议,应当制作《再审检察建议书》,在决定之日起十五日内将《再审检察建议书》连同案件卷宗移送同级人民法院,并制作决定提出再审检察建议的《通知书》,发送当事人。 人民检察院提出再审检察建议,应当经检察委员会决定,并将《再审检察建议书》报上一级人民检察院备案。

人民检察院依照前款规定提出再审检察建议的,人民法院根据《最高人民法院、最高人民检察院关于对民事审判活动与行政诉讼实行法律监督的若干意见(试行)》等规定审查回复。

Article 24:  人民检察院提请抗诉,应当制作《提请抗诉报告书》,在决定之日起十五日内将《提请抗诉报告书》连同案件卷宗等材料报送上一级人民检察院,并制作决定提请抗诉的《通知书》,发送当事人。

Article 25:  人民检察院提出抗诉,应当制作《抗诉书》,在决定之日起十五日内将《抗诉书》连同案件卷宗移送同级人民法院,并制作决定抗诉的《通知书》,发送当事人。

Article 26:  人民检察院提出抗诉的案件,人民法院再审时,人民检察院应当派员出席法庭。

Article 27:  人民检察院认为当事人的监督申请不符合监督条件,应当制作《不支持监督申请决定书》,在决定之日起十五日内发送当事人。

下级人民检察院提请抗诉的案件,上级人民检察院可以委托提请抗诉的人民检察院将《不支持监督申请决定书》发送当事人。

Chapter V: Supervision of Illegal Activity by Adjudicators During Trial Procedures and Supervision of Enforcement Activities

Article 28: Where people’s procuratorates discover that people's courts have any of the following circumstances in adjudication activities, they shall make procuratorial suggestions for retrial to the people’s courts at the same level:

(一)判决、裁定确有错误,但不适用再审程序纠正的;

(二)调解违反自愿原则或者调解协议内容违反法律的;

(三)当事人依照《中华人民共和国行政诉讼法》第五十二条规定向上一级人民法院起诉,上一级人民法院未按该规定处理的;

(四)审理案件适用审判程序错误的;

(五)保全、先予执行、停止执行或者不停止执行行政行为违反法律规定的;

(六)诉讼中止或者诉讼终结违反法律规定的;

(七)违反法定审理期限的;

(八)对当事人采取罚款、拘留等妨害行政诉讼的强制措施违反法律规定的;

(九)违反法律规定送达的;

(10) Adjudicators accepted gifts or hospitality from parties or their agents, or met with parties or their agents in violation of rules.

(十一)审判人员实施或者指使、支持、授意他人实施妨害行政诉讼行为,尚未构成犯罪的;

(十二)其他违反法律规定的情形。

Article 29: Where people’s procuratorates discover that people's court have any of the following circumstances in the enforcement judgements or rulings of people's courts, they shall make procuratorial suggestions for retrial to the people’s courts at the same level:

(一)提级管辖、指定管辖或者对管辖异议的裁定违反法律规定的;

(二)裁定受理、不予受理、中止执行、终结执行、恢复执行、执行回转等违反法律规定的;

(三)变更、追加执行主体错误的;

(四)裁定采取财产调查、控制、处置等措施违反法律规定的;

(五)审查执行异议、复议以及案外人异议作出的裁定违反法律规定的;

(六)决定罚款、拘留、暂缓执行等事项违反法律规定的;

(七)执行裁定、决定等违反法定程序的;

(八)对行政机关申请强制执行的行政行为作出准予执行或者不准予执行的裁定违反法律规定的;

(九)执行裁定、决定等有其他违法情形的。

Article 30:  人民检察院发现人民法院在执行活动中违反规定采取调查、查封、扣押、冻结、评估、拍卖、变卖、保管、发还财产等执行实施措施的,应当向同级人民法院提出检察建议。

Article 31:  人民检察院发现人民法院有下列不履行或者怠于履行执行职责情形之一的,应当向同级人民法院提出检察建议:

(一)对依法应当受理的执行申请不予受理又不依法作出不予受理裁定的;

(二)对已经受理的执行案件不依法作出执行裁定、无正当理由未在法定期限内采取执行措施或者执行结案的;

(三)违法不受理执行异议、复议或者受理后逾期未作出裁定、决定的;

(四)暂缓执行、停止执行、中止执行的原因消失后,不按规定恢复执行的;

(五)依法应当变更或者解除执行措施而不变更、解除的;

(六)有其他不履行或者怠于履行执行职责行为的。

Article 32:  人民检察院根据本规则第二十八条、第二十九条、第三十条、第三十一条提出检察建议,应当制作《检察建议书》,在决定之日起十五日内将《检察建议书》连同案件卷宗移送同级人民法院。 当事人申请监督的案件,人民检察院应当制作决定提出检察建议的《通知书》,发送申请人。 人民检察院对行政执行活动提出检察建议,应当经检察委员会决定。

人民检察院依照前款规定提出检察建议的,人民法院根据《最高人民法院、最高人民检察院关于对民事审判活动与行政诉讼实行法律监督的若干意见(试行)》等规定审查回复。

Chapter VI: Other Provisions

Article 33:  人民法院对人民检察院监督行为提出书面建议的,人民检察院应当在一个月内将处理结果书面回复人民法院。 人民法院对回复意见有异议,并通过上一级人民法院向上一级人民检察院提出,上一级人民检察院认为建议正确的,应当要求下级人民检察院及时纠正。

Article 34:  人民检察院办理行政诉讼监督案件,发现行政机关有违反法律规定、可能影响人民法院公正审理的行为,可以向行政机关提出检察建议,并将相关情况告知人民法院。

Article 35:  人民检察院行政检察部门在履行职责过程中,发现违法违纪或者涉嫌犯罪线索,应当及时将相关材料移送有关职能部门。

人民检察院相关职能部门在办案工作中发现人民法院行政审判人员、执行人员有贪污受贿、徇私舞弊、枉法裁判等违法行为,可能导致原判决、裁定错误的,应当及时将相关材料移送行政检察部门。

Chapter VII: Supplementary Provisions

Article 36: Where there are no provisions in these rules for the people's procuratorates' handling of an administrative litigation supervision case, apply the relevant provisions of the "the people's procuratorate Rules for Supervision of Civil Litigation (provisional)"

Article 37: These provisions become effective on the date of publication. Where Rules previously released by this Procuratorate on the supervision of administrative litigation are not in accord with these Rules, these Rules are controlling.

 

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